State v. Jones

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2

Filing Date: July 15, 2025 3

NO. S-1-SC-39949 4

STATE OF NEW MEXICO, 5

Plaintiff-Appellee, 6

v. 7

JOSEPH MATTHEW GREGORY JONES, 8

Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 10

T. Glenn Ellington, District Judge 11 Bennett J. Baur, Chief Public Defender 12 Thomas J. Lewis, Assistant Appellate Defender 13 Santa Fe, NM 14

for Appellant 15

Raúl Torrez, Attorney General 16

Peter James O'Connor, Assistant Solicitor General 17 Santa Fe, NM 18

for Appellee19

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OPINION 1

VARGAS, Justice. 2

{1} The primary question presented by this case is one of statutory interpretation 3 examining whether a portal is a prohibited space under New Mexico's aggravated 4 burglary statute, NMSA 1978, Section 30-16-4 (1963). This Section provides in 5 relevant part that "[a]ggravated burglary consists of the unauthorized entry of any 6

. . . dwelling or other structure, movable or immovable, with intent to commit any 7 felony or theft therein." Id. The portal¹at issue is a covered porch in the backyard of 8 a house that is open to the elements on two sides. The circumstances giving rise to 9 this question arose when Robert Romero (Victim) caught Defendant Joseph 10 Matthew Gregory Jones in his backyard in the middle of the night, allegedly 11 attempting to burglarize Victim's home. A struggle ensued, culminating in 12 Defendant shooting Victim in the backyard. 13

{2} Defendant was charged in relevant part with aggravated burglary and felony 14 murder. At trial, Defendant did not contest that he was the intruder, instead filing a 15

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motion for directed verdict on the grounds that he never entered a prohibited space 1 that would support the underlying aggravated burglary charge under Section 30-16-2

4. The district court denied Defendant's motion, and Defendant was ultimately 3 convicted of aggravated burglary and felony murder. After receiving a life sentence, 4 Defendant exercised his right to appeal directly to this Court. See N.M. Const. art. 5 VI, § 2 ("Appeals from a judgment of the district court imposing a sentence of death 6 or life imprisonment shall be taken directly to the supreme court."). 7

{3} He raises three issues on appeal: (1) whether the unenclosed portal is a 8 structure under the aggravated burglary statute;²(2) whether the district court erred 9 in inserting the word "portal" into the aggravated burglary jury instruction; and (3) 10 whether the district court erred in admitting evidence of guns, ammunition, and other 11 accessories unconnected to the murder weapon or the shooting that were recovered 12 in Defendant's possession nearly two years later. 13

{4} For the reasons that follow, we conclude the district court erred in denying 14 Defendant's motion for directed verdict because the portal is not a prohibited space 15 under the aggravated burglary statute. Accordingly, we vacate Defendant's 16

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convictions for felony murder and aggravated burglary. As we explain, however, the 1 State may elect to reprosecute Defendant on the same or lesser charges without 2 violating double jeopardy. Defendant's second issue with respect to the jury 3 instructions is rendered moot by our conclusion that the portal is not a protected 4 structure under Section 30-16-4, and we need not address it. Finally, addressing the 5 evidentiary issue to provide guidance in the event it arises on remand, we conclude 6 the district court erred in admitting evidence of Defendant's possession of guns, 7 ammunition, and accessories unconnected to the shooting, as this evidence was 8 irrelevant. 9

I. BACKGROUND 10

A. Facts 11

{5} Shortly before 2:00 a.m. on the night of July 30, 2018, Victim's wife awoke 12 to a crash, and heard Victim frantically call her name from the backyard of their 13 home. When Victim's wife opened the door to their backyard, she saw her husband 14 struggling with an intruder. The intruder was wearing a gray hoodie that was 15 cinched, revealing only dark eyes and eyebrows. After Victim yelled for his wife to 16 get help, she ran back in the house to call the police. Shortly before Victim's wife 17 attempted to call the police, she heard a gunshot. After hearing the gunshot, she 18

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rushed back outside to find Victim slumped over a small retaining wall just beyond 1 the portal. 2

{6} Police arrived shortly thereafter but were unable to locate the suspect. A 3 number of relevant items, however, were left at the scene of the crime. These items—4 in addition to testimony by the Victim's wife—would ultimately serve as the primary 5 evidence tying Defendant to the crime. Police found a trash can turned upside-down 6 pushed up against the gate on the side of the yard, which Defendant concedes "was 7 presumably the means by which the intruder gained access to [Victim's] back yard." 8 A bullet casing was recovered in the gravel between the retaining wall and the portal. 9 Expert testimony would later tie this casing to the murder weapon that killed Victim. 10 Police found a flashlight left by Defendant further out in the yard near a gas grill. 11 Victim's wife also found a pair of prescription eyeglasses, picked them up and took 12 them inside the house, and later gave them to police. The exact location where the 13 glasses were found is unclear. Upon examination of the doors, windows, and other 14 areas, police discovered no evidence that Defendant attempted to enter the home 15 itself. 16

{7} Nearly two years later, utilizing DNA recovered from the eyeglasses and the 17 flashlight, police found a match in a genealogy database. During a subsequent search 18 of Defendant's apartment, police found a bag that contained three handguns, 19

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ammunition, and a myriad of gun accessories and magazines. One of the guns in the 1 bag, a Glock .357 (the murder weapon), was connected via ballistic analysis to the 2 bullet that killed Victim. The other two guns were also pistols: a Ruger .9 millimeter 3 and a Browning .380. Police also found a gray hoodie that Defendant had modified 4 to fit snugly around his face and an eyeglass prescription Defendant concedes 5 matched the eyeglasses recovered from the scene of the crime. 6

B. Procedural History 7

{8} Defendant was charged with aggravated burglary and felony murder. 8 Defendant filed a motion for directed verdict, contending that he never entered a 9 prohibited space that would support the underlying aggravated burglary charge 10 under Section 30-16-4. The district court orally denied Defendant's motion, first 11 reasoning that the back portal was "visually" part of the dwelling; that the stucco 12 was the same color as the house; and that the portal was covered and had a hard 13 surface floor with entrances to the interior of the home from the portal. Later in its 14 ruling, the district court noted that the portal "does not have a set physical barrier," 15 and the facts could be viewed in such a manner to support "that, although not 16 completely confined, the occupants have an expectation of privacy and quiet 17 enjoyment in the use of their portal." 18

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{9} A closer examination of the district court's ruling reveals uncertainty with 1 respect to the scope of the prohibited space under the aggravated burglary statute. 2 At one point, the district court appeared to indicate that the portal was the outer 3 boundary of the space protected under the statute. Immediately thereafter, however, 4 the district court stated that "the portal—that space—does not have a set physical 5 barrier, the visible barrier is the retaining wall immediately behind the portal made 6 up of what appears to be moss rock, and then there is a small gravel path or area off 7 of the hard surface slab" between the retaining wall and the covered portion of the 8 portal. This second statement suggests that the district court viewed the prohibited 9 space under the statute to extend beyond the portal itself, up to the point of the 10 retaining wall. This ambiguity resulted in an unclear ruling as to what precisely 11 constituted a prohibited space as contemplated by the aggravated burglary statute in 12 a case where the homicide took place somewhere between the retaining wall that 13 was just beyond the portal and the home itself. 14

{10} Ultimately, after the district court denied the motion for a directed verdict, 15 Defendant was convicted of aggravated burglary and felony murder. The district 16 court sentenced Defendant to life imprisonment, and Defendant appealed. See N.M. 17 Const. art. VI, § 2. 18

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II. DISCUSSION 1

A. The Portal Is Not a Structure Under the Aggravated Burglary Statute 2

{11} While Defendant provides a framework for both insufficiency of the evidence 3 and statutory interpretation for legal error, it is uncontested Defendant does not 4 develop any argument that his conviction must be reversed for insufficient 5 evidence—i.e., that "the state's evidence failed to establish beyond a reasonable 6 doubt some or all of the factual elements of the offense charged." State v. Revels, 7 ___-NMSC-___, ¶ 27, ___P.3d ___ (S-1-SC-39841, Apr. 7, 2025) (text only)³8 (citation omitted). Indeed, the State acknowledges that "Defendant does not contest 9 any of the evidence presented—neither at trial nor on appeal." Instead, Defendant's 10 challenge focuses on the construction of New Mexico's aggravated burglary statute, 11 alleging that a portal is not a structure as that term is used in Section 30-16-4. 12

1. Standard of review 13

{12} Statutory construction is a question of law subject to de novo review. State v. 14 Off. of Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, ¶ 13, 285 P.3d 622 (explaining 15 that construing New Mexico's burglary statute is a matter of statutory construction 16

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that this Court reviews de novo); see also State v. Mestas, 2016-NMCA-047, ¶ 8, 1

370 P.3d 805 ("In considering [the d]efendant's argument that his conduct is outside 2 the scope of that described to be burglary . . . , we review the district court's denial 3 of [the d]efendant's motion for a directed verdict de novo."). 4

2. History of burglary in New Mexico: Foulenfont and Muqqddin 5

{13} Both the State and Defendant rely almost exclusively upon State v. 6 Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329, and Muqqddin, 2012-7 NMSC-029. We, therefore, provide a brief overview of each case to contextualize 8 the parties' arguments. 9

{14} In Foulenfont, the defendants climbed a chain-link fence surrounding a 10 business that sold mobile homes. 1995-NMCA-028, ¶ 2. The Court of Appeals was 11 required to consider whether a fence "constitute[d] a 'structure' under our burglary 12 statute." Id. ¶ 1 (citation omitted). In affirming the district court's dismissal of the 13 charges, the Court of Appeals concluded that the fenced area was not a structure 14 under New Mexico's burglary statute. Id. ¶¶ 1, 10. It reasoned that, "unlike a fence, 15 all of the enumerated objects in the statute are capable of completely confining 16 people and their property." Id. ¶ 11. Finally, it rejected the state's contention that the 17 mobile home business was receiving disparate treatment due to the fact that it 18

"operate[d] in an outdoor setting." Id. ¶ 12. Rather, the Court of Appeals explained, 19

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"[t]he burglary statute would be applicable if [the d]efendants had made an 1 unauthorized entry into an office or a mobile home." Id. But "[w]here the 2 unauthorized entry merely consists of climbing over a fence, businesses and other 3 open property are protected under our criminal trespass statute." Id. 4

{15} In Muqqddin, the Court addressed whether puncturing the gas tank of a van in 5 one case or removing the rear wheels of a car in another fell under the burglary 6 statute. 2012-NMSC-029, ¶¶ 7, 11. More broadly, Muqqddin served as a vessel for 7 the Court to convey serious concern regarding the unprecedented judicial expansion 8 of the outer limits of what amounts to protected space under the burglary statute—9

"an expansion that has occurred without any parallel change in the statute." Id. ¶ 1. 10 After a thorough examination of New Mexico's burglary jurisprudence, common-11 law origins, and legislative intent, we concluded "that our case law has gone astray, 12 and that we must alter our course." Id. In reversing the convictions in that case, id., 13 we provided a roadmap of principles to consider when examining whether a 14 particular space is prohibited under New Mexico's burglary statute. We consider 15 these principles while remaining mindful that, "[f]irst and foremost, what is being 16 punished as a felony under Section 30-16-3 is a harmful entry." Muqqddin, 2012-17 NMSC-029, ¶ 60. 18

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{16} Of particular relevance here is the requirement that a space be enclosed to 1 qualify as a structure. Muqqddin explained that, "in order for an area to be considered 2 prohibited space under Section 30-16-3, it must have some sort of enclosure" 3 because "[i]t is the nature of the enclosure that creates the expectation of privacy. 4 Enclosure puts the public on notice." Id. ¶¶ 44-45. In other words, courts examine 5 the physical nature of the space at issue to discern whether it qualifies as a structure 6 under the burglary or aggravated burglary statutes. See Mestas, 2016-NMCA-047, ¶ 7 27 ("The crucial question in determining whether an area is protected is whether or 8 not its physical characteristics create an '[e]nclosure [that] puts the public on 9 notice.'" (quoting Muqqddin, 2012-NMSC-029, ¶ 45 (alterations in original))). 10 Muqqddin relied upon Foulenfont in reaching its conclusion, reasoning that "[e]ach 11 of the enumerated structures in Section 30-16-3 either inherently has, or has been 12 interpreted to require, some sort of enclosure. Accordingly, we believe it is this 13 enclosed space that the Legislature intended to protect." Muqqddin, 2012-NMSC-14 029, ¶ 44. 15

{17} Crucially, in considering the outer boundaries of a structure, Muqqddin also 16 rejected the imaginary plane theory, which "allow[s] a burglary charge to stand 17 whenever a defendant 'breaks the close' of a structure, meaning the defendant 18 crosses some imaginary plane created by some portion of a structure that is by its 19

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nature open to the elements." Id. ¶ 46 (citation omitted). We rejected the theory in 1 part because, in addition to a lack of notice, "the concept of an imaginary plane is 2 ambiguous, creating more questions than it answers and [is] subject to prosecutorial 3 abuse." Id. ¶ 47. We provided an example highlighting such ambiguity by applying 4 the invisible plane theory to a house—"Would the close of a house extend from the 5 eaves to the foundation, such that stealing a shutter, obviously attached to the outside 6 requiring no entry of the house itself, becomes a burglary?" Id. In contrast with the 7 ambiguity that comes with an open structure that is "by its nature open to the 8 elements," we clarified that our "reasoning does not apply to such things as an open 9 window" because "[a] window . . . creates an opening in an enclosure . . . . As such, 10 a burglary can be committed through an open window." Id. ¶¶ 46, 48. 11

{18} Finally, in Muqqddin, we cautioned against relying upon burglary 12 jurisprudence from other jurisdictions without examining whether a statute in 13 another jurisdiction "differs so greatly from ours that it serves a different purpose." 14 Id. ¶ 28. We provided one case—State v. Gonzales, 2008-NMCA-146, 145 N.M. 15 110, 194 P.3d 725—as an example of such a flawed analysis. Muqqddin, 2012-16 NMSC-029, ¶ 28. The structure in Gonzales, which Muqqddin described as an open-17 air porch attached to a commercial building with a concrete floor and a roof that is 18 open on three sides, is sufficiently similar to the portal here that it is necessary to 19

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clarify Muqqddin's treatment of Gonzales. Id. ¶¶ 22, 28. The Muqqddin Court 1 explained that Gonzales was flawed because it relied upon a case from Georgia, even 2 though the "Georgia statute indicat[es] that a structure or a part of a structure can 3 be burglarized, an addition that is absent from New Mexico's statute." Id. (referring 4 to Gonzales's reliance on Garrett v. State, 578 S.E.2d 460 (Ga. Ct. App. 2002)). 5

{19} For the reasons that follow, we clarify that, even though Muqqddin did not 6 explicitly overrule Gonzales, it has little, if any, remaining precedential value. The 7 Court of Appeals' holding in Gonzales that the open-air porch constituted a structure 8 conflicts with Muqqddin, which explains that entering "some portion of a structure 9 that is by its nature open to the elements" is not burglary in New Mexico. Muqqddin, 10 2012-NMSC-029, ¶ 46. Further, the Gonzales Court relied upon State v. Rodriguez, 11 1984-NMCA-034, ¶¶ 4-7, 101 N.M. 192, 679 P.2d 1290, abrogated by Muqqddin, 12 2012-NMSC-029, ¶ 38—a case that endorsed the imaginary plane theory in holding 13 that the open bed of a pickup truck was a prohibited space under the burglary statute. 14 See Gonzales, 2008-NMCA-146, ¶ 8 (discussing these facts of, and relying upon, 15 Rodriguez). We concluded in Muqqddin that Rodriguez is no longer good law. See 16 2012-NMSC-029, ¶ 38. Ultimately, the Muqqddin Court identified Gonzales as one 17 of the cases in which the Court of Appeals significantly expanded the reach of the 18 burglary statute without legislative authorization, which, in turn, supported this 19

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Court's conclusion that our precedent had "gone astray" such that a course correction 1 was necessary. Id. ¶¶ 1, 22. As a result, we do not rely upon the faulty analysis 2 applied in Gonzales.⁴3

3. Post-Muqqddin precedent 4

{20} We have not had occasion to provide guidance squarely addressing the outer 5 limits of what qualifies as protected space under the burglary or aggravated burglary 6 statutes since Muqqddin. Nevertheless, in State v. Holt, 2016-NMSC-011, 368 P.3d 7 409, we relied upon Muqqddin in the context of breaking and entering. Precedent 8 from our Court of Appeals, though not binding on this Court, likewise supports and 9 is consistent with our mandate set forth in Muqqddin establishing that first and 10

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foremost courts must examine the physical characteristics of a space to discern 1 whether it qualifies as a structure. See, e.g., Mestas, 2016-NMCA-047, ¶ 27. 2

{21} In Holt, the question at issue was whether there was an unauthorized entry, 3 not whether the home was a structure. See 2016-NMSC-011, ¶ 1. Holt is therefore 4 of limited value here. See Dominguez v. State, 2015-NMSC-014, ¶ 16, 348 P.3d 183 5 ("[T]he general rule is that cases are not authority for propositions not considered." 6 (internal quotation marks and citation omitted)). Nevertheless, we briefly address 7 Holt to highlight that it defined the boundary of the home in a manner consistent 8 with the structural mandates set forth in Foulenfont and Muqqddin. Contra dissent ¶ 9 81 (suggesting that Holt embraced an abandonment of portions of Foulenfont). In 10 discerning whether the entry in Holt was unauthorized, we relied upon Muqqddin to 11 reiterate that courts examine the physical nature of the structure to define the outer 12 boundary of an enclosure. Holt, 2016-NMSC-011, ¶¶ 14, 17. Based on this approach, 13 we concluded that "putting one's fingers behind a window screen affixed to a 14 residential dwelling is an intrusion into an enclosed, private, prohibited space" 15 because a window screen provides protection against unauthorized intrusion. Id. ¶ 16

18. Put simply, the window screen, along with the rest of the secured home, was 17 capable of completely confining people and their property; the screen formed a 18 sufficiently sealed-off enclosure that put the public on notice. 19

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{22} Mestas is likewise consistent with Muqqddin and the principles we set forth 1 today. In Mestas, the Court of Appeals considered whether a clerk's office in a hotel 2 was an enclosure under the burglary statute. 2016-NMCA-047, ¶¶ 2, 3, 24. Quoting 3 Muqqddin, it reiterated that "[t]he crucial question in determining whether an area is 4 protected is whether or not its physical characteristics create an '[e]nclosure [that] 5 puts the public on notice.'" Mestas, 2016-NMCA-047, ¶ 27 (quoting Muqqddin, 6 2012-NMSC-029, ¶ 45 (alterations in original)). It relied upon Foulenfont to support 7 that in order for a space to be enclosed under Muqqddin, it "must be 'capable of 8 completely confining people and their property.'" Mestas, 2016-NMCA-047, ¶ 24 9 (quoting Foulenfont, 1995-NMCA-028, ¶ 11). The Mestas Court called upon this 10 language throughout the opinion, from start to finish. See, e.g., id. ¶ 2 (stating that 11

"[a] mechanized 'shutter' or 'shield' was built into a recess in the ceiling above the 12 counter, allowing employees to completely enclose the desk area (thereby preventing 13 any access from the lobby)" (emphasis added)); id. ¶ 22 ("The clerk's office was 14 designed to remain separate from the public lobby area: the only way to enter was 15 through a locked door or over a chest-high counter that could be completely shut 16 with a retractable barrier." (emphasis added)); id. ¶ 25 ("Here, the clerk's office 17 was capable of completely confining the motel clerk, his desk, and the locked drawer 18 containing cash: a locked door prevented access from the lobby, and the opening 19

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above the chest-high counter could be closed and secured. In short, the enclosure's 1 physical characteristics were such that a reasonable person would expect some 2 protection from unauthorized intrusions." (emphasis added) (internal quotation 3 marks and citation omitted)). If any confusion remained as to what the Mestas Court 4 meant when it stated that the office in that case was capable of completely confining 5 people and their property, it used different terms to reiterate that "[t]he chest-high 6 counter separating the public hotel lobby from the otherwise sealed-off clerk's area 7 was sufficient to create such an enclosure and put the public on notice that it was 8 off-limits." Id. ¶ 27 (alteration in original) (emphasis added). 9

{23} In State v. Shelby, 2021-NMCA-064, 499 P.3d 671, the defendant did not 10 contest whether the home was a structure. Instead, the defendant contended that (1) 11 the home was not a dwelling because the interior of the home was under 12 construction, (2) it did not have electricity or running water, and (3) the house was 13 not sufficiently used as living quarters to qualify as a dwelling. See id. ¶ 1. Shelby, 14 like Holt, is therefore of limited value here. See Dominguez, 2015-NMSC-014, ¶ 16 15 ("[T]he general rule is that cases are not authority for propositions not considered." 16 (internal quotation marks and citation omitted)); contra dissent ¶¶ 71, 81 (relying 17 upon Shelby and suggesting that it abandoned Foulenfont). Nevertheless, Shelby 18 abided by the principle that a structure must be fully enclosed or sealed-off in a 19

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manner consistent with our opinion today. Shelby cited Mestas to support its view 1 that, "under Muqqddin, we must examine the physical characteristics of an area to 2 determine whether the space is private, enclosed, or sealed-off from public entry and 3 protected by the burglary statute." Shelby, 2021-NMCA-064, ¶ 8 (emphasis added) 4 (citing Mestas, 2016-NMCA-047, ¶ 27). It described the home in that case as having 5 a "fully finished and secure exterior," id. ¶ 16, as having "a screened-in porch, 6 enclosed with a roof, walls, doors, windows, and locks," id. ¶ 12. Put simply, the 7 home was enclosed—sealed-off in a way that put the public on notice that it was a 8 prohibited space. While the dissent highlights the interior furnishing of the space, 9 dissent ¶ 72, the Shelby Court concluded that "the degree to which [the v]ictim 10 moved his possessions into the house or the degree to which the interior of the house 11 is finished are not necessarily the most significant considerations in this case because 12 the house had a fully finished and secure exterior and it was actually used as living 13 quarters." 2021-NMCA-064, ¶ 16 (emphasis added). Indeed, the common thread 14 apparent in Muqqddin and subsequent precedent is not how the space was being used 15 but the requirement that the space be enclosed. See enclose, Merriam-Webster's 16 Collegiate Dictionary (11th ed. 2020) ("to close in: surround (enclose a porch with 17 glass)"). 18

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{24} While the dissent suggests that these post-Muqqddin cases and indeed 1 Muqqddin itself establish an attempt to somehow "reinterpret" Foulenfont or 2 abandon Foulenfont's inquiry that a structure must be capable of completely 3 confining people and their property, we believe our analysis sufficiently explains 4 why that is not the case. See dissent ¶ 81 (suggesting that Holt recognized a 5

"reinterpretation of Foulenfont"); id. ¶¶ 79-81 (suggesting that post-Muqqddin 6 precedent largely abandoned the Foulenfont requirement that a space must be 7

"'capable of completely confining people and their property'" in order to qualify as 8 a structure (quoting Foulenfont, 1995-NMCA-028, ¶ 11)). Indeed, Mestas alone 9 disproves this point, explicitly relying upon Foulenfont and stating no less than four 10 separate times that the space there was either capable of being completely confined 11 or was sealed-off. See Mestas, 2016-NMCA-047, ¶¶ 2, 22, 24, 25, 27. Contra dissent 12 ¶ 81. The result is that post-Muqqddin precedent remains consistent in requiring that 13 a space be fully enclosed to qualify as a structure and, in contrast with each of these 14 cases and the dictionary definition, the dissent does not explain how a portal that is, 15 as here, completely open on two sides could qualify as being fully enclosed or 16

"sealed-off" like the clerk's office in Mestas or either of the homes in Shelby and 17 Holt. 18

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4. The portal is not a structure 1

{25} Here, the portal does not qualify as a prohibited space under New Mexico's 2 aggravated burglary statute because it plainly is not "capable of completely 3 confining people and their property." Foulenfont, 1995-NMCA-028, ¶ 11. 4 Therefore, whether we analyze the portal under the statute's "dwelling" or its "other 5 structure," the portal would not qualify as a prohibited space under even the broadest 6 reading of the statute; it is not a structure. See § 30-16-4 (listing certain structures, 7 including a "dwelling," and providing a catchall for "other structure[s]"); see also 8 UJI 14-1631 NMRA (defining a "dwelling house" as "any structure, any part of 9 which is customarily used as living quarters" (emphasis added)). Rather, the portal 10 is more like "some portion of a structure that is by its nature open to the elements," 11 which is not a prohibited space under our case law. See Muqqddin, 2012-NMSC-12 029, ¶¶ 46-47. Even under a generous interpretation of the facts, as the State 13 construes them, a portal with two open sides would not qualify as a structure 14 because, again, those two sides cannot be enclosed or sealed-off in any way. See 15 Foulenfont, 1995-NMCA-028, ¶ 11 ("[U]nlike a fence, all of the enumerated objects 16 in the statute are capable of completely confining people and their property." 17 (emphasis added)); accord Mestas, 2016-NMCA-047, ¶¶ 22, 25 (concluding that an 18 office in a motel was a structure under the burglary statute because "the only way to 19

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enter was through a locked door or over a chest-high counter that could be 1 completely shut with a retractable barrier"). 2

{26} In other words, under the facts of this case, there was simply no way to close 3 off the two sides of the portal that were open to the elements in a way that would 4 provide any meaningful distinction between (1) trespass by jumping the fence into 5 the backyard and (2) crossing the imaginary plane into the portal that, if we were to 6 affirm the district court, would constitute aggravated burglary. See Muqqddin, 2012-7 NMSC-029, ¶ 46 (rejecting the imaginary plane theory that would "allow a burglary 8 charge to stand whenever a defendant . . . crosses some imaginary plane created by 9 some portion of a structure that is by its nature open to the elements"); Foulenfont, 10 1995-NMCA-028, ¶ 12 (explaining that the criminal trespass statute rather than 11 burglary applies "[w]here the unauthorized entry merely consists of climbing over a 12 fence"). Accordingly, a conclusion that the portal itself is a structure would 13 contradict our rejection of the invisible plane theory in Muqqddin. As the district 14 court itself stated, the portal "does not have a set physical barrier," and it is "not 15 completely confined." Therefore, the portal does not satisfy the requirements set 16 forth in Foulenfont and Muqqddin because Defendant necessarily is being punished 17 for crossing an invisible plane when the portal is plainly open to the elements on two 18 sides with no physical barrier. 19

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{27} To shore up its conclusion that the portal is a protected space under the 1 aggravated burglary statute, the district court noted that the facts could be viewed to 2 support that "the occupants have an expectation of privacy and quiet enjoyment in 3 the use of their portal." But that is not the test. The Legislature defines aggravated 4 burglary, in relevant part, as "the unauthorized entry of any . . . dwelling or other 5 structure"—not of every space where an occupant has an expectation of privacy. 6 Section 30-16-4. Therefore, contrary to the district court's reasoning, we clarify that 7 an expectation of privacy alone does not transform a space into one that is protected 8 under the aggravated burglary statute. "[B]urglary's original purpose, the protection 9 of the security of habitation," remains relevant, Muqqddin, 2012-NMSC-029, ¶ 34, 10 but "burglary has a greater purpose than merely protecting property," id. ¶ 39. 11 Instead, our burglary statutes "aim to protect against the feeling of violation and 12 vulnerability that occurs when a burglar invades one's personal space." Id. ¶ 43. We 13 recognized in Muqqddin that "[o]ne does not have the same feeling of personal 14 violation when gas has been siphoned from our vehicle or when someone steals a 15 wheel as we do when an intruder has been in our home or office rifling through our 16 most intimate and treasured belongings." Id. While more intrusive than siphoning 17 gas, similarly, here, we recognize that the intrusion into a portal, like an intrusion 18 into any unenclosed porch, stoop, or other space adjacent to one's home, does not 19

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invoke the same degree of violation or fear as that which occurs when a burglar 1 invades the interior of one's home such as the living room or bedroom—the "most 2 intimate" of spaces. Id. And we emphasize that unauthorized entry of a portal is 3 punishable under other statutes. See id. ¶ 40 ("The law [against burglary] was not 4 designed solely to deter trespass and theft, as those are prohibited by other laws."). 5 Our conclusion is consistent with the Legislature's authority to define crimes as it 6 sees fit and accordingly honors its choice not to include one's unenclosed backyard 7 as a space that can be burglarized. See id. ¶¶ 37, 50 (concluding that "[i]t is for the 8 Legislature alone to define statutory criminal acts" and explaining that it is a 9 significant factor in our analysis if the criminal acts charged are punished as "lesser 10 crimes"). 11

{28} Put simply, it is the physical barrier of the structure that creates the expectation 12 of privacy, not the other way around. Id. ¶¶ 44-45 (explaining that "it is th[e] 13 enclosed space that the Legislature intended to protect[;] . . . [i]t is the nature of the 14 enclosure that creates the expectation of privacy"); see also Holt, 2016-NMSC-011, 15 ¶¶ 17-18 (concluding that "putting one's fingers behind a window screen affixed to 16 a residential dwelling is an intrusion into an enclosed, private, prohibited space . . . 17 [because i]t is reasonable for the citizens of New Mexico to expect that their window 18 screens afford them protection from unauthorized intrusions"). Accordingly, we 19

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hold that the unauthorized entry of the portal is not within the scope of "unauthorized 1 entry of any . . . dwelling or other structure" as defined in Section 30-16-4, and we 2 reaffirm that the focus is whether the physical nature of the structure is sufficiently 3 enclosed such that a reasonable person would expect protection from unauthorized 4 entry. See Muqqddin, 2012-NMSC-029, ¶ 45. The portal contained no screen, door, 5 or other barrier that a reasonable person would expect to provide some level of 6 protection from unauthorized intrusion or communicate to another person that the 7 space is prohibited for purposes of the aggravated burglary statute. 8

{29} Instead, the district court's difficulty in defining the structure serves as an 9 example of the ambiguity this Court warned of in Muqqddin. At times, the district 10 court appeared to rule that the portal was the outer limit of the structure under the 11 statute, and at other times it ruled that the structure extended beyond the portal itself, 12 at least to the retaining wall beyond the portal. See Muqqddin, 2012-NMSC-029, ¶ 13 47 (explaining that "the concept of an imaginary plane is ambiguous, creating more 14 questions than it answers and [encouraging] prosecutorial abuse"). This ambiguity 15 and uncertainty as to where the structure begins and ends—especially in a case where 16 the homicide took place somewhere between the retaining wall and the home—17 highlights the precise concerns expressed in Muqqddin. 18

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{30} As a point of illustration, the district court concluded that—although it had no 1 physical barrier, was not a confined space, and was "an extra room outside" of the 2 house—the portal was nonetheless a structure because it had outdoor patio furniture 3 and the district court heard testimony that it was an extension of the living space. If 4 we were to define a statutorily prohibited space by a victim's furnishings or 5 subjective testimony with respect to the use of the space, as the district court did 6 here, victims who spend most of their time outside but who cannot afford to purchase 7 patio furniture may only receive the protection of trespass, whereas victims who 8 have the means to furnish their patio but may not spend any time on the patio would 9 receive the protection of the burglary statute. This uncertainty would likely result in 10 a fact-intensive inquiry based upon testimony from each victim, as opposed to the 11 approach outlined under Muqqddin, which objectively examines whether the 12 structure is an enclosure capable of protecting from intrusion. See Muqqddin, 2012-13 NMSC-029, ¶ 45 (explaining that "[t]he proper question is whether the nature of a 14 structure's composition is such that a reasonable person would expect some 15 protection from unauthorized intrusions" (internal quotation marks and citation 16 omitted)). We decline to follow such an inequitable and uncertain approach. See id. 17 ¶ 47. 18

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{31} Muqqddin also teaches that "courts must be cognizant of the disparity in 1 potential penalties that can stem from a burglary charge due to its unique place in 2 our jurisprudence." Id. ¶ 62. There, the Court examined the potential disparity 3 between the burglary of a commercial building or the passenger space of a vehicle 4 and attempting to steal gasoline by puncturing a hole in the tank of a car. Id. ¶¶ 62-5

63. Here, a disparity would result if we interpreted the statute to punish entering the 6 most intimate of spaces, such as a living room or bedroom, the same as climbing 7 over a gate in a backyard, the entry the State contends constitutes aggravated 8 burglary in this case. Accordingly, this disparity likewise counsels in favor of a 9 conclusion that the portal is not a prohibited space. 10

{32} Nonetheless, even if we were to view the portal as an "other structure" that is 11 not specifically enumerated in the aggravated burglary statute—as the district court 12 appeared to do at times—the rule of ejusdem generis also supports our conclusion 13 that the portal is not a prohibited space. See § 30-16-4 ("Aggravated burglary 14 consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or 15 other structure." (emphasis added)). Ejusdem generis provides "that where general 16 words follow an enumeration of persons or things of a particular and specific 17 meaning, the general words are not construed in their widest extent but are instead 18 construed as applying to persons or things of the same kind or class as those 19

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specifically mentioned." Muqqddin, 2012-NMSC-029, ¶ 29 (text only) (citation 1 omitted). That is, any other structure that is not specifically enumerated must contain 2

"an enclosure similar to a vehicle, watercraft, aircraft, or dwelling, and not just a 3 fenced-in area." Id. (text only) (citation omitted). Here, the portal itself does not 4 include a gate, screen, door, or other feature that would aid in fully enclosing the 5 space. Therefore, to conclude that the portal is a structure under the aggravated 6 burglary statute would require us to construe the portal in such a broad manner that 7 it would contradict the statutory class of items because "all of the enumerated objects 8 in the statute are capable of completely confining people and their property." See 9 Foulenfont, 1995-NMCA-028, ¶ 11. As the portal is not capable of completely 10 confining people or property, we cannot reach such a conclusion. 11

{33} Finally, it is a bedrock precept of the law that a crime "must be defined with 12 appropriate definiteness." State v. Bybee, 1989-NMCA-071, ¶ 12, 109 N.M. 44, 781 13 P.2d 316 (quoting Pierce v. United States, 314 U.S. 306, 311 (1941)). As a result, 14 even if we were uncertain as to whether the portal constituted a structure under the 15 aggravated burglary statute, such uncertainty clearly raises "serious doubts as to 16 whether the Legislature intended to punish [Defendant's] actions as [aggravated] 17 burglary. Under the rule of lenity, that ambiguity must be resolved in" Defendant's 18 favor. Muqqddin, 2012-NMSC-029, ¶ 58. We reaffirm that, "[i]f the Legislature 19

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wants to expand burglary, blur the lines between crimes, and create overlaps, then it 1 should be left to the Legislature to do so. But in the absence of such legislative 2 action, trial courts and prosecutors should exercise caution in the use of judicial 3 power to act as surrogates for that which the Legislature has not done." Id. ¶ 63. 4

{34} At its core, the dissent suggests that a structure for purposes of the burglary 5 and aggravated burglary statutes should be governed by an individual's subjective 6 expectation of privacy rather than the physical nature of the space, upon which an 7 objectively reasonable person would expect protection from unauthorized intrusion. 8 Dissent ¶¶ 55, 58. We find this approach unworkable and unsupported by precedent. 9 Notably, the dissent's interpretation of the burglary statue represents an expansion 10 without legislative authorization to include any space that an individual subjectively 11 believes to be private. This interpretation ignores the requirement that crimes must 12 be sufficiently defined such that a person receives notice of what is illegal, and what 13 is not. See Pierce, 314 U.S. at 311 ("[J]udicial enlargement of a criminal act by 14 interpretation is at war with a fundamental concept of the common law that crimes 15 must be defined with appropriate definiteness."); accord Muqqddin, 2012-NMSC-16 029, ¶¶ 47-49 ("Without . . . legislative guidance, the courts should not be placed in 17 the position of inventing fictions to expand the definition of criminal activity. . . . 18 This is not the first time our courts have cautioned against the continued expansion 19

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of the crime of burglary without legislative license."). Indeed, "[i]f the Fourteenth 1 Amendment is violated when a person is required to speculate as to the meaning of 2 penal statutes . . . or to guess at (the statute's) meaning and differ as to its application, 3

. . . the violation is that much greater when, because the uncertainty as to the statute's 4 meaning is itself not revealed until the court's decision, a person is not even afforded 5 an opportunity to engage in such speculation before committing the act in question." 6 Bouie v. City of Columbia, 378 U.S. 347, 352 (1964) (internal quotation marks and 7 citations omitted). 8

{35} Under the dissent's view, a person would have no opportunity to even engage 9 in speculation as to a victim's subjective expectation of privacy before committing 10 the act in question, which the dissent suggests governs whether entering a particular 11 space is a crime. Dissent ¶¶ 55, 58-59, 70 ("[T]he expectation of privacy and the 12 security of the inhabitant should govern this analysis" rather than the nature of the 13 structure, which the dissent relegates to a mere "architectural tool"). Applying the 14 dissent's rationale, the meaning of the "structure" requirement contained within the 15 aggravated burglary statute would not be revealed until a victim testifies at trial and 16 expresses their view of privacy, which inevitably varies person to person, city to 17 city. Furthermore, in the unfortunate circumstance where a victim has been killed or 18 otherwise incapacitated and no one else is available to testify, it is unclear how the 19

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state would establish the inhabitant's subjective expectation of privacy. Such a 1 standard is not only unworkable—it raises constitutional concerns that cannot be 2 overcome. See Bouie, 378 U.S. at 351. ("'[A] statute which either forbids or requires 3 the doing of an act in terms so vague that [people] of common intelligence must 4 necessarily guess at its meaning and differ as to its application violates the first 5 essential of due process of law[.]' . . . 'No one may be required at peril of life, liberty 6 or property to speculate as to the meaning of penal statutes. All are entitled to be 7 informed as to what the State commands or forbids.'" (citation omitted)). Under this 8 same analysis, we disagree with the dissent's view that whether a space is a structure 9 prohibited by the burglary statute is a question for the jury. See dissent ¶ 89. 10

{36} As a final but important note, none of the cases upon which the dissent relies 11 support that an individual's subjective expectation of privacy governs the analysis. 12 For example, in Holt, we did not focus on whether the victim thought the space at 13 issue was private in order to discern whether it was a structure that could be entered. 14 See generally 2016-NMSC-011, ¶¶ 17-19. Nor did the Court in Muqqddin examine 15 whether there was sufficient testimony to support the subjective expectation of 16 privacy with respect to the gas tank or tires. In Mestas, a case the dissent heavily 17 relies upon, the Court of Appeals engaged in no discernable analysis as to whether 18 the hotel clerk subjectively believed the space was a structure. Instead, it focused on 19

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the physical characteristics of the space to discern whether it was a structure within 1 the scope of the burglary statute. See 2016-NMCA-047, ¶ 27 ("The crucial question 2 in determining whether an area is protected is whether or not its physical 3 characteristics create an enclosure that puts the public on notice." (text only) 4 (emphasis added) (citation omitted)); id. ¶ 25 ("[T]he enclosure's physical 5 characteristics were such 'that a reasonable person would expect some protection 6 from unauthorized intrusions.'" (emphasis added) (quoting Muqqddin, 2012-7 NMSC-029, ¶ 45)); id. ¶ 29 (relying upon "the physical attributes of the clerk's area" 8 in upholding the defendant's convictions (emphasis added)). Put simply, the test is 9 whether the physical composition of the structure is such that an objectively 10

"'reasonable person would expect some protection from unauthorized intrusions,'" 11 rather than the subjective expectations of the individual. Muqqddin, 2012-NMSC-12 029, ¶ 45 (citation omitted); accord Holt, 2016-NMSC-011, ¶ 16 (explaining that 13 the relevant expectation of "'privacy and the victim's feeling of being personally 14 violated'" under the modern burglary statute "extends to all enclosed, private, 15 prohibited spaces." (emphasis added) (citation omitted)). With this perspective in 16 mind, we proceed to address the State's arguments to support that the portal is a 17 structure under the aggravated burglary statute. 18

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5. The State's arguments are unpersuasive 1

{37} Foulenfont, according to the State, is distinguishable on two grounds: (1) the 2 space at issue in Foulenfont was a commercial property, and (2) unlike the portal, a 3 fence "surrounding an open air storage yard is not" an enclosure under the burglary 4 statute. First, the Court of Appeals in Foulenfont did not distinguish between 5 commercial and residential property. Instead, as discussed above, it distinguished 6 between enclosed and open-air spaces, reasoning that, "unlike a fence, all of the 7 enumerated objects in the statute are capable of completely confining people and 8 their property." Foulenfont, 1995-NMCA-028, ¶ 11. And, in contrast with the State's 9 second contention that the nature of the property as an "open air storage yard" 10 controlled the Foulenfont Court's analysis, the Court rejected the notion that the 11 mobile home business was receiving disparate treatment due to the fact that it 12

"operate[d] in an outdoor setting." Id. ¶ 12. Rather, the Court of Appeals explained, 13

"The burglary statute would be applicable if [the d]efendants had made an 14 unauthorized entry into an office or a mobile home." Id. 15

{38} As to Muqqddin, the State largely avoids grappling with the legal principles 16 established by this Court, instead contending that the case is factually distinguishable 17 because "here the portal is not an open-air space or property left in the open to public 18 purview." In further attempting to distinguish Foulenfont and Muqqddin, it is clear 19

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that the State either misunderstands or misconstrues the facts before this Court. For 1 example, as a distinguishing characteristic, the State contends that "there was no 2 artificial plane that required breaking to enter, rather Defendant entered the portal 3 when he climbed over the portal gate" (emphasis added). The State further 4 characterizes the portal as an "enclosed secluded portal with a locked gate." 5 However, while the backyard was gated-in, it is clear upon review of the evidence 6 that the portal itself does not include a gate, nor was it enclosed under our case law. 7 Rather, photographic evidence establishes that the portal was completely open on 8 two sides. The district court recognized as much, stating that the portal did "not have 9 a set physical barrier," and that it was "not completely confined." Therefore, the 10 State's conclusion that the portal was enclosed or that Defendant committed burglary 11 when he jumped into the backyard is inconsistent with the facts and our case law. 12

{39} Finally, the State quotes State v. Lara, 1978-NMCA-112, ¶ 5, 92 N.M. 274, 13

587 P.2d 52, to support that the portal "was burglarized by Defendant because it 14 'was part of the structure used as living quarters.'" Lara is of limited value here 15 because it addressed whether a garage was part of the house when it was attached to 16 and shared an interior wall with the house but "there was no direct access to the 17 interior of the house." Id. ¶ 6. Therefore, the Lara Court addressed whether the lack 18 of a direct entry into the home meant that the garage failed to qualify as a structure, 19

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not whether the garage was sufficiently enclosed to constitute a prohibited space 1 under the burglary statute. Indeed, there is no dispute here that the portal contained 2 two doors leading directly into the house. Accordingly, Lara provides little guidance 3 as the question here—whether the portal was sufficiently enclosed—was not present 4 in Lara. 5

{40} Unpersuaded by the State's arguments, we conclude that the portal is not a 6 structure. Accordingly, we must vacate Defendant's aggravated burglary and felony 7 murder convictions. 8

6. Retrial is permitted on felony murder and any legally adequate predicate 9

felony 10

{41} In light of our conclusion that Defendant's convictions for aggravated 11 burglary and felony murder must be vacated, we must consider whether double 12 jeopardy bars retrial. "Double jeopardy law governs the circumstances under which 13 the state can prosecute a defendant a second time." Revels, ___-NMSC-___, ¶ 19. 14 When a defendant is acquitted, retrial is barred. Id. ¶¶ 19, 23. "An acquittal occurs 15 on appeal when an appellate court reverses for insufficient evidence, because that is 16 tantamount to a finding that the [s]tate's evidence failed to establish beyond a 17 reasonable doubt the factual elements of the offense charged." Id. ¶ 20. As the State 18 acknowledged in its briefing before the Court, however, Defendant does not contest 19 any of the evidence presented to support the offenses. 20

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{42} Instead, Defendant's sole argument is that the portal is not a structure under 1 the aggravated burglary statute as a matter of law. "Appellate reversal on any 2 grounds other than evidentiary insufficiency is considered reversal for trial error," 3 which does not bar a retrial because "it implies nothing with respect to the guilt or 4 innocence of the defendant. Rather, it is a determination that a defendant has been 5 convicted through a judicial process which is defective." Id. ¶ 21 (internal quotation 6 marks and citation omitted). Under such a circumstance, "the accused has a strong 7 interest in obtaining a fair readjudication of his guilt free from error, just as society 8 maintains a valid concern for insuring that the guilty are punished." Id. (internal 9 quotation marks and citation omitted). Indeed, Defendant conceded at oral argument 10 that remand for a new trial is a viable remedy and requested such relief in his briefing 11 before this Court. Because we vacate Defendant's convictions for aggravated 12 burglary and felony murder on the basis of trial error, the direct-remand rule⁵does 13 not apply, and "the State may elect to reprosecute him on th[ose] charge[s] if the 14 State determines it can proceed on the basis of a legally adequate predicate felony." 15

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Id. ¶ 48; accord id. ¶ 38 (concluding that reversal for trial error permits "retrial on 1 the same or lesser charge"). 2

B. Defendant's Jury Instruction Argument Is Moot 3

{43} Next, Defendant contends that the district court committed reversible error 4 when it inserted the word "portal" into the jury instruction for aggravated burglary. 5 The substance of Defendant's argument is the same as what he presented under the 6 first issue—that a portal is not a structure under the aggravated burglary statute. For 7 example, Defendant argues that "the district court's addition of 'portal' to the 8 burglary instruction resulted in impermissibly broadening the reach of the burglary 9 statute beyond what the [L]egislature intended." He similarly argues that the district 10 court "amended the UJI in a way contrary to this Court's emphasis on enclosure in 11 its analysis of burglary in Muqqddin." Given our conclusion that the portal in this 12 case is not a structure under the aggravated burglary statute, the issue is rendered 13 moot; thus, we need not address it further. City of Las Cruces v. El Paso Elec. Co., 14 1998-NMSC-006, ¶ 18, 124 N.M. 640, 954 P.2d 72 (explaining that, as a general 15 matter, we do not decide moot issues and we will not render advisory opinions). 16

C. Evidentiary Error 17

{44} Finally, Defendant alleges that the district court erred under Rule 11-403 18 NMRA and 11-404(B)(2) NMRA in admitting the guns unrelated to the shooting as 19

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well as evidence of boxes of ammunition, accessories, and other items unconnected 1 to the murder weapon or the shooting. Even though we vacate Defendant's 2 convictions on other grounds, we "address this issue to provide guidance" in the 3 event "the issue arises on remand." State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 37, 4

136 N.M. 309, 98 P.3d 699; accord State v. Samora, 2016-NMSC-031, ¶ 36, 387 5 P.3d 230. 6

1. Preservation and standard of review 7

{45} Defendant preserved the alleged error through (1) filing a motion in limine 8 and (2) objecting to the State's proffered evidence under Rule 11-404(B). Defendant 9 objected to the introduction of the unrelated firearms and other ammunition because 10 the evidence only connected the murder weapon to the crime—thus, the other items 11

"are not relevant to the current incident and would be highly prejudicial to 12 [D]efendant." Defendant made largely the same argument at a pretrial hearing on 13 the motion, reiterating that the evidence was unrelated propensity evidence that 14 should not be admitted. The standard of review for a preserved challenge to the 15 admission of evidence under Rules 11-403 and 11-404(B) is an abuse of discretion. 16 See State v. Romero, 2019-NMSC-007, ¶ 26, 435 P.3d 1231. The district court's 17 decision to admit or exclude evidence is generally "within the sound discretion of 18 the trial court, and its determination will not be disturbed on appeal in the absence 19

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of an abuse of discretion." Id. "In testing the balance between the relevant probative 1 value and prejudicial effect of evidence under Rule 11-403, an abuse of discretion 2 results when the trial court's decision is contrary to logic and reason." Id. (text only) 3 (citation omitted). 4

2. The district court's ruling and trial 5

{46} The district court ruled: 6 With respect to relevance, the court finds that the [murder weapon] that 7 was recovered . . . is relevant. The court finds that the circumstances 8 under which it was found is also relevant and material, that it was 9 located in an inner bag, which was within an outer bag, and that there 10 was ammunition. . . . The court finds also relevant the existence of a 11 second barrel for the .9 millimeter [gun] as well as a second barrel for 12 the .357 [murder weapon]. It looks like the .380 [gun], other than that 13 it was found there [at the apartment] is . . . nothing to indicate that it 14 had been modified, as the argument I understand the State's argument 15 that the .357 [murder weapon] was [modified], and that the capacity to 16 also modify the .9 millimeter as he also had those components, so other 17 than mention that it was found with the two other firearms, I don't think 18 there is anything else relevant about that firearm, but . . . the court will 19 allow the testimony as to the circumstance under which the search 20 warrant was executed, and the firearms were located, how they were 21 packaged . . . but the court over objection would allow the 404(B) 22 evidence with respect to those objects. 23

By contrast, the district court excluded evidence of any flashlights recovered from 24 the search, concluding that it was "propensity-type evidence." It excluded portable 25 tool kits, reasoning that there was no evidence that any tool was used to gain entry. 26 It excluded gloves because "there is nothing that ties it to the crime." Finally, it 27

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excluded a notebook that contained a handwritten list of addresses (that did not 1 include Victim's address) because "it takes a leap, which is based on innuendo or 2 propensity as to what the other addresses meant." 3

{47} At trial, the State admitted physical evidence in addition to many dozens of 4 photos of the other guns and accessories, as well as hours of witness testimony 5 discussing the evidence—evidence that it never connected to the crime. 6

3. The State's argument on appeal 7

{48} Before this Court, the State's response to Defendant's claim of error focuses 8 largely upon Rule 11-404(B)—the same rule on which the State at the district court 9 appeared to concede. At the pretrial hearing on the State's notice of intent to 10 introduce 11-404(B) evidence, the State "concede[d] [the guns other than the murder 11 weapon] are not appropriate for purposes of 404(B)." On appeal, by contrast, the 12 State argues that "[t]he weapons and accessories showed Defendant's access to, 13 possession of, and knowledge of the Glock .357 murder weapon, its specialized 14 ammunition, the other weapons and their accessories." The State's argument is 15 circular, seeming to suggest that the other two guns and accessories somehow 16 showed access to, possession of, and knowledge of the murder weapon itself. The 17 State does not persuasively explain how possession of one gun shows possession or 18 knowledge of another, unrelated gun. The State outlines the required elements of the 19

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aggravated burglary and felony murder instructions, but again does not explain how 1 the evidence goes to prove any of the elements of those crimes. Nevertheless, we 2 need not affirmatively address the State's Rule 404(B) arguments in light of our 3 conclusion that the evidence is irrelevant, which we explain below. But even if the 4 evidence were relevant, we further conclude that the probative value of the evidence 5 is substantially outweighed by the danger of unfairly prejudicing Defendant. 6

4. Admission of the other guns and accessories was error 7

a. Relevance 8

{49} Evidence is only admissible if it is relevant. "Evidence is relevant if . . . it has 9 any tendency to make a fact more or less probable than it would be without the 10 evidence, and . . . the fact is of consequence in determining the action." Rule 11-401 11 NMRA. In its brief, the State contends that "there is no question as to" the relevance 12 of the evidence if "the prior act evidence goes directly to prove an element of the 13 crime" under Rule 11-402 NMRA and that "the evidence proffered by the State was 14 probative on . . . essential elements of the charged crime" (omission in original) 15 (internal quotation marks and citation omitted). But the State fails to identify a prior 16 act or provide any analysis as to what element of a crime the evidence supports, so 17 we cannot discern how the State believes the other weapons and accessories are 18

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relevant. And without any evidence tying the other guns or accessories to the crime, 1 it does not make any consequential fact more or less probable under Rule 11-401. 2

{50} On this point Defendant cites two out-of-state cases. Defendant first relies on 3 a provision from Agatheas v. State, 77 So.3d 1232, 1236 (Fla. 2011), in asserting 4 that "in order for evidence of a firearm to be admissible as relevant in a criminal 5 trial, the State must show a sufficient link between the weapon and the crime" (text 6 only) (citation omitted). Agatheas goes on to explain that the general rule applied by 7 appellate courts in Florida "is that if there was no evidence linking any of these 8 firearms to the charged crime, evidence of the firearms would be irrelevant, and 9 should have been excluded upon proper objection." Id. (internal quotation marks and 10 citation omitted). Defendant also relies upon Alanis v. State, 891 S.W.2d 737, 741 11 (Tex. App. 1994), which similarly provides that "possession of a firearm is 12 admissible only if necessary to understand the facts and circumstances of the present 13 offense of murder." Defendant relies upon these cases to conclude that "[t]he other 14 guns and accessories had no relationship to the offense other than" for purposes of 15 propensity. 16

{51} We agree with the reasoning provided in these out-of-state cases. Put simply, 17 the two guns and accompanying ammunition introduced in this case—in contrast 18 with the murder weapon and accessories connected to it—are not relevant because 19

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they do not make any consequential fact more or less probable under Rule 11-401. 1 There is no evidence that Defendant had more than one firearm on the date of the 2 shooting. Victim was shot a single time, and there was only one casing recovered 3 from the scene. That casing matched the Glock .357 murder weapon—not the .9 4 millimeter or the .380. Further, there is no evidence whatsoever that the other two 5 guns or accessories found in the backpack were in Defendant's possession on the 6 night in question. The State cites no evidence that Defendant was carrying a 7 backpack or tactical bag, which is where the majority of the items were located in 8 the apartment. The State fails to refer the Court to any evidence on appeal 9 establishing that Defendant even owned any of the other guns or accessories on the 10 date of the crime, rather than obtaining them sometime in the two years between the 11 shooting and the subsequent search of Defendant's apartment. We conclude that the 12 evidence is irrelevant. 13

b. Probative value 14

{52} But even if the State were to establish on remand that the evidence were 15 relevant and otherwise admissible, it may nevertheless be excluded "if its probative 16 value is substantially outweighed by a danger of . . . unfair prejudice." Rule 11-403. 17 Thus, "[i]f the evidence is probative of something other than propensity," a court 18 still "balance[s] the prejudicial effect of the evidence against its probative value." 19

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State v. Lovett, 2012-NMSC-036, ¶ 32, 286 P.3d 265 (internal quotation marks and 1 citation omitted). Despite acknowledging that Rule 11-403 is pertinent to our 2 admissibility framework, the State on appeal engages in no discernable analysis to 3 assist the Court in determining whether the probative value of the gun evidence was 4 substantially outweighed by its prejudicial effect to Defendant. Defendant takes a 5 similar approach, first noting that he objected at trial under Rule 11-403 and 6 proceeding to briefly argue before this Court that (1) the gun evidence is irrelevant 7 as well as more prejudicial than probative and (2) the evidence was inadmissible 8 propensity evidence under Rule 11-404. Nevertheless, we have no trouble 9 concluding under our precedent that any limited probative value of introducing two 10 unrelated guns and a plethora of unrelated accessories is substantially outweighed 11 by the danger of unfairly prejudicing Defendant. In Casaus v. State, for example, 12 this Court concluded that the prejudicial impact of admitting a gun into evidence, 13 where the record suggested that the gun was not the one used in the crimes charged, 14 outweighed its probative value requiring reversal. See 1980-NMSC-017, ¶¶ 3, 8-9, 15

94 N.M. 58, 607 P.2d 596. Casaus is consistent with this Court's more recent Rule 16 11-403 precedent. Compare, e.g., State v. Chavez, 2024-NMSC-023, ¶ 35, 562 P.3d 17 521 (concluding that the limited probative value of a single statement in a jail phone 18 call made by defendant was "undoubtedly substantially more prejudicial than 19

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probative" because the remainder of the statements in the call were pure propensity 1 evidence), with State v. Casillas, S-1-SC-32911, dec. ¶¶ 17, 19, 45 (N.M. May 9, 2 2013) (nonprecedential) (concluding the district court did not err in allowing 3 evidence of the defendant's prior possession of a gun because it was offered along 4 with fingerprint evidence to establish that the gun itself was the murder weapon, in 5 contrast with, as here, offering the weapon as mere propensity evidence).⁶6 Accordingly, the district court erred in admitting the irrelevant and highly prejudicial 7 evidence of the other guns, ammunition, and accessories. 8

III. CONCLUSION 9

{53} For the foregoing reasons, we conclude the district court erred in determining 10 that the portal is a prohibited space under the aggravated burglary statute. We, 11 therefore, vacate Defendant's convictions for aggravated burglary and felony murder 12

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