People v. Dunigan

831 N.W.2d 243, 299 Mich. App. 579
CourtMichigan Court of Appeals
DecidedFebruary 26, 2013
DocketDocket No. 306654
StatusPublished
Cited by441 cases

This text of 831 N.W.2d 243 (People v. Dunigan) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dunigan, 831 N.W.2d 243, 299 Mich. App. 579 (Mich. Ct. App. 2013).

Opinion

RONAYNE KRAUSE, J.

Defendant appeals as of right his jury trial conviction of second-degree home invasion, MCL 750.110a(3). He was sentenced to 5 to 40 years’ imprisonment. We affirm.

Second-degree home invasion requires proof that the defendant entered a dwelling by breaking or without the permission of any person in ownership or lawful possession or control of the dwelling and did so with the intent to commit a felony, larceny, or assault therein or committed a felony, larceny, or assault while entering, present in, or exiting the dwelling. MCL 750.110a. “We examine the evidence in a light most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond reasonable doubt.” People v Ericksen, 288 Mich App 192, 196; 793 NW2d 120 (2010). We do not interfere with the jury’s assessment of the weight and credibility of witnesses or the evidence, People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), and the elements of an offense may be established on the basis of circumstantial evidence and reasonable inferences from the evidence, People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). It is the jury’s duty to determine the weight to be accorded any inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).

Defendant first asserts that the evidence at trial was insufficient to support his conviction. Defendant argues that there was insufficient evidence to establish that he [583]*583was the person who committed the home invasion; he also argues that he had a right to be in the dwelling, so he could not properly be convicted of home invasion of that building. We disagree with both contentions.

In reverse order, defendant’s contention that he could not be convicted of home invasion because he had a right to be in the dwelling turns on the fact that the dwelling belonged to his girlfriend. “There is no breaking if the defendant had the right to enter the building.” People v Toole, 227 Mich App 656, 659; 576 NW2d 441(1998). However, the fact that a person is in a dating relationship in no way entitles that person to be present in his or her partner’s dwelling at will. The fact that defendant spent some nights at the house is immaterial. In any event, even if we were to presume that defendant had some right to be in the house — which he did not — it is possible to “break and enter” one’s own home if one has lost the legal right to be present in that home, for example, by operation of a court order. People v Szpara, 196 Mich App 270, 272-274; 492 NW2d 804 (1992). In this case, not only did defendant’s relationship not confer any rights upon him, his girlfriend had affirmatively refused his repeated requests for a key, a garage door opener, and alarm access codes for the house. The record overwhelmingly shows, and the jury would have properly concluded, that defendant had no right to be in the house at the time of the invasion.

Moreover, defendant’s theory of his defense was that he was not the perpetrator, not that it was technically impossible for him to have committed his charged offense. There would have been no reason for defense counsel to request a jury instruction specifying that the jury must find that defendant could not break into a home that he had a right to enter. Indeed, that instruction would have been inconsistent with, and potentially [584]*584detrimental to, defendant’s theory that he was not the perpetrator and had been falsely accused by the victim. Failing to request a particular jury instruction can be a matter of trial strategy. People v Gonzalez, 468 Mich 636, 644-645; 664 NW2d 159 (2003). Trial counsel has “wide discretion in matters of trial strategy. . ..” People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). Because requesting an instruction about permission to enter could have confused the jury by suggesting that defendant might have been the perpetrator, we conclude that trial counsel’s failure to request the instruction has not been shown to be unsound strategy or ineffective assistance.

Defendant also contends, consistently with his theory at trial, that the evidence did not show him to have been the individual who committed the breaking and entering and theft of his girlfriend’s cashbox. However, there was only a dearth of direct evidence that he committed the crime. The circumstantial evidence was substantial. The victim testified that defendant was the only person who knew where she kept the missing cashbox in her desk drawer and that he had seen the contents — including more than $10,000 in $100 bills — recently when she told him that she had won jackpots at the casino. She testified that defendant remained behind her and walked out of the house that morning after her, which was unusual. Positioning himself to leave the house last allowed defendant the opportunity to leave the kitchen door unlocked and unlock the pedestrian door to the garage as he walked to his car, which was parked at the street. The victim also recognized shoe prints left in the kitchen after the break-in as matching defendant’s work shoes. Notably, there was no sign of a forced entry, the footprints in the house matched defendant’s work boots, and nothing in the house was disturbed other than the cashbox, about which only defendant knew.

[585]*585Additionally, the victim suspected defendant almost immediately given defendant’s unusual behavior when the victim noticed that her cashbox was missing. When she questioned defendant the next day, defendant admitted that he had stolen the cashbox, which also contained a flash drive and paperwork. Defendant returned the flash drive to her and explained that he had used some of the money to repair his car and gambled away the rest. Defendant also explained that he had bound the paperwork with a rubber band and dropped it into a mailbox. He accompanied her to the mailbox and then to the post office in an attempt to retrieve the bundle. The post office window supervisor confirmed the visit and testified that the rubber-banded paperwork bundle turned up at the post office the next day. A private investigator hired by the victim had observed defendant on the night of the home invasion gambling heavily using $100 bills. The prosecutor also established that defendant had a motive to steal because he had been unemployed for many months and had a gambling problem.

In summary, the evidence, when viewed in the light most favorable to the prosecution, strongly supported the conclusion that defendant entered the victim’s home without permission and with the intent to commit a larceny therein. Therefore, the prosecutor presented sufficient evidence to conclude that the elements of second-degree home invasion were proved beyond a reasonable doubt.

Defendant next contends that he was denied his right to a fair trial because two jurors were noticed to be sleeping during the first day of testimony. Defendant further contends that trial counsel was ineffective for failing to seek the jurors’ exclusion. We disagree with both contentions.

[586]*586An allegation of juror misconduct, even if the alleged misconduct did actually occur, will not warrant a new trial unless the party seeking the new trial can show “ ‘that the misconduct [was] such as to affect the impartiality of the jury or disqualify them from exercising the powers of reason and judgment.’ ” People v Nick,

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Cite This Page — Counsel Stack

Bluebook (online)
831 N.W.2d 243, 299 Mich. App. 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dunigan-michctapp-2013.