A. Breaking and entering consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where entry is obtained by fraud or deception, or by the breaking or dismantling of any part of the vehicle, watercraft, aircraft, dwelling or other structure, or by the breaking or dismantling of any device used to secure the vehicle, watercraft, aircraft, dwelling or other structure.

B. Whoever commits breaking and entering is guilty of a fourth degree felony.

History: Laws 1981, ch. 34, § 2.

Sufficient evidence. — Where defendant attempted to force entry into an apartment through the front door; the occupants of the apartment struggled to hold the door closed; and defendant pushed the occupants back into the apartment about a foot and stepped into the apartment, there was sufficient evidence to support defendant's conviction of breaking and entering. State v. Sorrelhorse, 2011-NMCA-095, 150 N.M. 536, 263 P.3d 313, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Sufficient evidence of "unauthorized entry". — An "entry", for purposes of the breaking and entering statute, occurs whenever there is an invasion into an enclosed, private, prohibited space. To determine the boundaries of enclosures, the proper question is whether the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusions. State v. Holt, 2016-NMSC-011, aff'g 2015-NMCA-073, 352 P.3d 702.

Where the evidence established that defendant placed his fingers behind a window screen affixed to a residential dwelling and beyond the boundary created by the window screen, defendant's actions constituted an intrusion into an enclosed, private, prohibited space and constituted an "entry" for the purposes of New Mexico's breaking and entering statute. There was sufficient evidence to support defendant's conviction for breaking and entering. State v. Holt, 2016-NMSC-011, aff'g 2015-NMCA-073, 352 P.3d 702.

Sufficient evidence of breaking and entering. — Where defendant was charged with first-degree murder in the shooting death of two victims, tampering with evidence and breaking and entering, there was sufficient evidence to support his conviction for breaking and entering where the state presented a witness who testified that she saw defendant break a car window and rummage around inside the car, and where defendant acknowledged breaking into a vehicle, but claimed he entered the vehicle to retrieve his own property from the vehicle. It is immaterial that defendant was breaking in to retrieve his own property, because New Mexico's breaking and entering statute requires no intent to commit a crime upon entering, only the breaking and entering need be shown. State v. Carrillo, 2017-NMSC-023.

Intrusion into the space between a window screen and window is sufficient to warrant a finding of an unauthorized entry for the purposes of the breaking and entering statute. — Where defendant attempted to force entry into a home through a window by removing the window screen from its track, and while holding the screen, defendant's fingers penetrated the area between the window and the screen, there was sufficient evidence to support defendant's conviction of breaking and entering because the window screen was part of the enclosure around the home, and a reasonable person would expect the window screen to afford some protection from unauthorized intrusions. State v. Holt, 2015-NMCA-073, cert. granted, 2015-NMCERT-006.

Criminal damage to property was a lesser included offense of breaking and entering. — Where defendant attempted to force entry into an apartment through the front door; the occupants of the apartment struggled to hold the door closed; defendant pushed the occupants back into the apartment about a foot and stepped into the apartment; while one occupant of the apartment attempted to call 911, defendant walked away; and when the other occupant opened the door to see which way defendant had gone, defendant returned and began kicking the door, defendant's initial act of trying to force open the door of the apartment and then returning minutes later to kick the door was unitary conduct and defendant's conviction of criminal damage to property, which was a lesser included offense of defendant's conviction of breaking and entering, violated defendant's right to be free from double jeopardy. State v. Sorrelhorse, 2011-NMCA-095, 150 N.M. 536, 263 P.3d 313, cert. denied, 2011-NMCERT-008, 268 P.3d 513.

Not lesser included offense of aggravated burglary. — Breaking and entering is not a lesser included offense of aggravated burglary because each offense requires an element not included in the other and, by convicting defendant of breaking and entering when he only had notice of an aggravated burglary, the trial court violated his right to notice of the charges against him. State v. Hernandez, 1999-NMCA-105, 127 N.M. 769, 987 P.2d 1156, cert. denied, 128 N.M. 149, 990 P.2d 823.

Criminal trespass not a lesser included offense of breaking and entering. — Trial court did not err in refusing to give lesser included-offense instructions on criminal trespass and breaking and entering. State v. Andrade, 1998-NMCA-031, 124 N.M. 690, 954 P.2d 755, cert. denied, 124 N.M. 589, 953 P.2d 1087.

Mistake of fact instruction. — Where defendant was charged with breaking and entering a motel room and the evidence showed that defendant checked into the motel and was assigned room 125, subsequently defendant, who was very intoxicated, was discovered in room 121, in the bathroom, the key card for room 125 was on the ground outside near room 121, and the key card did not have a room number on it, defendant was entitled to an instruction on the defense of mistake of fact. State v. Contreras, 2007-NMSC-119, 142 N.M. 518, 167 P.3d 966.

Instructions. — Even though Subsection A of this section uses the phrase "unauthorized entry," while UJI 14-1410 uses the phrase "without permission," this variation from the strict language of the statute does not, by itself, make the instruction improper. State v. Rubio, 1999-NMCA-018, 126 N.M. 579, 973 P.2d 256.

Trial court's failure to instruct the jury on an "unauthorized entry" rather than an "entry without permission" was not reversible error where the evidence overwhelmingly supported the conclusion that defendant did not have blanket authority to enter the apartment, or that whatever authority he may have had was freely revocable by the renter. State v. Rubio, 1999-NMCA-018, 126 N.M. 579, 973 P.2d 256.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Burglary, breaking, or entering of motor vehicle, 72 A.L.R.4th 710.