State v. Colvin

645 N.W.2d 449 (2002)

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Nature of the Case

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Facts

Michelle Colvin applied for and obtained an emergency (ex parte) OFP pursuant to Minn. Stat. § 518B.01 (2000), against her ex-husband, Peter Colvin, (D) on October 14, 1998. The order, which was valid for one year and was served on D 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 D 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 telephoned the Rochester Police Department to report a violation of the OFP. A fifteen-year-old girl, A.M.E., who was staying with Michelle, returned to their home in Rochester that evening at 6:10 p.m. A.M.E. found D inside the residence, watching television and drinking a beer. When asked to leave D complied. D then telephoned Michelle Colvin at work and left a message about D’s presence in the home. There was no sign of forced entry. D 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 D had been convicted of two prior order for protection violations in the past five years, this OFP violation was charged at the felony level. D 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. Under a plea agreement, the district court found D guilty of first-degree burglary. The court made written findings of guilt, specifically finding: That D 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 D 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. D appealed, and the court of appeals affirmed. This appeal resulted.