This is an audio case brief of State v. Contreras, 167 P.3d 966 (N.M. Ct. App. 2007). The audio brief provides a full case analysis. However a written summary of the case is provided below.

Table of Contents


On the evening of the incident, Anthony Contreras checked into a Motel 6 at 3:30 pm and paid for a room. He was assigned Room 125 and was given a plastic key card, but the key card did not have a room number on it. Contreras was very intoxicated when he checked in and he left his identification at the front desk. At 4:45 p.m., the police were called to the Motel 6 because someone had thrown a heavy trash can through the window of Room 121. Room 121 was four doors down from Room 125.

When Officer Salbidrez arrived, he went into Room 121 and began to give verbal commands to the person inside. Contreras came out from the bathroom area. He did not have his shoes on and he was obviously intoxicated. Contreras initially responded to the officer with obscene remarks, although when told that he was under arrest, he offered to pay for the window. The officer found nothing broken or damaged in the room, other than the broken window, and nothing had been stolen. Contreras’s key card was found on the ground outside of Room 121. The officer confirmed that the key opened Room 125.

Following the events, Contreras was  indicted on one charge of breaking and entering, and one charge of criminal damage to property.

Contreras did not testify at trial. He did not present any evidence. No witness testified as to any statements made by Contreras about why he broke the window or whether he thought he had permission to be in Room 121.

Based on the evidence presented in the State’s case, Contreras requested an instruction on mistake of fact and argued that he showed his identification, paid for a room, had permission to go into a room. He thought he was entering the room he had a right to be in, and made a mistake. He argued that this mistake of fact negated the mental state accompanying entry without permission, which is an element of breaking and entering and, therefore, did not commit the crime of breaking and entering, even if he would have been guilty of a different crime based on breaking the window.

The district court refused to give the instruction and concluded that the evidence was not sufficient to support the instruction.

Contreras was convicted of breaking and entering, and criminal damage to property.

He appealed his conviction.


The issue before the court is whether Contreras believed he has permission to enter the room. That is, whether Contreras made a mistake of fact.


Mistake of fact is a defense when it negates the existence of the mental state essential to the crime charged. The defense of mistake of fact also requires the defendant’s mistake to be honest and reasonable.


The court found that evidence existed in the present case to give instructions on mistake of fact. The court stated that;

The evidence in favor of giving the mistake-of-fact instruction in the present case includes that defendant was very intoxicated; Defendant paid for a room and was thus authorized to enter a room; nothing was stolen; Defendant took his shoes off and was in the bathroom in Room 121, from which it can be inferred that he was using the room as one for which he had paid; Defendant’s key card for Room 125 was on the ground  outside near Room 121, from which it can be inferred that he had attempted to use it to enter Room 121; and the key card did not have a room number on it. Viewing this evidence in the light most favorable to giving a mistake-of-fact instruction, a reasonable jury could conclude that Defendant believed that he had permission to enter the room that he entered. The belief element in the mistake-of-fact instruction requires that Defendant had subjective or actual knowledge of permission to enter Room 121.

However, the state countered the courts finding and and further argued that that even if there were sufficient evidence to support a mistake-of-fact instruction, such instruction was unnecessary as a matter of law because the general intent instruction was sufficient to properly instruct the jury.

But Contreras disagreed with the State. He argued that an essential element of breaking and entering is knowledge on his part that he did not have permission to enter Room 121. Therefore, because the jury was not instructed on this essential element of breaking and entering, the district court erred when it refused his requested mistake-of-fact instruction.

The court agreed with Contreras, and here is why.

The court stated that in the present case, there are three elements, namely, entering, doing so without permission, and entering by breaking the window. As to entering and breaking the window, those are intended physical acts, bodily movements, to which the general intent instruction clearly applies. However, we do not see how the general intent instruction can logically apply to the fact of lack of permission to enter. Unless strict liability applies, lack of permission requires recognition of circumstances that produce a mental state of knowledge. We agree with Defendant that the mental state which accompanies the “without permission” element of breaking and entering is knowledge of the lack of permission. Defendant was entitled to a mistake-of-fact instruction.


The court reversed and remand for a new trial based on the denial of Defendant’s requested jury instruction on mistake of fact.

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