State v. Montoya

                                                            Office of the Director         New Mexico
                                                             07:26:30 2021.03.08           Compilation
                                                                           '00'07-         Commission


          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: December 10, 2020

No. A-1-CA-37676

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

ANGELO ANTONIO MONTOYA,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Certiorari Denied, February 4, 2021, No. S-1-SC-38638. Released for Publication
March 9, 2021.

Hector H. Balderas, Attorney General
Santa Fe, NM
Walter Hart, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

YOHALEM, Judge.

{1}    Defendant Angelo Antonio Montoya appeals his conviction for possession of
burglary tools, in violation of NMSA 1978, Section 30-16-5 (1963). Defendant contends
that there was insufficient evidence to support his conviction. Alternatively, Defendant
seeks reversal based on prosecutorial misconduct.
{2}    We agree that the evidence of intent to commit burglary, an essential element of
the crime of possession of burglary tools, was insufficient to support Defendant’s
conviction. Because we reverse on this ground, we do not consider Defendant’s
remaining claim of error.

BACKGROUND

{3}    Albuquerque Police Department Officer Russell Jones observed a black Ford
Bronco (Bronco) towing a brown 2013 Audi SUV (Audi). Noting that the Bronco had no
license plates, Officer Jones stopped the two vehicles. The Bronco, towing the Audi,
pulled over to the center turning lane. Because there were two vehicles, Officer Jones
called for backup.

{4}    When Officer Earl Nagy arrived, the two officers approached the Audi, one on
each side. Officer Jones opened the driver’s side door and asked Defendant to step
outside. Defendant stepped out of the vehicle and ran from the officers. Officer Nagy
chased and apprehended Defendant.

{5}     While Officer Nagy apprehended Defendant, Officer Jones approached the driver
of the Bronco. Officer Jones noticed the Bronco had a key broken in the ignition, which
the officer testified might indicate the vehicle was stolen. The Bronco, however, had not
been reported stolen. Neither the driver nor the passenger in the Bronco was charged
with a crime.

{6}     A third officer, Officer Cornel Heitzman, arrived and searched Defendant. In
Defendant’s pocket, Officer Heitzman found, among other things, two hypodermic
needles and a keychain with five car keys for different makes and models of cars. Two
of the officers testified that the car keys were filed down to make what are known as
“jiggle” or “bump” keys. These were described by the officers as a universal key. Officer
Jones testified that the only use for “jiggle” keys is to break into and/or steal motor
vehicles. Officer Heitzman testified that “jiggle” keys are used to start vehicles and that
their purpose is to increase success in taking a vehicle without the owner’s permission.

{7}    After being searched, Defendant told Officer Jones the Audi had been rented by
a friend, its battery died, and the friend asked Defendant to help him jump start the car.
Officer Jones asked Defendant for the friend’s name. Defendant did not know his name.
Officer Jones asked Defendant if the Audi was stolen. Defendant said, if the vehicle had
been stolen, the GPS would have found it by now. At trial, no evidence was presented
that the Audi was stolen.

{8}     The Audi was a push-start vehicle that required a key fob near the ignition to start
the car. Neither a key fob nor rental papers were located by the police. The door
handles, locks, ignition, and windows of the Audi were not damaged. Officer Jones
testified that “jiggle” keys may not be successful in entering a push-start car like the
Audi. He also explained that stolen vehicles are not always damaged when stolen.
{9}     Defendant was charged with four crimes: receiving or transferring a stolen motor
vehicle, contrary to NMSA 1978, Section 30-16D-4(A) (2009); possession of burglary
tools, contrary to Section 30-16-5; possession of drug paraphernalia, contrary to NMSA
1978, Section 30-31-25.1(A) (2001, amended 2019); and resisting, evading, or
obstructing an officer, contrary to NMSA 1978, Section 30-22-1(D) (1981). A jury trial
was held, and at the conclusion of the State’s evidence, Defendant moved for a directed
verdict on the charges of receiving or transferring a stolen motor vehicle and possession
of burglary tools, arguing that the evidence was insufficient to convict of either charge.
The district court granted the motion in part, dismissing the charge of receiving or
transferring a stolen motor vehicle and allowing the possession of burglary tools charge
to go to the jury. The jury returned a guilty verdict on the possession of burglary tools
charge, as well as on the two misdemeanor charges.

{10}   Defendant appeals his conviction of possession of burglary tools. 1

DISCUSSION

The Evidence Was Insufficient to Support Defendant’s Conviction for Possession
of Burglary Tools

A.     Standard of Review

{11} “The test for sufficiency of the evidence is whether substantial evidence of either
a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable
doubt with respect to every element essential to a conviction.” State v. Ford, 2019-
NMCA-073, ¶ 7, 

 (internal quotation marks and citation omitted). We “view
the evidence in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.
Cunningham, 

, 

, 

. The relevant
question is whether “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” State v. Holt, 

, 

 (emphasis, internal quotation marks, and citation omitted).

{12} Despite our deferential approach, it is our responsibility to ensure that the jury’s
decisions are supported by evidence and by reasonable inferences from that evidence.
State v. Slade, 

, 

. “A reasonable inference is a
conclusion arrived at by a process of reasoning which is a rational and logical deduction
from facts admitted or established by the evidence.” 

 (alterations, internal quotation
marks, and citation omitted).




1Defendant has not appealed his misdemeanor convictions (possession of drug paraphernalia and
resisting, evading, or obstructing an officer).
B.     The Contentions of the Parties

{13} Consistent with Section 30-16-5 and UJI 14-1633 NMRA, the jury was instructed
that in order to convict Defendant of possession of burglary tools, it had to find, beyond
a reasonable doubt, each of the following elements of the crime:

       1.   [D]efendant had in his possession “jiggle” and/or “bump” keys;

       2.   “Jiggle” and/or “bump” keys are designed for or commonly used in the
            commission of a burglary;

       3.   [D]efendant intended that the “jiggle” and/or “bump” keys be used for
            the purpose of committing a burglary;

       4.   This happened in New Mexico on or about the 23rd day of August,
            2017.

The jury was also instructed, in relevant part, that “burglary consists of the unauthorized
entry of any vehicle, . . . or other structure, movable or immovable, with intent to commit
any felony or theft therein.” NMSA 1978, § 30-16-4 (1963). “Jury instructions become
the law of the case against which the sufficiency of the evidence is to be measured.”
State v. Smith, 

, ¶ 7, 

, 

.

{14} Defendant concedes that the State introduced sufficient evidence to establish,
beyond a reasonable doubt, all but the third element of the jury instructions. Therefore,
we focus solely on the sufficiency of the evidence to establish that “[D]efendant
intended that the ‘jiggle’ and/or ‘bump’ keys be used for the purpose of committing a
burglary.”

{15} As Defendant’s challenge is limited to the third element of the jury instructions,
we assume without deciding that the State’s evidence was sufficient to allow a jury to
conclude that “jiggle” or “bump” keys are designed for the commission of burglary and
have no legitimate purpose. Defendant argues that the jury may not infer his intent to
commit burglary solely from this evidence; he contends that there must be direct or
circumstantial evidence from which the jury can draw a reasonable inference that
Defendant actually intended to use the keys to commit a burglary.

{16} The State argues that Officer Jones’s testimony that there was “no other purpose
for Defendant to possess the ‘jiggle’ or ‘bump’ keys than to obtain unauthorized entry to
a motor vehicle” was sufficient to establish the third element of the jury instructions:
intent to commit a burglary. Alternatively, the State contends the circumstances at the
time of Defendant’s arrest were sufficient to allow the jury to infer that “[D]efendant
intended the ‘jiggle’ and/or ‘bump’ keys be used for the purpose of committing a
burglary.”
{17} We first address whether, pursuant to Section 30-16-5, a jury is permitted to infer
a defendant’s intent to use a tool to commit a burglary solely from evidence that a
defendant is carrying a burglary tool that has no legitimate purpose. We then address
the State’s alternative argument that the circumstances at the time of Defendant’s arrest
were sufficient to allow the jury to infer Defendant’s intent to use the “jiggle” or “bump”
keys to commit a burglary. We conclude that a jury may not rely solely on evidence that
a defendant is carrying a tool designed for burglary that has no legitimate purpose to
prove the element of intent to commit a burglary. Because the evidence of the
circumstances at the time of Defendant’s arrest was also insufficient to establish this
intent, we reverse Defendant’s conviction.

C.     Section 30-16-5 Requires Direct or Circumstantial Evidence of Intent to Use
       a Burglary Tool to Actually Commit a Burglary

{18} Whether proof of possession of a tool designed exclusively for use as a burglary
tool is alone sufficient to satisfy the statutory element of intent to use that tool in the
commission of a burglary is a question of first impression. Although this Court has
addressed the elements of our possession of burglary tools statute, this Court’s
previous decisions concerning the element of intent have involved possession of multipurpose tools. See, e.g., Ford, 

 (a screwdriver); State v. Flores,

, ¶ 22, 

 (a computer); State v. Barragan, 2001-NMCA-
086, ¶ 27, 131 N.M 281, 

 (a pry bar), overruled on other grounds by State
v. Tollardo, 

, ¶ 37 n.6, 

; State v. Jennings, 1984-NMCA-
051, ¶ 12, 

, 

 (flashlights and screwdrivers); State v.
Hernandez, 

, ¶ 2, 

, 

 (screwdrivers).

{19} “When a challenge to the sufficiency of the evidence requires us to engage in
statutory interpretation to determine whether the facts of a case, when viewed in the
light most favorable to the verdict, are legally sufficient to sustain a conviction, we apply
a de novo standard of review.” Ford, 

 (alterations, internal
quotation marks, and citation omitted). We begin our analysis with the plain language of
our possession of burglary tools statute. Section 30-16-5 explicitly requires (1)
possession of tools “designed or commonly used for the commission of burglary” and
(2) “under circumstances evincing an intent to use the same in the commission of
burglary.”

{20} The first requirement—possession of tools “designed or commonly used for the
commission of burglary”—has been construed by this Court to require the jury to find
that the “purpose of carrying such an object was for use as a [burglary tool].” Jennings,

, ¶¶ 6, 11 (internal quotation marks and citation omitted). This Court in
Jennings draws a careful distinction between “the purpose of carrying the item,” the
finding necessary to establish the first element of the statute, and a defendant’s intent
“to actually use the object” in the commission of a burglary, the finding required to
establish the second required element of the statute. Id. ¶ 11; see State v. Blea, 1983-
NMCA-089, ¶ 10, 

, 

 (distinguishing, in the context of the
offense of possession of a deadly weapon, the purpose of carrying an item from the
requirement of proof that a defendant intended to use the item to commit a crime).

{21} As this Court emphasized in Blea, and reinforced in Jennings, the purpose for
which a defendant possessed the prohibited item is distinct and separate from his or her
intent to use the item to commit a crime. See Jennings, 

, ¶¶ 11-12;
Blea, 

, ¶ 10; see also Leftwitch v. United States, 

(D.C. 1969) (distinguishing proof that the purpose of carrying an object is as a weapon
from proof of intent to actually use the weapon to threaten or harm someone).

{22} Consistent with the definition of intent adopted by these cases, this Court has
required proof of circumstances that create a reasonable inference that a defendant has
either used the tool in a burglary or an attempted burglary, or evince a defendant’s
intent to use the tool in the commission of a burglary. See Barragan, 

 (“[T]he evidence must . . . show that a defendant [has] an intent to use the
instrumentality or device in committing burglary.” (internal quotation marks and citation
omitted)); see also State v. Lawson, 

, ¶ 10, 

, 

 (concluding that proof beyond a reasonable doubt of specific intent to use or
employ a burglary tool in the commission of a crime is required to convict a defendant of
possession of burglary tools). In both Jennings and Barragan, for example, the intent
element was established with evidence of actual use of the tools in an attempt to gain
unauthorized entry to a structure. See Jennings, 

, ¶ 12 (concluding that
screwdriver marks on bathroom door, a broken padlock on the basement door, and
eyewitness testimony of the defendant’s attempt to scale a wall was sufficient evidence
of intent to commit a burglary); Barragan, 

 (holding that “use of a
pry device to gain entry into [an] office evinces an intent to use the pry device in the
commission of a burglary”); see also Hernandez, 

, ¶ 2 (holding that a
defendant’s purchase of a screwdriver, followed within minutes by an attempt to steal a
vehicle is sufficient evidence of intent to use the screwdriver to commit a burglary).

{23} A case cited by both parties, State v. Cook, 

 (Or. Ct. App. 2014),
provides useful guidance. Oregon’s statute criminalizing possession of burglary tools,

 (West 2003) much like our statute, requires both
possession of a tool designed or used for burglary and the intent to use that tool to
commit unauthorized entry. Cook, 

. The Oregon Court of Appeals
rejected the state’s argument that the jury could infer the requisite intent to use the tool
to commit burglary “solely because [a defendant possessed a] burglary tool [that] has
no legitimate use.” 

. The court concluded that there must be “evidence of
intent other than [the] defendant’s possession of the item at issue” to avoid “collapsing
the intent element of the crime into the possession element.” 

. Like the
Oregon statute, our Legislature’s separation of the requirement for possession of a
burglary tool with the conjunctive word, “and,” from the additional requirement for
evidence of “circumstances evincing an intent to use the same in the commission of
burglary,” Section 30-16-5, indicates its intent to avoid “collapsing the intent element of
the crime into the possession element[,]” Cook, 

, and to instead require
separate evidence of a defendant’s intent to use the tool to commit a burglary. Section
30-16-5; see also Stevenson v. Louis Dreyfus Corp., 

, ¶ 14, 

, 

 (stating that conjunctive wording in a statute requires that all listed
elements be present).

{24} The State relies on two Mississippi cases, Fuqua v. State, 

 (Miss.
1962), and Henley v. State, 

 (Miss. 2014), in support of its argument that
proof of possession of a tool designed for burglary is sufficient to prove that the
defendant intended to use it in “the commission of [a] burglary.” Unlike the New Mexico
possession of burglary tools statute, however, the Mississippi statute includes a
presumption that possession of tools specifically adapted for burglary is prima facie
evidence of intent to use them for that purpose. See 

 (West
1956). Cases construing the Mississippi statute, therefore, are irrelevant to the analysis
of the New Mexico burglary statute. See State v. Off. of Pub. Def. ex rel. Muqqddin,

, 

 (cautioning against relying on authority from other
states where the statutory language is different from our own, or where the statute
serves a different purpose).

{25} For these reasons, we conclude that evidence that a particular tool has no
legitimate use is insufficient on its own to establish the intent element. Additional direct
or circumstantial evidence must establish a defendant’s intent to use the burglary tool to
commit a burglary.

D.      The Circumstantial Evidence Was Insufficient to Prove Defendant’s Intent
        to Use the Keys to Commit a Burglary

{26} The State points to the following evidence of the circumstances surrounding
Defendant’s arrest that it contends is sufficient to prove intent to use the “jiggle” keys to
commit burglary: Defendant was in the Audi, a vehicle he did not own; the Audi was
being operated without an electronic key fob; Defendant’s explanation for how he came
to be in the Audi was improbable; the Audi was being towed by a vehicle (the Bronco)
that did not have a license plate, was being operated with a broken key, and was driven
by a person who was not its registered owner; and Defendant fled the police. 2

{27} We conclude, first, that these circumstances do not create a reasonable
inference that Defendant made an unauthorized entry into the Audi or into the Bronco,
the only two vehicles associated with Defendant’s arrest. The State failed to introduce
any evidence that either vehicle was stolen. There was no physical evidence of unlawful
entry presented to the jury. Merely being in possession of a vehicle owned by another
does not create a reasonable inference that the vehicle is stolen or that the entry was
unauthorized: authorized possession of a vehicle owned by another is too common an
occurrence. Defendant’s statement that he could not remember his friend’s name,
neither alone, nor together, create a reasonable inference that Defendant had stolen the

2The State notes in its answer brief that it conceded at trial that there was no evidence that Defendant
“used or intended to use the ‘jiggle’ or ‘bump’ keys to obtain unauthorized entry to the Audi SUV.” We
agree with the State’s concession. We nonetheless briefly address the State’s contrary argument on
appeal.
Audi or entered it without authorization from its owner. The evidence that the police
were unable to find the key fob or the rental paperwork for the Audi also does not
support a reasonable inference of an unauthorized entry.

{28} As to the Bronco, there was no evidence that Defendant was ever inside the
Bronco. Although Defendant’s running from the police may have created a reasonable
inference of consciousness of guilt, it did not support an inference that Defendant had
committed a burglary, especially since Defendant was in possession of drug
paraphernalia. See State v. Trujillo, 

, ¶ 31, 

, 

(“Evidence of flight or an aborted plan of flight is admissible and relevant because it
tends to show consciousness of guilt.”).

{29} We conclude that the evidence, taken together, established only that Defendant
possessed “jiggle” keys that were designed for use as burglary tools. The evidence of
the circumstances surrounding Defendant’s arrest does not support a reasonable
inference that Defendant had the necessary intent to use the “jiggle” keys to commit a
burglary of a vehicle, as required by Section 30-16-5.

CONCLUSION

{30} For the forgoing reasons, we reverse Defendant’s conviction for possession of
burglary tools, holding that the evidence is insufficient to establish Defendant’s “intent to
use the ‘jiggle’ keys in the commission of burglary.” The reversal being for failure of
proof, the cause is remanded with instructions to dismiss the charge of possession of a
burglary tool. State v. Gonzales, 

, ¶ 7, 

, 

.

{31}   IT IS SO ORDERED.

JANE B. YOHALEM, Judge

WE CONCUR:

JULIE J. VARGAS, Judge

MEGAN P. DUFFY, Judge