State v. Colvin, C4-00-1365.

• Decision Date: 13 June 2002
• Docket Number: No. C4-00-1365.,C4-00-1365.
• Citation: 645 N.W.2d 449
• Parties: STATE of Minnesota, Respondent, v. Peter Allen COLVIN, Petitioner, Appellant.
• Court: Minnesota Supreme Court

645 N.W.2d 449

STATE of Minnesota, Respondent, v. Peter Allen COLVIN, Petitioner, Appellant.

No. C4-00-1365.

Supreme Court of Minnesota.

June 13, 2002.

Lawrence Hammerling, Deputy State Public Defender, Davi Axelson, Asst. State Public Defender, Minneapolis for appellant.

Mike Hatch, Attorney General, Robert A. Stanich, Asst. Attorney General, St. Paul, Raymond F. Schmitz, Olmsted County Attorney, Rochester, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

LANCASTER, Justice.

This appeal presents the question of whether a criminal defendant's violation of an order for protection (OFP) is sufficient to establish first-degree burglary, absent the commission of or intent to commit a crime other than a violation of the order for protection.

Peter Allen Colvin (Colvin) was charged by complaint with one count of first-degree burglary. The charge arose from Colvin's February 25, 1999, illegal entry into the home of his ex-wife, Michelle Colvin. Colvin moved to dismiss the charge, arguing that the violation of an OFP could not form the basis of a burglary charge because burglary required commission of or intent to commit a crime other than illegal entry. The district court denied the motion. The burglary charge was subsequently submitted to the district court on stipulated facts, and the court found Colvin guilty of first-degree burglary. The court of appeals affirmed Colvin's conviction, concluding that because the OFP violation, unlike trespass, is not entirely encompassed by the illegal entry, an OFP violation alone can satisfy the intent to commit an independent crime requirement of burglary. We reverse.

Michelle Colvin applied for and obtained an emergency (ex parte) OFP pursuant to Minn.Stat. § 518B.01 (2000), against her ex-husband, Peter Colvin, on October 14, 1998. The order, which was valid for one year and was served on Colvin on the date obtained, provided that "Respondent [Colvin] must not enter Petitioner's [Michelle Colvin's] residence located at [address] or any future residence. Respondent must not enter or stay at Petitioner's residence for any reason, even if invited to do so." The order also provided that Colvin could not commit acts of domestic abuse against Michelle Colvin, have any contact with her, or enter or call her workplace.

On February 25, 1999, Michelle Colvin telephoned the Rochester Police Department to report a violation of the OFP. According to the police report, a fifteen-year-old girl, A.M.E., who was staying with Michelle Colvin, returned to their home in Rochester that evening at 6:10 p.m. A.M.E. found Colvin inside the residence, watching television and drinking a beer. A.M.E. asked Colvin to leave, and he complied. She then telephoned Michelle Colvin at work and left a message about Colvin's presence in the home. The police officer responding to Michelle Colvin's call later that evening found no sign of forced entry. Michelle Colvin reported to the officer that she believed Colvin entered the residence through a window in the dining area because the blinds were disturbed and because that window would not lock.

As a result of the events of February 25, 1999, Colvin was charged with first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(a) (2000), and violation of an OFP in violation of Minn.Stat. § 518B.01, subd. 14(d)(1). Because Colvin had been convicted of two prior order for protection violations in the past five years, this OFP violation was charged at the felony level. Colvin brought a motion to dismiss the burglary charge, arguing that violation of an OFP could not form the basis of a burglary charge because burglary required commission of or intent to commit a crime other than illegal entry. At the July 29, 1999, pretrial hearing on Colvin's motion, the parties stipulated to the facts as represented in the police report and complaint and further agreed that there was no allegation that Colvin committed or attempted to commit any crime independent of the OFP violation.

After the district court denied Colvin's motion on September 29, 1999, the parties reached a plea agreement that included dismissal of the OFP violation and resolution of other unrelated charges. Under that agreement, the burglary charge was submitted to the court on the same stipulated facts as agreed to in the pretrial hearing. On April 10, 2000, the district court found Colvin guilty of first-degree burglary. The court made written findings of guilt, specifically finding: That Colvin entered a building; that he did so without consent; that the building was a residence; that another person, not an accomplice, was present in the building during some of the time Colvin was present; and that in entering the building Colvin intended to commit and did commit the crime of violating the valid October 14, 1998, OFP.

Colvin appealed, arguing that intent to violate an OFP cannot satisfy the element of intent to commit a crime while in the building. The court of appeals affirmed the district court, holding that violation of an OFP, unlike trespass, satisfies the independent crime element of first-degree burglary. Colvin additionally argued that the evidence in the stipulated facts was insufficient to prove intent to violate the OFP. The court of appeals rejected this argument as well.

On appeal to this court, Colvin raises only the question of whether intent to violate an OFP is sufficient to establish burglary, absent the commission of or intent to commit a crime other than the OFP violation. Construction of a criminal statute is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). A statute must be construed according to its plain language. Minn.Stat. § 645.16 (2000). If ambiguous, the intent of the legislature controls. Id. A rule of strict construction applies to penal statutes, and all reasonable doubt concerning legislative intent should be resolved in favor of the defendant. State v. Olson, 325 N.W.2d 13, 19 (Minn.1982) (citing State v. Haas, 280 Minn. 197, 200-01, 159 N.W.2d 118, 121 (1968)). If construction of a statute is uncertain, a statute may not be interpreted to create criminal offenses that the legislature did not contemplate. State v. Soto, 378 N.W.2d 625, 627-28 (Minn.1985). "The rule of strict construction of criminal statutes is essential to guard against the creation of criminal offenses outside the contemplation of the legislature, under the guise of `judicial construction.'" Id. at 628 (quoting State v. Mims, 26 Minn. 191, 192, 2 N.W. 492, 492 (1879)); see also Haas, 280 Minn. at 201,

159 N.W.2d at 121.

Colvin was charged with first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(a). Subdivision 1 provides:

Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if:

(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar is in the building.

For a burglary conviction to stand, the state must prove that a defendant intended to commit some independent crime other than trespass. State v. Larson, 358 N.W.2d 668, 670 (Minn.1984).

It is undisputed that if the state had established the commission of or intent to commit another offense in the course of the OFP violation, assault or terroristic threats, for example, the independent crime element of burglary would be established. See, e.g., State v. Van Meveren, 290 N.W.2d 631, 632 (Minn.1980)

(discussing case in which defendant had "assaultive intent"). But this case comes before us on stipulated facts, and it has been stipulated that there is no allegation that Colvin committed or attempted to commit a crime other than violation of the OFP.

Violation of an OFP, however, can be accomplished in many ways. It is the nature of the OFP violation that will determine whether the OFP violation constitutes an independent crime under the burglary statute. For example, the OFP in this case prohibited Colvin from: (1) committing acts of domestic abuse against his ex-wife; (2) having any contact with his ex-wife; (3) entering her residence; and (4) entering or calling her workplace. If Colvin had acted in contravention of either the first, second, or fourth provision, his conduct would not resemble trespass, while violation of the no-entry provision clearly does bear such a resemblance.

The state argues that Colvin committed two violations of the OFP—by entering his ex-wife's residence, he violated the no-entry prohibition in the order, and evidence of this conduct satisfied the illegal entry element of burglary. Second, by intending to contact his ex-wife in violation of the order's prohibition against "any contact" with his ex-wife, Colvin violated the order a second time. Evidence of this second method of violating the OFP, the state contends, satisfies the intent to commit an independent crime element of burglary.

We disagree, because the district court's findings and the stipulated facts fail to support the state's allegation that Colvin intended to contact his ex-wife in violation of the OFP. The district court in its written findings of guilt specifically found that the independent crime committed by Colvin was violation of the no-entry part of the OFP. The district court stated: "In entering the building, [Colvin] intended to and did commit a crime—specifically violation of the October 14, 1998 Order for Protection which excluded [Colvin] from that building * * *." The district court made no other finding related to the no-contact provision of the order. Further, nothing in the stipulated facts—comprised of the police report, the complaint, and the parties' agreement at the pretrial hearing...