Free Initial Consultation
What The Prosecution Must Prove In A Burglary Case
23 May 2016

What The Prosecution Must Prove In A Burglary Case

In New Mexico, burglary is defined in New Mexico Statute § 30-16-3. Simply stated, burglary is the unauthorized entrance into a building, home, or vehicle with the intent to commit a theft or a felony inside.

But what exactly does that mean? In breaking down the burglary statute, we find that the prosecution must prove four elements to obtain a conviction: (1) the entrance was unauthorized; (2) the unauthorized entrance was into a building, home or vehicle; (3) with the intent at the time of entering; (4) to commit a theft or felony offense therein. So, an apparently straight-forward definition has now become more complicated.

In any criminal prosecution, the State must prove each element of the crime charged beyond a reasonable doubt. Failure to prove even one of the elements necessary to commit the crime can result in an acquittal (a finding of not guilty) or a full dismissal of the charge.  An experienced Albuquerque criminal lawyer knows how to identify and exploit the holes in the State’s case to sway the prosecutor, judge, or jury in the defendant’s favor.

Unauthorized Entrance

The first element that must be proven in a burglary case is that the defendant’s entrance was ‘unauthorized’. In plain language, ‘unauthorized’ means ‘without permission or approval’; but again, the law is not that simple. Why was the defendant’s entrance unauthorized? Did the defendant have prior authority to enter, and if so, who revoked it and when? Further complicating this element is the recent ruling in State of New Mexico v. Joseph Archuleta, 015-NMCA-037, in which the Court ruled that the unauthorized entrance must be “harmful,” or, in other words, an entrance that would cause someone “to suffer a feeling of violation and vulnerability.” Not every burglary case consists of someone crawling through a broken window to steal someone else’s television, so proving an ‘unauthorized entrance’ can be difficult.

Into a Building, Home, or Vehicle

The second element that must be proven in a burglary case is that the unauthorized entrance was “into a building, home or vehicle”. For purposes of burglary, a ‘building’ is a commercial or retail building, such as an office or retail store; a ‘home’ is a residential dwelling; and a ‘vehicle’ is an automobile, boat or airplane. With the exception of a few subtle nuances, such as when a building is considered a residential home because the owner routinely sleeps on a cot in the back room, this second element is, without doubt, the easiest for the prosecution to prove.


The third element that must be proven in a burglary case is “intent”. The prosecution must prove beyond a reasonable doubt that the defendant intended to commit a theft or felony offense once inside the building, home or vehicle. It is not enough to show that a theft or felony was committed; the defendant must have formed the intent prior to making the unauthorized entrance. For example, suppose a person breaks into a locked building to avoid a thunderstorm. Once inside, the person finds something of value and decides to steal it. That person may be guilty of several crimes but not burglary, because the person’s intention was to avoid the thunderstorm, not to commit a theft or felony. The idea of stealing the object was an afterthought, meaning it didn’t occur until after the person already committed the unauthorized entrance.

Take the same scenario but change the facts. The person breaks into a locked building with the intention of committing a theft but leaves without actually stealing anything. Is this burglary? Yes, because the person made an unauthorized entrance into a building with the intent to commit a theft therein. It does not matter that the person did not actually commit a theft inside the building so long as the person intended to commit the crime.

How does the prosecution prove intent? Obviously, the easiest manner in which to prove a defendant’s intent is to obtain a confession. “I broke into the store to steal a television.” A confession of this nature not only proves intent but every other element, as well. But how does the prosecution show intent if there is no confession? The prosecution shows intent by using the circumstances surrounding the case. Circumstances such as the time of day the alleged burglary occurred; the manner in which the defendant gained access to the building, home or vehicle; did the defendant have any valid reason to be inside the building, home or vehicle other than to commit a theft or felony offense; etc. Individually, these circumstances do not amount to much, but taken together they create a story that allows a legal inference to be made as to the defendant’s state of mind, i.e., intent.

Theft or Felony Therein

The last element necessary to prove burglary is to show that the defendant’s intent was to ‘commit a theft or felony offense inside the building, home or vehicle. In New Mexico, the term ‘larceny’ is used to encompass all theft crimes, and is defined as “the stealing of anything of value that belongs to another.” In regards to burglary, the monetary value of the item stolen is irrelevant. A felony is any crime that carries the possibility of incarceration of more than one year (the maximum sentence for a misdemeanor is one year).

Therefore, the prosecution must show that the defendant intended to commit a larceny, of any value, or a crime that carries more than one year incarceration. As with intent, the prosecution attempts to show this by using the circumstances surrounding the case. And again, it does not matter that the defendant did not actually commit a larceny or felony so long as the defendant intended to do so.

You can see how evidence in a burglary case can be open to interpretation.  An experienced criminal attorney understands how to present the evidence in a light most favorable to the defendant. If you are facing a charge of burglary or other property related crime, your best bet for a favorable resolution is to retain an Albuquerque criminal lawyer immediately.  To speak with a seasoned criminal lawyer, call the Twohig Law Firm at 505.898.0400.


  • I have been in the legal field for almost 41 years. I work with lawyers as a consultant all over the US. Ray Twohig is the best of the best. He is very thoughtful, thorough, careful, and... Twohig Law Firm Twohig Law Firm

    - Elliott Oppenheim, MD,JD,LLM Health Law READ MORE


Helping You Fight Theft Charges…

Theft of any type is a serious crime in New... ( read more )

How to Protect Yourself Against False Allegations…

Domestic violence is a real threat, and there's a reason... ( read more )