Michigan Court Of Appeals Holds Lesser-Included Jury Instruction Error

On October 13, 2015, the Michigan Court of Appeals held in a criminal case that the trial court erred in providing the jury with an instruction that they could potentially find defendant guilty of a lesser-included criminal offense.

In People v Jackson, Docket No. 322350, the Michigan Court of Appeals addressed several arguments raised by defendant on appeal, including the issue of whether the trial court erred in instructing the jury that they could potentially find defendant guilty of the lesser-included offense of Home Invasion - Third Degree as opposed to the crime of Home Invasion - Second Degree (the crime the prosecutor charged defendant with originally committing.) Defendant argued on appeal that the jury instructions were confusing to the jury and that the lesser-included offense instruction deprived him of his right to a fair trial.

Interestingly, defendant's own attorney proposed the lesser-included offense instruction and of course did not object to it at trial.

The Court first recited the facts of the case:

The case arises out of the invasion of, and theft of household items and money from, Traci Brown’s home in Charlotte, Michigan on July 4, 2012. On that day, Brown and her three children left the home to visit her mother. According to Brown, her windows and doors were all locked when she left, and she did not leave her front door open. Brown testified that, other than herself and her children, only her mother and the father of her children knew that she and the children would be away . . . .

During the trial, Pion testified that he had been charged with the felony of receiving and concealing stolen property and that in exchange for his testimony against defendant, the prosecutor’s office had agreed to allow him to plead guilty to a misdemeanor charge of receiving and concealing stolen property. Waycaster testified that she had also been charged with felony receiving and concealing stolen property, and that in exchange for her truthful testimony, the charges were reduced to misdemeanor receiving and concealing stolen property.

The jury convicted defendant of one count of second-degree home invasion, MCL 750.110a(3) . . . .

The Court's analysis of whether the trial court erred in instructing the jury on the lesser-included offense of Home Invasion - Third Degree followed:

Defendant argues that the trial court erred in instructing the jury on the lesser-included offense of third-degree home invasion. Defendant maintains that, by providing essentially identical instructions on second-degree and third-degree home invasion, the instructions as a whole were confusing and allowed the jury to convict defendant of the higher offense (second- degree home invasion) on no greater proof than would sustain a conviction for the lesser offense (third-degree home invasion), thus lowering the prosecution’s burden of proof on the former. The record indicates that defendant’s counsel requested that the jury be so instructed, and affirmatively approved the jury instruction as read. Defendant has thus waived challenge to any error in this instruction. People v Chapo, 283 Mich App 360, 372-373; 770 NW2d 68 (2009).

Further, even if defendant had not waived appellate review of this issue, we would find that reversal was not required. “A criminal defendant is entitled to have a properly instructed jury consider the evidence against him.” People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002). The jury instructions must include all elements of the charged offenses and any material issues, defenses, and theories if there is evidence to support them. People v Reed, 393 Mich 342, 349-350; 224 NW2d 867, cert den 422 US 1044 (1975). This Court reviews unpreserved challenges to jury instructions for plain error affecting a party’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999) . . . .

Our Supreme Court has held that “[t]he second element of the lesser crime, [intended] commission of a misdemeanor while present in the dwelling, is subsumed within the second element of the greater crime charged [there, first-degree home invasion], [intended] commission of a larceny while present in the dwelling, because every felony larceny necessarily includes within it a misdemeanor larceny.” See People v Wilder, 485 Mich 35, 46; 780 NW2d 265 (2010). This Court had earlier concluded, in People v Sands, 261 Mich App 158, 163; 680 NW2d 500 (2004), that the language of MCL 750.11a(2) permits a misdemeanor larceny or misdemeanor assault to serve as the predicate offense for first-degree home invasion, rather than requiring felony larceny or assault. The Court reasoned that, “because felonies are specifically listed as underlying crimes for first-degree home invasion, it would be redundant to list assault and larceny separately if subsection 110a(2) was referring to only felony assaults and larcenies.” Id. Although the Wilder and Sands Courts were considering the first-degree home invasion statute, its relevant language is the same as that of the second-degree home invasion statute. See MCL 750.110a(2), (3). The rationale of those cases is therefore equally applicable to second- degree home invasion, MCL 750.110a(3), and either a misdemeanor or felony larceny thus may serve as the predicate offense for second-degree home invasion. Consequently, where, as here, the predicate offense for the home invasion charge was a larceny, third-degree home invasion was a lesser-included offense of second-degree home invasion.

Nonetheless, under the facts of this case, a rational view of the evidence did not support the giving of an instruction on third-degree home invasion. Cornell, 466 Mich at 357. In this case, there was no is no record evidence that defendant entered Brown’s home to commit any crime other than a larceny. Specifically, Pion and Waycaster both testified that defendant said he was going to “hit a lick,” which is a slang term meaning that defendant was going to steal something, and returned to the house later carrying items in a basket. Because felony and misdemeanor larceny may serve as the predicate offense underlying second-degree home invasion, Sands, 261 Mich App at 163, and because there was no evidence of any predicate act other than that (larceny) supporting the second-degree home invasion charge, the evidence in this case did not allow for a distinction between second-degree home invasion and third-degree home invasion, and therefore did not support an instruction on third-degree home invasion. The trial court thus erred in giving that instruction. Cornell, 466 Mich 335, 357.

The trial court and counsel for the parties appeared to struggle with how to instruct the jury that both felony and misdemeanor larceny may serve as the predicate offense underlying second degree home invasion. However, if anything, this confusion aided defendant by allowing him a chance to be convicted of a lesser offense based on a predicate offense that would have supported a higher charge. Although defendant argues that the instruction given allowed the jury to convict him of a higher offense than that which the evidence supported, it is the converse that is actually true: the instruction allowed defendant the chance to be convicted of a lesser offense than that which the evidence supported. Thus, the jury was allowed to consider a lesser charge that it should not have been allowed to consider. Had the jury convicted defendant of the lesser offense, he would have been subject to a lesser sentence. However, the jury convicted defendant of the higher charged offense, second-degree home invasion. We therefore hold that the improper jury instruction did not affect defendant’s substantial rights. Carines, 460 Mich at 763- 764. We further hold that a defendant may not request such an instruction, only to later claim resulting confusion in the jury instructions, thus harboring error as an appellate parachute. People v Buie, 491 Mich 294, 299; 817 NW2d 33 (2012) . . . .