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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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In <em>People v. Jackson</em>, <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20151013_C322350_33_322350.OPN.PDF" target="_blank" rel="noreferrer noopener">No. 322350</a>, the Michigan Court of Appeals held, in dicta, that the trial court erred in instructing the jury on both the charged offense, second-degree home invasion, and the lesser included offense of third-degree home invasion.  The court noted that misdemeanor or felony larceny may serve as the predicate offense for second-degree home invasion and third degree home invasion. In this case, however, because there was no evidence of any predicate act other than larceny, the evidence did not support a distinction between the two charges, and the instruction for third-degree home invasion (the lesser included offense) should not have been read.  However, because the defendant was convicted of second-degree home invasion—the proper charge as the underlying offense was a larceny—the court held that the instruction did not affect the defendant’s substantial rights.   

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The defendant, Kevin Jackson, was convicted by a jury of second-degree home invasion, MCL 750.110a(3). On appeal, the defendant made a number of arguments, but the Court of Appeals focused largely on his argument that the trial court providing both second-degree and third-degree home invasion instructions resulted in jury confusion and a conviction of a higher offense based on a lower burden of proof. The Court of Appeals quickly rejected this argument because the defendant’s trial counsel requested these instructions and consequently waived challenges to any error, but the Court went on to explain how this situation would be resolved had there been no waiver.

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The court noted that either a misdemeanor or felony larceny may serve as the predicate offense for second-degree home invasion.&nbsp; Additionally, where the predicate offense for the home invasion charge is a larceny, third-degree home invasion is a lesser-included offense of second-degree home invasion. However, where the alleged predicate offense is larceny, an instruction on third-degree home invasion is generally not required. In this case, the Court of Appeals found that no record evidence existed that the defendant entered the house to commit a crime other than a larceny. Because any larceny may serve as the predicate offense for second-degree home invasion, the Court held that the trial court erred in providing instructions that distinguished between second-degree and third-degree home invasion. Nevertheless, because the jury convicted the defendant of the higher-charged offense, the Court held that this error did not affect defendant’s substantial rights because the erroneous instruction was for a lesser-charged offense, not a higher-charged offense. A defendant may not, according to the Court, request a lesser-charged-offense instruction when the evidence does not support it, “only to later claim resulting confusion in the jury instructions, thus harboring error as an appellate parachute.”

Additionally, the Court held that while the trial court erred in the scoring of offense variable 16 (value of stolen property), that error was harmless because the resulting reduction in the defendant’s total offense variable score would not change his minimum sentencing range. The defendant also alleged prosecutorial error and challenged the jury composition, but the Court held that the defendant failed to establish a factual basis for these claims. Finally, the Court rejected the defendant’s ineffective assistance of counsel claim because the defendant failed to proffer how any potential error by his trial counsel deprived him of a substantial defense.

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COA: Where larceny is predicate offense to second-degree home invasion charge, trial court must not instruct on lesser-included offense of third-degree home invasion

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COA: Where larceny is predicate offense to second-degree home invasion charge, trial court must not instruct on lesser-included offense of third-degree home invasion

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