N.M. Stat. § 30-16-4 (2026)

Aggravated burglary consists of the unauthorized entry of any vehicle, watercraft,
aircraft, dwelling or other structure, movable or immovable, with intent to commit any
felony or theft therein and the person either:

   A. is armed with a deadly weapon;

   B. after entering, arms himself with a deadly weapon;

   C. commits a battery upon any person while in such place, or in entering or leaving
such place.

   Whoever commits aggravated burglary is guilty of a second degree felony.

History: 1953 Comp., § 40A-16-4, enacted by Laws 1963, ch. 303, § 16-4.
                                    ANNOTATIONS

Cross references. — For definition of deadly weapon, see 30-1-12 NMSA 1978.

For battery, see 30-3-4 NMSA 1978.

For instruction as to essential elements of aggravated burglary, see UJI 14-1632
NMRA.

A portal is not a prohibited space under New Mexico's aggravated burglary
statute. — Where defendant was charged with aggravated burglary and felony murder
after shooting and killing the homeowner who caught defendant in his backyard porch,
or portal, in the middle of the night, allegedly attempting to burglarize the homeowner's
home, and where, at trial, defendant filed a motion for directed verdict on the grounds
that he never entered a prohibited space that would support the underlying aggravated
burglary charge, the district court erred in denying defendant's motion for directed
verdict, because the portal did not qualify as a prohibited space under the aggravated
burglary statute because it is not sufficiently enclosed such that a reasonable person
would expect protection from unauthorized entry. State v. Jones, 2025-NMSC-049.

The unit of prosecution for aggravated burglary is an unlawful entry with intent to
commit a felony. — When there is only one unauthorized entry, there can only be one
aggravated burglary, even if defendant commits multiple aggravating acts. State v.
Swick, 2012-NMSC-018, 279 P.3d 747, rev’g 2010-NMCA-098, 148 N.M. 895, 242 P.3d
462 and overruling State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Convictions of aggravated burglary while committing a battery and aggravated
burglary with a deadly weapon violated double jeopardy. — Where defendant, who
was armed with a knife and who intended to steal a vehicle from the victims, entered the
victims’ home, stabbed one victim, and beat and stabbed the other victim; and
defendant was convicted of aggravated burglary while committing a battery and
aggravated burglary with a deadly weapon, defendant’s convictions violated the
prohibition against double jeopardy. State v. Swick, 2012-NMSC-018, 279 P.3d 747,
rev’g 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462 and overruling State v. Armendariz,
2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Double jeopardy. — Where the force used to complete aggravated burglary constituted
the same force used to restrain a victim to accomplish CSP II there were insufficient
indicia of distinctness differentiating the acts and a conviction on both is impermissible
on double jeopardy grounds. State v. Armendariz, 2006-NMCA-152, 140 N.M. 712, 148
P.3d 198, cert. quashed, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 674.

Lesser included offense. — Under the facts of this case, the aggravated burglary
offense could not be committed without also committing the crime of dangerous use of
explosives; the explosives offense does not have an element not included in the
burglary offense. The explosives offense was an offense included within the aggravated
burglary offense. State v. Jacobs, 1985-NMCA-054, 102 N.M. 801, 701 P.2d 400.

Instruction on lesser included offense. — When criminal trespass is factually based
solely on unlawful entry, not on unlawfully remaining without consent, then criminal
trespass is necessarily included within the offense of aggravated burglary of a dwelling
house and a defendant is entitled to an instruction on the lesser included offense. State
v. Romero, 1998-NMCA-057, 125 N.M. 161, 958 P.2d 119

Double jeopardy. — Section 30-16-4 NMSA 1978 is designed to address the
heightened threat associated with possession of deadly weapons and to deter their
possession in the course of burglaries even if no use is intended. By contrast,
Subsection C of Section 30-16-4 NMSA 1978 is designed to address actual physical
injury to persons during a burglary. Because these factors reinforce the presumption of
distinct, punishable offenses, a defendant’s convictions pursuant to these two separate
statutory subsections do not offend double jeopardy principles. State v. Swick, 2010-
NMCA-098, 148 N.M. 895, 242 P.3d 462.

Legislative intent to deter firearm possession during crime. — The adoption of
several statutes, one classifying aggravated burglary as a second degree felony, and
the other specifying that simple burglary is a fourth-degree felony, evinces a clear
legislative intention to deter the commission of burglaries and the possession of
firearms during such crimes. State v. Luna, 1982-NMCA-150, 99 N.M. 76, 653 P.2d
1222, cert. denied, 99 N.M. 148, 655 P.2d 160.

Crucial factor in crime of aggravated burglary is whether the defendant has the
intent to commit a felony on entering the dwelling, not whether the felony was actually
committed, as the intent does not have to be consummated. State v. Castro, 1979-
NMCA-023, 92 N.M. 585, 592 P.2d 185, cert. denied, 92 N.M. 621, 593 P.2d 62.

Meaning of "deadly weapon". — Deadly weapons shall be construed to mean any
kind or class of pistol or gun, whether loaded or unloaded. State v. Montano, 1961-
NMSC-174, 69 N.M. 332, 367 P.2d 95.

Theft is not a necessary element of aggravated burglary, which requires only the
element of intent to commit any felony or theft. State v. Ranne, 1969-NMCA-029, 80
N.M. 188, 453 P.2d 209.

Elements of robbery and aggravated burglary are not the same, and therefore,
defendant could be sentenced for each of these crimes. State v. Ranne, 1969-NMCA-
029, 80 N.M. 188, 453 P.2d 209.

Breaking and entering not lesser included offense. — Breaking and entering is not a
lesser included offense of aggravated burglary because each offense requires an
element not included in the other and, by convicting defendant of breaking and entering
when he only had notice of an aggravated burglary, the trial court violated his right to
notice of the charges against him. State v. Hernandez, 1999-NMCA-105, 127 N.M. 769,
987 P.2d 1156, cert. denied, 128 N.M. 149, 990 P.2d 823.

Larceny of a firearm distinguished. — Aggravated burglary and larceny of a firearm
are different crimes, with different elements: larceny of a firearm requires proof that the
firearm was stolen but does not require proof of an unlawful entry. State v. Tisthammer,
1998-NMCA-115, 126 N.M. 52, 966 P.2d 760, cert. denied, 126 N.M. 107, 967 P.2d
447.

Aggravated burglary and sex offense separate crimes. — Since aggravated
burglary and criminal sexual penetration in the third degree (30-9-11 NMSA 1978) each
require proof of facts which the other does not and since neither offense necessarily
involves the other, there would be no double jeopardy violation and no merger of the
offenses despite the fact that the same evidence may go toward proving both. State v.
Young, 1978-NMCA-040, 91 N.M. 647, 579 P.2d 179, cert. denied, 91 N.M. 751, 580
P.2d 972, and cert. denied, 439 U.S. 957, 99 S. Ct. 357, 58 L. Ed. 2d 348 (1978).

Where the victim awoke and found the defendant on top of her and the defendant told
her not to move or make a noise or he would blow her head off, that was evidence of a
battery. When the battery preceded sexual activity, there was evidence of an
aggravated burglary apart from a sex offense, and the two offenses did not merge, nor
was the "same transaction" test applied. State v. Archunde, 1978-NMCA-050, 91 N.M.
682, 579 P.2d 808.

Where defendant's acts constituting battery for purposes of aggravated burglary
charges and acts constituting criminal sexual penetration (CSP) were separate and
distinct, convictions and consecutive sentences for both CSP and aggravated burglary
did not violate double jeopardy. Lucero v. Kerby, 133 F.3d 1299 (10th Cir.), cert. denied,
523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821 (1998).

Aggravated burglary and attempted criminal sexual penetration merged. —
Defendant's conduct consisting of his entry into a dwelling with intent to commit a felony
and attempted criminal sexual penetration (CSP II) was unitary, thus his convictions for
both aggravated burglary and attempted CSP II violated double jeopardy. Lucero v.
Kerby, 133 F.3d 1299 (10th Cir.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L.
Ed. 2d 821 (1998).

Aggravated burglary and first degree murder not unitary. — First degree murder
and aggravated burglary were not unitary acts, and imposition of sentences for both
offenses did not violate double jeopardy. State v. Livernois, 1997-NMSC-019, 123 N.M.
128, 934 P.2d 1057.

Indictment adequate. — Indictment employing the name given the offense by statute
and specifically referring to the section and subsection of the statute which created the
offense sufficiently charged crime of aggravated burglary, despite failure to allege an
entry with intent to commit a felony or theft. State v. Turner, 1970-NMCA-024, 81 N.M.
450, 468 P.2d 421, cert. denied, 81 N.M. 506, 469 P.2d 151 (decided under prior law).

Unauthorized entry. — An allegation or proof of ownership of a building or structure,
the subject of a burglary charge, is unnecessary. State v. Flores, 1971-NMCA-036, 82
N.M. 480, 483 P.2d 1320.

Entry into separate residence of spouse. — Section 40-3-3 NMSA 1978 does not
provide immunity from prosecution for burglary of a spouse’s separate residence. State
v. Parvilus, 2014-NMSC-028, rev'g 2013-NMCA-025, 297 P.3d 1228.

Where, because of domestic problems, defendant rented a separate apartment for
defendant’s spouse; the parties agreed that the apartment was the spouse’s separate
residence, that defendant would not have a key to the apartment, and that defendant
did not have the spouse’s permission to enter the apartment; and several months later,
defendant entered the spouse’s apartment through a window, 40-3-3 NMSA 1978 did
not preclude defendant’s conviction for burglary of the spouse’s separate dwelling. State
v. Parvilus, 2014-NMSC-028, rev'g 2013-NMCA-025, 297 P.3d 1228.

The plain language of Section 40-3-3 NMSA 1978 renders inter-spousal burglary an
impossibility because the New Mexico burglary statutes protect the possessory right to
exclude and Section 40-3-3 NMSA 1978 dictates that spouses have no such right to
exclude the other spouse. State v. Parvilus, 2013-NMCA-025, 297 P.3d 1228, cert.
granted, 2013-NMCERT-001.

Entry into residence of estranged spouse. — Where defendant entered defendant’s
estranged spouse’s apartment without permission, kidnapped the victim, and killed the
victim, Section 40-3-3 NMSA 1978 prohibited defendant’s spouse from excluding
defendant from the spouse’s apartment and defendant’s entry into the apartment, even
with felonious purpose, did not constitute aggravated burglary as a matter of law. State
v. Parvilus, 2013-NMCA-025, 297 P.3d 1228, cert. granted, 2013-NMCERT-001.

Battery while unarmed not lesser crime. — The legislature made no distinction in
severity of punishment between a defendant who commits a burglary while armed with
a deadly weapon as opposed to an unarmed defendant who causes a victim physical
harm by committing a battery. State v. Romero, 1994-NMCA-150, 119 N.M. 195, 889
P.2d 230, cert. denied, 119 N.M. 20, 888 P.2d 466.

Intent to steal vehicle sufficient. — Breaking into a car with the intent to steal the car
qualifies as an intent to commit a theft "therein." State v. Griffin, 1993-NMSC-071, 116
N.M. 689, 866 P.2d 1156.

"Armed" defined. — "Armed" includes a stolen deadly weapon which is easily
accessible and readily available for use during the commission of the burglary whether
or not it is actually on the person of the accused. State v. Padilla, 1996-NMCA-072, 122
N.M. 92, 920 P.2d 1046, cert. denied, 122 N.M. 1, 919 P.2d 409.
Corroboration of use of gun. — In prosecution for aggravated burglary and
aggravated battery testimony by victim that he was struck by defendant with a gun on
and about his face was corroborated by fact that he recognized the gun in question, by
defendant's testimony that he threw the gun away after leaving the scene and by
photographs of victim showing facial cuts and abrasions; furthermore, corroboration was
not required. State v. Tafoya, 1969-NMCA-073, 80 N.M. 494, 458 P.2d 98.

Possession of unloaded firearm sufficient. — Subsection B (Section 30–16–4 NMSA
1978) is violated by a person who in the commission of a burglary becomes armed with
an unloaded firearm. Whether a defendant is in actual possession of a firearm within the
contemplation of Subsection B (Section 30-16-4 NMSA 1978) or possesses the
requisite intent to commit a felony may, however, present a factual issue to be
determined by the trier of fact. State v. Luna, 1982-NMCA-150, 99 N.M. 76, 653 P.2d
1222, cert. denied, 99 N.M. 148, 655 P.2d 160.

"Leaving such place". — The legislature intended the word "leaving" in Subsection C
(Section 30–16–4 NMSA 1978) to be given the ordinary meaning of "departing or going
away from" and not "losing exterior contact with"; thus, when the burglarized area is an
area of restricted access in an otherwise public building, a person will be deemed to be
leaving the area so long as that person is still in the public portion of the building. State
v. Romero, 1994-NMCA-150, 119 N.M. 195, 889 P.2d 230, cert. denied, 119 N.M. 20,
888 P.2d 466.

Collateral offenses admissible. — Testimony of victim and corroborating witness as to
an assault on the same night and in same vicinity as the crimes of aggravated burglary
and aggravated battery for which defendant was on trial, offered upon issue of identity,
was admissible as an exception to rule prohibiting evidence of collateral offenses. State
v. Turner, 1970-NMCA-024, 81 N.M. 450, 468 P.2d 421, cert. denied, 81 N.M. 506, 469
P.2d 151.

In prosecution for aggravated burglary, armed robbery and rape, testimony of victim
raped an hour after initial crime about five blocks away was admissible in order to
establish characteristic conduct and defendant's possession of knife and flashlight
which figured in first crime. State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d
851, cert. denied, 80 N.M. 607, 458 P.2d 859, and cert. denied, 398 U.S. 942, 90 S. Ct.
1860, 26 L. Ed. 2d 279 (1970).

Conflicting evidence for jury. — Although based on certain deception tests
(polygraph, sodium amytol and hypnosis) the experts considered defendant truthful in
his denial, the testimony of the complaining witness presented on issue of fact for the
jury, and defendant was not entitled to a directed verdict on charges of aggravated
battery and aggravated burglary. State v. Turner, 1970-NMCA-024, 81 N.M. 450, 468
P.2d 421, cert. denied, 81 N.M. 506, 469 P.2d 151.

Intent established. — Where defendant made an unauthorized entry into an
apartment, armed with a knife, and began to kiss and fondle the female occupant who
was asleep, the evidence was sufficient to establish that defendant's intent upon entry
was to commit an aggravated assault, and therefore he was guilty of aggravated
burglary. State v. Mata, 1974-NMCA-067, 86 N.M. 548, 525 P.2d 908, cert. denied, 86
N.M. 528, 525 P.2d 888.

Instructions which substantially follow language of the statute are sufficient. State
v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458
P.2d 859, and cert. denied, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970).

Charge of lesser offense not warranted. — Offense of unlawfully carrying a deadly
weapon is neither a degree of burglary, nor the higher degree of aggravated burglary,
and not being an included offense, trial court did not err in refusing to submit to the jury
the offense of unlawfully carrying a deadly weapon as a lesser included offense. State
v. Andrada, 1971-NMCA-033, 82 N.M. 543, 484 P.2d 763, cert. denied, 82 N.M. 534,
484 P.2d 754.

Breaking-and-entering, lesser included offense instruction rejected since no
evidence to support. — Where defendant was charged with aggravated burglary, his
tendered instruction on lesser included offense of breaking and entering was properly
rejected because there was no evidence to support the commission of the lesser
offense. State v. Smith, 1986-NMCA-089, 104 N.M. 729, 726 P.2d 883, cert. denied,
104 N.M. 702, 726 P.2d 856.

Insanity defense. — Trial court committed reversible error in refusing to instruct on
defense of insanity, where expert medical testimony regarding defendant's heroin
addiction injected reasonable doubt as to his mental illness at the time of the burglary.
State v. Flores, 1971-NMCA-036, 82 N.M. 480, 483 P.2d 1320.

Juror present for police investigation. — Conviction for entering a dwelling with
intent to commit a felony while armed with a deadly weapon should be reversed, where
after verdict fact came to light that following commission of the crime and on the same
day one juror was present in the dwelling in question with the complaining witness while
two police officers who testified at trial sought latent fingerprints, on basis of which
defendant was convicted. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667.

Sufficient evidence based on testimony of an accomplice. — Where defendant was
convicted of aggravated burglary based on the testimony of an accomplice, defendant’s
argument, that such testimony when uncorroborated by physical evidence is insufficient
as a matter of law, was without merit, because the uncorroborated testimony of an
accomplice is sufficient in law to support a verdict for aggravated burglary. State v.
Montoya, 2016-NMCA-098, cert. denied.

Sufficient evidence to support conviction, despite failure to preserve fingerprints or
trace ownership of weapon. State v. Peterson, 1985-NMCA-109, 103 N.M. 638, 711
P.2d 915, cert. denied, 475 U.S. 1052, 106 S. Ct. 1279, 89 L. Ed. 2d 586 (1986).
Evidence, consisting of co-conspirator's testimony as to defendant's involvement in
burglaries, was sufficient to support a conviction under this section; it is the province of
the jury to determine a witness's credibility, and an appellate court will not substitute its
judgment for that of the jury. State v. Tisthammer, 1998-NMCA-115, 126 N.M. 52, 966
P.2d 760, cert. denied, 126 N.M. 107, 967 P.2d 447.

There was sufficient evidence to uphold defendant's aggravated burglary conviction
because (1) defendant's use of a tire iron to break into a house fell under the definition
that defendant was "armed" with a weapon, pursuant to 30-1-12B NMSA 1978 and (the
tire iron) was easily accessible and readily available for use, and (2) the use of a tire
iron to break a window constituted "entry" under this section. State v. Alvarez-Lopez,
2003-NMCA-039, 133 N.M. 404, 62 P.3d 1286, rev'd on other grounds, State v. Alvarez-
Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 13 Am. Jur. 2d Burglary § 27.

Walking cane as deadly or dangerous weapon for purposes of statutes aggravating
offenses such as assault and robbery, 8 A.L.R.4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for
purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th
1268.

What is "building" or "house" within burglary or breaking and entering statute, 68
A.L.R.4th 425.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Admissibility of expert opinion stating whether a particular knife was, or could have
been, the weapon used in a crime, 83 A.L.R.4th 660.

12A C.J.S. Burglary §§ 6, 7.