STATE V. MUQQDDIN, 2010-NMCA-069, 148
N.M. 845, 242 P.3d 412
CASE HISTORY ALERT: affected by
2012-NMSC-029
STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
ABDUL MUQQDDIN, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2010-NMCA-069, 148 N.M. 845, 242 P.3d 412
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Carl
J. Butkus, District Judge.
Certiorari Granted, August 2, 2010, No.
32,430. Released for Publication August 24, 2010.
Gary K. King, Attorney General, Farhan
Khan, Assistant Attorney General, Santa Fe, NM, for Appellee.
Hugh W. Dangler, Chief Public Defender,
Adrianne R. Turner, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
RODERICK T. KENNEDY, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge, TIMOTHY L. GARCIA, Judge.
AUTHOR: RODERICK T. KENNEDY.
{1} Abdul Muqqddin
(Defendant) used a nail to penetrate the gas tank of a van parked in a dark
alley without the permission of the owner. After piercing the tank, Defendant
positioned a container below the hole so as to catch the fuel as it drained
from the van. The van was in extremely bad condition and had been parked in the
alley for as many as six months, though it had not been abandoned. Defendant appeals
his convictions for auto burglary under NMSA 1978, Section
30-16-3 (1971),
criminal damage to property under NMSA 1978, Section
30-15-1 (1963), and
larceny under NMSA 1978, Section
30-16-1 (1987) (amended 2006). Defendant
argues that penetrating a gas tank with a nail is insufficient to constitute an
entry under the burglary statute, and because he believed the van to be
abandoned, he lacked the requisite intent to commit the crimes of burglary,
criminal damage, and larceny. As a result, Defendant claims, his convictions
are unsupported by substantial evidence. We hold that entry, under Section
30-16-3, is complete when a defendant penetrates a gas tank with a nail. We
also hold that substantial evidence supports Defendant’s convictions. We
affirm.
{2} Neither party
disputes what took place in the early morning hours of August 21, 2005. An
Albuquerque police officer, responding to an unrelated call, heard loud banging
noises coming from an alley. Suspicious of the noise, he stopped his vehicle at
the entrance to the alley and cautiously investigated on foot. After proceeding
approximately halfway down the alley, the officer saw Defendant lying
underneath a van. Next to Defendant was a red plastic container, positioned
beneath the van to catch fuel dripping from the tank. The officer detained
Defendant, asked him his name, and Defendant falsely identified himself as
Edward Edgerton. A routine computer check revealed that Edgerton had an
outstanding warrant for his arrest, and at that time, Defendant gave the
officer his real name.
{3} When asked what he
was doing under the van, Defendant first stated that he was taking gas from the
tank with the permission of the owner. Upon further questioning, however,
Defendant admitted that he did not have permission to take the gas, but that
because the van was abandoned, it was alright for him to do so. He said he had
used a nail to create a hole in the tank so that the gas could escape, and two
nails were found in his pocket. At that point, the officer placed Defendant
under arrest and called for additional personnel to assist in an investigation
of the scene.
{4} Police identified
the van’s owner as Emil Hanson, the proprietor of a nearby dry cleaning
business. Hanson had purchased the van approximately two years prior but
stopped driving it when it became too expensive for him to do so. While trying
to figure out what to do with it, he purchased a new van and parked the old one
in the alley behind his business. He testified that although the van was in bad
condition and could have been sitting in the alley for as many as six months,
he had neither abandoned it nor given Defendant permission to enter or remove
fuel from it.
{5} When the State
completed its case in chief, Defendant made a motion for directed verdict on
all counts. In pertinent part, Defendant argued that penetration of a gas tank
with a nail is insufficient to constitute burglary in New Mexico, and further,
that he lacked the requisite intent to commit burglary, criminal damage, and
larceny because he thought the van was abandoned. As a result, Defendant
contended, substantial evidence did not support the charges against him. These
arguments failed to persuade the district court, Defendant’s motion was denied,
and he was convicted as stated above. Defendant now reasserts the arguments
from his motion for directed verdict.
{6} Under a substantial
evidence review, we determine whether the parties presented substantial
evidence at trial to support the verdict “beyond a reasonable doubt with
respect to every element essential to [the] conviction.”
State v. Sutphin,
107 N.M. 126, 131,
753 P.2d 1314, 1319 (1988). Such evidence may be of either a
direct or circumstantial nature.
Id. And in considering the effect of
such evidence, “we resolve all disputed facts in favor of the [s]tate . . . and
disregard all . . . inferences to the contrary.”
State v. Rojo,
1999-NMSC-001, ¶ 19,
126 N.M. 438,
971 P.2d 829 (filed 1998). We will neither
reweigh the evidence nor substitute our judgment for that of the jury.
Sutphin,
107 N.M. at 131, 753 P.2d at 1319. As an appellate court, we are not concerned
that some hypothesis might be designed that would be consistent with an
acquittal.
Id. at 130-31, 753 P.2d at 1318-19. And to the extent that we
engage in statutory interpretation or consider the district court’s legal
conclusions, we do so de novo.
State v. Barragan,
2001-NMCA-086, ¶ 24,
131 N.M. 281,
34 P.3d 1157.
{7} Section 30-16-3
defines the crime of burglary as “the unauthorized entry of any vehicle,
watercraft, aircraft, dwelling or other structure, movable or immovable, with
the intent to commit any felony or theft therein.” As such, Section 30-16-3
expresses “a radical departure from its common law predecessor,” which required
“(1) breaking and (2) entering (3) a dwelling house (4) of another (5) in the
nighttime (6) with the intent to commit a felony therein.”
State v.
Rodriguez,
101 N.M. 192, 193,
679 P.2d 1290, 1291 (Ct. App. 1984);
see
State v. Bybee,
109 N.M. 44, 45,
781 P.2d 316, 317 (Ct. App. 1989). Thus,
our Legislature has chosen to keep only the element of entry completely intact.
Rodriguez, 101 N.M. at 193, 679 P.2d at 129. As this Court has held,
entry contemplates penetration of a space by either a person or an instrument.
State
v. Tixier,
89 N.M. 297, 298-99,
551 P.2d 987, 988-89 (Ct. App. 1976)
(holding that a one-half-inch penetration with an instrument is enough to
effectuate an entry; “[a]ny penetration, however slight, of the interior space
is sufficient”).
{8} This Court’s
opinions in
Rodriguez and
State v. Reynolds,
111 N.M. 263,
804
P.2d 1082 (Ct. App. 1990), define the limits of entry in the context of vehicle
burglary. In
Rodriguez, the defendant reached into the uncovered bed of
a pickup truck and removed a toolbox with the intent of taking it unlawfully.
101 N.M. at 193, 679 P.2d at 1291. This Court held that such an entry is
sufficient to constitute a burglary. “[W]e hold that the bed of a pickup truck,
as a part of a vehicle, falls within the statutorily protected area.”
Id. at
194, 679 P.2d at 1292. A similar issue prompted the analysis in
Reynolds.
In that case, like the one before us, police found the defendant on the ground
beneath a vehicle. Testimony at trial established that he reached into the
engine compartment from underneath in an apparent attempt to remove the
vehicle’s starter.
Reynolds, 111 N.M. at 264-65, 804 P.2d at 1083-84.
This Court, citing
Tixier, held that such an act is sufficient to
sustain a conviction for burglary.
Reynolds, 111 N.M. at 270, 804 P.2d
at 1089. “In establishing a burglary, [a]ny penetration, however slight, of the
interior space is sufficient [to constitute entry]. Since there was no dispute
that [the] defendant’s hand penetrated the engine compartment of the vehicle,
there would have been no rational basis for the jury to find attempted burglary
but not burglary itself[.]”
Id. (second alteration in original)
(internal quotation marks and citation omitted). Thus, a jury could reasonably
conclude that a burglary had occurred.
Id.
{9} We are sympathetic
to the unique facts of Defendant’s case. He was found draining fuel from the
tank of a van with no license plate,
several broken windows, and four
flat tires. The investigating officer testified that the van would have been
unsafe to drive, and Hanson, the owner, testified that the van might have been
sitting in the alley for as many as six months prior to the incident. In fact,
during direct examination, Hanson stated that although the van had not been
abandoned, his plan for it was to “just give it to charity or try to sell it
for the engine.”
{10} Necessary or not,
that which might be a prudent measure of justice must bow to that which the
State may legally prove. Simply put, Defendant was properly charged. He did not
have permission to enter the van, and his actions clearly constitute entry
under New Mexico’s burglary statute.
{11} By Defendant’s own
uncontroverted admission to police, he laid down on the ground beneath the van,
procured an instrument, and used it to create a hole in the tank. As fuel
dripped from the hole, he caught it in a container specifically positioned to
do so. He did not own the van or the fuel. Such facts are plainly analogous to
this Court’s opinions in
Rodriguez and
Reynolds. A fuel tank—attached
as it is, to a vehicle—is unquestionably
a part of that vehicle and
absolutely necessary for its primary function as a mode of transportation. Any
penetration of a vehicle’s perimeter is thus a penetration of the vehicle
itself.
See Reynolds, 111 N.M. at 270, 804 P.2d at 1089. Like the
defendant’s entry of the truck bed in
Rodriguez, this Defendant reached
into the undercarriage of the van and removed fuel from inside the tank located
there.
See Rodriguez, 101 N.M. at 193, 679 P.2d at 1291. In fact,
Defendant went even further by puncturing the tank in order to effectuate the
theft. But perhaps even more analogous is
Reynolds. In that case, the
defendant reached into the engine compartment from underneath so he could
remove the starter.
Reynolds, 111 N.M. at 265, 270, 804 P.2d at 1084,
1089. Likewise, Defendant in this case reached into the fuel tank, albeit via
an instrument, in order to remove fuel, and as this Court has held, “[a]ny
penetration, however slight . . . is sufficient.”
Id. at 270, 804 P.2d
at 1089.
{12} The facts of the
instant case fit cleanly within the conceptual framework established by
Reynolds
and
Rodriguez, and understandably, Defendant had difficulty
distinguishing those opinions. He thus relies heavily upon out-of-state cases
to support his argument, but each is readily distinguishable in either law or
fact. For instance, in
People v. Davis, 958 P.2d 1083, 1090 (Cal. 1998),
the defendant placed a forged check into the deposit window of a check cashing
business. The court held that such an act, although technically an entry with
the intent to commit a theft, should nevertheless not be considered an entry
for purposes of California’s burglary statute.
Id. Likewise, in
R.E.S.
v. State, 396 So. 2d 1219, 1220 (Fla. Dist. Ct. App. 1981), the court
analyzed whether, under Florida’s burglary statute, siphoning gas from the tank
of a vehicle constituted an entry. It held that siphoning did not constitute an
entry and based its holding on the notion that Florida’s burglary statute contemplates
only vehicle compartments “which can be entered either wholly or partially by a
person; e.g., engine and passenger compartments, trunks, etc.”
Id.
Finally, the Florida Supreme Court reached the same conclusion in
Drew v.
State, 773 So. 2d 46, 47 (Fla. 2000), when it considered whether the
removal of tires or hubcaps from a vehicle constituted an entry. In that
opinion, the court held that such an act could not constitute a burglary
because Florida’s common law requires that the theft actually take place
“within” the vehicle. Removal of a tire or hubcap, which requires disassembly,
thus does not take place within the vehicle as required by the statute.
Id.
at 52.
{13} On the facts and New
Mexico law before us, the reasoning of these out-of-state authorities fails to
persuade. The facts of
Davis, for instance, are readily distinguishable.
In that case, the California court held that an entry had not occurred because
the chute in which the defendant placed the forged check was regularly used by
other patrons who also deposited checks. Such an entry does not violate “the
occupant’s possessory interest in the building.”
Davis, 958 P.2d at
1089. In the case before us, Hanson’s possessory interest in the van was
clearly violated when Defendant punctured its tank. Nor are we persuaded by
R.E.S.
and
Drew, the Florida opinions, which both proceed from
interpretations of Florida’s case law. In those cases, it is apparent that
burglary in Florida contemplates the entry of a vehicle compartment large
enough to accommodate at least a part of a person and that the theft actually
occurred within the vehicle.
See Drew, 773 So. 2d at 52;
R.E.S., 396 So. 2d at 1220. Not so in New Mexico, where a slight entry by
use of an instrument is sufficient.
See, e.g.,
Reynolds, 111 N.M.
at 264-65, 804 P.2d at 1083-84 (providing that removal of a starter from the
engine compartment is sufficient to constitute burglary);
Tixier, 89
N.M. at 298-99, 551 P.2d at 988-89 (including the use of an instrument in the
definition of an entry). We turn now to Defendant’s other argument on appeal.
{14} Defendant contends
that because he believed the van to be abandoned, he could not have possessed
the intent required for the crimes of burglary, criminal damage, and larceny.
As such, Defendant argues, substantial evidence does not support his
convictions. Burglary, criminal damage, and larceny each require that the
subject property belong to another person.
See § 30-16-3 (burglary,
requiring that the defendant intended to commit a theft at the time of entry);
§ 30-15-1 (criminal damage to property, requiring that the defendant intended
to damage property belonging to another); § 30-16-1 (larceny, requiring that
the defendant intended to take property belonging to another). Generally,
abandoned property does not belong to anyone and may legally be appropriated by
the first taker.
See Morissette v. United States, 342 U.S. 246, 260-261
n.19 (1952).
{15} In reviewing a
conviction under a substantial evidence analysis, we will not reweigh the
evidence, nor will we ignore the jury’s findings for our own.
Sutphin,
107 N.M. at 131, 753 P.2d at 1319. We consider only “whether substantial
evidence supports the verdict actually rendered.”
State v. Neal,
2008-NMCA-008, ¶ 19,
143 N.M. 341,
176 P.3d 330 (filed 2007). In the case
before us, we hold that substantial evidence amply supports a finding that
Defendant possessed the intent necessary to commit burglary, criminal damage,
and larceny. Hanson’s uncontroverted testimony indicated that although the van
had been parked in the alley for some time, it was not abandoned. Nor had
Hanson given Defendant permission to remove fuel from it. Defendant was found
lying beneath the van, in the early morning hours, by an Albuquerque police
officer. A container was found beside Defendant, positioned so as to catch the
dripping fuel from the van’s tank. Defendant failed to cooperate with police
and was evasive about his actions and identity. He eventually admitted that he
did not have permission to remove gas from the van, and this evidence was
undisputed at trial. Although evidence that the van was abandoned does tend to
establish Defendant’s lack of intent, we must ignore it as long as substantial
evidence supports the verdict actually rendered.
See, e.g.,
id. Thus,
because ample evidence established Defendant’s intent, we do not consider
evidence that he might have reasonably believed the van was abandoned.
{16} For the reasons stated
above, we hold that using a nail to penetrate a vehicle’s gas tank constitutes
an entry under Section 30-16-3. We also hold that substantial evidence supports
each of Defendant’s convictions. We affirm.
RODERICK T. KENNEDY, Judge
Topic Index for State v. Muqqddin, Docket No.
28,474
CL-CL Controlled
Substances
CL-EL Elements of Offense
CL-MH Motor Vehicle
Violations
CA-SE Substantial or
Sufficient Evidence