            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 14, 2019
               Plaintiff-Appellee,

v                                                                  No. 341027
                                                                   Muskegon Circuit Court
JORDAN DAVID SPARKS,                                               LC No. 16-006186-FH

               Defendant-Appellant.


Before: RIORDAN, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

       Defendant appeals by right his convictions of three counts of first-degree home invasion,
MCL 750.110a(2), interfering with the reporting of a crime, MCL 750.483a(2)(b), and resisting
and obstructing a police officer, MCL 750.81d(1). The trial court sentenced defendant as a third-
offense habitual offender, MCL 769.11, to 10 to 40 years’ imprisonment for each of the first-
degree home invasion convictions, 10 to 20 years’ imprisonment for the conviction on interfering
with the reporting of a crime, and to 2 to 4 years’ imprisonment for the resisting and obstructing
conviction. We vacate two of the home invasion convictions and sentences on double jeopardy
grounds, remand for modification of defendant's judgment of sentence to reflect a conviction and
sentence for one count of first-degree home invasion supported by multiple theories, and affirm
the remaining convictions and sentences.

        In the early morning hours of December 4, 2016, defendant entered his ex-wife’s home
through a window. His ex-wife, their child, and the ex-wife’s boyfriend were present in the
home at the time. When defendant entered the home, he proceeded to yell at his ex-wife and
knocked the telephone out of her hand when she called 911. Defendant also became involved in
a physical altercation with his ex-wife’s boyfriend. When defendant realized that the police had
arrived, he took a knife from the kitchen and used it to cut his own wrists.

        On appeal, defendant argues that his three convictions for a single home invasion violated
the constitutional prohibition against double jeopardy and unfairly increased the minimum
sentence guidelines range. In an associated argument, defendant maintains that trial counsel was
ineffective for failing to object to the double jeopardy violation. Accordingly, the issue that we
must resolve is whether a person who commits a single home invasion can be punished for
multiple counts of home invasion corresponding in number to the number of persons being in the
home at the time of the offense. We review de novo a double jeopardy challenge. People v
Bosca, 310 Mich App 1, 41; 871 NW2d 307 (2015).

       In People v Miller, 498 Mich 13, 17-19; 869 NW2d 204 (2015), the Michigan Supreme
Court set forth a concise statement of the law that is applicable to the instant case:

                 The Double Jeopardy Clause of the Fifth Amendment of the United States
         Constitution provides that no person shall “be subject for the same offence to be
         twice put in jeopardy of life or limb. . . .” The Michigan Constitution similarly
         provides that “[n]o person shall be subject for the same offense to be twice put in
         jeopardy.” The prohibition against double jeopardy protects individuals in three
         ways: (1) it protects against a second prosecution for the same offense after
         acquittal; (2) it protects against a second prosecution for the same offense after
         conviction; and (3) it protects against multiple punishments for the same offense.
         The first two protections comprise the “successive prosecutions” strand of double
         jeopardy, while the third protection is known as the “multiple punishments”
         strand. . . . .

                 The multiple punishments strand of double jeopardy is designed to ensure
         that courts confine their sentences to the limits established by the Legislature and
         therefore acts as a restraint on the prosecutor and the Courts. The multiple
         punishments strand is not violated where a legislature specifically authorizes
         cumulative punishment under two statutes. Conversely, where the Legislature
         expresses a clear intention in the plain language of a statute to prohibit multiple
         punishments, it will be a violation of the multiple punishments strand for a trial
         court to cumulatively punish a defendant for both offenses in a single trial. Thus,
         the question of what punishments are constitutionally permissible is not
         different from the question of what punishments the Legislative Branch intended
         to be imposed.

                 The Legislature, however, does not always clearly indicate its intent with
         regard to the permissibility of multiple punishments. When legislative intent is not
         clear, Michigan courts apply the “abstract legal elements” test articulated
         in Ream[1] to ascertain whether the Legislature intended to classify two offenses
         as the “same offense” for double jeopardy purposes. This test focuses on the
         statutory elements of the offense to determine whether the Legislature intended
         for multiple punishments. Under the abstract legal elements test, it is not a
         violation of double jeopardy to convict a defendant of multiple offenses if each of
         the offenses for which defendant was convicted has an element that the other does
         not. This means that, under the Ream test, two offenses will only be considered



1
    People v Ream, 481 Mich 223; 750 NW2d 536 (2008).


                                                 -2-
       the “same offense” where it is impossible to commit the greater offense without
       also committing the lesser offense.

               In sum, when considering whether two offenses are the “same offense” in
       the context of the multiple punishments strand of double jeopardy, we must first
       determine whether the statutory language evinces a legislative intent with regard
       to the permissibility of multiple punishments. If the legislative intent is clear,
       courts are required to abide by this intent. If, however, the legislative intent is not
       clear, courts must then apply the abstract legal elements test articulated
       in Ream to discern legislative intent. [Citations, quotation marks, and ellipses
       omitted; alteration in original.]

        Here, there is no dispute that we are concerned with the “multiple punishments” strand of
double jeopardy. The statutory provision at issue is MCL 750.110a, and it provides, in relevant
part, as follows:

               (2) A person who breaks and enters a dwelling with intent to commit a
       felony, larceny, or assault in the dwelling, a person who enters a dwelling without
       permission with intent to commit a felony, larceny, or assault in the dwelling, or a
       person who 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 felony, larceny, or assault is guilty of home invasion in the first degree
       if at any time while the person is entering, present in, or exiting the dwelling
       either of the following circumstances exists:

              (a) The person is armed with a dangerous weapon.

              (b) Another person is lawfully present in the dwelling.

        With respect to MCL 750.110a, we initially conclude that nothing in the language of the
statute specifically prohibits multiple punishments. Indeed, the Legislature authorized
cumulative punishment, but only in connection with another statutory offense. MCL
750.110a(9) (“Imposition of a penalty under this section does not bar imposition of a penalty
under any other applicable law.”). The prosecutor contends that the Legislature effectively
authorized convictions and sentences for multiple counts of first-degree home invasion when
more than one person is in the home even though there was only a single breaking and entering
or unpermitted entry into the home. In support, the prosecution cites MCL 777.16f, which
indicates that MCL 750.110a(2) is a crime against a “[p]erson.” In People v Perry, 317 Mich
App 589; 895 NW2d 216 (2016), this Court held that multiple convictions for uttering
counterfeit notes based on a single transaction did not violate the defendant’s double jeopardy
protections. As part of its analysis, the Perry panel stated:

              When the dispositive question is whether the Legislature intended two
       convictions to result from a single statute, it presents a “unit of prosecution”




                                                -3-
       issue. The question is whether the Legislature intended a single criminal
       transaction to give rise to multiple convictions under a single statute.[2]

               When analyzing a statute to determine what unit of prosecution the
       Legislature intended, this Court and our Supreme Court have focused on various
       aspects of the statutory text. In [People v] Barber, 255 Mich App [288, 295; 659
       NW2d 674 (2003)], this Court focused on the harm that the statutory text intended
       to prevent when it held that there was no double jeopardy violation because the
       arson statutes aimed “to prevent the burning of a dwelling, building, or other real
       property,” and each separate house was the proper unit of prosecution. . . .
       In [People v] Wakeford, 418 Mich [95, 111-112; 341 NW2d 68 (1983)], the Court
       focused on the statutory text's reference to the victim in the singular and on the
       purpose of the statute. In that case, the Court noted that the text in the armed
       robbery statute consistently referred to the victim in the singular and that
       protecting people was the primary purpose of the statute, and the Court concluded
       that “the appropriate ‘unit of prosecution’ for armed robbery is the person
       assaulted and robbed.” . . . .

                In this case, defendant argues that only one transaction or exchange of
       counterfeit bills occurred and, accordingly, that only one conviction of uttering
       and publishing could be sustained. This approach was specifically disavowed
       in Wakeford when the Court wrote: “To the extent certain language in [various
       cases] suggests that the critical test is whether the defendant committed ‘one
       single wrongful act,’ we specifically disavow that test. It is up to the Legislature,
       not this Court, to determine what constitutes a single offense.” Therefore, the
       determination of this issue requires us to analyze the statutory text to determine
       the intent of the Legislature. [Perry, 317 Mich App at 603-604 (citations omitted;
       latter alteration in original)].

        Turning to the statute at hand in Perry, this Court held “that the clear intent of the statute,
as expressed by the Legislature’s use of the singular ‘note,’ is to address placing counterfeit and
false bills into the stream of commerce,” and that the statute revealed “the Legislature’s intent to
punish a defendant for each counterfeit bill that was introduced, uttered, passed, or tendered
because the text reflects an intent to prevent counterfeit bills from being used.” Id. at 605.

       Returning our attention to MCL 750.110a(2), we note that the statute prohibits a person
from breaking and entering or impermissibly entering “a dwelling” and committing certain
enumerated offenses during the home invasion, or making an unlawful entry with the intent to
commit one of those offenses, while armed with a dangerous weapon or while “another person is
lawfully present in the dwelling.” Construing the language as a whole, it becomes clear to us


2
  The panel noted “that, contrary to the prosecution’s argument on appeal that the ‘unit of
prosecution’ theory ‘has nothing to do with the Double Jeopardy Clause,’ this Court has
reviewed ‘unit of prosecution’ issues in the context of double jeopardy.” Perry, 317 Mich App
at 601.


                                                 -4-
that the “unit of prosecution” must be based on or measured by the unlawful entry of a dwelling
and not on the number of persons who are present in the dwelling when the unlawful entry is
made. Indeed, no other conclusion can be reached because the crime of first-degree home
invasion can be committed absent any person being in the dwelling at the time of the unlawful
entry if the defendant made the entry armed with a dangerous weapon. This is in contrast to
armed robbery, which requires the presence of a person who is being directly victimized by a
defendant as part of the robbery. The prosecution’s reliance on MCL 777.16f, which designates
first-degree home invasion as a crime against a person, is misplaced. That statutory provision is
only relevant for purposes of the sentencing guidelines. See Chapter XVII of the Code of
Criminal Procedure, Sentencing Guidelines. In sum, the Legislature did not authorize
cumulative punishment under MCL 750.110a(2) based on the number of persons inside a home
that was the site of a home invasion.

       Furthermore, the three counts of first-degree home invasion constitute the “same offense”
under the “abstract legal elements” test. In People v Wilder, 485 Mich 35, 43; 780 NW2d 265
(2010), our Supreme Court explained the alternative ways to secure a conviction for first-degree
home invasion under the statute:

             The alternative elements of first-degree home invasion can be broken
       down as follows:

              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

              2. another person is lawfully present in the dwelling.

        In People v Baker, 288 Mich App 378; 792 NW2d 420 (2010), the defendant broke into
the victim’s apartment with intent to commit a larceny inside and then he sexually assaulted her,
resulting in a conviction for two counts of first-degree home invasion. This Court observed that
“it appears that defendant was actually convicted of one count of first-degree home invasion
because he broke into and entered the victim's apartment with the intent to commit a larceny, and
was convicted of another count of first-degree home invasion because he broke into and entered

                                               -5-
the victim's apartment and, while inside her apartment, actually committed criminal sexual
conduct.” Id. at 383-384. This Court ruled:

               To the extent that the prosecution contends that a separate home-invasion
       charge can be brought corresponding to each felony, larceny, or assault that
       defendant committed while in the dwelling, it has provided no authority to
       support this argument and, for this reason, we need not consider this argument.
       Further, the Legislature has not created separate statutes criminalizing home
       invasion when different underlying wrongful acts committed during the home
       invasion are at issue, and the statute itself does not support the notion that the
       Legislature intended to create a separate offense for home invasion corresponding
       to each type of actual or intended underlying crime occurring within the dwelling
       during the same invasion. Instead, the statute simply indicates that establishing
       that defendant committed (or intended to commit) at least one felony, larceny,
       or assault while in the dwelling is sufficient to satisfy this element. If anything,
       the claim that defendant intended to commit two predicate offenses while in the
       victim's apartment simply constitutes two separate theories under which his first-
       degree home-invasion conviction could be established.

               Accordingly, defendant's convictions for two counts of first-degree home
       invasion constitute plain error. Instead, in light of the jury's verdict, defendant
       should have been convicted and sentenced for one count of first-degree home
       invasion supported by two theories. . . . [W]e direct the trial court to vacate one of
       defendant's convictions and sentences for first-degree home invasion and modify
       defendant's judgment of sentence to specify that defendant's relevant conviction
       and sentence is for one count of first-degree home invasion supported by two
       theories. Of course, the balance of defendant's judgment of sentence and
       conviction would remain unaltered . . . . [Id. at 385-386 (citations omitted).]

        In the instant case, the jury was asked to resolve three separate counts of home invasion,
with, as to the third element of the offense, each count making reference to one of the three
persons inside the home at the time of the home invasion and each count alternatively allowing
conviction on the basis of a dangerous weapon being involved. Under the analysis set forth in
Baker, defendant should have been convicted of one count of first-degree home invasion and
sentenced on the basis of one count of first-degree home invasion supported by at least three
different theories—each of the three persons in the home—and possibly up to six theories
depending on whether each conviction was based on the person’s being present and/or
defendant’s being armed with a dangerous weapon.

        In light of our ruling, we need not address defendant’s associated claim of ineffective
assistance of counsel. Finally, defendant argues that the double jeopardy error also affected the
length of his sentence because the two extra counts changed the scoring of offense variable (OV)
13. We disagree.

       Under OV 13, the trial court must assess 25 points when “[t]he offense was part of a
pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL
777.43(1)(c). Here, the trial court assessed 25 points for OV 13. “For determining the

                                                -6-
appropriate points under this variable, all crimes within a 5-year period, including the sentencing
offense, shall be counted regardless of whether the offense resulted in a conviction.” MCL
777.43(2)(a). Taking into consideration only a single count of first-degree home invasion, not
three counts, along with the other two felonies for which he was convicted, interfering with the
reporting of a crime, MCL 750.483a(2)(b), and resisting and obstructing a police officer, MCL
750.81d(1), a score of 25 points is appropriate for OV 13.3 Accordingly, resentencing is not
warranted.

       We vacate two of the home invasion convictions and sentences on double jeopardy
grounds, remand for modification of defendant's judgment of sentence to reflect a conviction and
sentence for one count of first-degree home invasion supported by multiple theories, and affirm
the remaining convictions and sentences. We do not retain jurisdiction.

                                                            /s/ Michael J. Riordan
                                                            /s/ Jane E. Markey
                                                            /s/ Anica Letica




3
  MCL 777.43(2)(c) provides that “[e]xcept for offenses related to membership in an organized
criminal group or that are gang-related, do not score conduct scored in offense variable 11 or
12.” The trial court assessed zero points for OVs 11 and 12.


                                                -7-
