People v. Bush

• Decision Date: 21 April 2016
• Docket Number: Docket No. 326658.
• Parties: PEOPLE v. BUSH.
• Court: Court of Appeal of Michigan — District of US

315 Mich.App. 237
890 N.W.2d 370

PEOPLE
v.
BUSH.

Docket No. 326658.

Court of Appeals of Michigan.

Submitted April 12, 2016, at Grand Rapids.
Decided April 21, 2016, at 9:00 a.m.

890 N.W.2d 371

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jeffrey S. Getting, Prosecuting Attorney, and Heather S. Bergmann, Assistant Prosecuting Attorney, for the people.

Joseph C. McCully, Jr., for defendant.

Before: SAAD, P.J., and BORRELLO and GADOLA, JJ.

GADOLA, J.

315 Mich.App. 239

Following an incident that occurred on November 17, 2014, at a home in Portage, Michigan, defendant was charged with one count of first-degree home invasion,

890 N.W.2d 372

MCL 750.110a(2) ; one count of assault with a dangerous weapon (felonious assault), MCL 750.82(1) ; and one count of resisting or obstructing a police officer, MCL 750.81d(1). Before trial, defendant sought leave to appeal an order granting the prosecution's motion for a special jury instruction relative to his charge of first-degree home invasion, which this Court denied. People v. Bush, unpublished order of the Court of Appeals, entered July 16, 2015 (Docket No. 326658). Defendant then sought leave to appeal in the Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case to this Court for consideration of the jury-instruction issue as on leave granted. People v. Bush, 498 Mich. 900, 870 N.W.2d 718 (2015). For the

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reasons set forth in this opinion, we reverse the trial court's order granting the prosecution's motion and remand the case to the trial court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

The circumstances underlying the charges in this case were set forth in the prosecution's motion for a special jury instruction. According to the alleged victim, Melissa Partain, on November 17, 2014, she barricaded herself in an upstairs bedroom of her home using a dresser after defendant sent her threatening text messages. Thereafter, defendant came upstairs and kicked the bedroom door open, forced the dresser out of the way, then entered the room and assaulted Partain. Partain indicated that she did not give defendant permission to be in the home.

The prosecutor also stated in his motion that Partain's adult son, Jason Switzer, who also resided in the home, would testify that he asked defendant to come over on November 16, 2014, to fix a bathtub and that defendant entered the home with Switzer's permission. Switzer indicated that he heard his mother and defendant talking on the evening of November 16, 2014, and the morning of November 17, 2014. Switzer left the home at 3:15 p.m. on November 17, 2014, and returned at around 6:00 p.m. to find the police at the home investigating the incident.

Defendant stated in an affidavit that the home was his primary residence until his arrest on November 17, 2014, and that he received mail at the home, kept clothes and tools at the home, and occasionally spent the night at the home, sleeping on a couch in the basement. Defendant explained that on November 16, 2014, Switzer asked him to come to the house to repair

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bathroom plumbing, and he stayed at the house until his arrest. According to defendant, the plumbing access panel for the bathtub was in the closet of the bedroom that Partain allegedly barricaded herself in, and at no time did he force his way into the bedroom by kicking the door open or forcing a dresser out of the way.

Before trial, the prosecution filed a motion requesting a special jury instruction on the home-invasion charge. In the motion, the prosecution recited the standard jury instruction found in CJI2d 25.2a¹ and

315 Mich.App. 242

890 N.W.2d 373

asserted that the standard instruction was insufficient to " cover a fact pattern where a person lawfully enters the home, but then breaks into a room within the home to which he had no permission [to enter]." Citing People v. Clark, 88 Mich.App. 88, 91, 276 N.W.2d 527 (1979), People v. Toole, 227 Mich.App. 656, 576 N.W.2d 441 (1998), and People v. Mosher, unpublished opinion per curiam of the Court of Appeals, issued January 23, 2014 (Docket No. 312996), 2014 WL 265547, the prosecution argued that there was sufficient authority to support the proposition that when a defendant gains lawful access to a building, but has no right to enter an inner portion thereof, the defendant's use of force to gain entry into an inner portion is sufficient to constitute a "breaking" for purposes of the home-invasion statute. Accordingly, the prosecution requested the following special jury instruction: "Where a [d]efendant [g]ains access to a building without breaking, but has no right to enter an inner portion of that building, the defendant's use of force to gain entry into that inner portion is a breaking."

Defendant objected to the prosecution's motion, arguing that "[t]he reason the Standard Jury Instruction does not cover the fact pattern where a person lawfully enters the home[,] but then breaks into a room within the home to which he had no permission [to enter] is [because] this fact pattern does not fit the elements of [MCL 750.110a(2) ], regardless of degree." Defendant reasoned that the term "dwelling," as defined by MCL 750.110a(1)(a), did not encompass "[a] room within the dwelling," and therefore a person could not be convicted of home invasion for breaking into an inner room of a dwelling if that person was already lawfully present in the dwelling. Following

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a hearing on the matter, the trial court granted the prosecution's motion.

II. STANDARD OF REVIEW

This Court reviews de novo a claim of instructional error involving a question of law. People v. Dobek, 274 Mich.App. 58, 82, 732 N.W.2d 546 (2007). Likewise, this Court reviews de novo issues of statutory interpretation and construction. People v. Loper, 299 Mich.App. 451, 463, 830 N.W.2d 836 (2013).

III. ANALYSIS

"A defendant in a criminal trial is entitled to have a properly instructed jury consider the evidence against him or her." Dobek, 274 Mich.App. at 82, 732 N.W.2d 546. "The trial court's role is to clearly present the case to the jury and to instruct it on the applicable law." Id. "Jury instructions must include all the elements of the offenses charged against the defendant and any material issues, defenses, and theories

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that are supported by the evidence." Id. Pursuant to MCR 2.512(D)(2), pertinent model jury instructions "must be given in each action in which jury instructions are given" if the model instructions "are applicable," "accurately state the applicable law," and "are requested by a party." The Michigan Court Rules do not limit the power of trial courts to give "additional instructions on applicable law not covered by the model instructions" as long as the additional instructions are "concise, understandable, conversational, unslanted, and nonargumentative" and are "patterned as nearly as practicable after the style of the model instructions." MCR 2.512(D)(4). See also Bouverette v. Westinghouse Electric Corp., 245 Mich.App. 391, 401–402, 628 N.W.2d 86 (2001) ( "When

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the standard jury instructions do not adequately cover an area, the trial court is obligated to give additional instructions when requested, if the supplemental instructions properly inform the jury of the applicable law and are supported by the evidence.").

The home-invasion statute, MCL 750.110a, provides, in pertinent part, the following:

(2) A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the first degree if at any time while the person is entering, present in, or exiting the dwelling either of the following circumstances exists:

(a) The person is armed with a dangerous weapon.

(b) Another person is lawfully present in the dwelling.

Therefore, the elements of first-degree home invasion are: (1) the defendant either breaks and enters a dwelling or enters a dwelling without permission; (2) the defendant either intends when entering to commit a...