State v. Ortega

Full title: STATE of New Mexico, Plaintiff-Appellee, v. Primitivo ORTEGA and Marcelino…

Court: Court of Appeals of New Mexico

Date published: Jun 26, 1974

86 N.M. 350 (N.M. Ct. App. 1974)

524 P.2d 522

Opinion

No. 1441.

June 26, 1974.

Appeal from the District Court, Bernalillo County, William F. Riordan, D. J.

Robert H. Scott, Wollen, Segal Scott, Albuquerque, for defendants-appellants.

David L. Norvell, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

SUTIN, Judge.

Defendants were convicted of three charges of burglary. Section 40A-16-3, N.M.S.A. 1953 (2d Repl.Vol. 6). The structure entered without authority was Vest Pocket Storage. Three separate counts of burglary were charged in the indictment: (1) Vest Pocket Storage, (2) a storage locker rented to Gene's Janitorial Service, and (3) a storage locker rented to J. M. Livingston.

Defendants contend the trial court erred in overruling defendants' motion to dismiss counts 2 and 3 of the indictment because they are included in count 1; that there was one unauthorized entry of one structure; that the statute does not include inner storage space as separate structures.

This is a matter of first impression in New Mexico.

Section 40A-16-3 reads:

Burglary consists of 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.

Gene's Janitorial Service and J. M. Livingston each rented separate office spaces in the Vest Pocket Storage building. There were separate entrances into each office. Gene's office had an outside window which was broken and the bars bent. A window next to the entrance door of the building was broken.

The burglary of several businesses in one building at approximately the same time constitutes not one offense, but several, and a defendant may be prosecuted for all such offenses. State v. Casey, 4 Or. App. 243, 478 P.2d 414 (1970). Where there is lawful entry into a building, an unauthorized entry into an inner door of any unit with the necessary intent may be prosecuted for burglary. State v. Burke, 462 S.W.2d 701, 43 A.L.R.3d 1137 (Mo. 1971); Annot. 43 A.L.R.3d 1147 at 1150.

Affirmed.

It is so ordered.

WOOD, C. J., and LOPEZ, J., concur.