PEOPLE OF MI V ORMOND FRANCIS FISH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 6, 2000
Plaintiff-Appellee,
v
No. 217713
Houghton Circuit Court
LC No. 98-001614 FH
ORMOND FRANCIS FISH,
Defendant-Appellant.
Before: Hood, P.J., and Saad and O’Connell, JJ.
PER CURIAM.
The jury convicted defendant of first-degree home invasion, MCL 750.110a(2); MSA
28.305(a)(2), and second-degree criminal sexual conduct, MCL 750.520c(1)(f); MSA 28.788(3)(1)(f)
(CSC II). The trial court sentenced defendant to ten to twenty years’ imprisonment for the first-degree
home invasion conviction, and two to fifteen years’ imprisonment for the CSC II conviction, to be
served consecutively. Defendant appeals as of right and we reluctantly affirm defendant’s conviction,
but remand to the trial court for the purpose of resentencing.
While the complainant was babysitting at the home of an acquaintance, she heard two bumps
coming from the kitchen. She looked into the kitchen and saw a person’s hand trying to pet the dog.
The complainant went into the kitchen to investigate, and discovered defendant with his penis exposed.
Defendant suddenly rushed the complainant, slammed her against the front door, and punched her in the
head and shoulders. He then “groped” her breast, prompting her to believe that defendant was going to
rape her. The complainant and one of the children were eventually able to push defendant outside the
house.
Defendant testified that on the night in question, he drank a six-pack of beer, went to a local
bar, and ordered a pitcher of beer. Defendant remembered finishing one pitcher and ordering a second
pitcher; however, he could not recall finishing it. Defendant’s recollection of the remainder of the night
was minimal because he blacked out at the bar. He remembered leaving the bar, hearing a dog barking,
getting yelled at by someone, and then waking up in the county jail. Defendant said that when he
entered the house where the complainant was babysitting, he believed that he was entering his own
home and petting his own dog. Defendant denied entering the home with the intent to commit CSC.
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Defendant first argues that there was insufficient evidence to support his conviction. This is a
close question. In reviewing the sufficiency of the evidence, we examine the evidence in the light most
favorable to the prosecution and determine whether a rational trier of fact could conclude that the
essential elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich
508, 513-514; 489 NW2d 749, amended 441 Mich 1201 (1992). The elements of first-degree home
invasion are: (1) entering a dwelling without permission, (2) with intent to commit a felony in the
dwelling, and (3) another person was present in the dwelling at the time of entry. MCL
750.110a(2)(b); MSA 28.305(a)(2)(b). Here, defendant challenges the prosecutor’s proofs regarding
entering the home with the intent to commit a sexual assault on the complainant. Circumstantial evidence
and reasonable inferences drawn therefrom are sufficient to prove the elements of a crime. People v
Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). Here, the complainant testified that when she
first found defendant inside the home, defendant had his penis exposed. Further, she testified that he
accosted her, pressed his body firmly against hers, pinned her against a door, and “groped” her breast.
The complainant also explained that defendant’s touching of her breast was not simply an accidental
touching in an attempt to get away from her during a confrontation. Instead, she stated that defendant
was not trying to get away from her at all, and that he “groped” her breast for about two seconds.
Defendant’s intent may be inferred from all the facts and circumstances. People v Safedine, 163 Mich
App 25, 29; 414 NW2d 143 (1987). Defendant’s violent attack on the complainant, coupled with his
exposed penis and his groping of her breast, could lead a rational jury to conclude that he intended to
commit CSC inside the home. In light of defendant’s history of excessive drinking to the point of
blacking out on numerous occasions, it is likely that this “town drunk” stumbled into the wrong house.
However, it is the jury that makes the decision, not the trial court and not the appellate court.
Accordingly, because there was at least minimally sufficient evidence to allow a jury to find defendant
guilty of first-degree home invasion conviction, we cannot disturb this jury verdict.
Defendant also argues that the prosecution failed to meet its burden to refute defendant’s
intoxication defense, which would negate the specific intent crime of home invasion. In support,
defendant cites People v Cannoy, 136 Mich App 451, 454; 357 NW2d 922 (1984). However,
Cannoy is distinguishable from this case. Cannoy involved the factual evidence required for a nolo
contendere plea to a specific intent crime when a defendant does not recall the incident due to
intoxication. Cannoy has not been extended outside nolo contendere pleas. The prosecution in the
instant case did not need to specifically offer evidence to negate defendant’s intoxication defense. Thus,
defendant’s reliance on Cannoy is misplaced.
However, because home invasion, like breaking and entering, is a specific intent crime, People
v Blankenship, 108 Mich App 794, 798; 310 NW2d 880 (1981), the prosecution must nonetheless
prove specific intent beyond a reasonable doubt. People v McKinley, 168 Mich App 496, 509; 425
NW2d 460 (1988). More specifically, the prosecution here had to prove that defendant entered the
home with the specific intent to commit CSC in order to sustain defendant’s conviction of first-degree
home invasion. We find that the prosecution met its burden.
The officer who arrested defendant moments after the incident described defendant as talking
“pretty good and not slurring his speech.” The person who booked defendant on the night of his arrest
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described defendant as smelling of alcohol, and slurring a bit, but she did not think that he was
intoxicated, so she never ordered defendant to take a breathalyzer examination to determine his blood
alcohol content. The child who helped fight off defendant testified that although she may have thought
defendant was drunk on the night in question, because of the manner in which he ran away from the
house, she never smelled alcohol the entire time that he was inside her home. Moreover, defendant’s
testimony was vague regarding the amount of alcohol he consumed that night. Although he testified that
he purchased two pitchers of beer that night, he could not state whether he drank both pitchers. And
the manager of the bar in which defendant drank that night described his behavior that night as stable
and not obnoxious. Though we have some questions regarding the wisdom of the jury verdict, viewing
the evidence in a light most favorable to the prosecution, the prosecution produced sufficient evidence
from which a rational trier of fact could conclude that defendant was not only capable of forming the
requisite intent, but that he also actually possessed the requisite specific intent.
Defendant also protests that his ten- to twenty-year home invasion sentence was not
proportionate to the seriousness of the offense and the offender. We agree. The judicial sentencing
guidelines do not cover the crime of home invasion. Michigan Sentencing Guidelines (2d ed, 1988), 1;
People v Edgett, 220 Mich App 686, 690; 560 NW2d 360 (1996). However, proportionality is the
standard for determining the validity of defendant’s home invasion sentence. Edgett, supra at 696. In
sentencing defendant, the trial court noted that defendant’s potential for rehabilitation was minimal, and
that defendant had apparently not learned from his past transgressions, because he continued the same
drinking habits for over twenty-five years. However, there is no evidence that defendant ever
committed violent crime or ever broke into someone’s home. While it is true that defendant has refused
to attend to his drinking problem, he has no history of criminal behavior and accordingly, we believe the
sentence imposed is disproportionate to the offense and the offender. His conduct must be punished, he
should seek help for his drinking problem, but it does not appear nor did the trial court find that this
defendant has a history of endangering others or that he presents a danger to the community. 1
Therefore, we remand to the trial court for the purpose of resentencing. 2
Affirmed as to convictions, remanded for resentencing. We do not retain jurisdiction.
/s/ Harold Hood
/s/ Henry William Saad
1
This Court does not minimize the importance of punishing someone who is guilty of home invasion or
assault. However, it is the severity of the sentence that concerns us here. The dissent points out that
defendant’s long history of drinking came out during oral argument. This history, of course, was well
documented. At trial, defendant admitted that he had a long history of alcoholism and that he had been
convicted of drunk driving on three occasions, the last time in 1997. More importantly, however, during
oral argument the prosecution clearly stated that defendant, a 41-year-old man, had no history of
assaultive behavior and no history of home invasion. Indeed, other than a history as the town drunk, the
prosecutor opined that this defendant is not predatory, nor does he pose a threat to the community. It is
for these reasons that we remand for resentencing.
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2
Defendant also argues that he is entitled to resentencing in light of the ameliorative penalty provisions of
the statutory sentencing guideline. We disagree. The offense here occurred on October 17, 1998, and
the statutory guidelines apply only to offenses committed on or after January 1, 1999. The statutory
language clearly states that the Legislature intended that the statutory sentencing guidelines have
prospective, not retroactive, effect. MCL 769.34(1); MSA 28.1097 (3.4)(1). Accordingly, there is no
basis for defendant’s argument that the Legislature intended the new statutory guidelines to apply to
crimes committed before January 1, 1999. People v Reynolds, ___ Mich App ___; ___ NW2d ___
(Docket No. 211458, issued 3/17/00).
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