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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 33,423

 5 JESSE RIVERA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Mark T. Sanchez, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Steven H. Johnston, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Chief Public Defender
15 Nina Lalevic, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VANZI, Judge.
 1   {1}   A jury believed that Defendant Jesse Rivera forced open the door of Kimberly

 2 Mendoza’s apartment intending to commit a robbery. As a result, Defendant was

 3 convicted of various offenses, including breaking and entering, contrary to NMSA

 4 1978, Section 30-14-8 (1981), and residential burglary, contrary to NMSA 1978,

 5 Section 30-16-3 (1971). He now argues that the district court improperly limited his

 6 defense by excluding one witness and limiting the cross-examination of another. He

 7 also contends that his convictions violate the right to be free from double jeopardy.

 8   {2}   We affirm in the first respect, but we conclude that the jury was improperly

 9 instructed on the elements of breaking and entering, which, although not argued, is

10 reversible in its own right. That erroneous instruction also resulted in a double

11 jeopardy violation. Because this is a memorandum opinion and because the parties

12 are familiar with the case, we reserve discussion of the facts for our analysis of the

13 issues on appeal.

14 DISCUSSION

15 Exclusion of Alexander Rivera

16   {3}   Defendant hoped to secure the testimony of Alexander Rivera, his brother and

17 alleged co-conspirator, who was tried separately. In violation of Rule 5-502(A)(3)

18 NMRA, Defendant did not file his witness disclosure until 4:57 p.m. on the Friday

19 before a Monday trial. Like most government offices, the Lea County District Court



                                             2
 1 clerk’s office is open until 5:00 p.m., and closed on weekends, see Fifth Judicial

 2 District Court, http://fifthdistrictcourt.nmcourts.gov (last visited Sept. 2, 2016), which

 3 means that Defendant waited until virtually the last possible minute to disclose his

 4 witness. He also failed to disclose Alexander to the jury during voir dire. The record

 5 contains no explanation for any of this.

 6   {4}   These are not technicalities. The late disclosure gave the State no reasonable

 7 opportunity to conduct a pretrial interview over the weekend, obtain transcripts (for

 8 impeachment) from Alexander’s own trial, search its records for Alexander’s prior

 9 convictions (if any), prepare to oppose any application for use immunity (if

10 warranted), or generally prepare for cross-examination. The failure to discuss

11 Alexander with the jury during voir dire also raised the possibility that Alexander had

12 friends, associates, enemies, or others on the jury who would not be impartial to his

13 testimony.

14   {5}   In his brief, Defendant vaguely asserts his fundamental right to put on his own

15 defense, but “the mere invocation of that right cannot automatically and invariably

16 outweigh countervailing public interests.” McCarty v. State, 1988-NMSC-079, ¶ 7,

17 107 N.M. 651, 763 P.2d 360 (internal quotation marks and citation omitted). Before

18 excluding evidence for a defendant’s violation of a discovery rule, a court should

19 weigh the extent of prosecutorial surprise or prejudice against the importance of the



                                               3
 1 evidence to the defense. See State v. Guerra, 2012-NMSC-014, ¶ 33, 278 P.3d 1031;

 2 McCarty, 1988-NMSC-079, ¶ 10. We review a district court’s decision to exclude a

 3 witness for an abuse of discretion. Guerra, 2012-NMSC-014, ¶ 23. “An abuse of

 4 discretion occurs when the ruling is clearly against the logic and effects of the facts

 5 and circumstances of the case, is clearly untenable, or is not justified by reason.” State

 6 v. Balderama, 2004-NMSC-008, ¶ 22, 135 N.M. 329, 88 P.3d 845.

 7   {6}   We will assume that Alexander would have corroborated Defendant’s version

 8 of events, though Defendant made no offer of proof below. See State v. Campbell,

 9 2007-NMCA-051, ¶ 14, 141 N.M. 543, 157 P.3d 722 (“[N]o more prejudice need be

10 shown than that the [district] court’s order may have made a potential avenue of

11 defense unavailable to the defendant.” (internal quotation marks and citation

12 omitted)). The record is inadequate to determine the importance of this corroboration,

13 but we note that Defendant never treated Alexander as an important witness. He never

14 applied for immunity to secure Alexander’s testimony. See State v. Belanger, 2009-

15 NMSC-025, ¶ 38, 146 N.M. 357, 210 P.3d 783. He never issued a subpoena to ensure

16 Alexander’s attendance at trial, and he apparently forgot about Alexander during voir

17 dire.

18   {7}   On the other side of the equation, allowing the testimony despite the late notice

19 to the State would have limited the State’s ability to effectively cross-examine the



                                               4
 1 witness. Options for curing any prejudice would have raised new problems.

 2 Continuances after the jury is empaneled are not favored, see State v. Branch, No.

 3 33,064, 2016 WL 3014609, 2016-NMCA-___, ¶ 56, ___ P.3d ___ (May 23, 2016),

 4 cert. granted, 2016-NMCERT-007, ___ P.3d ___ (No. 35,951, July 28, 2016), and

 5 a mid-trial re-voir dire of the jury could have resulted in a mistrial if it turned out that

 6 any juror knew Alexander.

 7   {8}   Furthermore, Defendant has not given any explanation for the rule violations,

 8 and we cannot dismiss the real possibility of sandbagging and gamesmanship.

 9 McCarty, 1988-NMSC-079, ¶ 16 (“The trial judge should consider whether the

10 noncompliance was a willful attempt to prevent the [s]tate from investigating facts

11 necessary for the preparation of its case.”). Defendant must have known that his

12 brother and alleged co-conspirator had potentially relevant testimony from the very

13 beginning of the case. Despite having nearly a year to apply for immunity and provide

14 notice to the State, he waited until the last minute before trial—when the court was

15 about to close for the weekend and the transcripts from Alexander’s own trial were

16 likely out of reach. While Defendant’s right to present a defense cannot be

17 minimized, “the integrity of the adversary process, which depends both on the

18 presentation of reliable evidence and the rejection of unreliable evidence; the interest

19 in the fair and efficient administration of justice; and the potential prejudice to the



                                                5
 1 truth-determining function of the trial process must also weigh in the balance.” Id.

 2 ¶ 10 (alteration, internal quotation marks, and citation omitted).

 3   {9}    Defendant argues that Alexander may have been excluded for the wrong reason

 4 (the failure to issue a subpoena). But that is not our standard; we will affirm the

 5 district court if it is right for any reason. State v. Ybarra, 1990-NMSC-109, ¶ 8, 111

 6 N.M. 234, 804 P.2d 1053. Regardless, the record does not support Defendant’s

 7 contention. The court excluded the witness without explanation, as Defendant

 8 recognizes in his brief. “Abuse of discretion cannot be presumed but must be

 9 affirmatively established.” State v. Serrano, 1966-NMSC-166, ¶ 13, 76 N.M. 655,

10 417 P.2d 795. “It follows that if the record is silent as to the reasons for a ruling,

11 regularity and correctness are presumed.” Id.; see State v. Rojo, 1999-NMSC-001,

12 ¶ 53, 126 N.M. 438, 971 P.2d 829 (“Where there is a doubtful or deficient record,

13 every presumption must be indulged by the reviewing court in favor of the

14 correctness and regularity of the [district] court’s judgment.” (internal quotation

15 marks and citation omitted)). On this record, we conclude that the district court did

16 not abuse its discretion when it prevented Alexander from testifying.

17 Cross-Examination of Detective Miranda

18   {10}   As part of his investigation, Detective David Miranda interviewed Mendoza

19 and two individuals, her husband and brother, that were with her when the home



                                             6
 1 invasion occurred. He believed their statements were consistent, and he testified

 2 accordingly. Defendant sought to impeach that testimony by highlighting various

 3 differences in the three statements. The district court permitted the line of questioning

 4 but told defense counsel to “zero in on the inconsistencies” because the court was

 5 concerned that the details seemed inconsequential and would waste the jury’s time.

 6 Apparently attempting to speed things along, the court provided the form the

 7 questions should take: “In your report, you asserted that X was true. In fact, Y is true.

 8 Correct?”

 9   {11}   Upon cross-examination of Detective Miranda, defense counsel deviated from

10 the district court’s suggested format, and the State objected, and the objection was

11 sustained. Cross-examination continued until it was eventually revealed that the

12 statements were, in fact, not entirely consistent in at least one important respect. That

13 is, while Mendoza and her husband stated that the door was broken open, her brother

14 stated that Mendoza partially opened the door herself before it was pushed open.

15   {12}   It is this seemingly innocuous bit of uncertainty that will ultimately lead to our

16 reversal of the breaking and entering conviction, but not on the ground that cross-

17 examination was inappropriately limited. That argument must fail for the basic reason

18 that the district court’s rulings did not actually prevent Defendant from impeaching

19 the witness. “The Confrontation Clause guarantees an opportunity for effective cross-



                                                7
 1 examination, not cross-examination that is effective in whatever way, and to whatever

 2 extent, the defense might wish.” State v. Montoya, 2014-NMSC-032, ¶ 47, 333 P.3d

 3 935 (alteration, internal quotation marks, and citation omitted); see State v. Smith,

 4 2001-NMSC-004, ¶ 19, 130 N.M. 117, 19 P.3d 254 (“[T]he [district] court retains

 5 wide latitude insofar as the Confrontation Clause is concerned to impose reasonable

 6 limits on cross-examination based on concerns about, among other things, . . .

 7 interrogation that is repetitive or only marginally relevant.” (omission, internal

 8 quotation marks, and citation omitted)). Defendant had his opportunity to impeach

 9 Detective Miranda, and his questioning—even following the formula invented by the

10 court—uncovered the inconsistency that he wanted to present to the jury.

11 Breaking and Entering

12   {13}   For whatever reason, the State altered the elements set forth in the uniform jury

13 instruction for breaking and entering when it submitted its requested instructions to

14 the court. We have cautioned against rewriting instructions in the past. See Jackson

15 v. State, 1983-NMSC-098, ¶ 5, 100 N.M. 487, 672 P.2d 660 (“Noncompliance with

16 the uniform jury instructions in criminal cases is reversible error if the failure

17 eliminates an essential element of the crime in the instruction or if the defendant is

18 prejudiced.”); State v. Watchman, 2005-NMCA-125, ¶ 15, 138 N.M. 488, 122 P.3d




                                                8
 1 855 (“[U]niform jury instructions and use notes are to be followed without substantial

 2 modification.” (internal quotation marks and citation omitted)).

 3   {14}   Generally, an elements instruction may only be altered if alteration is necessary

 4 to convey the law to the jury and only if the modification is supported by binding

 5 precedent or unique circumstances in a particular case. See UJI Criminal, General Use

 6 Note NMRA. If a “court determines that a uniform instruction must be altered, the

 7 reasons for the alteration must be stated in the record.” Id. In this case, the court

 8 accepted the State’s proposed instruction without stating any reason for deviating

 9 from the elements in UJI 14-1410 NMRA.

10   {15}   In pertinent part, the second element of the uniform instruction requires proof

11 that “entry was obtained by [fraud] [deception] [the breaking of _______ ] [the

12 dismantling of _______ .]” UJI 14-1410 (footnote omitted). The use notes instruct the

13 court to choose between the four, bracketed alternatives for obtaining entry, and when

14 entry is obtained by breaking or dismantling as opposed to fraud or deception, the use

15 notes provide that the instruction must specify the property or device that was

16 actually broken. None of that happened here. The jury was instead instructed that

17 Defendant could be convicted if “[t]he entry was obtained by forcing open the front

18 door[.]” That instruction was only proper if it substantially followed the language of




                                                9
 1 the statute or used equivalent language. State v. Rubio, 1999-NMCA-018, ¶ 6, 126

 2 N.M. 579, 973 P.2d 256.

 3   {16}   As it turns out, the distinction between breaking and forcible entry is important

 4 in our law. When entry is not obtained by fraud or deception, the offense of breaking

 5 and entering requires an actual “breaking.” See § 30-14-8(A) (“Breaking and entering

 6 consists of the unauthorized entry of any . . . dwelling . . . by the breaking or

 7 dismantling of any part of the . . . dwelling . . . or by the breaking or dismantling of

 8 any device used to secure the . . . dwelling.”). This is not a situation where the statute

 9 means something other than what it says. See State v. Sorrelhorse, 2011-NMCA-095,

10 ¶ 20, 150 N.M. 536, 263 P.3d 313 (interpreting the breaking and entering statute

11 according to its plain terms); State v. Michael S., 1995-NMCA-112, ¶ 3, 120 N.M.

12 617, 904 P.2d 595 (“Ordinarily, we should give effect to the plain language of a

13 statute.”).

14   {17}   There are two competing meanings of the term “breaking.” The first is

15 “breaking” in the legal sense at common law, which is “to force entry into[;] enter by

16 force or violence[;] open for illegal entry[.]” Webster’s Third New Int’l Dictionary

17 271 (unabridged ed. 1986); see Black’s Law Dictionary 227 (10th ed. 2014) (“In the

18 modern American criminal codes, only seldom is there a requirement of a breaking.”

19 (internal quotation marks and citation omitted)). That definition closely resembles the



                                               10
 1 forcible-entry-type instruction given in this case. The second is the ordinary meaning

 2 of “breaking” as understood by ordinary people: “to split into pieces or smash into

 3 parts or fragments typically by a blow or stress and with suddenness or violence.”

 4 Webster’s Third New Int’l Dictionary 271.

 5   {18}   When the Legislature enacted Section 30-14-8(A), it favored the latter over the

 6 former and departed from common law burglary concepts that permitted a conviction

 7 based on “breaking the close” and other notions of constructive breaking that are

 8 archaic outside the law. Sorrelhorse, 2011-NMCA-095, ¶ 20. “[B]y addressing the

 9 ‘breaking’ of ‘any part’ or ‘any device used to secure,’ ” Section 30-14-8(A)

10 “contemplates a physical breaking contrary to common law burglary.” Sorrelhorse,

11 2011-NMCA-095, ¶ 20. Thus, we held in Sorrelhorse that criminal damage to

12 property is a lesser included offense of breaking and entering because actual property

13 damage is an element of both offenses. Id. ¶ 21. In other words, consistent with the

14 plain language of the statute, breaking and entering in New Mexico punishes the

15 invasion of a closed structure effectuated by physical damage to that structure. See

16 generally UJI 14-1410 comm. cmt. (“[I]f a person opens an unlocked door . . . with

17 the intent to merely go in and lie down, that person would be guilty of neither

18 burglary nor breaking and entering. It would not be . . . breaking and entering since

19 the door was not locked and no breaking or dismantling occurred.”).



                                              11
 1   {19}   As mentioned earlier, Defendant’s impeachment of Detective Miranda called

 2 into question whether anyone actually broke open the door. In truth, that issue was

 3 factually in dispute throughout. For instance, there was a dispute about whether a

 4 crowbar or other tool was used to effectuate entry because no such tool was ever seen

 5 by any witness or found by police; investigating officers lost the photographs of the

 6 door that they testified would have corroborated Mendoza’s testimony that her door

 7 showed damage after the incident; and Mendoza’s brother, present in her apartment

 8 during the home invasion, apparently believed that Mendoza partially opened the

 9 door before Defendant pushed his way in. Detective Miranda disregarded that

10 statement in his testimony because he thought that Mendoza’s brother had a poor

11 vantage point because he was entering the living room from another room at the time

12 of the commotion at the door. But the jury may have decided not to credit Mendoza

13 or Detective Miranda. See Murphy v. Frinkman, 1978-NMCA-127, ¶ 22, 92 N.M.

14 428, 589 P.2d 212 (“After hearing witnesses testify, the jury tests the credibility of

15 the witness. They may disbelieve either party.”).

16   {20}   As a result, the jury could have believed that Defendant forced open a door that

17 was already partly open and still properly applied the language from the improper

18 instruction—that “entry was obtained by forcing open the front door”—to convict

19 Defendant of breaking and entering. Although the elements in the jury instruction



                                               12
 1 have not been challenged below or on appeal, it would be wrong to let that conviction

 2 stand. State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (“[T]here

 3 exists in every court an inherent power to see that a man’s fundamental rights are

 4 protected in every case.” (omission, internal quotation marks, and citation omitted));

 5 State v. Osborne, 1991-NMSC-032, ¶ 40, 111 N.M. 654, 808 P.2d 624 (“[I]t is the

 6 duty of the court, not the defendant, to instruct the jury on the essential elements of

 7 a crime.”).

 8   {21}   In any case, Defendant does argue that his convictions for breaking and

 9 entering and burglary violate his right to be free from double jeopardy. That will also

10 necessitate reversal of the breaking and entering conviction, which imposes the lesser

11 sentence. See State v. Montoya, 2013-NMSC-020, ¶ 55, 306 P.3d 426. Defendant’s

12 argument raises a double-description challenge that requires we first decide factually

13 “whether the conduct underlying the offenses is unitary, i.e., whether the same

14 conduct violates both statutes[,]” and if so, we consider the legal question “whether

15 the [L]egislature intended to create separately punishable offenses.” Swafford v. State,

16 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. The State appropriately concedes

17 unitary conduct since the single act of entering the apartment is the factual basis for

18 both convictions.




                                              13
 1   {22}   When, as here, the statutes themselves do not expressly provide for multiple

 2 punishments, we begin by applying the rule of statutory construction from

 3 Blockburger v. United States, 284 U.S. 299, 304 (1932), to ensure that each provision

 4 requires proof of a fact that the other does not. Swafford, 1991-NMSC-043, ¶¶ 10, 30.

 5 In conducting our Blockburger analysis of a statute that contains multiple alternatives

 6 for committing an offense (i.e., in this case by fraud, deception, breaking, or

 7 dismantling), we look to the elements as charged in the jury instructions. See State v.

 8 Gutierrez, 2011-NMSC-024, ¶¶ 53, 58, 150 N.M. 232, 258 P.3d 1024. This is simply

 9 a test to determine whether one offense, as charged to the jury, is a lesser offense

10 included within the other, State v. Ramirez, No. 34,303, 2016 WL 3030154, 2016-

11 NMCA-___, ¶ 22, ___ P.3d ___ (May 25, 2016), cert. denied, 2016-NMCERT-007,

12 ___ P.3d ___ (No. 35,949, July 20, 2016), because a defendant cannot be punished

13 for both a greater and its lesser offense, see Gutierrez, 2011-NMSC-024, ¶¶ 58-60.

14   {23}   The State, citing Sorrelhorse, persuasively argues that breaking and entering

15 is not a lesser included offense of burglary—when entry is effectuated by

16 breaking—because the definition of “breaking” in the breaking and entering statute

17 “contemplates a physical breaking contrary to common law burglary.” 2011-NMCA-

18 095, ¶ 20; see also State v. Hernandez, 1999-NMCA-105, ¶ 25, 127 N.M. 769, 987




                                              14
 1 P.2d 1156 (“Contrary to the common[]law definition of burglary, New Mexico does

 2 not consider ‘breaking’ to be an element of burglary.”).

 3   {24}   But there is a problem with that. According to that argument, which is well

 4 taken, the only element that prevents breaking and entering from being subsumed

 5 within burglary is the same “breaking” element that was omitted from the jury

 6 instruction in this case. An unauthorized—even forcible—entry that is not achieved

 7 by breaking could at most constitute criminal trespass, see NMSA 1978, § 30-14-1

 8 (1995), which would be a lesser included offense of burglary, State v. Romero, 1998-

 9 NMCA-057, ¶ 16, 125 N.M. 161, 958 P.2d 119.

10   {25}   The effect of the erroneous UJI 14-1410 elements instruction was twofold: (1)

11 Defendant was punished for the crime of forcible entry that does not exist in New

12 Mexico; and (2) the crime of forcible entry, as charged and instructed to the jury, was

13 subsumed within another offense (robbery) that he was also punished for. This all

14 stemmed from the unexplained failure to adhere to the language in UJI 14-1410. As

15 a result, we reverse Defendant’s conviction for breaking and entering due to the

16 erroneous modifications made to UJI 14-1410 in this case.

17 CONCLUSION

18   {26}   We reverse Defendant’s conviction for breaking and entering and affirm in all

19 other respects.



                                              15
1   {27}   IT IS SO ORDERED.


2                               __________________________________
3                               LINDA M. VANZI, Judge



4 WE CONCUR:


5 _________________________________
6 JONATHAN B. SUTIN, Judge


7 _________________________________
8 TIMOTHY L. GARCIA, Judge




                                  16
