State v. Olson , 1986 Minn. App. LEXIS 4036 ( 1986 )

OPINION

SEDGWICK, Judge.

Respondent, Gilbert Olson, was charged with two counts of first degree burglary under Minn.Stat. §§ 609.582, subd. 1(a) (1984) (another person not an accomplice present in dwelling) and 609.582, subd. 1(c) (1984) (assault of a person within building), second degree burglary under § 609.582, subd. 2(a) (1984), fourth degree burglary under § 609.582, subd. 4 (1984), two counts of trespass under § 609.605(6) (1984), criminal damage to property under § 609.595, subd. 2 (1984), two counts of fifth degree assault under §§ 609.224(1) and 609.224(2) (1984), and criminal contempt under § 588.-20(4) (1984). After an omnibus hearing, the trial court dismissed the first degree burglary count under § 609.582, subd. 1(a) and the second degree burglary count. The State appeals.

FACTS

On December 31, 1984, Mary Rowes and Gilbert Olson were divorced. Rowes was granted custody of their two children. Olson was prohibited from harassing Rowes and was granted visitation provided that he abstain from drinking alcohol before -and during the visitation.

The complaint against Olson states that on January 26, 1985 around midnight Olson knocked on the door of the residence that Rowes and the two children share with Sid Graser. Rowes opened the door and observed that Olson was “drunk and nasty.” She attempted to shut the door, but he kicked the door in and entered the home. Rowes tried to call the sheriff. Olson pulled the phone apart and hit Rowes with it. When Rowes tried to prevent Olson from going into the children's bedroom, he hit her, knocked her down, and slapped her in the face. Rowes escaped to a neighbor’s house and called the sheriff. The complaint alleged that the residence belongs to Graser; that Olson had no legal right to be there; and that it was not a time for a scheduled visitation.

The trial court found probable cause that Olson committed misdemeanor contempt of court by violating the restraining order and conditions of visitation in the dissolution decree. Olson does not appeal this ruling. The State appeals the trial court’s dismissal of the first and second degree burglary counts for lack of probable cause.

ISSUES

1. May the State appeal a trial court’s order dismissing two of the ten counts in the complaint?

2. Do Minn.Stat. §§ 609.582, subd. 1(a) and 609.582, subd. 2(a) require intent to commit a crime in excess of a misdemean- or?

ANALYSIS

1. The prosecuting attorney may appeal as of right to the court of appeals:

(1) in any case, from any pretrial order of the trial court except an order dismissing a complaint for lack of probable cause to believe the defendant has committed an offense or an order dismissing a complaint pursuant to Minn.Stat. § 631.21;

Minn.R.Crim.P. 28.04. State v. Aarsvold, 376 N.W.2d 518 (Minn.Ct.App.), pet. for rev. denied (Minn. Dec. 30, 1985), held that the State may appeal from a pretrial order dismissing a felony-murder charge for lack of probable cause on grounds that sale of cocaine is not a proper predicate felony. Dismissal of charges for lack of probable cause may be appealed where the dismissals “effectively prevented further prosecutions and made reissuing the complaints pointless.” Id. at 520. See State v. Barutt, 312 N.W.2d 667 (Minn.1981). Here, as in Aarsvold, the State has no additional evidence with which it could reinstate prosecutions on the dismissed counts. Nor could the State realistically obtain a different interpretation of the statutes from other courts. The dismissal of the two counts prevented further prosecution under them. This order therefore is appealable under Minn.R.Crim.P. 28.04.

2. The State alleged that Olson committed misdemeanor contempt of court by violating the terms of visitation outlined in the dissolution decree. The State charged Olson with first degree burglary under § 609.582, subd. 1(a) and one count of second degree burglary under § 609.582, subd. 2(a), for entering with intent to commit that misdemeanor.

The trial court dismissed both these counts, reasoning that under both subdivisions defendant must enter with intent to commit a crime in excess of a misdemean- or. The relevant statutory provisions follow:

Subdivision 1. Burglary in the first degree. Whoever enters a building without consent and with intent to commit a crime 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;

(b) the burglar possesses a dangerous weapon or explosive when entering or at any time while in the building; or

(c) the burglar assaults a person within the building.

Subd. 2. Burglary in the second degree. Whoever enters a building without consent and with intent to commit a crime commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,-000, or both, if:

(a) the building is a dwelling;

* * ⅜ * * #

Subd. 3. Burglary in the third degree. Whoever enters a building without consent and with intent to steal or commit any felony or gross misdemeanor commits burglary in the third degree and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.

Subd. 4. Burglary in the fourth degree. Whoever enters a building without consent and with intent to commit a misdemeanor other than to steal commits burglary in the fourth degree and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

Minn.Stat. § 609.582 (1984). The court analyzed the statute as follows: since fourth degree burglary requires intent to commit a misdemeanor, first and second degree burglary must require intent to commit a crime in excess of a misdemeanor. The trial court concluded that fourth degree burglary is the exclusive provision applying to persons entering buildings with intent to commit misdemeanors.

However, the trial court erred. Crime, as defined in Minn.Stat. § 609.02, subd. 1 (1984), includes misdemeanors. See also State v. Sauer, 42 Minn. 258, 44 N.W. 115 (1890).

The different degrees of burglary are distinguishable. First and second degree burglary require elements not required by third and fourth degree burglary, including presence of another person not an accomplice in a dwelling, possession of a dangerous weapon, or assault of a person in a building. See § 609.582. These factors distinguish first and second degree burglary from third and fourth degree burglary. The nature of the crime intended distinguishes third degree burglary from fourth degree burglary, but not first degree from fourth degree. Therefore, the trial court erred in dismissing counts I and III.

The trial court properly refused to dismiss the first degree burglary count charged under § 609.582, subd. 1(c) (assault of a person within a building).¹ However, the trial court erroneously added that only if an assault in excess of misdemeanor assault was proved at trial could the first degree burglary charge stand. The State acknowledges that the evidence establishes only intent to commit a misdemeanor assault. “Assault” as defined in § 609.582, subd. 1(c), includes misdemeanor assault. See Minn.Stat. § 609.02, subd. 10 (1984). Therefore, the State need not prove assault in excess of misdemeanor assault in order to prove first degree burglary.

DECISION

The trial court’s order was appealable. The trial court erred in dismissing counts I and III. We reinstate counts I and III and remand for trial. “Assault” as defined by § 609.582, subd. 1(c), includes misdemeanor assault.

Reversed and remanded for trial.

1 . We review this issue because the interest of justice requires it. See Minn.R.Civ.App.P. 103.-04.