PEOPLE OF MI V XAVIER ANTONIO HENRY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 27, 2010
Plaintiff-Appellee,
v
No. 289859
Ingham Circuit Court
LC No. 07-000978-FH
XAVIER ANTONIO HENRY,
Defendant-Appellant.
Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree home invasion, MCL
750.115a(2), and acquitted of domestic assault and battery, MCL 750.81(2). Defendant was
sentenced as a fourth habitual offender, MCL 769.12, to serve 12 to 24 years in prison for his
conviction. Defendant appeals as of right and we affirm.
Defendant met complainant in June 2007. She stated that he called her several times a
day and visited her, unannounced, “a couple times” at her residence. Complainant and defendant
also reportedly attended a birthday party for defendant’s aunt. Complainant denied a sexual
relationship with defendant. Complainant stated that on July 18, 2007, defendant confronted her
at the hospital and yelled at her. He then arrived at her residence and ultimately slapped her.
She may have attended his aunt’s birthday party afterwards.
On July 21, 2007, defendant went to complainant’s home but did not find her. He
allegedly called her several times and she allegedly told him that she was socializing with two
other men. Later, she had male and female guests at her home. Defendant was heard speaking
to complainant from outside the home after she had gone into her bedroom to sleep and one of
the male visitors had gone into the room to speak with her. Defendant then allegedly tried to
enter the residence through the front door, demanded that complainant open the door, and
questioned complainant about the man in her room. Complainant testified that defendant was
questioning her about possible romantic activity. There was testimony that complainant refused
to let defendant in the home.
Complainant stated that she then heard the screen in her bedroom window rip and the fan
in the window fall to the floor. She and another witness then heard the screen window open and
complainant saw defendant’s head and upper body inside her room. Complainant stated that
defendant grabbed her, and was pulling her out the window while the man in the room with her
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was pulling in the opposite direction. She described being pulled up against the wall and
scraping her arm on the window screen before she could elude defendant’s grasp. Complainant’s
arm was injured. Complainant reported that defendant then entered her bedroom through the
window, and fought with the other man and two other male friends who entered the room.
Defendant then exited through the window and the confrontation continued outside.
Defendant first argues that the jury instructions were confusing, and resulted in
inconsistent verdicts. Unpreserved issues are reviewed for plain error. Kern v Blethen-Coluni,
240 Mich App 333, 336; 612 NW2d 838 (2000). To establish plain error defendant must show
that a clear or obvious error occurred that affected a substantial right. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999). Reversal is appropriate only if the plain error resulted in
the conviction of an innocent defendant or seriously affected the fairness, integrity or public
reputation of the judicial proceedings. Id.
While initially instructing the jury on the elements of first-degree home invasion, the
judge erroneously stated that the jury would have to find that defendant committed the offense of
domestic assault. When initially instructing on the crime of domestic assault the judge stated
that the prosecutor would have to prove:
First, that the defendant assaulted and battered [complainant]. A battery is
a forceful, violent, or offensive touching of a person or something closely
connected with her. The touching must have been intended by the defendant; that
is, not accidental, and it must have been against [complainant’s] will.
An assault is an attempt to commit a battery or an illegal act that caused
[complainant] to reasonably fear an immediate battery. The defendant must have
intended either to commit a battery or to make [complainant] reasonably fear an
immediate battery.
***
Second, that at the time [complainant] was a person with whom the
defendant had a dating relationship.
The jury deliberated and then returned with two questions. The first question was, “Is the
domestic assault element of the home invasion definition the same as the domestic assault charge
definition?” The court answered, “Yes.” The second question was whether a dating relationship
could be one-sided such that only defendant thought they were dating. The trial judge instructed:
“Any further definition of dating relationship is not specified in the jury instructions, and you
need to just refer to the jury instruction and . . . use your good judgment as far as that.”
The judge then called the jury back and corrected the home invasion instructions. The
judge eliminated the reference to “domestic assault” and instructed that defendant need only
have committed the offense of assault. The judge then defined the offense of assault:
To prove an assault – to prove the crime of assault, the prosecutor must
prove each of the following elements beyond a reasonable doubt:
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First, that the defendant committed a battery on [complainant]. A battery
is a forceful, violent, or offensive touching of the person or something closely
connected with the person or another. The touching must have been intended by
the defendant; that is, not accidental, and it must have been against
[complainant’s] will. It does not matter whether the touching caused an injury.
Second, that the defendant intended either to commit a battery upon
[complainant] or to make [her] reasonably fear an immediate battery.
The jury subsequently returned with another question inquiring whether there had to be a
battery for a first-degree home invasion conviction and the judge erroneously stated that there
need not be a battery for the domestic assault charge. The judge then read the amended
instructions on the first-degree home invasion charge, but did not read the instructions for
domestic assault and battery.
Defendant argues that the confusing jury instructions resulted in inconsistent verdicts.
He asserts that the acquittal on the domestic assault and battery charge precluded a guilty verdict
on the first-degree home invasion charge because the first-degree home invasion instruction
initially indicated that a domestic assault was required. However, given the amended
instructions, no such finding was required to convict defendant of first-degree home invasion.
Additionally, a jury may reach inconsistent verdicts as a result of mistake, compromise,
or leniency. People v Goss, 446 Mich 587, 597; 521 NW2d 312 (1994). The jury can choose,
without any apparent logical basis, what to believe and what to disbelieve because the jury is the
sole judge of all the facts. People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980).
However, inconsistent verdicts might be cause for reversal when it is evident that the jury was
confused, did not understand the instructions, or did not know what it was doing. People v
McKinley, 168 Mich App 496, 510; 425 NW2d 460 (1988). Defendant contends that this is such
as case. However, the judge twice clarified and reinforced what was required to convict
defendant of the first-degree home invasion charge and defendant was found not guilty of the
domestic violence charge. Therefore, there was no evidence of ultimate confusion.
Moreover, the verdicts were not necessarily inconsistent. Verdicts are not inconsistent
where there is an interpretation of the evidence that provides a logical explanation for the
findings of the jury. Id. at 462-463. People v Tombs, 472 Mich 446, 462-463; 697 NW2d 494
(2005). Regardless of the instructions on assault and battery, the jury may have found that
defendant assaulted and battered complainant, but did not have a dating relationship with her, as
required for a domestic assault and battery conviction. Based on the evidence, the jury
reasonably could have found that the relationship did not meet the “frequent, intimate
associations primarily characterized by the expectation of affectional involvement” definition of
dating relationship.
Further, reversal is only appropriate where any plain error would have affected a
substantial right of defendant. Carines, 460 Mich at 763. Because defendant was found not
guilty of the domestic violence charge, and was found to have met the elements for conviction of
the first-degree home invasion charge based on the testimony of witnesses that the jury chose to
believe, no substantial right of defendant was affected.
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Defendant argues that the jury instructions regarding the elements of the crimes were
confusing to the extent that they could not be corrected. A trial court is required to instruct the
jury concerning the law applicable to the case and to present the case fully and fairly to the jury
in an understandable manner. MCL 768.29; People v Henry, 239 Mich App 140, 151; 607
NW2d 767 (1999). A defendant in a criminal trial is entitled to have a properly instructed jury
consider the evidence against him or her. People v Dobek, 274 Mich App 58, 82; 732 NW2d
546 (2007). Jury instructions must include all the elements of the charged offense and must not
exclude material issues, defenses, and theories if the evidence supports them. People v Clark,
274 Mich App 248, 255-256; 732 NW2d 605 (2007). Jury instructions should be read as a whole
to determine if there is error. People v Hess, 214 Mich App 33, 36; 543 NW2d 332 (1995).
Because defendant was found not guilty of domestic violence, defendant’s substantial
rights were not affected by the jury instructions for this charge. Considering the instructions for
first-degree home invasion, there was initially instructional error. As previously stated, however,
there was a correction.
As a general rule, juries are presumed to follow their instructions. People v Torres, 222
Mich App 411, 423; 564 NW2d 149 (1997). It appears that the jury believed there had to be a
battery in order to convict defendant of first-degree home invasion. Even if somewhat imperfect,
there is no error if the instructions fairly presented the issues to be tried and sufficiently protected
defendant’s rights. People v Mass, 238 Mich App 333, 339; 605 NW2d 322 (1999). Because of
the instructions, plaintiff was required to prove more than is ordinarily required for a first-degree
home invasion conviction, sufficiently protecting defendant’s rights. Carines, 460 Mich at 763.
Next, defendant argues that he received ineffective assistance of counsel. A defendant’s
right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am
VI; Const 1963 art 1, § 20. This right encompasses the effective assistance of counsel. People v
Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). The right to effective assistance of
counsel is substantive and focuses on the actual assistance received. People v Pubrat, 451 Mich
589, 596; 548 NW2d 595 (1996). To establish a claim of ineffective assistance of counsel a
defendant must show (1) that counsel’s performance was deficient and (2) that counsel’s
deficient performance prejudiced the defense. People v Taylor, 275 Mich App 177, 186; 737
NW2d 790 (2007). A counsel’s performance is deficient if it fell below an objective standard of
professional reasonableness. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
The performance prejudices the defense if it is reasonably probable that, but for counsel’s error,
the result of the proceeding would have been different. Id.
Defendant first contends that his trial counsel was ineffective for failing to request
discovery and subpoena witnesses. He argued that testimony by his mother and phone records
would have demonstrated that he and complainant were in a relationship, and would have
countered any statement by the prosecutor that defendant “had no business being [at
complainant’s residence].” The failure to call witnesses or present other evidence can constitute
ineffective assistance of counsel when it deprives the defendant of a substantial defense. People
v Hyland, 212 Mich App 701, 710; 538 NW2d 465 (1995), vacated in part on other grounds 554
N.W.2d 899 (1996). A substantial defense is one that might have made a difference in the
outcome of the trial. Id. Here, defense counsel did call witnesses to elicit information about the
extent of the defendant’s relationship with complainant. Defendant’s aunt, Linda Thornton,
testified that defendant and complainant were dating and that complainant liked defendant a lot.
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Defendant’s cousin, Carol Harris, testified that she and defendant had appropriately been at
complainant’s residence on the day of the home invasion, and that defendant spoke calmly with
complainant on the phone the same day. Perhaps defendant’s mother and the phone records
could have bolstered this information and contradicted complainant’s version of a strained
relationship. However, the jury was presented with this type of information and defendant was
not deprived of this defense.
Additionally, defense counsel has wide discretion as to matters of trial strategy. People v
Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). It is possible that defense counsel did
not wish to emphasize a dating relationship. The relationship was not a defense to home
invasion. Further, it is likely that the jury found defendant not guilty of domestic violence
because a dating relationship between was not established. The likely trial strategy did not
deprive defendant of a defense, but resulted in a successful defense to the domestic violence
charge.
Defendant also argues that defense counsel was ineffective for failing to object to the
admission of evidence that he assaulted complainant three days before the home invasion. Use
of other acts as evidence of character is precluded, except as allowed by MRE 404(b), to avoid
the danger of conviction based on a defendant’s history of misconduct. People v Starr, 457 Mich
490, 495; 577 NW2d 673 (1998). MRE 404(b)(1) provides for the admission of evidence of
prior bad acts for several purposes. It provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
Generally, to be admissible under MRE 404(b), bad acts evidence: (1) must be offered for a
proper purpose, (2) must be relevant, and (3) must not have a probative value substantially
outweighed by its potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d
366 (2004).
Plaintiff proffered this evidence to show defendant’s intent and lack of mistake in going
to complainant’s residence. In closing arguments, plaintiff asserted that the previous violence
demonstrated a possible motive for defendant to return to the residence, a system of behavior,
and that the subsequent assault was not a mistake or an accident. Plaintiff also stated that the
prior incident tended to prove that the relationship between defendant and complainant had
ended. These were proper purposes. The evidence also had to be relevant. Knox, 469 Mich at
509. Relevant evidence is defined as “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the case more probable or less probable
than it would be without the evidence.” MRE 401. Here, the evidence was relevant to establish
that defendant’s motive and intent was to confront complainant when he arrived at her residence
and that defendant and complainant had a conflicted relationship. Notably, where a defendant is
accused of an offense involving domestic violence, evidence of his commission of other acts of
domestic violence is admissible for any purpose for which it is relevant unless excluded by MRE
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403. MCL 768.27b(1); MCL 768.27b(6); People v Schultz, 278 Mich App 776, 778; 754 NW2d
925 (2008).
Unfair prejudice does not mean that the evidence is damaging. Lewis v Legrow, 258
Mich App 175, 199; 670 NW2d 675 (2003). Rather, unfair prejudice exists when there is a
tendency that the evidence will be given undue or preemptive weight by the jury, or when it
would be inequitable to allow use of the evidence. Taylor v Mobley, 279 Mich App 309, 315;
760 NW2d 234 (2008). Evidence that is unfairly prejudicial goes beyond the merits of the case
to inject issues broader than a defendant’s guilt or innocence. People v McGhee, 268 Mich App
600, 614; 709 NW2d 595 (2005). Here, there was a danger that the jury would infer from this
evidence that defendant assaulted complainant as charged, because he reportedly did so three
days earlier. Coextensively, a renewed objection to its admission by defense counsel may have
been meritorious. However, even if erroneously admitted and counsel’s performance was
deficient, this evidence did not likely influence the outcome of the case. It is not reasonably
probable that, but for counsel’s error, the result of the proceeding would have been different.
Jordan, 275 Mich App at 667. Two witnesses testified that defendant broke through the window
of complainant’s residence and assaulted her. Three witnesses testified that complainant had
some sort of injury on her arm as a result of the incident, and a witness also testified that
defendant had injuries. This testimony was ample to convict defendant of first-degree home
invasion regardless of the testimony about the alleged assault three days earlier.
Defendant also argues that defendant’s trial counsel was ineffective for failing to object
to the confusing jury instructions and failing to move for a mistrial given the confusing
instructions. Because the initial instructions were inaccurate, a defense counsel objection and/or
motion for mistrial would likely have been meritorious. However, defendant is not able to
demonstrate that this possible error prejudiced him. As discussed, defendant was found not
guilty of domestic violence, and the instructions for his home invasion conviction actually
required a finding of battery.
Defendant also argues that the trial court erred in not holding an evidentiary hearing
regarding his ineffective assistance claim. Defendant moved for a new trial and requested an
evidentiary or Ginther1 hearing. A trial court’s decision on a motion for an evidentiary hearing
is reviewed for an abuse of discretion. People v Mischley, 164 Mich App 478, 482; 417 NW2d
537 (1987).
Prior to denying defendant’s motion, the court discussed the evidence. Defendant had
argued that, inconsistent with her preliminary examination testimony, the complainant had said
that defendant did not rip her screen. The court found that complainant’s trial testimony was
consistent with her preliminary examination testimony, and established the elements for
defendant’s conviction regardless of the “ripped screen” testimony. The court found no evidence
to support defendant’s allegations. Moreover, the trial court heard the evidence introduced at
trial, read both defendant’s handwritten motion to vacate his conviction and his counsel’s motion
for a new trial, and heard oral argument on the matter. The trial court adequately explained its
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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reasoning for not holding an evidentiary hearing, and this reasoning is supported by the record.
The court’s determination was not an abuse of discretion.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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