Opinion
NO. 33,157
03-10-2015
STATE OF NEW MEXICO, Plaintiff-Appellant, v. TROY TOHSONIE, Defendant-Appellee.
Hector H, Balderas, Attorney General Margaret E. McLean, Assistant Attorney General Santa Fe, NM for Appellant Jorge A. Alvarado, Chief Public Defender Sergio Viscoli, Assistant Appellate Defender Santa Fe, NM for Appellee
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A. Dean Jr., District Judge
Hector H, Balderas, Attorney General
Margaret E. McLean, Assistant Attorney General
Santa Fe, NM
for Appellant Jorge A. Alvarado, Chief Public Defender
Sergio Viscoli, Assistant Appellate Defender
Santa Fe, NM
for Appellee
MEMORANDUM OPINION
VIGIL, Judge. {1} The State appeals from the district court's order granting Defendant's motion to dismiss the charge of commercial burglary. [RP 53] Our notice proposed to affirm, relying on our recently decided opinion State v. Archuleta, ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014) (holding that "violating an order of no trespass by entering an otherwise open public shopping area with the intent to commit a theft does not constitute the type of harmful entry required for a violation of the burglary statute"), cert. granted, 2015-NMCERT-___ (No. 35,005, Jan. 26, 2015). The State has filed a response, objecting to our notice and requesting that we hold this appeal in abeyance or provide the State with a reasonable opportunity to seek guidance from the New Mexico Supreme Court on all pending appeals controlled by our opinion in Archuleta. [Ct.App.File, red clip] We have provided the State with such an opportunity, and the Supreme Court has denied the State a stay or other remedy that would suspend the precedential value of Archuleta. Thus, we apply Archuleta. See Rule 12-405(C) NMRA ("A petition for writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme Court order granting the petition does not affect the precedential value of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme Court."). {2} In its response to our notice, the State objects to our proposed disposition, but indicates that it "is unable to provide any additional facts or other legal argument in response to the proposed disposition." [response, red clip/2-3] Because there are no material factual distinctions to remove this case from the control of our opinion in Archuleta, we affirm the district court's order granting Defendant's motion to dismiss the commercial burglary charge. {3} IT IS SO ORDERED.
/s/_________
MICHAEL E. VIGIL, Chief Judge
WE CONCUR:
/s/_________
MICHAEL D. BUSTAMANTE, Judge
/s/_________
JONATHAN B. SUTIN, Judge