                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 12, 2015
               Plaintiff-Appellee,

v                                                                    No. 320450
                                                                     Clinton Circuit Court
JACKSON FREDERICK KELLY,                                             LC No. 13-009171-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAAD and MURRAY, JJ.

PER CURIAM.

       Defendant appeals his jury conviction of third-degree home invasion, MCL 750.110a(4).
The court sentenced defendant to serve two years’ probation with 210 days’ jail incarceration,
and we affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This case arises from a home invasion that took place in the City of DeWitt in the early
morning hours of July 20, 2013. The owner of the home, Trina Day, an ex-girlfriend of
defendant, was not home during the break-in. Day testified that defendant was at the residence
the preceding day and left driving a pickup truck, and defendant called her three times that
evening. The first was amicable, and Day and defendant discussed the possibility of resuming
their intimate relationship. The second and third calls were less amicable, as defendant wanted
to resume romantic relations immediately, but Day, believing that defendant was “tipsy,” insisted
on delaying further discussion of the subject until defendant was sober. Day added that, during
the second and third calls, defendant said some “mean things,” spoke in an angry tone, and hung
up on her.

        Later that night, around 3:15 a.m., a gold Chevy Silverado pickup truck with a fiberglass
bed cap was seen driving from the front lawn of Day’s residence and away from the scene
sometime after the break-in occurred. Shortly thereafter, a City of DeWitt police officer, John
Drolett, spotted a truck, matching the description of the truck that had left Day’s house, parked in
a nearby neighborhood outside of Steven Karshner’s house. Defendant, a friend of Karshner,
had arrived at Karshner’s house in the truck. Defendant was taken into custody; the officer
described him as obviously intoxicated, “loud and boisterous,” and said he refused to answer any
questions. Drolett testified that the truck appeared to have come from the general direction of
Day’s house, although he admitted that it was possible the truck had come from the Lansing area.
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No witness actually saw the break-in occur, or saw defendant at the residence around the time of
the incident.

        At trial, the prosecution planned to call Karshner as a witness. Karshner was
subpoenaed; when he failed to appear at trial, the trial court authorized a bench warrant and
declared a short break to give the witness more time to appear. Police officers went to
Karshner’s home over the break but did not locate him. The prosecution sought to introduce
Karshner’s preliminary examination testimony at trial. Defense counsel objected, and stated to
the trial court that she had informed the prosecuting attorney the week before that Karshner
might be absent. Specifically, she stated that defendant had heard that Karshner was taking his
family to Disney World at the time of trial. The trial court determined that the subpoena satisfied
the prosecution’s duty of due diligence, and so denied defendant’s request to instruct the jury that
it might infer that the missing witness’s testimony would have been unfavorable to the
prosecution’s case. See M Crim JI 5.12. Over a defense objection, Karshner’s preliminary
examination testimony was read into the record.

        Karshner testified at the preliminary examination that he lived on Appletree Lane in
DeWitt Township, and was friends with defendant. According to Karshner, he told the police on
the night of the incident that defendant had just come from his ex-girlfriend’s house. On cross-
examination, Karshner explained that he had told this to the police because defendant had said
something about having had sex with her. Karshner had assumed that this meant that defendant
had just come from there, but acknowledged that it was possible that defendant had been
referring to a point in time earlier in the day, and that Karshner did not in fact know the time
frame during which defendant was actually at Day’s home.

       The jury convicted defendant as described above. This appeal followed.

                            II. SUFFICIENCY OF THE EVIDENCE

       Defendant says that there is insufficient evidence to support his conviction. This Court
reviews de novo a claim of insufficient evidence. People v Lueth, 253 Mich App 670, 680; 660
NW2d 322 (2002). In doing so, this Court must view the evidence in the light most favorable to
the prosecution to determine if the fact-finder could conclude that the essential elements of the
crime were proved beyond a reasonable doubt. See People v Reese, 491 Mich 127, 139; 815
NW2d 85 (2012). “The scope of review is the same whether the evidence is direct or
circumstantial.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

       MCL 750.110a(4) provides that a person is guilty of third-degree home invasion if he or
she
       [b]reaks and enters a dwelling with intent to commit a misdemeanor in the
       dwelling, enters a dwelling without permission with intent to commit a
       misdemeanor in the dwelling, or 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 misdemeanor.

       Defendant does not dispute that a home invasion occurred. Rather, he argues that the
prosecution failed adequately to prove that he was the person responsible for the offense, the

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jury’s contrary conclusion notwithstanding. Defendant relies on People v Fisher, 193 Mich App
284; 483 NW2d 452 (1992), which states that circumstantial evidence may prove the elements of
a crime, but that inferences may not be based on evidence that is uncertain or speculative, or that
otherwise offers mere conjecture. Id. at 289. Fisher concerned a person who disappeared
without explanation. Id. at 287. The prosecution introduced evidence of the defendant’s motive
and opportunity, but had no way of actually tying the accused to the disappearance, or even
showing that the disappearance resulted from any crime at all. Id. at 287.

        Here, by contrast, the inference that defendant was responsible for the crime arises
largely from witness accounts of events leading up to, and immediately after, the break-in. The
prosecution presented evidence not only of defendant’s motive (anger at his ex-girlfriend) and
opportunity to commit the crime, but also that the victim’s home was in fact criminally invaded,
that a truck fitting the description of defendant’s truck was seen leaving the scene, and that
defendant and his truck were found nearby shortly afterward. These evidentiary developments
supported the prosecution’s theory; unlike Fisher, the evidence here did not merely relate to a
potential motive for defendant, but to the actual elements of the crime and defendant’s identity as
the perpetrator. Id. Although the evidence was entirely circumstantial, Fisher itself reiterated
that “[c]ircumstantial evidence and the reasonable inferences that arise from the evidence can
constitute satisfactory proof of the elements of a crime.” Id. at 289.

       Therefore we reject defendant’s challenge to the sufficiency of the evidence.

                           III. MISSING WITNESS INSTRUCTION

        Defendant contends that the trial court abused its discretion when it refused the defense’s
request to include M Crim JI 5.12,1 concerning the prosecution’s failure to produce a witness,
among its jury instructions. Jury instructions that involve questions of law are reviewed de novo,
but a trial court’s determination whether an instruction is applicable to the facts of a case is
reviewed for an abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).
We also “review a trial court’s determination of due diligence and the appropriateness of a
‘missing witness’ instruction for an abuse of discretion.” People v Eccles, 260 Mich App 379,
389; 677 NW2d 76 (2004). “A trial court abuses its discretion when it fails to select a principled
outcome from a range of reasonable and principled outcomes.” People v Kahley, 277 Mich App
182, 184; 744 NW2d 194 (2008).

       M Crim JI 5.12 states, in relevant part, as follows: “[State name of witness] is a missing
witness whose appearance was the responsibility of the prosecution. You may infer that this
witness’s testimony would have been unfavorable to the prosecution’s case.” The trial court


1
  At the time of trial, the version of this instruction was referred to as CJI2d 5.12. On
October 30, 2013, our Supreme Court issued Administrative Order 2013-13, which among other
things issued new Michigan Model Criminal Jury Instructions. Defendant’s trial took place
before the promulgation of these new instructions. The instruction referenced here from the
Criminal Jury Instructions Second Edition (CJI2d) corresponds to M Crim JI 5.12. The
substance of the instruction has not changed.


                                                -3-
declined to provide this instruction because it concluded that the prosecution had exercised due
diligence to produce Karshner at trial. Defendant argues that the trial court erred, because the
prosecution had reason to know that the witness had plans that would take him out of town at the
time of trial. We disagree.

        “[I]n every instance, the propriety of reading [M Crim JI] 5.12 will depend on the
specific facts of that case.” People v Perez, 469 Mich 415, 420-21; 670 NW2d 655 (2003). Due
diligence is the attempt to do everything reasonable, not necessarily everything possible, to
obtain the presence of a witness. People v Cummings, 171 Mich App 577, 585; 430 NW2d 790
(1988). We hold that the trial court did not choose an unprincipled outcome by declining to hold
that mere rumors that the witness had notions of going out of town obligated the prosecution to
expend efforts to secure that witness beyond seeing that a subpoena was issued and served,
securing a bench warrant, and sending police to Karshner’s house to attempt to locate him when
he failed to appear. See Kahley, 277 Mich App at 184; Cummings, 171 Mich App at 585.

         Further, were we to hold there was an error in the trial court’s due diligence
determination, Karshner’s previous testimony, including direct and cross-examination, was read
at trial. Defendant offers only speculation that Karshner’s failure to appear in person, or the trial
court’s failure to give the missing witness instruction, prejudiced his case in light of the fact that
Karshner’s early testimony was admitted, and that Karshner acknowledged during that testimony
that he was uncertain as to when defendant had been at his ex- girlfriend’s home. See People v
Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010) (“The defendant bears the burden of
establishing that the asserted instructional error resulted in a miscarriage of justice.”). Thus,
were we to find the trial court’s failure to give the missing witness instruction was an abuse of
discretion, we would find the error harmless.

       Affirmed.

                                                              /s/ Mark T. Boonstra
                                                              /s/ Henry William Saad
                                                              /s/ Christopher M. Murray




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