PEOPLE OF MI V SAMUEL JAMES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 10, 2002
Plaintiff-Appellee,
V
No.
233759
LC No. 00-012155
SAMUEL JAMES,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Bandstra and Gage, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of second-degree home invasion, MCL
750.110a(3), and was sentenced to a prison term of three to fifteen years. Defendant appeals as
of right. We affirm.
Defendant argues that the evidence presented was insufficient to support his conviction.
Specifically, defendant argues that the evidence presented failed to establish that the residence
where the offense occurred was a “dwelling” at the time of the offense. We disagree.
A person who breaks and enters a dwelling with intent to commit a felony or a larceny in
the dwelling or a person who enters a dwelling without permission with intent to commit a
felony or a larceny in the dwelling is guilty of second-degree home invasion. MCL 750.110a(3).
A “dwelling” is defined as “a structure or shelter that is used permanently or temporarily as a
place of abode, including an appurtenant structure attached to that structure.” MCL
750.110a(1)(a). A residence does not need to be occupied when the crime takes place in order to
be defined as an occupied dwelling. People v Hider, 135 Mich App 147, 151; 351 NW2d 905
(1984). The duration of an absence does not matter; rather, it is the intent to return to the
residence that controls. Id. at 151-152.1
1
Although Hider involved the offense of breaking and entering an occupied dwelling, in 1994
the breaking and entering statute, MCL 750.110, was amended to provide for the separate
offense of home invasion, MCL 750.110a; MSA 28.305(a). People v Warren, 228 Mich App
336, 348 n 4; 578 NW2d 692 (1998), aff’d in part and rev’d in part on other grounds 462 Mich
415 (2000). By amending the statute, the Legislature effectively replaced the former offense of
breaking and entering an occupied dwelling with intent to commit a felony or larceny therein
with the more broadly defined offense of home invasion. Id. at 352. Thus, the analysis is
-1-
Viewed in the light most favorable to the prosecution, People v Wolfe, 440 Mich 508,
514-515; 489 NW2d 748, amended 441 Mich 1201 (1991), the evidence showed that the owner
of the home intended to “live there and die there” and that she was merely temporarily absent
from the home at the time the offense occurred. This evidence was sufficient to allow a rational
trier of fact to find that the residence was a dwelling. Wolfe, supra.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Richard A. Bandstra
/s/ Hilda R. Gage
equally applicable in this case.
-2-
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