People v. Heft
| Decision Date | 20 December 2012 |
| Docket Number | Docket No. 307150. |
| Citation | 299 Mich.App. 69,829 N.W.2d 266 |
| Parties | PEOPLE v. HEFT. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Randy L. Price, Assistant Prosecuting Attorney, for the people.
State Appellate Defendant (by Randy E. Davidson), for defendant.
Before: WHITBECK, P.J., and FITZGERALD and BECKERING, JJ.
Defendant, Leonard Heft, appeals as of right his convictions, following a jury trial, of entering without breaking with intent to commit a larceny (entering with intent to commit a larceny) 1 and conspiracy to commit entering with intent to commit a larceny (conspiracy).2 We affirm.
Jessie Chavez testified that at 1:30 a.m. on January 24, 2011, he heard pounding noises that he believed were coming from his home at 214 Cambrey. His mother called 911, and Saginaw Police Officers Mark Walker and Jeffery Madaj responded to the dispatch. Officer Walker testified that he noticed that two people in the area were running but then began walking, which he considered suspicious. Officers Walker and Madaj made contact with the individuals (Heft and Adam Kinville), separated them, and seated them in the patrol vehicles while they investigated.
Officer Walker testified that Heft told him that he was just walking around and that he and Kinville had walked there from Cronk Street. Officer Walker testified that, because Cronk Street was several miles from Cambrey, it was 1:30 a.m., and the temperature was about zero degrees but Heft was breathing hard and perspiring, he “felt like something was not right.” Officer Madaj questioned Kinville and, on the basis of Kinville's statement and the same facts, determined that Kinville was not being truthful. Officers Walker and Madaj both testified that they found footprints in the snow and traced them back to 220 Cambrey, the house next door to 214 Cambrey. Officer Walker testified that he compared Heft's boots to the footprints and thought the boots could have made them.
The door on the house at 220 Cambrey was broken. Inside, the officers saw freshly tracked snow, a pile of heating registers, and that the hot water heater had been broken off from the pantry. The officers testified that they could not tell when the registers or heater had been broken. Several witnesses testified that Kinville had resided at 220 Cambrey at some point, but Chavez testified that the house had been vacant for four to six months before January 2011. Chavez testified that he had been inside the house while it was vacant and had been able to just “walk right in.”
Officer Madaj testified that Kinville later stated that he had gone into the house to check on it because his grandfather owned it. Officer Walker testified that Heft stated that he had walked up to the door but had not entered the house.
Kinville eventually told Officer Madaj that his vehicle was parked around the corner, and the officers discovered a van parked about one block away. Heft possessed the van's keys and it was registered in his name. Officer Madaj testified that the van contained flooring tools, which a person could use to acquire scrap metal for sale.
Kinville's counsel requested that the trial court instruct the jury on entering without permission 3 as a lesser included offenseof entering with intent to commit a larceny, and Heft's counsel joined in the request. The trial court declined to issue the instruction. The jury found Heft guilty of entering with intent to commit a larceny and conspiracy. Heft now appeals. The jury found Kinville guilty of the same crimes, but he is not a party to this appeal.
This Court reviews de novo questions of law, including whether an offense is a lesser included offense and whether an instructional error violated a defendant's due process rights under the Fourteenth Amendment. 4
The trier of fact may find a defendant guilty of a lesser offense if the lesser offense is necessarily included in a greater offense.5 If the trial court does not instruct the jury on a lesser included offense, the error requires reversal if the evidence at trial clearly supported the instruction.6
However, the trier of fact may only consider offenses that are “inferior to the greater offense charged.” 7 The trier of fact may not consider cognate offenses: those offenses that contain an element not found in the greater offense.8 To be a lesser included offense, the elements necessary for commission of the greater offense must subsume the elements necessary for commission of the lesser offense.9 The elements of the lesser offense are subsumed when “ all the elements of the lesser offense are included in the greater offense ....” 10
Under MCL 750.111, it is a crime for a person to enter a variety of locations with the intent to commit larceny:
Any person who, without breaking, enters any dwelling, house, ... or structure used or kept for public or private use, or any private apartment therein, with intent to commit a felony or any larceny therein, is guilty of a felony....
Thus, the crime has two elements: (1) entering a building or structure without breaking and (2) having the intent to commit a larceny therein when entering.
Under MCL 750.115(1), it is a crime for a person to enter a variety of private locations without permission from the owner:
Any person who, without breaking, enters any dwelling, house, ... or structure used or kept whether occupied or unoccupied, without first obtaining permission to enter from the owner or occupant, agent, or person having immediate control thereof, is guilty of a misdemeanor.
Thus, when the prosecution charges a person under MCL 750.115(1) with entering without breaking without permission, the crime has two elements: (1) entering withoutbreaking and (2) entering without the owner's permission.
We conclude that entering without permission is not a lesser included offense of entering with the intent to commit a larceny. The elements of entering with intent to commit a larceny do not entirely subsume the elements of entering without permission.
Heft argues that, because entering without permission is necessarily included in breaking and entering with intent to commit larceny,11 entering without permission is necessarily included in entering with intent to commit larceny. We disagree. When dealing with a crime that includes alternative elements, this Court must be careful to examine only the specific elements necessary to the defendant's charge in our case.12 When we consider only those elements necessary for a defendant to commit entering without breaking, we must reject Heft's argument.
In People v. Cornell, the Michigan Supreme Court held that breaking and entering without permission is necessarily included in breaking and entering with intent to commit larceny.13 We must distinguish the Court's decision in Cornell because it expressly concerned a situation in which the prosecution charged the defendant with “breaking and entering,” not merely entering.14 A breaking is any use of force, however slight, to access whatever the defendant is entering.15 As noted in People v. Toole, cited in Cornell, “[t]here is no breaking if the defendant had the right to enter the building.” 16 Thus, a breaking only exists if the defendant entered without permission: “breaking and entering” subsumes the “without permission” element of “entering without permission” because a person cannot commit a breaking with permission. However, simply entering does not subsume this element.
When determining whether the elements of one crime are subsumed in another, “ ‘[t]he controlling factor is whether the lesser offense can be proved by the same facts that are used to establish the charged offense.’ ” 17 The lesser offense of entering without permission contains an additional element—the lack of permission—on which the prosecution would have to prove additional facts that are not necessary for the prosecution to prove entering with intent to commit a larceny. Indeed, the defendants' theories of this case were inconsistent with entering without permission.
Kinville's theory of the case was that, as he told the officers at the scene, he was checking on his grandfather's house, he believed that his grandfather owned the house, he used to live in the house, he noticed that the door was open, and he went into the house to determine if everything was okay. Heft's attorney also argued in closing that there was no evidence that Heft and Kinville knew that the propertywas vacant before they entered it and that Heft was aware that Kinville had lived at the property because Kinville's wife is Heft's sister. The prosecution was not required to prove that Heft and Kinville did not have permission to enter the house to prove entering with intent to commit larceny, but would have been required to prove that Heft and Kinville did not have permission to enter the house to prove entering without permission.
Further, for an offense to be a lesser included offense, “ ‘ “proof of the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.” ’ ” 18 Breaking and entering subsumes entering without permission because “[i]t is impossible to commit the greater offense without first committing the lesser offense.” 19 The opposite is true in this case. When faced with a factual situation in which a defendant entered a home with permission, a jury could find the defendant guilty of entering with the intent to commit a larceny, but innocent of entering without permission.20 Here, unlike with breaking and entering, it is not impossible to commit...
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People v. Clark
... ... lawful performance of his or her duties as a peace officer ... This Court has explained that MCL 750.115 can be violated in ... two ways: by "entering without breaking" or ... "entering without the owner's permission." ... People v Heft , 299 Mich.App. 69, 75; 829 N.W.2d 266 ... (2012). Officer Clark was charged with the second method: ... breaking and entering without permission. Additionally, ... because Clark is a peace officer, he could not be guilty of ... this offense if the breaking and entering was ... ...
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...333.7401. We review de novo questions of law, including whether an offense constitutes a lesser included offense. People v. Heft , 299 Mich.App. 69, 73, 829 N.W.2d 266 (2012). As a preliminary matter, defendant argues that this issue is not ripe for review because neither party has moved fo......
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