concurring in part; dissenting in part.
I agree that former jeopardy does not apply to six of the seven counts with which defendant was charged. However, in regard to Count IV, which stems from defendant’s alleged burglary of his wife’s apartment at 3:45 a.m., the majority errs.
The majority states that:
“The record of the contempt hearing does not show that the conduct that the contempt court found violated the restraining order was the same conduct that constituted any of the criminal charges in this case. This is in contrast to the situation in State v. McIntyre, 94 Or App 240, 764 P2d 972 (1988), where the contempt court specifically found that the defendant had violated the restraining order on three different occasions and his conduct on one of these occasions was also the basis of the criminal charge.” 123 Or App at 134.
The record of the contempt court shows that it found that defendant entered his wife’s apartment through the window at 3:45 a.m. The contempt court held that defendant “did violate the restraining order by being on the premises described in the order and having contact with the petitioner.” The finding that defendant was on the premises could only be based on Mrs. Delker’s testimony that defendant “broke in through my window” because that testimony was the only evidence that defendant entered the premises. The allegation that defendant entered Mrs. Delker’s apartment through the window was the basis for Count IV, the *137burglary charge. Therefore, double jeopardy applies. State v. McIntyre, 94 Or App 240, 244, 764 P2d 972 (1988).
In order to reach its conclusion that the contempt court only found that defendant was on the premises, 123 Or App at 134, the majority ignores State v. McIntyre. In McIntyre, the contempt court heard evidence that defendant violated a restraining order on three separate occasions, including one incident in which he burglarized the premises described in the restraining order on June 9, 1986. Evidence of the burglary was before the contempt court. The contempt court found that the defendant “did violate the order and particularly the incident that seems most clear is his contact [June 9, 1986].” This “contact,” the burglary, was the basis for a subsequent criminal charge.
In McIntyre, when the defendant appealed his conviction for that burglary on the ground that it had been previously litigated, the state argued that the contempt court did not necessarily base its holding on the burglary. We were not persuaded by that argument. Instead, we held that the burglary “logically had to be included” as one of the three incidents that the contempt court found violated the restraining order. 94 Or App at 244. Here, because the only evidence that defendant was on the premises was Mrs Delker’s testimony that he broke in through the window, that fact was logically included as one of the incidents that the contempt court found. There is no principled way in which McIntyre can be distinguished from the case at bar. Nor is there a satisfactory explanation for why the majority now relies on an argument that closely tracks the same argument we found unpersuasive in McIntyre. I would find that Count IV was litigated in the contempt proceeding.