                                                            131 Nev., Advance Opinion            65
                             IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                       CARRIE SUZANNE MERLINO,                                No. 65273
                       Appellant,
                       vs.
                       THE STATE OF NEVADA,
                                                                                       FILED
                       Respondent.                                                      SEP 1
                                                                                       TRA       K. RK
                                                                                  Lc

                                                                                             D           _ERIC

                                   Appeal from a judgment of conviction for burglar entered
                       following a jury trial. Eighth Judicial District Court, Clark County; Elissa
                       F. Cadish, Judge.
                                   Vacated in part.



                       Philip J Kohn, Public Defender, Howard S. Brooks, Chief Deputy Public
                       Defender, and Jasmin D. Spells, Deputy Public Defender, Clark County,
                       for Appellant.

                       Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                       District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
                       Colleen R. Baharav, Deputy District Attorney, Clark County,
                       for Respondent.




                       BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

                                                        OPINION
                       By the Court, TAO, J.:
                                   Under Nevada law, a defendant commits the crime of burglary
                       when he or she enters a building with the intent to commit a predicate
                       crime inside the building. The question raised in this appeal is whether
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                   NRS 193.0145, NRS 205.060(1), and NRS 205.060(5), which define the
                   acts that can constitute an entry into a building for purposes of the
                   burglary statute, encompass selling stolen property through the
                   retractable sliding tray of a pawn shop's drive-through window.
                               A jury convicted appellant Carrie Suzanne Merlino of burglary
                   for doing exactly that. On appeal, we conclude that no reasonable person
                   could conclude that the sliding tray fell within the outer boundary of the
                   building that housed the pawn shop, and therefore the evidence
                   introduced at trial was insufficient to demonstrate that Merlino
                   committed an unlawful entry of the building as defined in the burglary
                   statutes. Accordingly, we vacate the conviction on count five.
                                                     FACTS
                                Merlino and her boyfriend, Dennis Byrd, befriended neighbor
                   Teresa Wilson and would occasionally visit her in her apartment. During
                   their visits, Merlino would sometimes bring Wilson food, clean her
                   apartment, and run errands for her. Wilson eventually noticed that some
                   jewelry was missing from her apartment and reported the theft, informing
                   detectives with the Las Vegas Metropolitan Police Department that
                   Merlino and Byrd might be responsible for the missing items During
                   their investigation, the detectives learned that Merlin° had pawned items
                   matching the descriptions of Wilson's missing jewelry. Wilson identified
                   the pawned items as belonging to her and indicated that Merlino did not
                   have permission to possess those items. Merlino was subsequently
                   charged by way of indictment with conspiracy to commit a crime, grand
                   larceny, and three counts of burglary. She was convicted on all counts but
                   on appeal challenges only her conviction on count five, one of the three
                   counts of burglary.

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                               Count five of the indictment charged Merlino with entering an
                   EZ-Pawn store on October 24, 2011, with the intent to obtain money under
                   false pretenses by pawning items stolen from Wilson. The evidence
                   introduced at trial in support of this count demonstrated that, on that
                   date, Merlino pawned five items of jewelry through the drive-through
                   window of the EZ-Pawn by placing them onto a metal tray that slid in and
                   out of the building.
                               EZ-Pawn employee Leonard Yazzie described the drive-
                   through window and its tray. Yazzie could not recall the particular
                   transaction involving Merlino but testified that, in general, pawn
                   transactions through the drive-through window required a customer
                   outside the store to place items onto a sliding tray, which the cashier
                   would extend out to the customer and then pull back into the interior of
                   the store. The cashier would retrieve the items from the tray and place
                   documents and money onto the tray before sliding it back outside the store
                   to where the customer could access the tray. Only when extended could
                   the customer access the tray; when retracted, the tray was enclosed
                   entirely within the walls of the building and could not be accessed from
                   outside.
                               After the close of evidence, the district court instructed the
                   jury. Among the instructions given was Instruction No. 23, which stated
                   that "Lain entry is deemed complete when, however slight, any portion of
                   the intruder's body penetrates the space within the building." Based upon
                   this definition, the State argued that the sliding tray constituted part of
                   the structure of the building and, therefore, Merlino entered the building
                   by using the tray to pawn Wilson's property. Merlino maintained that no



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                   part of her body entered the interior of the building and, consequently, no
                   entry occurred.
                                                   ANALYSIS
                               In this appeal, Merlino challenges only one of her three
                   burglary convictions, namely, count five, which charged her with entering
                   the EZ-Pawn store on October 24, 2011, with the intent to commit the
                   crime of obtaining money under false pretenses.Merlino concedes that
                   substantial evidence was introduced at trial to support her convictions on
                   the remaining counts.
                               As to count five, however, Merlino contends that insufficient
                   evidence exists to support her conviction. The test for sufficiency of the
                   evidence in a criminal case is "whether, after viewing the evidence in the
                   light most favorable to the prosecution, any rational trier of fact could
                   have found the essential elements of the crime beyond a reasonable
                   doubt."   McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992)
                   (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "[I]t is the jury's
                   function, not that of the court, to assess the weight of the evidence and
                   determine the credibility of witnesses." Id. (citing Walker v. State, 91 Nev.
                   724, 726, 542 P.2d 438, 438-39 (1975)).
                               Merlin° argues that the crime of burglary requires "entry" into
                   the premises, and no such "entry" occurred when she merely placed items
                   onto, and removed money from, the sliding tray of the drive-through
                   window. The principal authority cited by Merlino is Smith v. First
                   Judicial District Court, 75 Nev. 526, 347 P.2d 526 (1959), in which the
                   Nevada Supreme Court held that removing items from the open bed of a
                   pickup truck was not a burglarious "entry" of the truck itself. In response,
                   the State argues that the sliding tray was part of the building, and
                   therefore when Merlino's hand entered the tray, the hand necessarily
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                   entered the building itself. For the reasons set forth below, we agree with
                   Merlino
                   Nevada's burglary scheme
                                  In Nevada, the offense of burglary is defined by NRS 205.060,
                   which states, in pertinent part, as follows:
                                         1. Except as otherwise provided in
                                  subsection 5, a person who, by day or night, enters
                                  any house, room, apartment, tenement, shop,
                                  warehouse, store, mill, barn, stable, outhouse or
                                  other building, tent, vessel, vehicle, vehicle trailer,
                                  semitrailer or house trailer, airplane, glider, boat
                                  or railroad car, with the intent to commit grand or
                                  petit larceny, assault or battery on any person or
                                  any felony, or to obtain money or property by false
                                  pretenses, is guilty of burglary.
                                  An essential element of the offense of burglary is that the
                   offender "entered" a "building." NRS 193.0145 defines "enter" for purposes
                   of the burglary statute as follows:
                                  "Enter," when constituting an element or part of a
                                  crime, includes the entrance of the offender, or the
                                  insertion of any part of the body of the offender, or
                                  of any instrument or weapon held in the offender's
                                  hand and used or intended to be used to threaten
                                  or intimidate a person, or to detach or remove
                                  property.
                                  NRS 193.0125 defines a "building" as including "every house,
                   shed, boat, watercraft, railway car, tent or booth, whether completed or
                   not, suitable for affording shelter for any human being, or as a place where
                   any property is or will be kept for use, sale or deposit."

                         1-This
                              definition is broader than the common-law definition, which
                   defined "building" as a "structure with four walls and a roof, esp. a
                   permanent structure." Black's Law Dictionary 234 (10th ed. 2014).

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                                   The question before us is whether the evidence at trial,
                      construed in the light most favorable to the State, was sufficient to
                      demonstrate that Merlin° entered the EZ-Pawn within the meaning of
                      NRS 193.0125, NRS 193.0145, and NRS 205.060, by pawning items
                      through the sliding tray of the drive-through window. In this case, there
                      is no evidence that Merlino used a weapon or otherwise "threaten [edit or
                      intimidate[d]" any person during the commission of the charged crime.
                      Therefore, for Merlino's conviction to stand, the evidence adduced at trial
                      must demonstrate that some part of Merlino's body, or something held in
                      her hand, entered the building in question within the meaning of Nevada's
                      burglary statutes.
                                   Determining whether such an entry occurred in this case
                      reveals a gap in Nevada's statutory burglary scheme. NRS 193.0125
                      defines the term "building" with reference to the functionality of a
                      structure; specifically, a structure is a "building" that can be burglarized if
                      it is functionally suitable to afford shelter or to keep property for use, sale,
                      or deposit. NRS 193.0145 defines "entry" with respect to the offender's
                      body or any tools that he or she uses. But the burglary statutes do not
                      define the terms "enter" or "building" with reference to the size, shape,
                      dimensions, or physical appearance of a particular structure.
                      Consequently, the statutes do not delineate where the outer boundary of a
                      structure begins and ends for purposes of determining when a particular
                      structure has, or has not, been entered within the meaning of NRS
                      193.0145. Yet this is precisely the question before us in this appeal.
                      Thus, resolving this appeal requires us to look outside of the statutes for
                      guidance.



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                                 When the Legislature has not stepped in to address a
                   particular question, we may look to the common law for an answer.        See
                   Vansickle v. Haines, 7 Nev. 249, 285 (1872) (stating that the common law,
                   "so far as it is not repugnant to or inconsistent with, the constitution or
                   laws of the United States, or the laws of the territory of Nevada, shall be
                   the rule of decision in all courts of this territory. . . . [The common law]
                   should remain in force until repealed by the legislature" (internal
                   quotations omitted)).
                   Burglary at common law
                                 The crime of burglary was originally a creature of the common
                   law, but lo]f all common law crimes, burglary today perhaps least
                   resembles the prototype from which it sprang." Minturn T. Wright III,
                   Note, Statutory Burglary—The Magic of Four Walls and a Roof, 100 U. Pa.
                   L. Rev, 411, 411 (1951). At common law, burglary was the breaking and
                   entering of a dwelling in the nighttime, and the law was intended to
                   protect the sanctity of residences when its inhabitants were likely to be
                   asleep and vulnerable. Id. at 411-12. Thus defined, burglary was not an
                   offense against real or personal property, but rather one against the
                   habitation.     See People v. Davis, 958 P.2d 1083, 1088 (Cal. 1998).
                   Consequently, burglary was originally "a crime of the most precise
                   definition, under which only certain restricted acts were criminal."
                   Wright, supra, at 411. Most states, however, have replaced the common-
                   law crime with broader statutory definitions under which burglary "has
                   become one of the most generalized forms of crime," encompassing not only
                   personal abodes but also myriad other structures and even vehicles and
                   commercial businesses in which people are unlikely to reside. Id.



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                                 Nevada adopted and applied the common-law definition of the
                   crime of burglary until 1911, when it enacted the original statutes that,
                   over time, evolved into MRS 193.0125, NRS 193.0145, and MRS 205.060.
                   The statutory definition of burglary originally created in 1911, and whose
                   core has survived until today, is significantly broader than the common-
                   law definition in important ways. 2 But, as noted, Nevada never
                   legislatively defined the term "building" in a way that objectively explains
                   where one begins and ends or, put another way, whether and when one
                   has been "entered" or not under NRS 193.0145. In reviewing the common
                   law for guidance, the problem we encounter is that many of the terms
                   historically used to describe the crime of burglary were somewhat ill-
                   defined. For example, an "entry" was traditionally deemed to occur "when
                   any part of the defendant's person passes the line of the threshold." 3
                   Wharton's Criminal Law § 322 (15th ed. 1995); see also 12A C.J.S.
                   Burglary § 28 ("For purposes of a burglary conviction, a person must
                   penetrate whatever forms a structure's outer boundary. .").



                         2 For example, under the current statute, breaking is no longer an
                   essential element of the crime. State v. Adams, 94 Nev. 503, 505, 581 P.2d
                   868, 869 (1978); see also MRS 205.060(1). Rather, the crime only requires
                   an entry with the proper intent to commit an enumerated crime. Id.
                   Further, the entry no longer needs to be forcible, nor does the crime need
                   to occur at night. See Hernandez v. State, 118 Nev. 513, 531, 50 P.3d
                   1100, 1113 (2002); see also NRS 205.060(1). Also, consent to the entry is
                   not a defense to burglary if the person "acquired the entry with felonious
                   intent." Barrett v. State, 105 Nev. 361, 364, 775 P.2d 1276, 1277 (1989).
                   Finally, like many other states, Nevada has expanded the types of
                   structures that can be burglarized to include houses, boats, watercraft,
                   railway cars, tents, or booths, and the like. MRS 193.0125; MRS
                   205.060(1).


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                   Consequently, the traditional definition of an "entry" and the traditional
                   definition of a "building" were defined primarily in relation to each other;
                   a building was entered when its threshold or outer boundary was
                   penetrated.
                                 At common law, the most widely used legal test for defining
                   the outer boundary of a building, and when a building has been "entered,"
                   was to inquire whether the "airspace" contained within it has been
                   penetrated. 3 See Davis, 958 P.2d at 1094 (Baxter, J., dissenting); Gant v.
                   State, 640 So. 2d 1180, 1182 (Fla. Dist. Ct. App. 1994), receded from on
                   other grounds by Norman v. State, 676 So. 2d 7 (Fla. Dist. Ct. App. 1996).
                   As some courts have noted, "[i] t is the nature of the enclosure that creates
                   [prohibited space]."   State v. Holt, 352 P.3d 702, 706 (N.M. Ct. App.)
                   (citation omitted), cert. granted,     P.3d (N.M. Ct. App, 2015). See
                   People v. Valencia, 46 P.3d 920, 925 (Cal. 2002) ("The airspace of a
                   building is not independent of the outer boundary of a building; rather, the
                   airspace of a building simply is that which is surrounded by the building's
                   outer boundary."), overruled in part on other grounds by People v.
                   Yarborough, 281 P.3d 68 (Cal. 2012).
                                 When analyzing conventional buildings that were most
                   commonly constructed decades ago, courts developed an understanding
                   over time regarding where the boundaries of most such buildings were
                   located. In most states, a structure's outer boundary was generally




                         3 Theinstruction given to the jury in this case (Instruction No. 23)
                   appeared to have been modeled after the common-law test.


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                   understood to include its roof, walls, doors, and windows. 4 The case at
                   hand, however, involves a feature constructed onto a building that was not
                   as common a few decades ago as it is today, and here we see the common-
                   law test fall short. A century ago, most abodes and businesses were
                   conventionally constructed of a primarily rectangular shape with four
                   walls, a roof, and clearly defined doors and windows; defining the
                   boundaries of such simple structures was a relatively straightforward
                   endeavor and the "airspace" test could be easily applied in most instances.
                   But in an era in which buildings are no longer exclusively rectangular and
                   may have such features as retractable roofs, sliding partitions, moveable
                   awnings, or rolling shutters, and in which the outer boundaries of a


                         4 SeeHolt, 352 P.3d at 706 ("[Bn general, the roof, walls, doors, and
                   windows constitute parts of a building's outer boundary, the penetration of
                   which is sufficient for entry.' (quoting Valencia, 46 P.3d at 925)); State v.
                   Kindred, 307 P.3d 1038, 1041 (Ariz. Ct. App. 2013) ("a person must
                   penetrate whatever forms a structure's outer boundary—a door, window,
                   or wall, for example—but need not go further to have entered the
                   structure"). Other courts have held that such things as the door jamb,
                   window screen, and screen door also fall within the building's outer
                   boundary. See People v. Garcia, 16 Cal. Rptr. 3d 833, 840 (Ct. App. 2004)
                   (jamming crowbar into door jamb penetrated outer boundary of building);
                   People v. Moore, 37 Cal. Rptr. 2d 104, 106 (Ct. App. 1994) (penetrating
                   area between screen door and door sufficient for entry into outer
                   boundary); Commonwealth v. Burke, 467 N.E.2d 846, 848-49 (Mass. 1984)
                   (breaking outer storm window constituted entry even if inner window
                   intact); Williams v. State, 997 S.W.2d 415, 417 (Tex. Crim. App. 1999)
                   (breaking a door frame was burglarious entry); Ortega v. State, 626 S.W.2d
                   746, 747 (Tex. Crim. App. 1981) (a failed attempt to open a wooden door
                   after removing its screen door constituted entry into outer boundary); but
                   see Stamps v. Commonwealth, 602 S.W.2d 172, 173 (Ky. 1980) (breaking
                   exterior surface of cinder block wall not entry; interior of the blocks
                   themselves was "not a protected space").


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                   building are no longer necessarily either fixed in place or easily
                   recognizable, any test focused upon a building's "airspace" becomes
                   increasingly subjective and arbitrary. As in this case, many commercial
                   businesses today conduct at least some of their business through deposit
                   windows, drop boxes, sliding trays, chutes, portals, tubes, slides, ramps,
                   canisters, and slots of various configurations which may move in various
                   ways, and which may, or may not, have lids, doors, covers, walls, tops,
                   raised edges, or other features. Inquiring whether these features fall
                   within the "outer boundary" of a building and serve to define "airspace"
                   verges on an exercise in empty rhetoric rather than a search for a rigorous
                   and meaningful definition of an essential element of a felony crime.
                                   Indeed, courts applying the "airspace" test frequently find
                   themselves wrestling over such minutiae as the distinction between an
                   inner window and an outer window, Commonwealth v. Burke, 467 N.E.2d
                   846, 849 (Mass. 1984); whether the interior of a home begins at the
                   exterior surface or interior surface of a door, State v. Kindred, 307 P.3d
                   1038, 1040-41 (Ariz. Ct. App. 2013); where the last barrier to the interior
                   of the house was located, State v. Pigques, 310 S.W.2d 942, 944 (Mo. 1958);
                   and whether the distance between a roof and a ceiling falls within the
                   "airspace" of a home, Miller v. State, 187 So. 2d 51, 52 (Fla. Dist. Ct. App.
                   1966).
                                   Consequently,    California   (whose     burglary      statute
                   substantially mirrors Nevada's) 5 expressly rejected the "airspace" test as a


                            5See
                              State v. White, 130 Nev.        ,    n.1, 330 P.3d 482, 485 n.1
                   (2014) ("California's burglary statute is nearly identical to Nevada's. ...").
                   Cal. Penal Code § 459 (West 2010) provides, in relevant part, that leivery
                   person who enters any. . . tenement, shop, warehouse, store . . . or other
                                                                       continued on next page...
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                   comprehensive test for determining the boundary of a building or
                   inquiring whether it has been entered. See Valencia, 46 P.3d at 925 ("[We
                   have misgivings about the general usefulness of an airspace test to define
                   the outer boundary of a building for purposes of burglary."); People v.
                   Nible, 247 Cal. Rptr. 396, 399 (Ct. App. 1988) ("in our view, the 'air space'
                   test, although useful in some situations, is inadequate as a comprehensive
                   test for determining when a burglarious entry occurs"). Some other states
                   have also limited the "airspace" test. See Holt, 352 P.3d at 707 (reviewing
                   cases from several states).
                                  Instead, recognizing that modern burglary statutes exist to
                   protect a property owner's "possessory interest in a building" and the
                   safety of its occupants, California has supplemented the "airspace" test
                   with a "reasonable belief' test, articulated as follows: whenever the outer
                   boundary of a building is not self-evident under the common-law
                   "airspace" test, the outer boundary legally includes "any element that
                   encloses an area into which a reasonable person would believe that a
                   member of the general public could not pass without authorization."
                   Valencia, 46 P.3d at 926. This test was designed to more closely mirror
                   the normal expectations of privacy and safety that attach to property
                   ownership and habitation. Id. at 924-25 (quoting Nible, 247 Cal. Rptr. at
                   399) ("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 . . . [and whether the feature was] a
                   permanent part of the dwelling. .. on which the occupants rely for

                   ...continued
                   building. . . with intent to commit grand or petit larceny or any felony is
                   guilty of burglary."

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                   protection and that to open such a door. . . is a violation of the security of
                   the dwelling house which is the peculiar gravamen of a burglarious
                   breaking." (internal quotations omitted)).
                                The Supreme Court of Nevada recently explored the purpose
                   of Nevada's burglary statute in some detail and concluded that Nevada
                   follows California burglary law in important respects.     State v. White, 130
                   Nev. , ,330 P.3d 482, 485 (2014) ("We agree with the analysis of the
                   California Supreme Court in [People v. Gauze, 542 P.2d 1365 (Cal. 1975)1,
                   which relied upon these policies to reach the conclusion that a person with
                   an absolute right to enter a structure cannot commit burglary of that
                   structure."). The court concluded that Nevada's burglary scheme was
                   designed to protect the same interests as California's, namely, to protect
                   the owner's possessory right in his property or premises and to prevent the
                   danger associated with a felonious entry of the structure. Id.
                                Because the scope and purpose of Nevada's statutory scheme
                   fundamentally mirrors that of California, it follows that we may consider
                   California jurisprudence in defining the "outer boundary" of a building
                   and analyzing when it has been "entered" under NRS 193.0145 and NRS
                   205.060. See generally, City of Las Vegas v. Cliff Shadows Prof Plaza,
                   LLC, 129 Nev. , n.4, 293 P.3d 860, 865 n.4 (2013) ("This court has
                   often relied on the decisions of other jurisdictions when, as here, it is faced
                   with issues of first impression.").
                                We conclude that, when dealing with unorthodox contours or
                   features such as the sliding tray in this case, the "reasonable belief' test
                   represents a superior method for identifying the protected outer boundary
                   of a structure than the common-law "airspace" test. Thus, whenever the
                   outer boundary of a building is not self-evident from the shape and

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                   contours of the structure itself, the outer boundary is legally defined to
                   include "any element that encloses an area into which a reasonable person
                   would believe that a member of the general public could not pass without
                   authorization." Valencia, 46 P.3d at 926. On the other hand, if the outer
                   boundary of the structure is self-evident because the shape and features of
                   the structure are traditional, then the common-law "airspace" test may be
                   satisfactory. 6
                                Under this test, stepping onto an unenclosed front porch has
                   been held not to constitute a burglarious entry because a reasonable
                   person would not believe that he or she would need permission to merely
                   step onto the porch. Id. (citing People v. Brown, 8 Cal. Rptr. 2d 513, 517
                   (Ct. App. 1992). On the other hand, opening and walking through a screen
                   door to an enclosed porch, or a locked gate covered with iron mesh in front
                   of an enclosed and roofed stairway, has been held to constitute a
                   burglarious entry because a reasonable person would believe that he or
                   she needed permission to do so. Id. (citing People v. Wise, 30 Cal. Rptr. 2d
                   413, 415-18 (Ct. App. 1994)); Bowers v. State, 297 S.E.2d 359 (Ga. Ct. App.
                   1982). Similarly, climbing over the railing of a second-floor balcony
                   bounded by a railing has also been held to constitute a burglarious entry.
                   See Yarborough, 281 P.3d at 698.




                         8Although   we apply the "reasonable belief' test as a legal test to the
                   facts of this case, in future cases, the district courts of this state should
                   consider utilizing this test as a jury instruction whenever the jury is
                   tasked with defining the "outer boundary" of a building or structure
                   having unusual features and when such a building has been "entered."


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                   The evidence in this case
                               At trial, the State argued that Merlino entered the EZ-Pawn
                   store by placing items onto—and removing money from—the sliding tray
                   connected to the building while the tray was open. The dispositive
                   question, however, is not whether she entered the tray, but rather
                   whether she crossed the outer boundary of the building. Accordingly, the
                   inquiry is whether the tray falls inside, or outside, the outer boundary of
                   the building. Applying the "reasonable belief" test, the question becomes
                   whether the tray, when open, constitutes an element that encloses an area
                   into which a reasonable person would believe that a member of the
                   general public could not pass without authorization. We conclude that it
                   does not.
                                Our conclusion arises from the natural operation of the tray,
                   which is worth describing in detail. The tray in this case is retractable
                   and can be manually opened and closed by the pawn shop cashier. When
                   no customer is present, the tray is normally retracted into its closed
                   position in which it rests entirely inside the perimeter of the wall of the
                   pawn shop and its outer edge is flush with the wall. While closed, nothing
                   can be placed into the tray from outside the building. When a customer
                   wishes to do business through the drive-through window, the pawn shop
                   cashier can manually push the tray outwards toward the customer so that
                   it temporarily extends beyond the perimeter of the wall, giving the
                   customer access to the tray for a few seconds during the transaction. After
                   items have been placed inside the tray, the cashier may withdraw the tray
                   into the perimeter of the wall into its closed position. A customer may
                   place items into the tray while it is open, but the tray cannot be fully
                   retracted into the store until the customer lets go of it.

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                                 When the tray is retracted entirely within the perimeter of the
                   wall in its closed position, no reasonable person would believe that a
                   member of the general public could force or pry the tray open without
                   authorization in order to gain access to the interior of the building. While
                   retracted into the building, the outer edge of the tray encloses an area that
                   can reasonably be considered to fall within the permanent possessory
                   rights of the building's owner. Thus, forcing open a tray that has been
                   closed would clearly constitute a violation of the building's outer boundary.
                                 However, the analysis is very different when the tray is
                   extended outward in its open position. When open, the tray temporarily
                   (for only as long as it takes to complete the transaction) extends some
                   distance outside of the perimeter of the wall and occupies an area outside
                   of the wall, a few feet above the ground. No reasonable person would
                   believe that violation of the area temporarily enclosed within the tray
                   while extended threatened the owner's permanent possessory rights in the
                   building     See People v. Davis, 958 P.2d 1083, 1089 (Cal. 1998) (holding
                   that passing a forged check through the window chute of a business's
                   walk-up window did not constitute a burglarious entry, because doing so
                   did not violate the owner's possessory interest in the building). A building
                   owner may construct a tray or box that attaches to the building in some
                   way and moves around, but that does not mean that the owner necessarily
                   "owns" the space within the box whenever it goes outside of the building as
                   an incident of owning the building itself. 7 In this case, the sliding tray
                   fails the "reasonable belief' test, and an item placed within the sliding



                         7 He   may own the box, but it is not because he owns the building.


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                   tray cannot in any realistic sense be considered to be inside the boundary
                   of the building until, and unless, the cashier manually draws it inside by
                   retracting the tray.
                               In this case, the retractable tray is far more akin to a tool or
                   instrument that can be manipulated to move objects into and out of the
                   outer boundary of the building than it is a part of the boundary itself At
                   common law, the use of an instrument to breach a building could
                   constitute a burglarious entry.    See id. at 1086 ("[Al burglary may be
                   committed by using an instrument to enter a building—whether that
                   instrument is used solely to effect entry, or to accomplish the intended
                   larceny or felony as well."). But under NRS 193.0145, the instrument
                   must be held in the offender's hand, or at least operated by the defendant,
                   to constitute an "entry." NRS 193.0145 (entry can be through an
                   "instrument or weapon held in the offender's hand and used. . . to detach
                   or remove property").
                               Here, the tray was operated not by Merlino, but rather by the
                   cashier, whose independent actions caused the tray to enter the building
                   but who could have refused to do so. Thus, fairly described, Merlino
                   placed stolen items into an instrument operated by someone else to cause
                   something to enter the building after it left her hands. Her actions
                   initiated a chain of events that ultimately caused the building to be
                   entered, but the success of that chain of events depended upon the
                   cooperation of the cashier. Merely setting in motion a chain of events
                   involving other people that culminates in stolen property entering the
                   building does not equate to a criminal entry of the building by Merlino
                   herself. Were it otherwise, then Merlino could conceivably have been
                   convicted of burglary for hiring a courier to carry stolen property into the

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                   building, or even for mailing stolen items to the pawn shop through the
                   U.S. mail. NRS 193.0145 was not intended to encompass these
                   circumstances. 8 See Davis, 958 P.2d at 1087-88 (noting that mailing a
                   forged check into a bank through the mail, sliding a ransom note under a
                   door, or accessing a bank's computer via the Internet from a home
                   computer, "cannot reasonably be argued" to constitute burglaries).
                                 Moreover, placing objects into the tray while standing outside
                   does not implicate the same kinds of security and safety concerns as would
                   arise had Merlino physically entered the pawn shop and potentially
                   initiated a confrontation.   See White, 130 Nev. at , 330 P.3d at 485
                   (noting that "[b]urglary statutes 'are based primarily upon a recognition of
                   the dangers to personal safety. . . that the intruder will harm the
                   occupants in attempting to perpetrate the intended crime or to escape and
                   the danger that the occupants will in anger or panic react violently to the
                   invasion' (quoting People v. Gauze, 542 P.2d 1365, 1368 (Cal. 1975)). Her
                   conviction for burglary cannot stand and must therefore be vacated. 9


                         8 The  State argues that similar acts have been considered
                   burglarious in various federal cases. See United States v. Goudy, 792 F.2d
                   664 (7th Cir. 1986) (walk-up window of bank's drive-up facility); United
                   States v. Phillips, 609 F.2d 1271 (8th Cir. 1979) (taking money from bank's
                   drive-up window); United States v. Lankford, 573 F.2d 1051 (8th Cir.
                   1978) (bank's night depository chute). But those cases were decided
                   pursuant to federal bank robbery statutes that are substantially
                   dissimilar to Nevada burglary law.

                         9 Our conclusion may be different had Merlino pried the tray open
                   from its closed position in order to insert items into, or remove items from,
                   the pawn shop. It might even be different had Merlino placed something
                   into the tray while it was open and then forcefully pushed it into the
                   building against the resistance of the cashier. In either of these cases, a
                   reasonable person could believe that the tray was being used to breach the
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                                  In closing, in response to various arguments raised by the
                   State, we note in passing that our disposition of this appeal does not
                   depend upon whether Merlino was considered to have entered the store
                   with her entire body, or merely a small portion of it such as her hand;
                   either would suffice to constitute a burglarious entry had the actual
                   boundary of the store been penetrated. Even the slightest penetration into
                   a building (had the building been penetrated) would suffice to support a
                   burglary conviction. 10




                   ...continued
                   building in a way that violated the owner's property rights in the building.
                   But no evidence was presented that Merlino did either of these things.

                          I-NRS 193.0145; see Sears v. State, 713 P.2d 1218, 1220 (Alaska Ct.
                   App. 1986) ("[An] intruder enters by entry of his whole body, part of his
                   body, or by insertion of any instrument that is intended to be used in the
                   commission of a crime."); Valencia, 46 P.3d at 928 ("Entry that is just
                   barely inside the premises, even if the area penetrated is small, is
                   sufficient"); State v. Faria, 60 P.3d 333, 339-40 (Haw. 2002) (even slight
                   penetration by hand, foot, or instrument is sufficient to constitute
                   burglary); Hebron v. State, 627 A.2d 1029, 1038 (Md. 1993) ("the term
                   'entering' requires that some part of the body of the intruder or an
                   instrument used by the intruder crosses the threshold, even momentarily,
                   of the house"); see also Edelen v. United States, 560 A.2d 527, 530 (D.C.
                   1989); State v. Nichols, 572 N.W.2d 163, 164 (Iowa Ct. App. 1997); State v.
                   Ervin, 573 P.2d 600, 601-02 (Kan. 1977); State v. Sneed, 247 S.E.2d 658,
                   659 (N.C. Ct. App. 1978); Griffin v. State, 815 S.W.2d 576, 578 (Tex. Crim.
                   App. 1991).

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                                                        CONCLUSION
                                       For the foregoing reasons, we vacate Merlino's conviction on
                         count five.




                         We concur:



                                                         CA.
                         Gibbons



                                                         J.
                         Silver




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