     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                                   NO. 33,157

 5 TROY TOHSONIE,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean Jr., District Judge

 9 Hector H, Balderas, Attorney General
10 Margaret E. McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellant

13 Jorge A. Alvarado, Chief Public Defender
14 Sergio Viscoli, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellee

17                                 MEMORANDUM OPINION

18 VIGIL, Judge.
 1   {1}   The State appeals from the district court’s order granting Defendant’s motion

 2 to dismiss the charge of commercial burglary. [RP 53] Our notice proposed to affirm,

 3 relying on our recently decided opinion State v. Archuleta, ___-NMCA-___, ___ P.3d

 4 ___ (No. 32,794, Oct. 27, 2014) (holding that “violating an order of no trespass by

 5 entering an otherwise open public shopping area with the intent to commit a theft does

 6 not constitute the type of harmful entry required for a violation of the burglary

 7 statute”), cert. granted, 2015-NMCERT-___ (No. 35,005, Jan. 26, 2015). The State

 8 has filed a response, objecting to our notice and requesting that we hold this appeal

 9 in abeyance or provide the State with a reasonable opportunity to seek guidance from

10 the New Mexico Supreme Court on all pending appeals controlled by our opinion in

11 Archuleta. [Ct.App.File, red clip] We have provided the State with such an

12 opportunity, and the Supreme Court has denied the State a stay or other remedy that

13 would suspend the precedential value of Archuleta. Thus, we apply Archuleta. See

14 Rule 12-405(C) NMRA (“A petition for writ of certiorari filed pursuant to Rule 12-

15 502 NMRA or a Supreme Court order granting the petition does not affect the

16 precedential value of an opinion of the Court of Appeals, unless otherwise ordered by

17 the Supreme Court.”).

18   {2}   In its response to our notice, the State objects to our proposed disposition, but

19 indicates that it “is unable to provide any additional facts or other legal argument in


                                               2
1 response to the proposed disposition.” [response, red clip/2-3] Because there are no

2 material factual distinctions to remove this case from the control of our opinion in

3 Archuleta, we affirm the district court’s order granting Defendant’s motion to dismiss

4 the commercial burglary charge.

5   {3}   IT IS SO ORDERED.


6                                         __________________________________
7                                         MICHAEL E. VIGIL, Chief Judge

8 WE CONCUR:



 9 ___________________________________
10 MICHAEL D. BUSTAMANTE, Judge



11 ___________________________________
12 JONATHAN B. SUTIN, Judge




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