People v. Johnson

• Decision Date: 14 November 1995
• Docket Number: No. 95SC213,95SC213
• Citation: 906 P.2d 122
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Richard Eric JOHNSON, Respondent.
• Court: Colorado Supreme Court

Page 122

906 P.2d 122

64 USLW 2383

The PEOPLE of the State of Colorado, Petitioner, v. Richard Eric JOHNSON, Respondent.

No. 95SC213.

Supreme Court of Colorado En Banc.

Nov. 14, 1995.

Michael C. Stern, District Attorney, Seventh Judicial District, Wyatt B. Angelo, Assistant District Attorney, Delta, for Petitioner.

Clay, Dodson & Sanford, P.C., Michael R. Dodson, Delta, for Respondent.

Chief Justice VOLLACK delivered the Opinion of the Court.

Pursuant to C.A.R. 50, we granted certiorari in People v. Johnson, No. 94CR99 (Dist.Ct. Dec. 12, 1994), a case pending in the court of appeals. The issue before us is whether, absent a restraining order, an estranged spouse is privileged or licensed to enter the separate residence of the other spouse so as to create a defense to charges of second degree burglary and first degree criminal trespass.

The trial court granted the defendant's motion to dismiss the charges of burglary and criminal trespass, noting that the defendant and the victim were still married at the time of the alleged criminal conduct and that there were no restraining orders which prohibited the defendant from being on the premises. The trial court concluded that the defendant's conduct was not an unlawful entry into the victim's apartment.

We reverse the trial court's order and remand with directions to reinstate the charges of burglary and criminal trespass against the defendant. We hold that, even in the absence of a restraining order, an estranged spouse is not privileged or licensed to enter the separate residence of the other spouse so as to create a defense to charges of second degree burglary and first degree criminal trespass.

I.

The defendant, Richard Eric Johnson (Mr. Johnson), and the victim, Tina Johnson (Ms. Johnson), were married on March 7, 1992. On July 21, 1993, Ms. Johnson leased a separate residence after her separation from Mr. Johnson. Mr. Johnson never shared the leased apartment with Ms. Johnson and was not a party to the lease. Ms. Johnson filed a petition for dissolution of marriage on November 12, 1993. Due to Mr. Johnson's absence from Colorado, personal service on him was unsuccessful. Thus, service was ultimately made on Mr. Johnson by publication. Ms. Johnson did not obtain a restraining order to exclude Mr. Johnson from her new residence.

On March 18, 1994, Mr. Johnson entered Ms. Johnson's home on two occasions. On the first occasion, Mr. Johnson went to Ms. Johnson's residence and, shouting obscenities, entered into an altercation with Ms. Johnson's friend who was on the premises. Later that same day, Mr. Johnson returned to Ms. Johnson's residence and kicked in the door of her apartment. At the time of these incidents, Mr. Johnson and Ms. Johnson were separated but still legally married. On March 29, 1994, final orders were entered in their dissolution of marriage action. At no time in the dissolution action did Mr. Johnson claim any interest in Ms. Johnson's separate leasehold.

Mr. Johnson was originally charged with three counts of second degree burglary of a dwelling, pursuant to section 18-4-203, 8B C.R.S. (1986), and two counts of first degree criminal trespass, pursuant to section 18-4-502, 8B C.R.S. (1995 Supp.). The complaint was subsequently amended to add an additional count of second degree burglary. The Delta County Court held a preliminary hearing at which all charges, except two counts of burglary, were bound over for trial. Each of the remaining charges included an allegation that Mr. Johnson unlawfully, feloniously, and knowingly broke an entrance into, and entered and remained unlawfully in, the dwelling of Ms. Johnson.

Mr. Johnson filed a motion to dismiss on all counts. The trial court granted the motion to dismiss, finding that Mr. Johnson could not have committed a burglary or a trespass because his entry into Ms. Johnson's residence was not unlawful while the two were still married. The prosecution filed a motion for reconsideration, which the trial court denied. The prosecution then filed a notice of appeal to the court of appeals and a petition to this court for certiorari pursuant to C.A.R. 50. ¹

II.

The defendant argues that he was licensed to enter Ms. Johnson's residence because the two were still married at the time of the incident at issue. The People counter that, even if Mr. Johnson had a right to division of Ms. Johnson's lease as marital property, he was still unlicensed to enter Ms. Johnson's separate residence because he had no possessory rights to the property. We agree with the People that Mr. Johnson was not licensed or privileged to enter Ms. Johnson's residence absent a possessory right to the apartment.

Pursuant to section 18-4-203, 8B C.R.S. (1986), and section 18-4-502, 8B C.R.S. (1995 Supp.), both the crimes of second degree burglary and first degree criminal trespass require the prosecution to prove that the defendant's entry was "unlawful." Section 18-4-201, 8B C.R.S. (1986), provides:

A person "unlawfully enters or remains" in or upon premises when he is not licensed, invited, or otherwise privileged to do so.

Because it is undisputed that the defendant was not invited onto the premises, we must determine whether he was licensed or privileged to enter the separate residence of his estranged wife.

Mr. Johnson claims that, absent a restraining order, he was licensed or privileged to enter his estranged wife's separate residence because the residence was marital property. Section 14-10-113(3), 6B C.R.S. (1987), which provides for disposition of property in a marriage dissolution, states in pertinent part:

All property acquired by either spouse subsequent to the marriage and prior to the decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co[-]ownership....

According to this statute, the lease obtained by Ms. Johnson is arguably marital property because she acquired it subsequent to the marriage but prior to a legal separation. Assuming that the lease is marital property, the defendant may have had some right to assert an economic interest in the lease when the Johnsons' property was divided in their dissolution of marriage action.

The fact that the defendant may arguably have had some divided ownership interest in Ms. Johnson's lease does not mean that he could not be charged with trespass and burglary on that property. In Colorado, first degree criminal trespass is an unlawful entry into the dwelling of another. See § 18-4-502. A dwelling is defined as "a building which is used, intended to be used or usually used by a person for habitation." § 18-1-901, 8B C.R.S. (1986). Hence, trespass is an invasion of one's interest in habitation or possession of a building, rather than an invasion of one's ownership interest in a building.

Similarly, in determining whether the crime of burglary has been committed, the focus is upon the possessory rights of the parties, and not their ownership rights. People v. Barefield, 804 P.2d 1342, 1345 (Colo.App.1990), cert. denied, No. 90SC696 (Colo. Jan. 28, 1991); see also Sloan v. People, 65 Colo. 456, 176 P. 481 (1918); Howard v. People, 62 Colo. 131, 160 P. 1060 (1916). Consequently, Mr. Johnson's purported ownership interest in Ms. Johnson's lease does not equate with a possessory interest that shields him from charges of trespass and burglary.

The issue of whether the entry of an estranged spouse upon the property of the other spouse constitutes an "unlawful entry" supporting charges of trespass and burglary is an issue of first impression in Colorado. The majority of other jurisdictions which have addressed this issue have found that the uninvited entry of an estranged spouse into the residence of the other spouse constitutes an "unlawful entry." See, e.g., White v. State, 587 So.2d 1218 (Ala.Crim.App.1990) (holding that one spouse may be convicted of burglarizing separate residence of estranged spouse), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992); Cladd v. State, 398 So.2d 442 (Fla.1981) (finding that a husband can be guilty of burglary if he makes a nonconsensual entry into premises which are in the sole possession of his wife); State v. Dively, 431 N.E.2d 540, 543 (Ind.Ct.App.1982) (holding that mere conjugal status does not preclude a spouse as a matter of law from committing burglary against the separate property of his spouse); Matthews v. Commonwealth, 709 S.W.2d 414, 420 (Ky.1985) (holding that burglary is an invasion of a possessory property right of another and extends to spouses), cert. denied, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 170 (1986); State v. Woods, 526 So.2d 443, 445 (La.Ct.App. 4th Cir.1988) (finding a husband guilty of burglarizing his estranged wife's separate apartment); Parham v. State, 79 Md.App. 152, 556 A.2d 280, 284-85 (1989) (holding that the marital relationship does not preclude a conviction for burglary); State v. Cox, 73 N.C.App. 432, 326 S.E.2d 100 (rejecting defendant's argument that the marital relationship created in defendant a property interest in his wife's residence which shielded him from charges of burglary), review denied, 313 N.C. 605, 330 S.E.2d 612 (1985); Davis v. State, 799...