People v. Dunigan, Docket No. 306654.

• Decision Date: 26 February 2013
• Docket Number: Docket No. 306654.
• Citation: 299 Mich.App. 579,831 N.W.2d 243
• Parties: PEOPLE v. DUNIGAN.
• Court: Court of Appeal of Michigan — District of US

299 Mich.App. 579

831 N.W.2d 243

PEOPLE

v.DUNIGAN.

Docket No. 306654.

Court of Appeals of Michigan.

Submitted Feb. 7, 2013, at Detroit.

Decided Feb. 26, 2013, at 9:00 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Danielle Walton, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Chari K. Grove), for defendant.

Before: SHAPIRO, P.J., and SERVITTO and RONAYNE Krause, JJ.

RONAYNE KRAUSE, J.

Defendant appeals as of right his jury trial conviction of second-degree home invasion, MCL 750.110a(3). He was sentenced to 5 to 40 years' imprisonment. We affirm.

Second-degree home invasion requires proof that the defendant entered a dwelling by breaking or without the permission of any person in ownership or lawful possession or control of the dwelling and did so with the intent to commit a felony, larceny, or assault therein or committed a felony, larceny, or assault while entering, present in, or exiting the dwelling. MCL 750.110a. “We examine the evidence in a light most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond reasonable doubt.” People v. Ericksen, 288 Mich.App. 192, 196, 793 N.W.2d 120 (2010). We do not interfere with the jury's assessment of the weight and credibility of witnesses or the evidence, People v. Wolfe, 440 Mich. 508, 514–515, 489 N.W.2d 748 (1992), and the elements of an offense may be established on the basis of circumstantial evidence and reasonable inferences from the evidence, People v. Harverson, 291 Mich.App. 171, 175, 804 N.W.2d 757 (2010). It is the jury's duty to determine the weight to be accorded any inferences. People v. Hardiman, 466 Mich. 417, 428, 646 N.W.2d 158 (2002).

Defendant first asserts that the evidence at trial was insufficient to support his conviction. Defendant argues that there was insufficient evidence to establish that he was the person who committed the home invasion; he also argues that he had a right to be in the dwelling, so he could not properly be convicted of home invasion of that building. We disagree with both contentions.

In reverse order, defendant's contention that he could not be convicted of home invasion because he had a right to be in the dwelling turns on the fact that the dwelling belonged to his girlfriend. “There is no breaking if the defendant had the right to enter the building.” People v. Toole, 227 Mich.App. 656, 659, 576 N.W.2d 441 (1998). However, the fact that a person is in a dating relationship in no way entitles that person to be present in his or her partner's dwelling at will. The fact that defendant spent some nights at the house is immaterial. In any event, even if we were to presume that defendant had some right to be in the house—which he did not—it is possible to “break and enter” one's own home if one has lost the legal right to be present in that home, for example, by operation of a court order. People v. Szpara, 196 Mich.App. 270, 272–274, 492 N.W.2d 804 (1992). In this case, not only did defendant's relationship not confer any rights upon him, his girlfriend had affirmatively refused his repeated requests for a key, a garage door opener, and alarm access codes for the house. The record overwhelmingly shows, and the jury would have properly concluded, that defendant had no right to be in the house at the time of the invasion.

Moreover, defendant's theory of his defense was that he was not the perpetrator, not that it was technically impossible for him to have committed his charged offense. There would have been no reason for defense counsel to request a jury instruction specifying that the jury must find that defendant could not break into a home that he had a right to enter. Indeed, that instruction would have been inconsistent with, and potentially detrimental to, defendant's theory that he was not the perpetrator and had been falsely accused by the victim. Failing to request a particular jury instruction can be a matter of trial strategy. People v. Gonzalez, 468 Mich. 636, 644–645, 664 N.W.2d 159 (2003). Trial counsel has “wide discretion in matters of trial strategy....” People v. Odom, 276 Mich.App. 407, 415, 740 N.W.2d 557 (2007). Because requesting an instruction about permission to enter could have confused the jury by suggesting that defendant might have been the perpetrator, we conclude that trial counsel's failure to request the instruction has not been shown to be unsound strategy or ineffective assistance.

Defendant also contends, consistently with his theory at trial, that the evidence did not show him to have been the individual who committed the breaking and entering and theft of his girlfriend's cashbox. However, there was only a dearth of direct evidence that he committed the crime. The circumstantial evidence was substantial. The victim testified that defendant was the only person who knew where she kept the missing cashbox in her desk drawer and that he had seen the contents—including more than $10,000 in $100 bills—recently when she told him that she had won jackpots at the casino. She testified that defendant remained behind her and walked out of the house that morning after her, which was unusual. Positioning himself to leave the house last allowed defendant the opportunity to leave the kitchen door unlocked and unlock the pedestrian door to the garage as he walked to his car, which was parked at the street. The victim also recognized shoe prints left in the kitchen after the break-in as matching defendant's work shoes. Notably, there was no sign of a forced entry, the footprints in the house matched defendant's work boots, and nothing in the house was disturbed other than the cashbox, about which only defendant knew.

Additionally, the victim suspected defendant almost immediately given defendant's unusual behavior when the victim noticed that her cashbox was missing. When she questioned defendant the next day, defendant admitted that he had stolen the cashbox, which also contained a flash drive and paperwork. Defendant returned the flash drive to her and explained that he had used some of the money to repair his car and gambled away the rest. Defendant also explained that he had bound the paperwork with a rubber band and dropped it into a mailbox. He accompanied her to the mailbox and then to the post office in an attempt to retrieve the bundle. The post office window supervisor confirmed the visit and testified that the rubber-banded paperwork bundle turned up at the post office the next day. A private investigator hired by the victim had observed defendant on the night of the home invasion gambling heavily using $100 bills. The prosecutor also established that defendant had a motive to steal because he had been unemployed for many months and had a gambling problem.

In summary, the evidence, when viewed in the light most favorable to the prosecution, strongly supported the conclusion that defendant entered the victim's home without permission and with the intent to commit a larceny therein. Therefore, the prosecutor presented sufficient evidence to conclude that the elements of second-degree home invasion were proved beyond a reasonable doubt.

Defendant next contends that he was denied his right to a fair trial because two jurors were noticed to be sleeping during the first day of testimony. Defendant further contends that trial counsel was ineffective for failing to seek the jurors' exclusion. We disagree with both contentions.

An allegation of juror misconduct, even if the alleged misconduct did actually occur, will not warrant a new trial unless the party seeking the new trial can show “ ‘that the misconduct [was] such as to affect the impartiality of the jury or disqualify them from exercising the powers of reason and judgment.’ ” People v. Nick, 360 Mich. 219, 230, 103 N.W.2d 435 (1960) (citation omitted). Simply put, the record does not reveal any such egregiousness. Indeed, the record reveals, contrary to defendant's assertion, that only one juror had been observed to be sleeping. The trial court properly admonished the juror, but there is no indication of what, if any, testimony the juror missed. More importantly, defendant fails to articulate how he was prejudiced. He only makes the bare assertion that the juror could not fairly and competently consider the charges against him and therefore was not qualified to give a verdict. Based on the entire record of this trial, defendant fails to demonstrate that this assertion has any basis in fact.

Defendant sought a remand for an evidentiary hearing under People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), concerning his counsel's ineffectiveness; however, because this Court denied defendant's motion, review is limited to mistakes apparent on the record. People v. Jordan, 275 Mich.App. 659, 667, 739 N.W.2d 706 (2007). Among other things, a defendant must at a minimum establish that any mistake made by counsel prejudiced the defendant, meaning there is a reasonable probability that the proceedings would have had a different outcome if counsel had not made the alleged error. See People v. Carbin, 463 Mich. 590, 599–600, 623 N.W.2d 884 (2001). Once again, defendant has not shown that the sleeping juror affected the outcome of the proceedings. Furthermore, assuming the juror missed any testimony, it would have been testimony from the prosecution's witnesses; defense counsel could reasonablyhave made a strategic decision to assume that the juror's missing that testimony would have helped the defense. This Court will “neither substitute[ ] its judgment for that of counsel regarding matters of trial strategy, nor make[ ] an assessment of counsel's competence with the benefit of hindsight.” People v. Matuszak, 263 Mich.App. 42, 58, 687 N.W.2d...