            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 20, 2019
               Plaintiff-Appellee,

v                                                                  No. 343375
                                                                   Oakland Circuit Court
JAMES TROY WYATT,                                                  LC No. 2017-261424-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and O’BRIEN and LETICA, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial conviction for first-degree home invasion,
MCL 750.110a(2). Defendant was sentenced as a fourth habitual offender, MCL 769.12, to 30
months to 40 years’ imprisonment for his first-degree home invasion conviction. On appeal,
defendant argues that his conviction and sentence should be reversed because his trial counsel,
Patrick R. Wilson, was ineffective, the prosecutor made improper comments during closing
arguments, there was insufficient evidence to sustain his conviction, and the trial court erred by
denying his request for a third-degree home invasion jury instruction. We disagree.

                                           I. FACTS

        On December 23, 2016, Eric Schmelling, was in his apartment when he heard a
disturbance outside his window. Schmelling saw defendant and defendant’s friend attempting to
enter through the fire exit door of the apartment complex in which Schmelling and defendant
both lived. Schmelling told defendant and defendant’s friend that they needed to use the front
door to enter the apartment complex. Schmelling’s comment angered defendant and his friend;
their verbal response prompted Schmelling to call 911. Defendant and his friend attempted to
enter Schmelling’s apartment while Schmelling was on the telephone with the police.
Schmelling attempted to stop defendant and his friend, but the door to Schmelling’s apartment
was broken off of its hinges and Schmelling was pushed back into his closet, breaking his closet
door. Defendant and his friend then attempted to hit Schmelling, but Schmelling was still
holding the door to his apartment and defendant and his friend were unable to reach Schmelling.




                                               -1-
Defendant and his friend left Schmelling’s apartment after Schmelling told them that the police
were on their way. The police arrived shortly thereafter.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that Wilson was ineffective as his trial counsel because Wilson failed
to effectively impeach Schmelling or present any witnesses in defendant’s defense and because
Wilson prevented defendant from testifying in his own defense. We disagree.

        Regardless of whether a claim of ineffective assistance is duly preserved, if the trial court
did not hold a Ginther1 hearing, “our review is limited to the facts on the record.” People v
Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). “Whether defense counsel performed
ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial
court’s findings of fact and reviews de novo questions of constitutional law.” People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “A finding is clearly erroneous if it
leaves this Court with a definite and firm conviction that the trial court made a mistake.” People
v Dillon, 296 Mich App 506, 508; 822 NW2d 611 (2012).

        A “defendant has the burden of establishing the factual predicate for his claim of
ineffective assistance of counsel . . . .” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

                 Effective assistance of counsel is presumed, and the defendant bears a
         heavy burden of proving otherwise. To establish an ineffective assistance of
         counsel claim, a defendant must show that (1) counsel’s performance was below
         an objective standard of reasonableness under prevailing professional norms and
         (2) there is a reasonable probability that, but for counsel’s error, the result of the
         proceedings would have been different. [People v Lockett, 295 Mich App 165,
         187; 814 NW2d 295 (2012) (citations omitted).]

The “reasonable probability” standard can be satisfied by less than a preponderance of the
evidence. Trakhtenberg, 493 Mich at 56.

        The “reviewing court must not evaluate counsel’s decisions with the benefit of
hindsight,” but should “ensure that counsel’s actions provided the defendant with the modicum
of representation” constitutionally required. People v Grant, 470 Mich 477, 485; 684 NW2d 686
(2004), citing Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
“Defense counsel is given wide discretion in matters of trial strategy because many calculated
risks may be necessary in order to win difficult cases.” People v Unger, 278 Mich App 210,
242; 749 NW2d 272 (2008). Thus, there is a “strong presumption that trial counsel’s
performance was strategic,” and “[w]e will not substitute our judgment for that of counsel on
matters of trial strategy[.]” Id. at 242-243. “Yet a court cannot insulate the review of counsel’s
performance by calling it trial strategy.” Trakhtenberg, 493 Mich at 52. “The inquiry into
whether counsel’s performance was reasonable is an objective one and requires the reviewing


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                  -2-
court to determine whether, in light of all the circumstances, the identified acts or omissions
were outside the wide range of professionally competent assistance.” People v Vaughn, 491
Mich 642, 670; 821 NW2d 288 (2012) (quotation marks and citation omitted). Accordingly, the
reviewing court must consider the range of potential reasons that counsel might have had for
acting as he or she did. Id.

        Defendant argues that Wilson was ineffective as his trial counsel because Wilson failed
to call any witnesses in defendant’s defense. An attorney’s decision regarding whether to call a
witness is presumed to be a matter of trial strategy. People v Putman, 309 Mich App 240, 248;
870 NW2d 593 (2015). Defense counsel’s “failure to a call a witness is only considered
ineffective assistance if it deprived the defendant of a substantial defense. A substantial defense
is one that could have affected the outcome of the trial.” Id. (citation omitted). “Because the
defendant bears the burden of demonstrating both deficient performance and prejudice, the
defendant necessarily bears the burden of establishing the factual predicate for his claim.”
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

        Defendant failed to produce any affidavits from potential witnesses stating what they
would have testified to at trial. Defendant merely stated in his own affidavit that an unnamed
witness could have testified that Schmelling drank alcohol daily and that Schmelling had been
assaultive to defendant in the past. This unnamed witness was not an eyewitness to the event
that occurred in Schmelling’s apartment on December 23, 2016. Schmelling’s potential
character for being aggressive toward defendant was not an issue at trial. Thus, failure to call
this one unnamed witness who would have testified about Schmelling’s past behavior did not
deprive defendant of a substantial defense. See Putman, 309 Mich App at 248. Because the
unnamed witness would not have provided a substantial defense to defendant, Wilson’s failure to
call him or her as a witness was not ineffective assistance of counsel.

        Defendant also argues that Wilson was ineffective as defendant’s trial counsel because he
failed to effectively attack Schmelling’s credibility at trial. Specifically, defendant argues that
Wilson should have asked Schmelling more questions about whether the entry door to his
apartment was locked, why he thought he needed to tell the 911 operator that he had been
drinking the night of the incident, and about Schmelling’s preliminary examination testimony
that defendant walked in and out of Schmelling’s apartment without incident before the door to
Schmelling’s entry door was broken. Defendant argues that these failures rise to the level of
ineffective assistance of counsel because without asking these questions Wilson did not
adequately attempt to impeach Schmelling or call his credibility as a witness into question.

       Wilson, however, based his entire trial strategy on attacking Schmelling’s credibility.
Throughout the trial, Wilson repeatedly insinuated that Schmelling was a liar and argued that
Schmelling’s version of events could not be trusted. Specifically, in his opening statement,
Wilson stated that Schmelling wanted to kick defendant out of the apartment complex, called
Schmelling a liar, and concluded by saying “[s]o after you hear the evidence and everything else,
I want you to take that credibility from a liar and what’s really going on here and come back with
a verdict of not guilty for my client.” Wilson continued this strategy when cross examining
Schmelling.



                                                -3-
         When cross examining Schmelling, Wilson pointed out that Schmelling’s testimony at
trial and at the preliminary examination were inconsistent. Specifically, Schmelling stated that
the entry door to his apartment was locked at trial, but he testified that it was unlocked at the
preliminary examination. Wilson also got Schmelling to admit that at the preliminary
examination he testified that he lied to the police when he was interviewed immediately after the
incident in his apartment. Finally, Wilson called into question why Schmelling told the 911
operator that he had been drinking the night of December 23, 2016, how Schmelling could
identify defendant without knowing what defendant was wearing, how Schmelling kept his
telephone in his hands when the door fell on Schmelling, and why he did not testify at trial that
defendant entered and exited his apartment without incident before Schmelling’s door was
kicked down like he had at the preliminary examination. Wilson also elicited testimony from
Marco D’Angelo, the police officer who responded to Schmelling’s 911 call, that he asked
Schmelling to say what happened in Schmelling’s written statement of events immediately after
the incident. D’Angelo acknowledged that it would make his job harder if Schmelling did not
tell the truth.

        Wilson also attacked Schmelling’s credibility in closing argument. Specifically, Wilson
argued that the jury should believe Schmelling’s testimony from the preliminary examination
rather than his testimony at trial, because the preliminary examination happened much closer to
the incident in Schmelling’s apartment than trial did. Wilson also argued that Schmelling should
have been able to tell what defendant was wearing and that Schmelling’s statement that he had
his telephone in his hands throughout the entire incident was a lie. Wilson concluded his closing
argument by stating that Schmelling “admitted that he’s a liar, he’s a liar. Okay? And his lies
are going to put my client – convict him of home invasion first-degree.”

        The record shows that Wilson made repeated attempts to impeach Schmelling and to call
his credibility as a witness into question. Defendant argues on appeal that Wilson did not
emphasize the correct facts or ask the correct questions to impeach Schmelling or call his
credibility as a witness into question. Wilson’s decisions regarding what questions to ask and
facts to emphasize to accomplish this same goal, however, were surely strategic decisions.
People v Davis, 250 Mich App 357, 368-369; 649 NW2d 94 (2002). Furthermore, Wilson’s
attempts to impeach Schmelling and call his credibility as a witness into question were not
unreasonable. Thus, Wilson was not ineffective as defendant’s trial counsel for failing to
effectively impeach Schmelling.

         Finally, defendant also argues that Wilson was ineffective as his trial counsel for
preventing defendant from testifying at trial. “A defendant’s right to testify in his own defense
stems from the Fifth, Sixth, and Fourteenth amendments of the United States Constitution.”
People v Boyd, 470 Mich 363, 373; 682 NW2d 459 (2004). A defendant’s credibility may be
impeached when he takes the stand in his own defense. People v Fields, 450 Mich 94, 110; 538
NW2d 356 (1995). Furthermore, trial counsel’s advice to a defendant regarding whether to
testify in his or her own defense is presumed to be a matter of trial strategy. People v
Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). The decision of whether to testify at
trial, however, ultimately remains with the defendant. People v Bonilla-Machado, 489 Mich
412, 419; 803 NW2d 217 (2011).



                                               -4-
         Defendant asserts that Wilson prevented defendant from testifying in his own defense.
The record, however, shows that it was defendant’s decision to not testify at trial. The trial judge
and Wilson both voir dired defendant at trial to ensure that it was defendant’s decision to not
testify in his own defense. Defendant repeatedly stated that it was his own decision to not testify
at trial. While defendant asserted that Wilson was advising him to not testify at trial because his
testimony might incriminate him, defendant also repeatedly acknowledged that it was his own
decision to not testify. The record does not contain any indication that Wilson coerced defendant
into not testifying at trial or that it was not actually defendant’s decision to not testify at trial.

        Defendant has similarly failed to present sufficient evidence to overcome the
presumption that Wilson’s advice that defendant should not testify at trial was strategic. While
defendant has asserted that he would have testified to a different series of events at trial than
Schmelling, it is unknown what the prosecution would have uncovered on cross-examination of
defendant. As our Supreme Court held in Bonilla-Machado, 489 Mich App at 421, “[a]nything
defendant might have said on the stand would have been subject to cross-examination designed
for use against him.” Thus, in light of the facts on the record and defendant’s statements at trial,
defendant was not denied his right to testify and Wilson was not ineffective as defendant’s trial
counsel for advising defendant not to testify at trial.

                                III. PROSECUTORIAL ERROR2

       Defendant argues that the prosecutor improperly vouched for Schmelling’s credibility
and denigrated defendant’s character during closing arguments. Defendant also argues that
Wilson was ineffective as his trial counsel for failing to object to the prosecutor’s improper
statements. We disagree.

        “[T]o preserve an issue of prosecutorial misconduct, a defendant must
contemporaneously object and request a curative instruction.” People v Bennett, 290 Mich App
465, 475; 802 NW2d 627 (2010). Defendant failed to object to any of the prosecutor’s
comments during closing arguments and concedes as much in his brief on appeal. Thus, the
issue is unpreserved.

        To properly preserve a claim of ineffective assistance of counsel, a defendant must move
for either a new trial or a Ginther hearing in the trial court; failure to make any such motion
“ordinarily precludes review of the issue unless the appellate record contains sufficient detail to
support the defendant’s claim.” People v Sabin (On Second Remand), 242 Mich App 656, 658-
659; 620 NW2d 19 (2000). After trial and sentencing, defendant moved for a Ginther hearing




2
  As this Court noted in People v Cooper, 309 Mich App 74, 88; 867 NW2d 452 (2015),
although the term “prosecutorial misconduct” has become a term of art often used to describe
any error committed by the prosecution, claims of inadvertent error by the prosecution are
“better and more fairly presented as claims of ‘prosecutorial error,’ with only the most extreme
cases rising to the level of ‘prosecutorial misconduct.’ ”


                                                 -5-
and a new trial in the trial court. The trial court denied defendant’s motions for a Ginther
hearing and a new trial. Thus, the issue is preserved.

        “Generally, a claim of prosecutorial misconduct is a constitutional issue that is reviewed
de novo, but a trial court’s factual findings are reviewed for clear error.” People v Brown, 279
Mich App 116, 134; 755 NW2d 664 (2008). Unpreserved claims of prosecutorial misconduct,
however, are reviewed for plain error affecting substantial rights, with reversal “warranted only
when plain error resulted in the conviction of an actually innocent defendant or seriously affected
the fairness, integrity, or public reputation of judicial proceedings.” Bennett, 290 Mich App at
475-476 (quotation marks and citations omitted).

       To avoid forfeiture under the plain error rule, three requirements must be met: 1)
       error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
       plain error affected substantial rights. The third requirement generally requires a
       showing of prejudice, i.e., that the error affected the outcome of the lower court
       proceedings. It is the defendant rather than the Government who bears the burden
       of persuasion with respect to prejudice. [People v Carines, 460 Mich 750, 763;
       597 NW2d 130 (1999) (quotation marks, citations, and brackets omitted).]

In the instant context, prejudice “requires a showing . . . that the error affected the outcome of the
lower court proceedings.” People v Chelmicki, 305 Mich App 58, 69; 850 NW2d 612 (2014)
(quotation marks and citation omitted). “[A]llegations of prosecutorial misconduct are
considered on a case-by-case basis, and the reviewing court must consider the prosecutor’s
remarks in context.” Bennett, 290 Mich App at 475, citing People v Akins, 259 Mich App 545,
562; 675 NW2d 863 (2003).

         Regardless of whether a claim of ineffective assistance is duly preserved, if the trial court
did not hold a Ginther hearing, “our review is limited to the facts on the record.” Wilson, 242
Mich App at 352. “Whether defense counsel performed ineffectively is a mixed question of law
and fact; this Court reviews for clear error the trial court’s findings of fact and reviews de novo
questions of constitutional law.” Trakhtenberg, 493 Mich at 47. “A finding is clearly erroneous
if it leaves this Court with a definite and firm conviction that the trial court made a mistake.”
Dillon, 296 Mich App at 508.

        Prosecutorial comments must be viewed “in light of defense arguments and the
relationship they bear to the evidence admitted at trial,” Brown, 279 Mich App at 135 (citation
omitted), and the propriety of such comments is dependent on “the particular facts of each case,”
People v Callon, 256 Mich App 312, 330; 662 NW2d 501 (2003), citing People v Johnson, 187
Mich App 621, 625; 468 NW2d 307 (1991). Because “[t]he goal of a defense objection to
improper remarks by the prosecutor is a curative instruction,” appellate review of such remarks
is generally precluded where the defendant failed to request a curative instruction “unless the
prejudicial effect of the remark[s] was so great that it could not have been cured by an
appropriate instruction.” People v Cross, 202 Mich App 138, 143; 508 NW2d 144 (1993)
(citations omitted); see also People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994)
(noting that a defendant’s failure to timely object to improper remarks by the prosecution
deprives the trial court of an opportunity to administer a curative instruction). Likewise, reversal


                                                 -6-
is unwarranted where a “curative instruction could have alleviated any prejudicial effect.”
Callon, 256 Mich App at 329-330 (citations omitted).

         Although “[a] prosecutor may not vouch for the credibility of his witnesses by suggesting
that he has some special knowledge of [the witness’s] truthfulness,” it is proper for a prosecutor
to “argue from the facts that a witness should be believed.” People v Seals, 285 Mich App 1, 22;
776 NW2d 314 (2009) (quotation marks and citations omitted). Contrary to defendant’s
argument, the prosecutor did not improperly vouch for Schmelling’s credibility. Instead, the
prosecutor based his comments on the facts and testimony that had been admitted into evidence
at trial. Specifically, the prosecutor stated that Schmelling could be believed because he told the
911 operator that he had been drinking without any need to do so. The prosecutor also pointed
out to the jury that Schmelling testified that he did not know if any of defendant’s punches
actually made contact with him and that he did not see what defendant was wearing. These
observations were based on the record and did not imply that the prosecutor had any special
knowledge of defendant’s truthfulness. The prosecutor’s comments were proper because they
were made during closing arguments, regarding a prosecution witness, and Schmelling’s
credibility was vitally important to determining defendant’s guilt or innocence because he was
the only eyewitness to the assault in his apartment. See People v Thomas, 260 Mich App 450,
455; 678 NW2d 631 (2004) (“[A] prosecutor may comment on his own witnesses’ credibility
during closing argument, especially when there is conflicting evidence and the question of the
defendant’s guilt depends on which witnesses the jury believes.”). The prosecutor’s statements
about defendant being drunk were similarly proper because they were based on Schmelling’s
testimony that defendant was drunk the night of the incident.

        Even if the prosecutor’s comments did improperly suggest that the prosecutor had special
knowledge regarding the victim’s credibility, reversal would be unwarranted. “Curative
instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial
statements[.]” Unger (On Remand), 278 Mich App at 235, citing People v Humphreys, 24 Mich
App 411, 414; 180 NW2d 328 (1970). A jury is presumed to follow its instructions, Unger (On
Remand), 278 Mich App at 235, and the prejudice from improper prosecutorial comments is
dispelled if the trial court gives proper jury instructions that would cure any prejudice, Callon,
256 Mich App at 330-331. Accordingly, any prejudice to defendant from the prosecutor’s
comments was cured when the trial court instructed the jury that “[t]he lawyers statements and
arguments are not evidence. They are only meant to help you understand the evidence and each
side’s legal theory. You should only accept things the lawyers say that are supported by the
evidence or by your own common sense and general knowledge.” Thus, the prosecutor’s
statements during closing arguments were not prosecutorial misconduct. Finally, because the
prosecutor’s statements during closing arguments were not prosecutorial misconduct, Wilson
was not ineffective as defendant’s trial counsel for failing to object to the prosecutor’s
comments. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to
advance a meritless argument or raise a futile objection does not constitute ineffective assistance
of counsel.”).

                           IV. SUFFICIENCY OF THE EVIDENCE

       Defendant argues that there was insufficient evidence to convict him of first-degree home
invasion because Schmelling was not a credible witness. We disagree.

                                                -7-
        Challenges to the sufficiency of the evidence are reviewed de novo to determine if any
rational trier of fact could determine that the essential elements of the crime were proven beyond
a reasonable doubt. Lockett, 295 Mich App at 180. All conflicts in the evidence are resolved in
favor of the prosecution. Id. “Circumstantial evidence and reasonable inferences drawn from it
may be sufficient to prove the elements of the crime.” People v Wilkens, 267 Mich App 728,
738; 705 NW2d 728 (2005). On appeal, “[t]his Court will not interfere with the trier of fact’s
role of determining the weight of the evidence or the credibility of witnesses.” People v Kanaan,
278 Mich App 594, 618-619; 751 NW2d 57 (2008). Finally, to sustain a conviction, due process
requires sufficient evidence to justify a rational trier of fact finding guilt beyond a reasonable
doubt. People v Breck, 230 Mich App 450, 456; 584 NW2d 602 (1998). Questions of
constitutional law are reviewed de novo. Trakhtenberg, 493 Mich at 47.

       Issues of witness credibility are for the jury to decide. People v Lemmon, 456 Mich 625,
642; 576 NW2d 129 (1998).

       Questions regarding credibility are not sufficient grounds for relief unless the
       testimony contradicts indisputable facts or laws, the testimony is patently
       incredible or defies physical realities, the testimony is material and . . . so
       inherently implausible that it could not be believed by a reasonable juror, or the
       testimony has been seriously impeached and the case is marked by uncertainties
       and discrepancies. [People v Solloway, 316 Mich App 174, 183; 891 NW2d 255
       (2016) (citation and quotation marks omitted; alteration in original).]

If the defendant cannot make this showing then this Court must defer to the jury’s credibility
determinations. See Lemmon, 456 Mich at 642; Solloway, 316 Mich App at 183.

       First-degree home invasion, MCL 750.110a(2), has three elements:

       Element One: The defendant either:

               1. breaks and enters a dwelling or

               2. enters a dwelling without permission.

       Element Two: The defendant either:

               1. intends when entering to commit a felony, larceny, or assault in the
               dwelling or

               2. at any time while entering, present in, or exiting the dwelling commits a
               felony, larceny, or assault.

       Element Three: While the defendant is entering, present in, or exiting the
       dwelling, either:

               1. the defendant is armed with a dangerous weapon or



                                               -8-
               2. another person is lawfully present in the dwelling. [People v Wilder,
               485 Mich 35, 43; 780 NW2d 265 (2010).]

This Court has defined assault as “an attempt to commit a battery or an unlawful act that places
another in reasonable apprehension of receiving an immediate battery.” People v Cameron, 291
Mich App 599, 614; 806 NW2d 371 (2011) (quotation marks and citation omitted). A battery,
meanwhile, is “an intentional, unconsented and harmful or offensive touching of the person of
another, or of something closely connected with the person.” Id. (quotation marks and citation
omitted).

        Schmelling testified that defendant and his unnamed friend broke through the entry door
to his apartment and attempted to kick and punch him. Schmelling could not remember if any of
the kicks or punches actually did hit him because he was using the front door to his apartment as
a shield after he fell through his closet door. Wilson impeached Schmelling’s testimony and cast
some doubt on Schmelling’s version of events, but Schmelling’s testimony was not seriously
impeached or so inherently implausible that it could not be believed by a reasonable juror. See
Lemmon, 456 Mich at 642; Solloway, 316 Mich App at 183. Furthermore, when D’Angelo
arrived at Schmelling’s apartment, he saw that the door to Schmelling’s apartment was on the
floor and broken off its hinges. D’Angelo also saw a second door in Schmelling’s apartment that
appeared broken, but he did not remember if the second broken door led to a closet. D’Angelo’s
observations supported Schmelling’s version of events. Thus, when viewing the evidence in the
light most favorable to the prosecution, a rational jury could find beyond a reasonable doubt that
the evidence was sufficient to support the jury’s verdict that defendant was guilty of first-degree
home invasion. Because there was sufficient evidence to convict defendant of first-degree home
invasion, defendant’s conviction did not violate his right to due process. Breck, 230 Mich App at
456.

                                  V. JURY INSTRUCTIONS

       Defendant argues that the trial court erred by denying his request for a third-degree home
invasion jury instruction because it is a necessarily included lesser offense of first-degree home
invasion. We disagree.

        “To preserve an instructional error for review, a defendant must object to the instruction
before the jury deliberates.” People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499
(2003). Defendant requested a third-degree home invasion jury instruction before the jury
deliberated on the grounds that the underlying misdemeanor for third-degree home invasion was
malicious destruction of property. Defendant failed to argue for a third-degree home invasion
instruction based on misdemeanor assault. The trial judge denied defendant’s request and did
not give the jury a third-degree home invasion instruction. Thus, the issue of whether the trial
court should have given a jury instruction on third-degree home invasion based on malicious
destruction of property is preserved. Defendant’s argument that the jury should have received a
jury instruction on third-degree home invasion based on misdemeanor assault, however, is
unpreserved.

      Jury instructions involving questions of law are reviewed de novo. People v Gillis, 474
Mich 105, 113; 712 NW2d 419 (2006). A trial court’s determination regarding whether a jury

                                                -9-
instruction is applicable to the facts of a case, however, is reviewed for an abuse of discretion.
Id. “An abuse of discretion occurs when the trial court renders a decision falling outside the
range of principled decisions.” People v Powell, 303 Mich App 271, 276-277; 842 NW2d 538
(2013) (citation and quotation marks omitted).

        Unpreserved issues are reviewed for plain error affecting substantial rights, with reversal
“warranted only when plain error resulted in the conviction of an actually innocent defendant or
seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Bennett,
290 Mich App at 475-476 (quotation marks and citations omitted).

       To avoid forfeiture under the plain error rule, three requirements must be met: 1)
       error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
       plain error affected substantial rights. The third requirement generally requires a
       showing of prejudice, i.e., that the error affected the outcome of the lower court
       proceedings. It is the defendant rather than the Government who bears the burden
       of persuasion with respect to prejudice. [Carines, 460 Mich at 763 (quotation
       marks, citations, and brackets omitted).]

In the instant context, prejudice “requires a showing . . . that the error affected the outcome of the
lower court proceedings.” Chelmicki, 305 Mich App at 69 (quotation marks and citation
omitted).

        “A criminal defendant is entitled to have a properly instructed jury consider the evidence
against him. The jury instructions must include all elements of the crime charged, and must not
exclude from jury consideration material issues, defenses or theories if there is evidence to
support them.” People v Armstrong, 305 Mich App 230, 239-240; 851 NW2d 856 (2014)
(citations and quotation marks omitted). Furthermore, “[t]he trial court may issue an instruction
to the jury if a rational view of the evidence supports the instruction.” Id.

       The jury was only provided with instructions for first-degree home invasion based on the
predicate offense of assault. First-degree home invasion, MCL 750.110a(2), has three elements:

       Element One: The defendant either:

               1. breaks and enters a dwelling or

               2. enters a dwelling without permission.

       Element Two: The defendant either:

               1. intends when entering to commit a felony, larceny, or assault in the
               dwelling or

               2. at any time while entering, present in, or exiting the dwelling commits a
               felony, larceny, or assault.

       Element Three: While the defendant is entering, present in, or exiting the
       dwelling, either:

                                                -10-
               1. the defendant is armed with a dangerous weapon or

               2. another person is lawfully present in the dwelling. [Wilder, 485 Mich at
               43.]

This Court has defined assault as “an attempt to commit a battery or an unlawful act that places
another in reasonable apprehension of receiving an immediate battery.” Cameron, 291 Mich
App at 614 (quotation marks and citation omitted). A battery, meanwhile, is “an intentional,
unconsented and harmful or offensive touching of the person of another, or of something closely
connected with the person.” Id. (quotation marks and citation omitted).

         Defendant argued that the jury should also have been provided an instruction on third-
degree home invasion based on the predicate misdemeanor of malicious destruction of property
at trial. Third-degree home invasion, MCL 750.110a(4), has two elements:

       Element One: The defendant either:

               1. breaks and enters a dwelling or

               2. enters a dwelling without permission.

       Element Two: The defendant:

               1. intends when entering to commit a misdemeanor in the dwelling, or

               2. at any time while entering, present in, or exiting the dwelling commits a
               misdemeanor, or

               3. while entering, present in, or exiting the dwelling violates any of the
               following ordered to protect a named person or persons:

                      a. probation term or condition, or

                      b. parole term or condition, or

                      c. personal protection order term or condition, or

                      d. bond or bail condition or any condition of pretrial release.
                      [Wilder, 485 Mich at 43-44.]

Misdemeanor malicious destruction of property, MCL 750.377a(1), requires a defendant to
intend to injure or destroy the personal property of another that is worth less than $1,000. See
MCL 750.377a(1)(c), (d); People v Nelson, 234 Mich App 454, 459; 594 NW2d 114 (1999).

       Defendant argues that the trial court erred by denying his request for a third-degree home
invasion jury instruction because it is a necessarily included lesser offense of first-degree home
invasion. The statutory basis for necessarily included lesser offenses is found in MCL 768.32(1),
which our Supreme Court interpreted as permitting “the trier of fact to find a defendant guilty of

                                               -11-
a lesser offense if the lesser offense is necessarily included in the greater offense.” Wilder, 485
Mich at 41. “A lesser offense is necessarily included in the greater offense when the elements
necessary for the commission of the lesser offense are subsumed within the elements necessary
for the commission of the greater offense.” Id. Finally, “a requested instruction on a necessarily
included lesser offense is proper if the charged greater offense requires the jury to find a disputed
factual element that is not part of the lesser included offense and a rational view of the evidence
would support it.” People v Cornell, 466 Mich 335, 357-358; 646 NW2d 127 (2002).

        Our Supreme Court examined whether third-degree home invasion is a necessarily
included lesser offense of first-degree home invasion in Wilder, 485 Mich at 37. In Wilder, the
defendant entered an acquaintance’s home without permission while the homeowner was present
and unplugged the television. Wilder, 485 Mich at 38. When the defendant was asked to stop,
he raised his shirt and showed that he had a gun in his waistband. Id. The defendant then left the
house with the television. Id. The defendant was charged with first-degree home invasion based
on the underlying offense of larceny, but the trial court convicted him of third-degree home
invasion. Id. On appeal, the defendant in Wilder argued that third-degree home invasion was a
cognate offense, not a necessarily included lesser offense of first-degree home invasion. Id.

        In Wilder, our Supreme Court found that when determining whether an offense is a
necessarily included lesser offense, a court should “confine its analysis to the elements at issue in
[the] case.” Wilder, 485 Mich at 44. Accordingly, courts must examine the specific elements of
first-degree home invasion as charged to determine whether third-degree home invasion is a
necessarily included lesser offense in a specific case. Id. at 44-45. Because the underlying
offense at issue in Wilder was larceny, which can be either a misdemeanor or a felony, the
defendant’s conviction for third-degree home invasion based on an underlying misdemeanor of
larceny was a necessarily included lesser offense of first-degree home invasion based on an
underlying larceny. Id. at 46-47.

         Here, defendant was charged with first-degree home invasion based on the underlying
offense of assault. At trial, defendant requested a third-degree home invasion jury instruction
based on misdemeanor malicious destruction of property. The elements necessary for the
commission of third-degree home invasion based on malicious destruction of property are not
necessary for first-degree home invasion based on assault because assault does not require the
destruction of property that malicious destruction of property does. Thus, third-degree home
invasion based on malicious destruction of property is not a necessarily included lesser offense
of first-degree home invasion based on assault. See Wilder, 485 Mich at 46-47. Furthermore, a
jury instruction on third-degree home invasion was unnecessary in this case because defendant
failed to contest whether Schmelling was in his apartment on December 23, 2016, when his entry
door was broken down. Schmelling’s presence was the factor that elevated defendant’s offense
to first-degree home invasion, but defendant failed to contest it. Because defendant failed to
contest the single factor that elevated his offense to first-degree home invasion he was not
entitled to a jury instruction on third-degree home invasion. See Cornell, 466 Mich at 364.

        Defendant’s argument on appeal, however, could be construed as arguing that defendant
should have received a third-degree home invasion jury instruction based on misdemeanor
assault. Defendant failed to make this argument before the trial court, however, so the issue is
unpreserved. See Gonzalez, 256 Mich App at 225. Unpreserved issues are reviewed for plain

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error affecting substantial rights, with reversal “warranted only when plain error resulted in the
conviction of an actually innocent defendant or seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” Bennett, 290 Mich App at 475-476 (quotation marks
and citations omitted).

        “[U]nder MCL 750.110a(2), both misdemeanor and felony assaults may properly be
charged as crimes underlying first-degree home invasion.” People v Sands, 261 Mich App 158,
163-164; 680 NW2d 500 (2004). When the underlying offense is an assault, therefore, the only
difference between first- and third-degree home invasion is that first-degree home invasion
requires the additional element that the defendant be armed with a dangerous weapon or that
another person is lawfully present in the dwelling while the defendant is in the dwelling. See
MCL 750.110a(2), (4); Wilder, 485 Mich at 43. Thus, third-degree home invasion based on
misdemeanor assault is a necessarily included lesser offense of first-degree home invasion based
on assault. See Wilder, 485 Mich at 46-47.

        A jury instruction on third-degree home invasion, however, was unnecessary in this case
because defendant failed to contest whether Schmelling was in his apartment on December 23,
2016, when his entry door was broken down. Schmelling’s presence was the factor that elevated
defendant’s offense to first-degree home invasion, but defendant failed to contest it. Thus,
defendant was not entitled to a jury instruction on third-degree home invasion because the single
factor that elevated his offense to first-degree home invasion was not disputed. See Cornell, 466
Mich at 364. Finally, even if the trial court erred in denying defendant’s request for a third-
degree home invasion jury instruction, it did not plainly err by doing so because defendant has
not shown that he was actually innocent or that the error affected the outcome of the lower court
proceedings. See Chelmicki, 305 Mich App at 69; Bennett, 290 Mich App at 475-476.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Colleen A. O’Brien
                                                            /s/ Anica Letica




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