People v. Evans

CourtSupreme Court of Michigan
Citation810 N.W.2d 535,491 Mich. 1
Docket NumberDocket No. 141381.
PartiesPEOPLE of the State of Michigan, Plaintiff–Appellee, v. Lamar EVANS, Defendant–Appellant.
Decision Date26 March 2012

491 Mich. 1
810 N.W.2d 535

PEOPLE of the State of Michigan, Plaintiff–Appellee,
Lamar EVANS, Defendant–Appellant.

Docket No. 141381.

Supreme Court of Michigan.

March 26, 2012.

[810 N.W.2d 536]

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Kym L. Worthy, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training and Appeals, for the people.

Jonathan B.D. Simon, Bloomfield, for defendant.


[491 Mich. 3] This case presents the question whether the Double Jeopardy Clauses of the state and federal constitutions bar defendant's retrial. Defendant was accused of burning a vacant house and charged on that basis with burning other real property in violation of MCL 750.73. There is no dispute that the trial court wrongly added an extraneous element to the statute under which defendant was charged. Specifically, the trial court ruled that the prosecution was required to present proof that the burned house was not a dwelling, which is not a required element of MCL 750.73. As a result of the trial court's erroneous addition of this [491 Mich. 4] extraneous element to the charged offense, it granted defendant's motion for a directed verdict and entered an order of acquittal, dismissing the case. We hold that when a trial court grants a defendant's motion for a directed verdict on the basis of an error of law that did not

[810 N.W.2d 537]

resolve any factual element of the charged offense, the trial court's ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred. Accordingly, because the trial court's actions did not constitute an acquittal for the purposes of double jeopardy, we affirm the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.


Defendant, Lamar Evans, was charged with burning other real property, MCL 750.73,1 for starting a fire in a vacant house. At trial, two Detroit police officers testified that while on routine patrol on September 22, 2008, they observed a house on fire at 9608 Meyers Street and investigated. After hearing an explosion at the burning house, the officers observed defendant running away from the side of the house with a gasoline can. Officer Jermaine Owens got out of the patrol car and told defendant to stop. When defendant continued to run, Officer Owens chased defendant on foot. Defendant dropped the gasoline can during the chase, and Officer Owens caught defendant after he tripped and fell. Officer Cyril Davis, who had initially joined the chase [491 Mich. 5] on foot, returned to the patrol car and drove it to where Officer Owens had detained defendant. The officers testified that defendant told them he had made a mistake and burned down the house.

An arson investigator from the Detroit Fire Department, Lieutenant Christopher Smith, determined that the burn patterns in the house indicated the use of ignitable liquid accelerants. Further testing showed that gasoline had been poured in the kitchen, dining room, and a bedroom. As a result, Smith concluded that the fire was arson. No one was living in the house at the time of the fire, and the house lacked gas, electricity, and water service. The homeowner testified that he was in the process of purchasing the house, which needed repairs, and that he and his family had begun moving their belongings into the house.

Upon the close of the prosecution's proofs, defense counsel moved for a directed verdict under MCR 6.419(A),2 arguing that the prosecution had failed to prove that the burned building was not a dwelling house. Defense counsel argued that the jury instructions indicated that a necessary element of the burning of other real property is that the building was not a dwelling, while the prosecution's evidence reflected only that it was a dwelling. The prosecutor argued that nothing in MCL 750.73 required proof that the building [491 Mich. 6] was not a dwelling. The prosecutor also argued that it was unnecessary to read the

[810 N.W.2d 538]

instructions for the element that the building was not a dwelling and that the jury instructions are only a guide. The trial court then made the following ruling:

The Court: The Court does not have an option of not reading all of the required elements in a jury instruction, and there are no optional elements in [CJI2d] 31.3. All of them are required. And the instructions are not a guide. They are what is required by law.3

Looking at the commentary, it refers to a distinction between [CJI2d] 31.2 and 31.3. [CJI2d] 31.2 is the instruction that is required for burning [a] dwelling house.

The commentary, speaking of CJI 2nd 31.1 [sic, 31.3], Burning Other Real Property, the commentary: “This offense is similar to the one described in CJI 2nd 31.2, except that an essential element is that the structure burned is not”—which is in italicized writing print—“a dwelling house.” And then it cites People v. Antonelli, A-n-t-o-n-e-l-l-i, 64 Mich.App. 620, 238 NW 2nd [N.W.2d] 363 [ (1975) ], and notes that it was reversed on other grounds, and gives the citation as 66 Mich.App. 138, 238 NW 2nd [N.W.2d] 551 (1975).

And the commentary goes on to say: “As the Court explained on rehearing, common law arson required that the building be a dwelling. In creating the less serious crime of burning buildings other than dwellings, the legislature[491 Mich. 7] simply eliminated the element of habitation. Other real property is all real property not included in MCL 750.72.”

And the People in this case have relied on MCL 750.73, which specifically says it cannot be a dwelling.

[ Prosecutor ]: Judge, could I have a moment to go upstairs and pull the statute and make sure that the statute addressed that. Because my understanding of the law is that it doesn't matter whether it's a dwelling or not, it just has to be a structure. And that's the reason for the-

The Court: Other than a house, because the legislature has imposed a higher penalty for one burning a house.

[MCL] 750.73 reads: “Burning of Other Real Property–Any person who willfully or maliciously burns any building or other real property, or the contents thereof, other than those specified in the next preceding section of this chapter, the property of himself or another, shall be guilty of a felony ... [.]” I won't give the term of punishment.

And it says: “Other than those specified in the next preceding.” Isn't preceding before? The next preceding section of this chapter would be [MCL] 750.72.[MCL] 750.72 is entitled “Burning Dwelling House,” and reads: “Any person who willfully or maliciously burns any dwelling house, either occupied or unoccupied, or the contents thereof, whether owned by him or another, or any building within the curtilage of such dwelling house, or the contents thereof,

[810 N.W.2d 539]

shall be guilty of a felony.” I will not read the term of punishment, but it is twice that which is specified in [MCL] 750.73.

So reading the language of [MCL] 750.73, which refers back to [MCL] 750.72, a dwelling house, either occupied or unoccupied, is excluded by law.

[ Prosecutor ]: Judge, may I have a moment to go upstairs and consult with my supervisors?

The Court: You can consult with them when you tell them I've granted the motion.

[ Defense Counsel ]: Thank you, Judge.

[491 Mich. 8] The Court: As a matter of law.

The testimony was this was a dwelling house, paid for for [sic] forty-some-odd thousand dollars. That the folks had moved some stuff into it, even though it doesn't matter.

Motion granted.

The prosecution appealed, and in an authored opinion, the Court of Appeals reversed the trial court's order granting defendant's motion for a directed verdict and remanded for further proceedings.4 The panel stated that it was undisputed that the trial court had erred by concluding that the prosecution was required to prove that the burned building was not a dwelling to convict defendant of burning other real property.5 The panel took note of this Court's statement in People v. Nix, 453 Mich. 619, 556 N.W.2d 866 (1996), that retrial is barred when the trial court grants a directed verdict of acquittal even when the trial court is “ ‘wrong with respect to whether a particular factor is an element of the charged offense.’ ” 6 Nonetheless, the panel characterized that statement as dicta because “the majority in Nix ... acknowledg[ed] that it was unclear whether the situation that concerned the dissent, that dismissal of the case was premised on the prosecution's failure to establish a nonelement of an offense, had even occurred.” 7

The panel then considered the dissenting opinion in Nix, finding it persuasive to support its holding that “an actual acquittal occurs, for double jeopardy purposes, ‘only when the trial court's action, whatever its form, is a resolution in the defendant's favor, correct or not, of a [491 Mich. 9] factual element necessary for a criminal conviction.’ ” 8 Applying this holding, the panel concluded that double-jeopardy principles did not bar retrial because the trial court had not resolved a factual element necessary to establish a conviction.9 Rather, the trial court had based its directed verdict solely on the prosecution's failure to present any evidence establishing that the burned building was not a dwelling, which was not an element of the charged offense.10

Defendant applied for leave to appeal in this Court, and we granted leave to address “whether [defendant's] retrial is barred under the double jeopardy clauses

[810 N.W.2d 540]

of the state and federal constitutions where the trial court's grant of defendant's motion for a directed verdict was based on an error of law and did not determine any actual element of the charged offense.” 11


Defendant's claim that the double-jeopardy provisions of the United States and Michigan Constitutions bar his retrial is reviewed de novo. 12


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