Rice County District Court File No. 66-CR-11-1258
Lori Swanson, Attorney General, St. Paul, Minnesota; and G. Paul Beaumaster, Rice County Attorney, Terence Swihart, Assistant County Attorney, Faribault, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Stoneburner, Judge; and Connolly, Judge.
Appellant challenges his convictions of stalking and second-degree burglary, arguing that the evidence is insufficient to support his stalking conviction and, even if there is sufficient evidence to support the stalking conviction, that conviction cannot satisfy the independent-crime element of second-degree burglary. Appellant also argues that the district court abused its discretion by denying his motion for a downward-dispositional sentencing departure. We affirm.
Beginning in March 2007, appellant Joshua Allan Haberman and J.F. dated for approximately ten months, with a brief break approximately eight months into the relationship. The relationship ended in January 2008, shortly before the birth of their child. In early October 2010, Haberman and J.F. began dating again, and Haberman began staying nearly every day at J.F.'s apartment in Faribault. Haberman did not have a key to the apartment and was not on the lease.
On October 30, 2010, Haberman and J.F. began an argument that continued into the following afternoon, at which time J.F. told Haberman that the relationship was "done" and asked him to leave. Haberman replied, "Make me." J.F. pushed Haberman out of the door with a bag of his belongings that he had previously packed. As soon as Haberman was gone, J.F. called her cell phone provider and changed her cell phone number. J.F. did not inform Haberman of her new cell phone number.
That evening―Halloween―J.F. took their child trick-or-treating in Owatonna. Before leaving her apartment, J.F. "double checked" that she had locked her door, "[b]ecause [she] didn't want [Haberman] to be able to come back." But at approximately 7:00 pm, Haberman tore a living-room window screen, pried open a double-paned window, and broke a single-pane storm window to enter J.F.'s apartment. An across-the- hall neighbor, who heard the sound of smashing glass, opened her door just as Haberman opened J.F.'s door. Haberman was holding his bleeding hand and carrying a box. He told the neighbor that everything was okay, he had gotten "locked out and [he] had to break the window to get into the apartment to get [his] things."
J.F.'s neighbor immediately reported the incident to the apartment manager. The manager, who knew that there was no male on J.F.'s lease, went to investigate. Haberman answered J.F.'s door and informed the manager that he was "at home waiting to talk to [J.F.]" When the manager saw the broken window and Haberman's bleeding, bandaged hand, Haberman "said that the [child] . . . had broken [the window] a couple days previous[ly]. And he was trying to clean it up and that is how he had cut himself." The manager said that he needed to speak with J.F. Haberman replied that J.F. had just changed her phone number, and then showed the manager a number, in a notebook on the kitchen table, that Haberman believed to be J.F.'s new phone number. The manager "told [Haberman] to stay put" and then called the police from the hallway outside of J.F.'s apartment. While the manager was making the call, Haberman left the building.
The police arrived at the apartment and the manager made contact with J.F., using the number Haberman had shown to him. J.F. returned to her apartment.
After the police left but while the manager was still there, Haberman, who had sent text messages to J.F. using her new phone number before the manager reached her, returned to the apartment. Haberman admitted to the manager that he had broken the window because "he needed to talk to [J.F.] and he wanted to get into the apartment." Haberman stated that "he knew what he did was wrong." The manager called the police ...