The Colorado Supreme Court’s majority ruled on Monday that a violation of a restraining order can also serve as a basis for finding a defendant guilty of burglary.

Under state law, a person commits second-degree burglary by unlawfully entering or remaining in an occupied structure with the intent to commit “a crime against another person or property.“

Nearly 30 years ago, the Supreme Court addressed whether violating a municipal restraining order, also known as a “protection order,” is a crime that can support a burglary charge. But Weld County defendant Robert Joe Dilka disputed whether that decision, People v. Rhorer, meant that a violation may always lead to a burglary conviction, regardless of whether the defendant did anything “against another person or property.”

By 5-1, the Supreme Court answered in the affirmative.

“This categorical statement in Rhorer means what it says: a criminal violation of a protection order is not just a crime, but a requisite predicate ‘crime against another person or property’ for purposes of second degree burglary,” wrote Chief Justice Monica M. Márquez in the March 2 opinion.

Justice Richard L. Gabriel dissented, arguing that Rhorer established only that a violation of a restraining order can support a burglary charge, not that it would in every case.

“For example, a person who is subject to a protection order would likely commit a crime against another person if the perpetrator accosted a protected person and used or threatened to use force,” he wrote. But “a person subject to a protection order might enter a protected space simply by walking into it without using or threatening to use any force and without encountering another person.”

In the latter scenario, “I am hard-pressed to see how such conduct would constitute either a crime against another person or property,” Gabriel added.

Weld County prosecutors charged Dilka with second-degree burglary and other offenses after he allegedly entered the victim’s home in violation of an order prohibiting contact.

Last May, there was a preliminary hearing at which the prosecution needed to show probable cause existed to bring Dilka to trial. Dilka’s defense lawyer argued there was no “crime against another person or property” because the evidence showed Dilka was merely inside the home when he should not have been.

District Court Judge Audrey Galloway then raised the 1998 Rhorer decision, and its broad statement that “a violation of a no-contact order constitutes a predicate crime for purposes of the burglary statute.”

“It’s my opinion that the Colorado Supreme Court in that case specifically and unequivocally states not that a violation of a protection order can be a predicate offense for second-degree burglary, but that it is,” said Galloway in determining probable cause existed for Dilka’s burglary offense.

Appealing her ruling to the Supreme Court, Dilka’s lawyer argued it was problematic to find certain violations of a protection order amount to crimes against a person or property.

“Entering a home, alone, does not indicate force or threat of force to a person’s body or seeking to unlawfully benefit from or do damage to another’s property,” wrote public defender Glenna Gee-Taylor.

“Because the intent behind the protection order statute is to prevent domestic abuse, and because domestic abuse is unequivocally against a person, by its very nature, a protection order violation is a crime against a person,” countered Deputy District Attorney Blake Madone.

The Supreme Court’s majority agreed with Galloway’s interpretation of its prior ruling. Márquez noted that lawmakers have defined restraining orders as protecting people from injury, harassment, and “imminent danger to life or health.”

The law “recognizes that a restrained party’s violation of such protection order provisions innately threatens a protected person’s safety,” she wrote. “Such violations present the very psychological, emotional, and potentially physical harm to the protected party (or to property, including animals) that such protection orders seek to avoid.”

Gabriel argued that the burglary law instead requires a case-by-case assessment to determine whether a defendant’s restraining order violation constituted a crime against a person or property. Under the majority’s decision, prosecutors no longer have to prove those elements.

“I believe that Dilka has presented a credible argument that the district court could not properly have found that he committed a crime against another person or property because no evidence indicated that he had used or threatened to use force against the alleged victim, committed a crime against the alleged victim’s person, or sought to damage the alleged victim’s property without the use of force,” Gabriel wrote.

He would have returned the case to Galloway to consider probable cause in light of Dilka’s actions upon entering the victim’s home.

The case is People v. Dilka.