PEOPLE OF MI V KENNARD FISHER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 29, 2004
Plaintiff-Appellee,
v
No. 242213
Wayne Circuit Court
LC No. 01-005108-01
KENNARD FISHER,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Neff and White, JJ.
WHITE, J. (concurring in part and dissenting in part).
I agree that there was sufficient evidence to support defendant’s convictions. I dissent,
nevertheless, from the affirmance of the home-invasion conviction because the trial court’s
statements indicate that it may not have found as a fact that defendant actually entered the home
without permission, as required by the statute. I would remand.
Defendant was charged with first-degree home invasion, MCL 750.110a(2), and
felonious assault in connection with an incident involving his former girlfriend.
In rendering its decision the court stated:
I indicated that I’ll give him the benefit of the doubt that the sister might have let
him in the house, but the Court finds that on March 7, 2001, . . . [the complainant]
told the defendant to leave, so at that point he didn’t have permission to be in that
dwelling.
Thus, the court did not make a clear finding that defendant actually entered without permission,
and may have erroneously concluded that the actual entry without permission was not required.
The context of the court’s comments makes it unclear whether the court concluded that
the prosecution failed to prove beyond a reasonable doubt that defendant entered without
permission, or whether the court allowed that the sister might have let him in for the sake of
argument, in order to reach what the court perceived as the controlling fact that whether the sister
extended permission or not, the complainant later told him to leave, so that at that point he was
present without permission. I would remand for further fact-finding to clarify this issue and
would instruct that if the court finds beyond a reasonable doubt that defendant did not enter with
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the sister’s permission, then the verdict would stand, and that otherwise, the court should find
defendant not guilty of the home invasion charge.
/s/ Helene N. White
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