People v. Evans

810 N.W.2d 535, 491 Mich. 1, 2012 WL 1002199, 2012 Mich. LEXIS 397

Opinions

ZAHRA, J.

This case presents the question whether the Double Jeopardy Clauses of the state and federal constitutions bar defendant’s retrial. Defendant was accused of burning a vacant house and charged on that basis with burning other real property in violation of MCL 750.73. There is no dispute that the trial court wrongly added an extraneous element to the statute under which defendant was charged. Specifically, the trial court ruled that the prosecution was required to present proof that the burned house was not a dwelling, which is not a required element of MCL 750.73. As a result of the trial court’s erroneous addition of this extraneous element to the charged offense, it granted defendant’s motion for a directed verdict and entered an order of acquittal, dismissing the case. We hold that when a trial court grants a defendant’s motion for a directed verdict on the basis of an error of law that did not resolve any factual element of the charged offense, the trial court’s ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred. Accordingly, because the trial court’s actions did not constitute an acquittal for the purposes of double jeopardy, we affirm the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Defendant, Lamar Evans, was charged with burning other real property, MCL 750.73,¹ for starting a fire in a vacant house. At trial, two Detroit police officers testified that while on routine patrol on September 22, 2008, they observed a house on fire at 9608 Meyers Street and investigated. After hearing an explosion at the burning house, the officers observed defendant running away from the side of the house with a gasoline can. Officer Jermaine Owens got out of the patrol car and told defendant to stop. When defendant continued to run, Officer Owens chased defendant on foot. Defendant dropped the gasoline can during the chase, and Officer Owens caught defendant after he tripped and fell. Officer Cyril Davis, who had initially joined the chase on foot, returned to the patrol car and drove it to where Officer Owens had detained defendant. The officers testified that defendant told them he had made a mistake and burned down the house.

An arson investigator from the Detroit Fire Department, Lieutenant Christopher Smith, determined that the burn patterns in the house indicated the use of ignitable liquid accelerants. Further testing showed that gasoline had been poured in the kitchen, dining room, and a bedroom. As a result, Smith concluded that the fire was arson. No one was living in the house at the time of the fire, and the house lacked gas, electricity, and water service. The homeowner testified that he was in the process of purchasing the house, which needed repairs, and that he and his family had begun moving their belongings into the house.

Upon the close of the prosecution’s proofs, defense counsel moved for a directed verdict under MCR 6.419(A),² arguing that the prosecution had failed to prove that the burned building was not a dwelling house. Defense counsel argued that the jury instructions indicated that a necessary element of the burning of other real property is that the building was not a dwelling, while the prosecution’s evidence reflected only that it was a dwelling. The prosecutor argued that nothing in MCL 750.73 required proof that the building was not a dwelling. The prosecutor also argued that it was unnecessary to read the instructions for the element that the building was not a dwelling and that the jury instructions are only a guide. The trial court then made the following ruling:

The Court: The Court does not have an option of not reading all of the required elements in a jury instruction, and there are no optional elements in [CJI2d] 31.3. All of them are required. And the instructions are not a guide. They Eire what is required by law.

Footnotes

•

[3]

Looking at the commentary, it refers to a distinction between [CJI2d] 31.2 and 31.3. [CJI2d] 31.2 is the instruction that is required for burning [a] dwelling house.

The commentary, speaking of CJI 2nd 31.1 [sic, 31.3], Burning Other Resd Property, the commentary: “This offense is similar to the one described in CJI 2nd 31.2, except that an essentisd element is that the structure burned is not” — -which is in italicized writing print — “a dwelling house.” And then it cites People v Antonelli, A-n-t-o-n-e-l-l-i, 64 Mich App 620, 238 NW 2nd 363 [1975], and notes that it was reversed on other grounds, and gives the citation as 66 Mich App 138, 238 NW 2nd 551 (1975).

And the commentary goes on to say: “As the Court explained on rehearing, common law arson required that the building be a dwelling. In creating the less serious crime of burning buildings other than dwellings, the legis lature simply eliminated the element of habitation. Other real property is all real property not included in MCL 750.72.”

And the People in this case have relied on MCL 750.73, which specifically says it cannot be a dwelling.

[Prosecutor]: Judge, could I have a moment to go upstairs and pull the statute and make sure that the statute addressed that. Because my understanding of the law is that it doesn’t matter whether it’s a dwelling or not, it just has to be a structure. And that’s the reason for the—

The Court: Other than a house, because the legislature has imposed a higher-penalty for one burning a house.

[MCL] 750.73 reads: “Burning of Other Real Property - Any person who willfully or maliciously burns any building or other real property, or the contents thereof, other than those specified in the next preceding section of this chapter, the property of himself or another, shall be guilty of a felony ...[.]” I won’t give the term of punishment.

And it says: “Other than those specified in the next preceding.” Isn’t preceding before? The next preceding section of this chapter would be [MCL] 750.72. [MCL] 750.72 is entitled “Burning Dwelling House,” and reads: “Any person who willfully or maliciously burns any dwelling house, either occupied or unoccupied, or the contents thereof, whether owned by him or another, or any building within the curtilage of such dwelling house, or the contents thereof, shall be guilty of a felony.” I will not read the term of punishment, but it is twice that which is specified in [MCL] 750.73.

So reading the language of [MCL] 750.73, which refers back to [MCL] 750.72, a dwelling house, either occupied or unoccupied, is excluded by law.

[Prosecutor]: Judge, may I have a moment to go upstairs and consult with my supervisors?

The Court: You can consult with them when you tell them I’ve granted the motion.

[Defense Counsel]: Thank you, Judge.

The Court: As a matter of law.

The testimony was this was a dwelling house, paid for for [sic] forty-some-odd thousand dollars. That the folks had moved some stuff into it, even though it doesn’t matter.

Motion granted.

The prosecution appealed, and in an authored opinion, the Court of Appeals reversed the trial court’s order granting defendant’s motion for a directed verdict and remanded for further proceedings.⁴ The panel stated that it was undisputed that the trial court had erred by concluding that the prosecution was required to prove that the burned building was not a dwelling to convict defendant of burning other real property.⁵ The panel took note of this Court’s statement in People v Nix, 453 Mich 619; 556 NW2d 866 (1996), that retrial is barred when the trial court grants a directed verdict of acquittal even when the trial court is “ ‘wrong with respect to whether a particular factor is an element of the charged offense.’ ”⁶ Nonetheless, the panel characterized that statement as dicta because “the majority in Nix . . . acknowledged] that it was unclear whether the situation that concerned the dissent, that dismissal of the case was premised on the prosecution’s failure to establish a nonelement of an offense, had even occurred.”⁷

The panel then considered the dissenting opinion in Nix, finding it persuasive to support its holding that “an actual acquittal occurs, for double jeopardy purposes, ‘only when the trial court’s action, whatever its form, is a resolution in the defendant’s favor, correct or not, of a factual element necessary for a criminal conviction.’ ”⁸ Applying this holding, the panel concluded that double-jeopardy principles did not bar retrial because the trial court had not resolved a factual element necessary to establish a conviction.⁹ Rather, the trial court had based its directed verdict solely on the prosecution’s failure to present any evidence establishing that the burned building was not a dwelling, which was not an element of the charged offense.¹⁰

Defendant applied for leave to appeal in this Court, and we granted leave to address “whether [defendant’s] retrial is barred under the double jeopardy clauses of the state and federal constitutions where the trial court’s grant of defendant’s motion for a directed verdict was based on an error of law and did not determine any actual element of the charged offense.”¹¹

II. STANDARD OF REVIEW

Defendant’s claim that the double-jeopardy provisions of the United States and Michigan Constitutions bar his retrial is reviewed de novo.¹²

III. ANALYSIS

The United States and Michigan Constitutions protect a person from being twice placed in jeopardy for the same offense¹³ in order “to prevent the state from making repeated attempts at convicting an individual for an alleged crime.”¹⁴ “[T]he double jeopardy prohibition ‘is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.’ ”¹⁵ In addition, this prohibition provides related protections against a second prosecution for the same offense after acquittal, second prosecution for the same offense after conviction, and multiple punishments for the same offense.¹⁶ The protection against a second prosecution for the same offense after an acquittal is at issue here.¹⁷ In considering whether retrying defendant would violate this protection, we must examine whether the trial court’s ruling constituted an acquittal for the purposes of double jeopardy.

The United States Supreme Court set forth the stan dard for what constitutes an acquittal for the purposes of double jeopardy in United States v Martin Linen Supply Co 430 US 564, 571; 97 S Ct 1349; 51 L Ed 2d 642 (1977). The Court considered the effect of a verdict of acquittal entered pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure once the jury had been discharged after being unable to reach a verdict.¹⁸ It held that “what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s action.”¹⁹ Rather, an acquittal for the purposes of double jeopardy is defined as a “ruling of the judge, whatever its label, [that] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.”²⁰ Applying this definition, the Court concluded that the trial court’s ruling constituted an acquittal for the purposes of double jeopardy because the trial court had evaluated all of the prosecution’s evidence and determined that it was insufficient to sustain a conviction.²¹

Further, an acquittal, defined in Martin Linen as a resolution of the elements of the charged offense, “remains a bar to retrial even if it is ‘based upon an egregiously erroneous foundation.’ ”²² Consistently with the idea that an acquittal can occur in some circumstances when the trial court errs, the United States Supreme Court has determined “that an acquittal is final even if it is based on an erroneous evidentiary ruling that precluded the prosecution from introducing evidence that would have been sufficient to convict the defendant.”²³

As noted in People v Szalma, the United States Supreme Court has not directly considered the related question at issue here regarding whether a trial court’s acquittal on a criminal charge based on insufficient evidence bars retrial if the trial court erroneously added an extraneous element to the charge.²⁴ In reaching the conclusion that the United States Supreme Court has not directly addressed this issue, we believe that Szalma persuasively distinguished the relevant decisions from that Court: Arizona v Rumsey, 467 US 203; 104 S Ct 2305; 81 L Ed 2d 164 (1984), Smalis v Pennsylvania, 476 US 140; 106 S Ct 1745; 90 L Ed 2d 116 (1986), and Smith v Massachusetts, 543 US 462; 125 S Ct 1129; 160 L Ed 2d 914 (2005).²⁵

In Rumsey, the trial court considered whether there was evidence of the statutory aggravating factors that permit a jury to decide whether the death penalty is warranted. The aggravating factor at issue was whether a murder occurred “ ‘as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.’ ”²⁶ As Szalma explained, the trial court had “erroneously ruled that this aggravating circumstance only involved murders for hire, rather than any murder occurring during the course of a robbery, as the Arizona Supreme Court had interpreted the statute.”²⁷ The United States Supreme Court concluded “that the trial court’s decision operated as a verdict on whether defendant was eligible for the death penalty, and that therefore, defendant could not subsequently be placed in jeopardy of death for the same offense, notwithstanding the trial court’s ‘misconstruction of the statute defining the pecuniary gain aggravating circumstance.’ ”²⁸

Szalma also addressed Smalis, in which the United States Supreme Court considered “whether a trial court’s granting of a ‘demurrer’ within the commonwealth of Pennsylvania’s rules of criminal procedure involved an acquittal for double jeopardy purposes.”²⁹ The Pennsylvania Supreme Court had held that it was not, reasoning that in deciding whether to grant a demurrer, the trial court was not required to determine a defendant’s guilt, but only “whether the evidence, if credited by the jury, [was] legally sufficient to warrant the conclusion that the defendant is guilty beyond a reasonable doubt.”³⁰ The United States Supreme Court reversed, holding that such a ruling constituted an acquittal for double-jeopardy purposes despite “an alleged error that the trial court committed in interpreting the ‘recklessness’ element of Pennsylvania’s third-degree murder statute.”³¹

In Smith, the trial court granted an acquittal on a firearm charge on the basis of its determination that there was no evidence for the element included in the statute governing unlawful possession of a firearm that the barrel length of the gun possessed was less than 16 inches.³² After trial continued on the remaining charges, the trial court reversed its ruling when the prosecutor identified precedent under which the victim’s testimony about the kind of gun sufficed to establish that the barrel was shorter than 16 inches.³³ Despite the trial court’s initial error regarding what evidence could prove the barrel-length element, the United States Supreme Court held that this initial ruling “meets the definition of acquittal that our double-jeopardy cases have consistently used: It ‘actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ ”³⁴

Reviewing Rumsey, Smalis, and Smith, we agree with the reasoning in Szalma that each of these cases involves evidentiary errors regarding the proof needed to establish a factual element of the respective crimes at issue.³⁵ Specifically, in Rumsey, the trial court’s error concerned “not whether a particular aggravating circumstance [i.e., element] existed to allow a jury to impose a death penalty for first-degree murder, but how the prosecutor must prove the occurrence of that circumstance in a particular case.”³⁶ Similarly, in Smalis, the trial court’s alleged error concerned how to prove the recklessness element, not whether the recklessness element existed.³⁷ Additionally, in Smith, the trial court’s error regarded “not whether a particular element to the crime” of unlawful possession of a firearm “existed, but rather what evidence could prove that element.”³⁸

Following Martin Linen, these decisions establish that when a trial court makes an error regarding the sufficiency of the evidence to satisfy a factual element or elements of the charged offense, that resolution nonetheless constitutes an acquittal for the purposes of double jeopardy. As we discuss, the principles behind the prohibition against double jeopardy and the definition of acquittal set forth in Martin Linen support the proposition that a constitutionally meaningful difference exists between this case, in which the trial court identified an extraneous element and dismissed the case solely on that basis, and Rumsey, Smalis, and Smith, in which the trial courts made evidentiary errors regarding how to prove the governing law. Accordingly, these decisions do not implicate the case at hand because the trial court’s error here resulted in a dismissal without a resolution regarding the sufficiency of the factual elements of the charged offense.³⁹

Although the United States Supreme Court has not directly considered the question presented here, this Court has dealt with this issue before in Nix and Szalma.40 Nix considered, for the purposes of double jeopardy, the effect of the trial court’s ruling that the defendant “could not be convicted of either [first-degree premeditated murder or first-degree felony-murder] as a matter of law” because the defendant “ ‘owed no legal duty to the victim . . . ”⁴¹ In responding to the dissent, Nix stated:

The dissent appears to read the Martin Linen standard as if the phrase “correct or not” refers to the factual truth of the prosecution’s evidence, a determination completely outside the trial court’s purview in a jury trial when considering a defendant’s motion for directed verdict. When ruling on a motion for directed verdict, a trial court must, as this trial court did, view the prosecution’s evidence in the light most favorable to the prosecution. Accordingly, the trial court cannot make an erroneous factual resolution. The phrase “correct or not” refers to all aspects of the trial court’s ultimate legal decision, including even cases where the trial court is factually wrong with respect to whether a particular factor is an element of the charged offense. As discussed below, however, it is not clear that this situation even exists in the case at bar.[42]

These statements do not control the outcome here because they are nonbinding obiter dicta.⁴³ The quotation from Nix explicitly stated that it was “not clear that this situation” — i.e., one in which “the trial court [was] factually wrong with respect to whether a particular factor is an element of the charged offense”— had even occurred.”⁴⁴ Rather, Nix reflected the conclusion that the trial court had not erred on its view of what made up the essential elements.⁴⁵ Consequently, the quoted observations regarding the definition of acquittal were unnecessary to determine the outcome in Nix and do not compel a result in this case.

Further, Szalma does not compel treating the pertinent statements in Nix as controlling. Szalma discussed Nix when considering whether a trial court’s erroneous legal analysis regarding the sufficiency of the evidence to support a conviction of first-degree criminal sexual conduct constituted an acquittal for the purposes of double jeopardy.⁴⁶ Specifically, the trial court in Szalma granted the defendant’s motion for a directed verdict after erroneously ruling that the fact-finder had to conclude that the defendant committed the assault for a sexual purpose.⁴⁷

We pointed out in Szalma that Nix barred a retrial of the defendant because, under Nix, “an acquittal retains its finality for double jeopardy purposes even when ‘the trial court is factually wrong with respect to whether a particular factor is an element of the charged offense.’ ”⁴⁸ We refused to address the prosecution’s argu ment regarding whether Nix was correctly decided because the prosecutor at trial had conceded the underlying erroneous statement of the elements.⁴⁹ As a result, we reversed the Court of Appeals’ judgment and reinstated the trial court’s directed verdict of acquittal.⁵⁰

Szalma does not control the instant case because, here, the prosecutor did not concede the underlying legal error at trial. Rather, the prosecutor argued that the charged offense did not include the element that the building was not a dwelling. Accordingly, the prosecution’s argument is properly before us. In addition, because we refused in Szalma to permit the prosecutor to harbor error at trial and then use that error as an appellate parachute, we could not properly reach the application of Nix. In fully considering Nix now, we will not ignore the Nix majority’s conclusion that it was not clear that the situation bringing about its double-jeopardy discussion had even occurred.

In making its ruling in the instant case, the trial court acted under MCR 6.419(A),⁵¹ granting defendant’s motion for a directed verdict because the prosecution had failed to provide evidence that the burned house was not a dwelling. The trial court undisputedly misapprehended CJI2d 31.3⁵² in its legally erroneous analysis that added an extraneous element to the charged offense.⁵³ The trial court’s confusion apparently stemmed from its reliance on a jury instruction read when the crime of burning other real property is charged as a lesser included offense of the crime of burning a dwelling.⁵⁴ The panel in People v Antonelli 0On Rehearing) rightly stated, however, that “[t]he necessary elements to prove either offense are the same, except to prove the greater it must be shown that the building is a dwelling; to prove the lesser it is not necessary to prove that the building is not a dwelling.”⁵⁵ Thus, the trial court wrongly determined that showing that the burned building was not a dwelling is an element of burning other real property.

We agree with the Court of Appeals that defendant’s retrial is not barred because the trial court’s ruling dismissing the case did not constitute an acquittal for the purposes of double jeopardy. “[T]he trial court’s characterization of its ruling is not dispositive, and what constitutes an ‘acquittal’ is not controlled by the form of the action.”⁵⁶ Consequently, the trial court’s actions pursuant to MCE 6.419(A) and its entry of an order of acquittal do not control. Although these actions take the form of an acquittal, we are concerned with the substance of the trial court’s ruling.

Again, an acquittal for double-jeopardy purposes is a “ruling of the judge, whatever its label, [that] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.”⁵⁷ The trial court’s legal error resulted in its adding an element to the charged offense and requiring the prosecution to provide proof of that extraneous element. As the Court of Appeals concluded, the trial court did not resolve or even address any factual element necessary to establish a conviction for burning other real property. Rather, the substance of the trial court’s ruling was entirely focused on the extraneous element. Consequently, the trial court’s decision was based on an error of law unrelated to defendant’s guilt or innocence on the elements of the charged offense, and thus the trial court’s dismissal of the charge did not constitute an acquittal.⁵⁸

Nix misconstrued the definition of acquittal in Martin Linen, stating that “on a motion for directed verdict, a trial court must, as this trial court did, view the prosecution’s evidence in the light most favorable to the prosecution. Accordingly, the trial court cannot make an erroneous factual resolution.”⁵⁹ As the prosecution argues, however, a trial court certainly can make an erroneous factual resolution in ruling on a motion for a directed verdict. The trial court can do so, for instance, when it forgets about evidence or does not realize that certain evidence can satisfy a factual element. This is what took place in Smith v Massachusetts, discussed earlier, when the trial court failed to realize that testimony that the defendant appeared to have a .32 or .38 caliber revolver was sufficient to establish that the factual element that the barrel of the gun was shorter than 16 inches.⁶⁰ This incorrect resolution of a factual element in Smith constituted an acquittal for the purposes of double jeopardy.

From this faulty presumption that a trial court cannot make an erroneous factual resolution, Nix wrongly observed that the phrase “correct or not” from Martin Linen’s definition of acquittal “refers to all aspects of the trial court’s ultimate legal decision, including even cases where the trial court is factually wrong with respect to whether a particular factor is an element of the charged offense.”⁶¹ A court cannot, however, be factually wrong regarding what makes up the elements of the crime because an erroneous determination of what constitutes the elements of an offense is a legal error, not a factual one.⁶²

Instead, the definition of acquittal in Martin Linen and the phrase “correct or not” means that it is of no consequence for the purposes of double jeopardy whether the trial court’s resolution of the factual elements is correct. Nonetheless, this resolution must be based on at least some of the factual elements of the charged crime. By adding an extraneous element — that the prosecution needed to prove that the burned building was not a dwelling — the trial court’s legal error did not involve a resolution of any of the factual elements of the charged offense, and thus its ruling does not fall within the definition of acquittal for the purposes of double jeopardy.

We further conclude that the distinction we have drawn from the relevant United States Supreme Court decisions is reasonable and constitutionally grounded. Rather than uniformly determine that any instance in which a trial court enters an order of acquittal definitively bars retrial, the United States Supreme Court has opted to consistently apply the definition of acquittal from Martin Linen63 By doing so the Court has determined that the labels the trial court used are not controlling and that a resolution must be on the factual elements to constitute an acquittal. But the line, once crossed, triggers double-jeopardy protections regardless of the correctness of the trial court’s decision.⁶⁴

We believe that the application of the definition of acquittal reflects a balancing of the public’s interest in having one full and fair opportunity to prosecute a criminal case⁶⁵ and the interest in protecting a criminal defendant from being subjected “to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”⁶⁶ When considering the application of this definition and the weighing of these interests, it is reasonable to treat differently cases in which the resolution was based on the prosecution’s failure to prove something that the law, properly understood, did not require it to prove. Doing so depends on whether the trial court actually considered the factual elements of the charged offense. A resolution of the factual elements, even if erroneous, crosses the established bright fine. But a court’s adding an extraneous element and resolving the case solely on the basis of that added element prevents any evaluation of the charged crime on the merits and thus completely thwarts society’s interest in allowing the prosecution one full and fair opportunity to present its case.⁶⁷

Therefore, barring retrial is inappropriate in a case such as this. Because of the trial court’s legal error, no factual elements of the charged offense were considered, and as a result the people have not been afforded the opportunity to have their case reviewed for the sufficiency of the evidence on the factual elements even once. Permitting retrial to allow such an opportunity hardly depicts “an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact.”⁶⁸ Rather, because the trial court’s actions fell outside the definition of acquittal, permitting defendant’s retrial does not frustrate the prohibition against double jeopardy.

IV CONCLUSION

We hold that when a trial court grants a defendant’s motion for a directed verdict on the basis of an error of law that did not resolve any factual element of the charged offense, the trial court’s ruling does not constitute an acquittal for the purposes of double jeopardy and retrial is therefore not barred. Accordingly, because the trial court’s actions here did not constitute an acquittal for the purposes of double jeopardy, we affirm the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.

Young, C.J., and Markman and Mary Beth Kelly, JJ., concurred with ZAHRA, J.

1

MCL 750.73 provides:

Any person who wilfully or maliciously burns any building or other real property, or the contents thereof, other than those specified in the next preceding section of this chapter, the property of himself or another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 10 years.

2

MCR 6.419(A) provides:

After the prosecutor has rested the prosecution’s case-in-chief and before the defendant presents proofs, the court on its own initiative may, or on the defendant’s motion must, direct a verdict of acquittal on any charged offense as to which the evidence is insufficient to support conviction. The court may not reserve decision on the defendant’s motion. If the defendant’s motion is made after the defendant presents proofs, the court may reserve decision on the motion, submit the case to the jury, and decide the motion before or after the jury has completed its deliberations.

3 Contrary to the assertion of the trial court, the Michigan Criminal Jury Instructions are not binding on trial courts. These instructions are offered merely to assist a trial court in executing its duty to instruct on the law. See People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985). As we will discuss, the trial court ignored a use note in the instructions indicating that it was not appropriate to require proof that the building was not a dwelling unless instructing on the crime of burning other property as a lesser included offense of burning a building. Notwithstanding its failure to properly apply the use note, when there is the potential for inconsistency between a proposed instruction and the applicable law, the trial court had not only the right, but the obligation to reject or modify the instruction to bring it into conformity with the law.