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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, 3 Plaintiff-Appellant, v. NO. 33,157 TROY TOHSONIE, 6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY John A. Dean Jr., District Judge Hector H, Balderas, Attorney General Margaret E. McLean, Assistant Attorney General Santa Fe, NM for Appellant Jorge A. Alvarado, Chief Public Defender Sergio Viscoli, Assistant Appellate Defender Santa Fe, NM for Appellee 17 MEMORANDUM OPINION VIGIL, Judge.

1 {1} The State appeals from the district court’s order granting Defendant’s motion to dismiss the charge of commercial burglary. [RP 53] Our notice proposed to affirm, relying on our recently decided opinion State v. Archuleta, ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014) (holding that “violating an order of no trespass by entering an otherwise open public shopping area with the intent to commit a theft does not constitute the type of harmful entry required for a violation of the burglary statute”), cert. granted, 2015-NMCERT-___ (No. 35,005, Jan. 26, 2015). The State has filed a response, objecting to our notice and requesting that we hold this appeal in abeyance or provide the State with a reasonable opportunity to seek guidance from the New Mexico Supreme Court on all pending appeals controlled by our opinion in Archuleta. [Ct.App.File, red clip] We have provided the State with such an opportunity, and the Supreme Court has denied the State a stay or other remedy that would suspend the precedential value of Archuleta. Thus, we apply Archuleta. See Rule 12-405(C) NMRA (“A petition for writ of certiorari filed pursuant to Rule 12- 502 NMRA or a Supreme Court order granting the petition does not affect the precedential value of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme Court.”).

18 {2} In its response to our notice, the State objects to our proposed disposition, but indicates that it “is unable to provide any additional facts or other legal argument in

1 response to the proposed disposition.” [response, red clip/2-3] Because there are no material factual distinctions to remove this case from the control of our opinion in Archuleta, we affirm the district court’s order granting Defendant’s motion to dismiss the commercial burglary charge.

5 {3} IT IS SO ORDERED.

6 __________________________________ 7 MICHAEL E. VIGIL, Chief Judge WE CONCUR:

9 ___________________________________ MICHAEL D. BUSTAMANTE, Judge

11 ___________________________________ JONATHAN B. SUTIN, Judge