State of Minnesota, Respondent, vs. John Henry Roberson, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
CASE NO: C7-98-211

State of Minnesota,
Respondent,

vs.

John Henry Roberson,
Appellant.

Filed October 6, 1998

Affirmed
Toussaint, Chief Judge

Anoka County District Court
File No. K8979775

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant Anoka County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

Harlan M. Goulett, Allan Hart, Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55420 (for appellant)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant John Henry Roberson challenges his first-degree burglary conviction. Because the elements of first-degree burglary were satisfied and the jury instructions were not an abuse of discretion, we affirm.

FACTS

This case arises from a long-term troubled relationship between Roberson and his former girlfriend, Paula Smalls. In January 1997, after a domestic abuse incident, Smalls obtained an Order for Protection (OFP) prohibiting Roberson from entering or staying at her residence for any reason, even if invited. On the night of July 5, 1997, Roberson entered Small's residence by cutting a window screen and remained in the home until Smalls and the couple's daughter returned. After approximately 20-30 minutes, Smalls encountered Roberson in her home. Roberson told Smalls that there was "no need to call the police" and then ran out of the front door of the house when Smalls pretended to call 911.

Roberson was charged with first-degree burglary for the July 5, 1997, incident. At trial, Roberson admitted that he was aware of the OFP's conditions and knew that he violated the OFP by entering Small's residence on July 5, 1997. The jury found Roberson guilty of first-degree burglary. This appeal followed.

D E C I S I O N

Although the legal issues presented in this case were not raised in the district court, Rule 28.02 of the Rules of Criminal Procedure allows us to review them. See Minn. R. Crim. P. 28.02, subd. 11 (granting this court the discretion to review any "matter as the interests of justice may require").

I.

The construction of a statute is a question of law, which this court reviews de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). Roberson was convicted of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1 (1996), which 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, commits burglary in the first degree * * * if:

(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building;

* * *

Minn. Stat. § 609.582, subd. 1. For a burglary conviction to stand, the state must prove a defendant intended to commit some independent crime other than trespass. State v. Larson, 358 N.W.2d 668, 670 (Minn. 1984). Relying on Larson, Roberson argues that violation of an OFP, a misdemeanor in Minnesota, cannot constitute the independent crime because, like criminal trespass, the very act of entering the premises constituted the OFP violation. Consistent with Larson, we examine whether Roberson's actions satisfy the separate elements of the crime of burglary.

Burglary requires (1) entry without consent; and (2) intent to commit a crime. Roberson satisfied the first element, entry without consent, when he cut the screen window and stepped into the apartment. This element of nonconsensual entry completely encompasses the offense of criminal trespass, which requires occupation or entry into the dwelling of another without consent of the owner. Minn. Stat. § 609.605, subd. 1(b)(4) (1996). The Larson court held that the state may not prove the intent requirement for burglary merely by showing the defendant intended to commit trespass. See Larson, 358 N.W.2d at 670 (requiring the state "to do more than establish an intent to commit the crime of trespass").

Violation of an OFP is not an offense completely encompassed by the element of nonconsensual entry. The state had to prove the existence of an OFP covering the dwelling entered and Roberson's awareness of the OFP. As a factual matter, those elements would have to have been present while Roberson was waiting inside the dwelling. But that does not make an OFP violation legally less independent of the crime of burglary. Neither does the relative ease of proving those elements affect the separate status of an OFP violation. Simply stated, every burglary involves a trespass, but not every burglary involves a violation of an OFP.

Roberson admitted that he was aware of the OFP's conditions and that he knew he was in violation of the OFP when he was at Small's residence. Moreover, we can infer Roberson's intent to violate the OFP from his statement to Smalls regarding the police and his subsequent flight when Smalls pretended to dial 911. See State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996) (proof of intent may rest on a permissible inference from facts proved and the circumstances surrounding defendant's acts), review denied (Minn. Jan. 21, 1997). Accordingly, we conclude that the requirements of the burglary statute, as construed in Larson, were met in this case.

II.

This court reviews a trial court's jury instructions for abuse of discretion and errors of law. State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997). Where jury instructions fairly and adequately state the applicable law, this court will not reverse. Alevizos v. Metropolitan Airports Comm'n. of Minneapolis & St. Paul, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990); State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).

The trial court gave the following instructions regarding the burglary statute's intent requirement to the jury:

    [D]efendant entered or remained in the dwelling with intent to commit the crime of violation of an Order for Protection. Minnesota law provides that whoever violates an Order for Protection, and knows of the order, is guilty of a crime. The elements of that crime in this case are (1) there was an existing court Order for Protection; and (2) defendant violated a term or condition of the Order for Protection; and (3) defendant knew of the Order for Protection; and (4) defendant's act occurred on or about July 5th, 1997, in Anoka County, Minnesota.
    It is not necessary that the intended crime was actually completed or attempted, but it is necessary that defendant had the intent to commit that crime at the time the defendant entered or remained in the dwelling. Whether the crime was intended must be determined from all of the circumstances, including the manner and time of entry or remaining in, the nature of the building and its contents, anything which the defendant may have had with defendant, and all other evidence in this case.

Roberson argues that the trial court should have instructed the jury that violation of a protective order cannot constitute the intended predicate "crime" for burglary without proof of specific intent.1 Violation of an OFP only requires that the defendant "know of" of the order and then violate it. Minn. Stat. § 518B.01, subd. 14(b) (Supp. 1997). The burglary statute does not specify that the intended crime must itself be a specific intent crime. Because the trial court correctly stated the statutory intent requirements for both burglary and violation of a protective order, we do not find the jury instructions to be an abuse of discretion.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

(1) In his reply brief, Roberson also contends for the first time that the trial court should have instructed the jury that the State is required to disprove Roberson's good faith mistaken interpretation of the OFP beyond a reasonable doubt. Roberson waived this argument by failing to raise it before the trial court or in his appellate brief. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (issues not raised or argued in appellant's brief cannot be revived in a reply brief), review denied (Minn. Sept. 28, 1990).