PEOPLE OF MI V LEE MICHAEL STERHAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 12, 2009
Plaintiff-Appellee,
v
No. 273684
Muskegon Circuit Court
LC No. 05-052051-FH
LEE MICHAEL STERHAN,
Defendant-Appellant.
Before: Markey, P.J., and Whitbeck and Gleicher, JJ.
PER CURIAM.
After a jury trial, defendant was convicted of first-degree home invasion, MCL
750.110a(2), felon in possession of a firearm, MCL 750.224f, resisting or obstructing a police
officer, MCL 750.81d(1), and two counts of possession of a firearm during the commission of a
felony, MCL 750.227b. The trial court sentenced defendant as a fourth habitual offender, MCL
769.12, to concurrent prison terms of 20 to 40 years for the first-degree home invasion
conviction, 76 months to 40 years for the felon in possession conviction, and 46 months to 15
years for the resisting or obstructing conviction, and a consecutive two-year term of
imprisonment for the felony-firearm convictions.1 Defendant appeals as of right. We affirm.
I. Background
On the evening of July 25, 2005, defendant was drinking at the home of Kristen Mura,
and by the early morning hours of July 26, 2005, he had begun acting out of control. Mura
repeatedly urged defendant to leave, then told him that she intended to call the police. Before
leaving, defendant threatened “to gut” Mura. About seven hours later, defendant broke into
Mura’s house and then through Mura’s locked bedroom door. He told Mura he felt upset that
she had earlier called the police. Defendant had a gun in his waistband, which he took out and
held in his hands. He had stolen the gun from a neighbor’s house a few hours earlier. Mura
managed to escape. The police apprehended defendant when he came out of the house and
approached a car in Mura’s driveway. Defendant presented an insanity defense at trial, which
was supported by the testimony of Dr. Steven Pastyrnak. In rebuttal, the prosecution presented
1
Because defendant was on parole when he committed the offenses, all sentences were required
to be served consecutive to the remaining portion of defendant’s sentence for the parole offense.
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testimony by Dr. Thomas Shazer, who concluded that defendant did not qualify as insane at the
time of the offenses.
II. Prosecutorial Misconduct
This Court reviews de novo a preserved claim of prosecutorial misconduct. People v
Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). The test of prosecutorial misconduct
is whether the defendant received a fair and impartial trial. People v Dobek, 274 Mich App 58,
63; 732 NW2d 546 (2007). Prosecutorial misconduct issues are decided on a case-by-case basis,
and the reviewing court must examine the record and evaluate the prosecutor’s remarks in
context. People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004).
Defendant first contends that the prosecutor engaged in misconduct when he played for
Dr. Pastyrnak, outside the presence of the jury, an unredacted recording of a conversation
between defendant and his mother while defendant was in jail. The conversation occurred on
June 1, 2006, just after Dr. Pastyrnak had evaluated defendant, and suggested that he was
fabricating the insanity defense. When the prosecutor began cross-examining Dr. Pastyrnak
about the tape in the jury’s presence, defendant objected and the trial court sustained his
objection.
We reject defendant’s assertion that when the prosecutor played for Dr. Pastyrnak off the
record the recorded jail conversation between defendant and his mother, the prosecutor
knowingly violated the trial court’s evidentiary ruling precluding admission of the recording at
trial. The trial court’s ruling only applied to the admissibility of defendant’s mother’s statements
in the recording.2 It did not prevent Dr. Pastyrnak from listening to the recorded conversation off
the record. Additionally, the prosecutor never revealed the substance of the recorded
conversation to the jury.
Defendant also maintains that the prosecutor’s questions, which elicited Dr. Pastyrnak’s
testimony that the unredacted conversation caused his confidence in his opinion to waver,
amounted to misconduct because MRE 703 prohibits an expert from offering an opinion based
on inadmissible evidence. MRE 703 provides:
The facts or data in the particular case upon which an expert bases an
opinion or inference shall be in evidence. This rule does not restrict the discretion
of the court to receive expert opinion testimony subject to the condition that the
factual bases of the opinion be admitted in evidence thereafter.
On several occasions during trial, the trial court addressed the applicability of MRE 703 on
cross-examination. None of the court’s rulings suggested that it would not permit the prosecutor
to question Dr. Pastyrnak about how and whether his opinion had changed based on the
unredacted recording. Because nothing in the record makes apparent that the prosecutor was
2
The trial court ruled that the prosecutor could introduce a redacted recording of only
defendant’s statements.
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clearly trying to elicit prohibited testimony as defendant asserts, the prosecutor’s good-faith
effort to admit evidence does not constitute misconduct. Dobek, supra at 70.
Although Dr. Pastyrnak testified that his consideration of additional evidence caused his
level of confidence in his original opinion that defendant was insane to diminish, and referenced
the recorded conversation between defendant and his mother as one part of the basis for his
decreased level of confidence, the trial court sustained defendant’s objection with regard to any
opinions premised on the recorded conversation, and the substance of that conversation was
never disclosed to the jury. The trial court later instructed the jury to disregard excluded
evidence or stricken testimony, and jurors presumptively follow their instructions. People v
Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Furthermore, a review of Dr. Pastyrnak’s
testimony reveals that more than just the recording caused his confidence in his original opinion
regarding defendant’s sanity to waver. He admitted that his consideration of other evidence also
affected the confidence level of his original opinion. Moreover, despite Dr. Pastyrnak’s
wavering testimony with regard to defendant’s sanity, Dr. Pastyrnak remained steadfast in his
belief that defendant had a mental illness that impaired his judgment. The jury had the option of
finding defendant guilty but mentally ill, but declined to do so. The jury’s rejection of that
option signifies that the jury rejected even the portion of Dr. Pastyrnak’s opinion that had not
wavered. Consequently, the prosecutor’s conduct did not deprive defendant of a fair trial.
Defendant also avers that the prosecutor improperly attacked defense counsel during
closing argument, denying him a fair trial. A prosecutor may not personally attack defense
counsel. People v McLaughlin, 258 Mich App 635, 646; 672 NW2d 860 (2003).
The challenged portion of the prosecutor’s argument reads as follows:
The second thing I want to say though is this, is that they knew what they
were calling. They knew what they were doing in this case. I mean, I submit to
you that this was a very strategic decision by the defense to call this kind of a
poorly qualified expert who has never tried to do this before. That was their
strategic decision. They probably didn’t think he would implode the way he did
on the witness stand, I will grant you that, but going into this case they wanted
that kind of expert.
The prosecutor did not personally attack defense counsel, but rather commented on her choice of
expert. The testimony disclosed that Dr. Pastyrnak had never testified before regarding a
defendant’s legal sanity and was not an experienced forensic evaluator. In light of Dr.
Pastyrnak’s dearth of experience and his wavering testimony at trial, the prosecutor’s remarks
fairly commented on the evidence and the reasonable inferences arising from it. And the
prosecutor need not phrase his inferences in the blandest possible terms. Dobek, supra at 66.
Therefore, the prosecutor’s remarks were proper.
Lastly, defendant argues that the prosecutor committed misconduct by frequently asking
questions that were not supported by the evidence. However, defendant does not specifically
identify any instances when this occurred. Therefore, he has abandoned appellate review of this
argument. People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006).
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III. Testimony of Dr. Pastyrnak and Dr. Shazer
Defendant next claims that the trial court erred by not striking Dr. Pastyrnak’s crossexamination testimony and all of Dr. Shazer’s testimony. This Court reviews for an abuse of
discretion a trial court’s decision to admit or exclude evidence. People v McDaniel, 469 Mich
409, 412; 670 NW2d 659 (2003). An abuse of discretion occurs when the trial court chooses an
outcome falling outside a range of principled outcomes. People v Babcock, 469 Mich 247, 269;
666 NW2d 231 (2003). This Court considers de novo any preliminary issues of law regarding
admissibility involving construction of a rule of evidence or statute. People v Lukity, 460 Mich
484, 488; 596 NW2d 607 (1999). A trial court’s findings of fact are reviewed for clear error.
MCR 2.613(C). A finding qualifies as clearly erroneous if, after a review of the entire record,
we are left with a definite and firm conviction that a mistake has been made. People v Sexton
(After Remand), 461 Mich 746, 752; 609 NW2d 822 (2000).
A. Pastyrnak’s Cross-Examination Testimony
Defendant’s objection to the admission of portions of Dr. Pastyrnak’s cross-examination
testimony focuses on the prosecutor’s use of defendant’s Muskegon County Mental Health
records (exhibit 17) to challenge Dr. Pastyrnak’s opinion that defendant was legally insane. Dr.
Pastyrnak had not reviewed the exhibit before trial and admitted that the malingering diagnosis
in it caused him to question his initial opinion of defendant’s legal insanity.
Defendant first challenges the prosecutor’s use of exhibit 17 based on the trial court’s
interpretation of MRE 703. The trial court ruled as follows:
On cross-exam either party may bring up information not in evidence in
the form of questions as to what the expert did not rely on and was not aware of
because the court rule only requires facts or data which the expert bases his
opinion on. [MRE 703] does not deal with evidence that the expert did not base
his original opinion on which, under cross-exam, might be used to challenge if his
opinion would have been any different had he known that or been aware of that.
It can be done in the form of a hypothetical; it can be done directly.
Defendant asserts that exhibit 17 had to be in evidence for the prosecutor to ask Dr. Pastyrnak
questions about it. However, the plain language of MRE 703 simply does not require that a
record be in evidence for a party to question the expert with regard to whether he reviewed or
considered the record in formulating his opinion.
The next question becomes whether a record must be in evidence when an expert renders
a new opinion premised on consideration of the record. We conclude that it does. Nothing in
MRE 703 limits its applicability to only direct examination of an expert witness. The rule
contemplates that facts or data on which an expert bases “an opinion” must be in evidence. The
prosecutor asked Dr. Pastyrnak to reevaluate his original opinion in light of exhibit 17. Even
though Dr. Pastyrnak did not change his ultimate conclusion, his “less confident” opinion was
based on exhibit 17. Accordingly, the trial court erred to the extent that it found that exhibit 17
did not need to be admitted in evidence for the prosecutor to question Dr. Pastyrnak about its
effect on his opinion.
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But the error was harmless because the trial court eventually received exhibit 17 into
evidence. Under MRE 703, an expert’s testimony may be taken either before or after the court
admits the evidence on which the expert’s opinion rests. We also reject defendant’s arguments
that exhibit 17 was inadmissible. Contrary to defendant’s argument, MCL 768.20a(7) did not
require notice of the exhibit five days before trial. Pursuant to MCL 768.20a(7),
Within 10 days after the receipt of the report from the center for forensic
psychiatry or from the qualified personnel, or within 10 days after the receipt of
the report of an independent examiner secured by the prosecution, whichever
occurs later, but not later than 5 days before the trial of the case, or at another
time the court directs, the prosecuting attorney shall file and serve upon the
defendant a notice of rebuttal of the defense of insanity which shall contain the
names of the witnesses whom the prosecuting attorney proposes to call in rebuttal.
By its clear and unambiguous terms, the statute refers only to a notice of rebuttal of an insanity
defense and only requires that the notice list the names of rebuttal witnesses. It does not require
the prosecution to provide a defendant with notice of other evidence that may be introduced to
rebut the insanity defense.
The record does not substantiate defendant’s contention that the defense did not receive a
copy of exhibit 17 before trial. An exchange of the parties at trial regarding exhibit 17 reveals
that defendant objected to not having the opportunity to review the exhibit before the prosecutor
presented it to Dr. Pastyrnak; defense counsel did not suggest that he had never seen the
substance of the exhibit before trial. Furthermore, later during trial defense counsel
acknowledged that before trial she had reviewed the records that comprised exhibit 17.
We also find unpersuasive defendant’s argument that exhibit 17 was not admissible
because the prosecutor failed to establish a proper foundation to admit the exhibit under MRE
803(6), as a business record. The parties stipulated to the authenticity of the exhibit before trial.
When a dispute arose concerning the scope of the stipulation, defendant conceded that the parties
intended the stipulation to avoid the necessity of producing a records custodian to testify to the
authenticity of the documents. We agree with the trial court that, given the parties’ stipulation,
the prosecutor need not have produced a records custodian to lay a foundation for admissibility
under MRE 803(6). It would be unreasonable and make little sense to interpret the parties’
stipulation as excusing the necessity of producing a records custodian to establish authenticity
under MRE 901, but still require the custodian’s presence as a prerequisite for admissibility
under MRE 803(6).
Defendant lastly challenges the admissibility of exhibit 17 on the basis that it contained
tests and diagnoses by another doctor who did not testify, thereby violating his right of
confrontation. The Confrontation Clause bars “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination,” regardless of their admissibility under the rules of evidence.
Crawford v Washington, 541 US 36, 50-51, 53-54; 124 S Ct 1354; 158 L Ed 2d 177 (2004).
Business records admissible under MRE 803(6) necessarily are not prepared in anticipation of
litigation against a defendant and, therefore, do not qualify as testimonial. Id. at 56; People v
Jambor (On Remand), 273 Mich App 477, 483-484, 487; 729 NW2d 569 (2007). The
Muskegon County Mental Health records comprising exhibit 17 were prepared for the purpose of
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treating defendant. Because the records had no connection to any litigation against defendant
and defendant does not dispute that it qualifies for admission under MRE 803(6), the
prosecutor’s use of the records did not violate the Confrontation Clause.
For all the reasons set forth above, we conclude that the trial court did not abuse its
discretion by refusing to strike Dr. Pastyrnak’s cross-examination testimony.
B. Dr. Shazer’s Testimony
Defendant also insists that the trial court abused its discretion by refusing to strike Dr.
Shazer’s opinion testimony, which defendant argues rested on inadmissible evidence, contrary to
MRE 703. Dr. Shazer testified that he based his opinion in his written report on his interview of
defendant and the police reports. Defendant correctly observes that police reports in criminal
cases generally constitute inadmissible hearsay. People v McDaniel, 469 Mich 409, 412-413;
670 NW2d 659 (2003). However, MRE 703 does not mandate that the facts on which an expert
relies be admitted at trial in the same form that the expert considered them. Here, numerous
witnesses testified to the relevant facts contained in the police reports that the prosecutor
reviewed with Dr. Shazer. The record contains no indication that Dr. Shazer premised his
opinion on any facts in the police reports that were not brought out in other trial testimony, and
defendant does not identify any such facts.
Defendant also argues that Dr. Shazer improperly based his opinion on other inadmissible
records, such as exhibit 17, school records, and prison and jail records. The critical question is
whether Dr. Shazer’s opinion was “base[d]” on any records beyond the police reports and
defendant’s interview. Dr. Shazer testified that after he concluded that defendant was sane and
prepared his written report, he reviewed other materials pertaining to defendant, but that they did
not affect his opinion. According to Dr. Shazer, the additional materials were either irrelevant or
simply confirmed his opinion.
Defendant broadly interprets “base[d]” on in MRE 703 as encompassing any materials
that an expert reviewed. But defendant offers too expansive a construction of the rule, which
does not find support in the rule’s language. Moreover, in discussing MRE 703, this Court
recently stated the following:
It necessarily follows that an expert witness may not base his or her
testimony on facts that are not in evidence. An expert witness need not rule out
all competing and alternative theories, but he or she must have a sound
evidentiary basis for his or her conclusions. An expert witness’s opinion is
objectionable if it is based on assumptions that do not accord with the established
facts. When an expert’s opinion is based on assumptions that are contrary to the
facts in evidence, it is technically irrelevant to the actual issues at trial. [People v
Unger (On Remand), 278 Mich App 210, 248; 749 NW2d 272 (2008) (citations
and footnote omitted).]
If MRE 703 aims to ensure that the expert has an evidentiary basis for his opinion, this purpose
is not offended when an expert reviews inadmissible materials not factored into his opinion.
Because Dr. Shazer testified that the additional records did not form the basis for his opinion, the
trial court did not abuse its discretion by allowing Dr. Shazer’s testimony.
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IV. Motion to Amend Information
Defendant contends that the trial court erred in granting the prosecutor’s motion to amend
the information to add an alternative theory for the home invasion charge. Defendant asserts that
the late amendment prejudiced him and that the prosecutor improperly added the new theory to
punish him for going to trial.
This Court reviews a trial court’s decision to grant a motion to amend the information for
an abuse of discretion. People v McGee, 258 Mich App 683, 686-687; 672 NW2d 191 (2003).
An allegation of prosecutorial vindictiveness involves an issue of due process. People v Laws,
218 Mich App 447, 452; 554 NW2d 586 (1996). This Court reviews constitutional issues de
novo. People v Brown, 239 Mich App 735, 750; 610 NW2d 234 (2000).
A trial court may permit amendment of the information at any time to correct a variance
between the information and the proofs, unless doing so would unfairly surprise or prejudice the
defendant. MCL 767.76; MCR 6.112(H); People v Russell, 266 Mich App 307, 317; 703 NW2d
107 (2005). The original information charged defendant with first-degree home invasion under a
theory that he broke into Mura’s house with the intent to commit assault, two counts of felonyfirearm, felon in possession of a firearm, and resisting or obstructing a police officer. Eight days
before trial began, the prosecutor filed a motion to amend the information to add an alternative
theory to the home invasion charge, specifically that defendant broke into Mura’s house and
therein committed a felony, i.e., felon in possession of a firearm. The trial court determined that
the amendment would not cause unfair surprise or prejudice to defendant because the prosecutor
had charged both home invasion and felon in possession of a firearm in the original information.
Although the prosecutor filed the motion to amend just over a week before trial, defendant had
notice of the separate charges in the original information. We conclude that the trial court did
not abuse its discretion by granting the prosecutor’s motion to amend because adding felon in
possession as an alternative theory in support of the home invasion charge did not substantively
require defendant to defend against a new charge, and defendant already had notice that he had
to defend against a felon in possession of a firearm charge.
Defendant also submits that the prosecutor’s motion to amend constituted prosecutorial
vindictiveness. Prosecutorial vindictiveness occurs when a prosecutor violates a criminal
defendant’s due process rights by prosecuting him for asserting a protected statutory or
constitutional right. People v Ryan, 451 Mich 30, 35-36; 545 NW2d 612 (1996). The two types
of prosecutorial vindictiveness are presumed vindictiveness and actual vindictiveness. Id. at 36.
Actual vindictiveness exists when objective evidence shows an expressed hostility or threat that
suggests the defendant was deliberately punished for the exercise of a protected right. Id. The
defendant has the burden to demonstrate actual vindictiveness. Id.
A presumption of prosecutorial vindictiveness arises “only in cases in which a reasonable
likelihood of vindictiveness exists.” United States v Goodwin, 457 US 368, 373; 102 S Ct 2485;
73 L Ed 2d 74 (1982). “[R]egarding presumptive vindictiveness, this Court held that ‘it is well
established that the mere fact that a defendant refuses to plead guilty and forces the government
to prove its case is not sufficient to warrant presuming that subsequent changes in the charging
decision are vindictive and therefore violative of due process.’” People v Jones, 252 Mich App
1, 8; 650 NW2d 717 (2002) (emphasis in original), quoting People v Goeddeke, 174 Mich App
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534, 536; 436 NW2d 407 (1988). Therefore, in this case defendant bore the burden of proving
actual vindictiveness.
Defendant’s only proffered evidence of vindictiveness is the prosecutor’s statement that
he routinely would “review the files before trial to see if there is [sic] other charges that can or
should be brought.” No reasonable interpretation of this statement conveys “an expressed
hostility or threat” toward defendant designed to punish him for exercising his right to a trial.
Instead, it describes a routine practice of thorough trial preparation. Therefore, the trial court did
not clearly err in finding that the prosecutor’s motion to amend did not constitute prosecutorial
vindictiveness.
V. Directed Verdict
Defendant complains that the trial court erred in denying his motion for a directed verdict
on two of the charges. In reviewing a denial of a motion for a directed verdict, we review the
evidence in the light most favorable to the prosecution to determine whether a rational trier of
fact could have found that the essential elements of the crime were proved beyond a reasonable
doubt. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).
A. First-Degree Home Invasion
Defendant avers that the trial court erred in denying his motion for a directed verdict on
the home invasion charge under the theory that he broke into Mura’s house intending to commit
an assault. Defendant maintains that insufficient evidence proved that he intended to assault
Mura. An assault is either an attempt to commit a battery or an unlawful act that places another
in reasonable apprehension of receiving an immediate battery. People v Musser, 259 Mich App
215, 223; 673 NW2d 800 (2003). Circumstantial evidence and the reasonable inferences drawn
from it may suffice to prove the elements of the crime. People v Schultz, 246 Mich App 695,
702; 635 NW2d 491 (2001).
Before defendant left Mura’s house in the early morning hours, he threatened to return
and kill her. Although Mura did not believe that defendant would return, he did. Defendant
broke into her house and her bedroom. He wore a mask and possessed a gun. After removing
the mask, defendant told Mura that he felt upset that she had called the police. He pulled the gun
out of his waistband and held it in his hand, causing Mura to be scared. Although defendant did
not point the gun directly at Mura, he need not have done so to have intended an assault.
Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have
inferred beyond a reasonable doubt from defendant’s actions that he intended to assault Mura by
placing her in fear of receiving an imminent battery.
B. Resisting or Obstructing a Police Officer
Defendant also asserts that insufficient evidence established that he resisted or obstructed
a police officer. Pursuant to MCL 750.81d(1), “an individual who assaults, batters, wounds,
resists, obstructs, opposes, or endangers a person who the individual knows or has reason to
know is performing his or her duties is guilty of a felony[.]” To be guilty of this offense, a
person must know or have reason to know that the officer is performing his duties, and the
knowledge element requires the factfinder to determine whether the facts and circumstances of
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the case substantiate that the defendant had actual knowledge or reason to have actual knowledge
that the person resisted was an officer performing his duties. People v Nichols, 262 Mich App
408, 413-414; 686 NW2d 502 (2004). A person may not use force to resist an arrest made by an
officer performing his duties. People v Ventura, 262 Mich App 370, 377; 686 NW2d 748
(2004).
Defendant asserts that no evidence tended to prove that he knew the police were giving
commands, that he heard the commands, or that he assaulted, resisted, or obstructed the police.
When defendant exited Mura’s house, numerous marked patrol cars had arrived outside, and
police officers in uniform and marked tactical gear had gathered around the scene. Trooper
Brian Cribbs identified himself as the police, and several times ordered defendant to get down on
the ground. Defendant showed his defiance by yelling profanities and continuing to walk toward
the car. The police tazered defendant after he turned toward the officers and reached toward his
waistband. Trooper Cribbs testified that defendant did not cooperate with his efforts to handcuff
him. Officer Chris Mahoney also testified that defendant failed to cooperate, moving his hands
around in an apparent attempt to thwart being handcuffed, and yelled.
This evidence sufficed to enable a rational jury to find beyond a reasonable doubt that
defendant knew or should have known that Trooper Cribbs was a police officer attempting to
apprehend him, and that he intentionally resisted Trooper Cribbs’s and other officers’ efforts to
handcuff him. The fact that defendant was tazered did not signify that he could not physically
control his arms when Trooper Cribbs tried to handcuff him. In summary, the trial court did not
err when it denied defendant’s motion for a directed verdict on this basis.
VI. Jury Instructions
A. Special Unanimity Instruction
Defendant contends that the trial court erred in failing to give a special unanimity
instruction with regard to the separate theories underlying the home invasion charge. Because
defendant did not request a special unanimity instruction at trial, he has failed to preserve this
issue. We thus review the issue only for plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
“A defendant has the right to a unanimous verdict and it is the duty of the trial court to
properly instruct the jury on this unanimity requirement.” Martin, supra at 338, citing People v
Cooks, 446 Mich 503, 511; 521 NW2d 275 (1994). The trial court gave a general unanimity
instruction in this case. “Under most circumstances a general instruction on the unanimity
requirement will be adequate.” Martin, supra at 338.
However, the trial court must give a specific unanimity instruction where
the state offers evidence of alternative acts allegedly committed by the defendant
and “1) the alternative acts are materially distinct (where the acts themselves are
conceptually distinct or where either party has offered materially distinct proofs
regarding one of the alternatives), or 2) there is reason to believe the jurors might
be confused or disagree about the factual basis of defendant’s guilt.” [Id., quoting
Cooks, supra at 524.]
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In Cooks, supra at 513-515, the Supreme Court distinguished between multiple theory cases and
multiple acts cases. The Supreme Court explained that “‘when a statute lists alternative means of
committing an offense which in and of themselves do not constitute separate and distinct
offenses, jury unanimity is not required with regard to the alternate theory.’” Id. at 515 n 16,
quoting People v Johnson, 187 Mich App 621, 629-630; 468 NW2d 307 (1991).
Here, MCL 750.110a(2) affords alternative means of committing a single offense of firstdegree home invasion. The prosecutor did not charge defendant with two separate and distinct
home invasion offenses, but charged him with committing one offense under alternate theories.
Therefore, a special unanimity instruction was not required. Even if the trial court erred by
omitting a special unanimity instruction, any error was harmless. Because the jury unanimously
found defendant guilty of the separately charged felon in possession of a firearm offense, it
necessarily unanimously found him guilty of first-degree home invasion under the felon in
possession theory for that offense.
B. Layperson Opinion Testimony
Defendant alleges that the trial court erred in denying his request for a jury instruction on
lay witness opinion testimony. Although defendant appeared to have initially requested such an
instruction, he later withdrew his request. Therefore, defendant waived review of this issue.
People v Hall (On Remand), 256 Mich App 674, 679; 671 NW2d 545 (2003). Regardless, the
trial court instructed the jury to consider all the evidence, including lay witness testimony, and
determine the weight it should be given. The court’s instruction sufficiently protected
defendant’s rights. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001).
VII. Felon in Possession of a Firearm
A. Two Supporting Convictions
Defendant additionally challenges the trial court’s decision to allow evidence of two prior
convictions as factual support for the felon in possession of a firearm charge. The prosecutor
presented a certified record that defendant had convictions of the felony offense of possession of
analogue drugs and felony breaking and entering. Defendant objected to the evidence on the
ground that evidence of two prior convictions injected undue prejudice under MRE 403, but the
trial court disagreed, reasoning that the jury could choose to disbelieve one of the prior
convictions.
A trial court may exclude relevant evidence if its probative value is substantially
outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence.
MRE 403; People v Osantowski, 274 Mich App 593, 609; 736 NW2d 289 (2007), rev’d in part
on other grounds 481 Mich 103; 748 NW2d 799 (2008). A danger of unfair prejudice exists
when a jury might give marginally probative evidence undue weight. Id.
The prosecutor had to establish defendant’s status as a convicted felon to prove the felon
in possession of a firearm charge. Because defendant did not stipulate to the existence of a prior
felony conviction, the prosecutor properly could present evidence of defendant’s prior felony
conviction. People v Nimeth, 236 Mich App 616, 627; 601 NW2d 393 (1999), citing Old Chief v
United States, 519 US 172; 117 S Ct 644; 136 L Ed 2d 574 (1997). However, the trial court
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abused its discretion in allowing the prosecutor to present evidence of two prior felony
convictions when only one conviction was necessary. The prosecutor presented certified
evidence of defendant’s prior conviction, and defendant did not present any evidence contesting
the validity of the prior conviction, so no reasonable basis existed for the jury to disbelieve the
validity of the conviction. The second conviction, even if technically relevant to the felon in
possession charge, qualified as cumulative and unduly prejudicial.
Nevertheless, we conclude that the error was harmless beyond a reasonable doubt
because the prosecutor introduced overwhelming, properly admitted evidence of defendant’s
guilt on all the charges against him. People v Shepherd, 472 Mich 343, 348; 697 NW2d 144
(2005). The principal issue at trial involved defendant’s sanity, not his identity or his
commission of the charged offenses. The erroneous admission of the additional prior conviction
bore no relevance to the issue of defendant’s sanity. Therefore, reversal is not required.
B. Predicate Felony to First-Degree Home Invasion
Defendant argues that the jury erroneously convicted him of first-degree home invasion
under a theory that he broke into Mura’s house and committed the felony offense of felon in
possession of a firearm because the home invasion statute does not contemplate the use of that
felony to establish first-degree home invasion. The construction of a statute presents a question
of law subject to de novo review. Gillis, supra at 113. The primary task in construing a statute
is to discern and give effect to the intent of the Legislature. The words of a statute comprise the
most reliable evidence of that intent, and in construing a statute a court must consider both the
plain meaning of the language and its placement and purpose in the statutory scheme. Statutory
language must be read in its grammatical context unless it is clear that some other meaning was
intended. If statutory language is clear and unambiguous, the Legislature is presumed to have
intended its plain meaning and the statute must be enforced as written. Id. at 114-115.
The plain language of MCL 750.110a(2) provides that an unlawful entrant is guilty of
first-degree home invasion when the entrant “commits a felony, larceny, or assault.” (Emphasis
added). This Court has explained that the Legislature’s failure to distinguish between felony and
misdemeanor assaults and larcenies means that any larceny or assault can establish the offense
underlying first-degree home invasion. People v Sands, 261 Mich App 158, 163; 680 NW2d 500
(2004). The term “a” is an indefinite article. State Farm Fire & Cas Co v Old Republic Ins Co,
466 Mich 142, 148; 644 NW2d 715 (2002). Accordingly, under the plain language of MCL
750.110a(2), a defendant’s commission of “a” felony properly may support a first-degree home
invasion charge. The Legislature has classified felon in possession of a firearm as a felony.
MCL 750.224f(3). Because felon in possession constitutes a felony, a defendant’s commission
of felon in possession of a firearm may support a conviction of first-degree home invasion.
C. Double Jeopardy
Defendant urges that the multiple punishments imposed for felon in possession of a
firearm and first-degree home invasion with felon in possession of a firearm as the predicate
felony violate double jeopardy principles. The first-degree home invasion statute expressly
provides that the imposition of a penalty for home invasion does not preclude “the imposition of
a penalty under any other applicable law.” MCL 750.110a(9). The Legislature thus plainly
intended that multiple punishments could apply for the first-degree home invasion conviction
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and the predicate felony. People v Conley, 270 Mich App 301, 311-312; 715 NW2d 377 (2006).
“Put otherwise, there is no multiple punishment double jeopardy violation if there is a clear
indication of legislative intent to impose multiple punishments for the same offense.” Id.
Accordingly, defendant’s dual convictions of felon in possession of a firearm and first-degree
home invasion with felon in possession of a firearm as the predicate felony do not violate the
double jeopardy protection against multiple punishments for the same offense.
VIII. Motion for New Trial
This Court reviews for an abuse of discretion a trial court’s decision on a motion for a
new trial. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). Defendant premised his
motion for a new trial on the same issues previously addressed in this opinion. Because we have
found no errors entitling defendant to a new trial, we conclude that the trial court did not abuse
its discretion in denying defendant’s motion for a new trial.
IX. Sentencing
A. Habitual Offender Status
Defendant complains that the trial court improperly sentenced him as a fourth habitual
offender because two of his prior convictions arose from the same criminal transaction. A
person previously convicted of three or more felonies is subject to an increased sentence if
convicted of a subsequent felony. MCL 769.12.
Before committing the instant offenses, defendant was convicted of possession of
analogue drugs, breaking and entering, and second-degree home invasion, all felonies. Our
Supreme Court has held that multiple convictions obtained in the same judicial proceedings may
count as separate convictions for purposes of the habitual offender statutes, even if they arose out
of the same criminal transaction.
Here, the relevant language states that “(i)f a person has been convicted of
any combination of 2 or more felonies or attempts to commit felonies . . . and that
person commits a subsequent felony within this state,” the person shall be
sentenced under the habitual offender laws. MCL 769.11(1). The text clearly
contemplates the number of times a person has been “convicted” of “felonies or
attempts to commit felonies.” Nothing in the statutory text suggests that the
felony convictions must have arisen from separate incidents. To the contrary, the
statutory language defies the importation of a same-incident test because it states
that any combination of convictions must be counted. [People v Gardner, 482
Mich 41, 50-51; 753 NW2d 78 (2008) (emphasis in original), overruling People v
Preuss, 436 Mich 714, 717, 738; 461 NW2d 703 (1990), and People v
Stoudemire, 429 Mich 262, 278; 414 NW2d 693 (1987).]
Consequently, the trial court did not err in sentencing defendant as a fourth habitual offender.
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B. Jail Credit
Lastly, defendant contends that he is entitled to jail credit for time served awaiting trial
for the instant offenses, despite that he was held on a parole detainer. Defendant acknowledges
that this Court has repeatedly held that a parole detainee who is convicted of a new criminal
offense cannot claim credit against his new sentences for time served in jail as a parole detainee.
People v Stead, 270 Mich App 550, 551-552; 716 NW2d 324 (2006); People v Seiders, 262
Mich App 702, 705; 686 NW2d 821 (2004). Nonetheless, defendant insists that a denial of
credit in this situation violates a parolee’s equal protection rights because the parolee has already
served his minimum sentence and, accordingly, there is no prior sentence against which credit
may apply. But defendant ignores that even though a parolee may have served the minimum
portion of his prior sentence, he still remains “liable . . . to serve out the unexpired portion of his
or her maximum imprisonment” if arrested for “violating the provisions of his or her parole.”
MCL 791.238(2) (emphasis added). Because defendant’s jail credit applies toward the
maximum term of his prior punishment, his argument lacks merit.
Affirmed.
/s/ Jane M. Markey
/s/ William C. Whitbeck
/s/ Elizabeth L. Gleicher
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