PEOPLE OF MI V GREGORY LAMAR SANDS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
March 9, 2004
9:15 a.m.
Plaintiff-Appellee,
v
No. 243339
Wayne Circuit Court
LC No. 01-012179-01
GREGORY LAMAR SANDS,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 243409
Wayne Circuit Court
LC No. 02-001425-0
DESHAWN LAMAR JENKINS,
Defendant-Appellant.
Updated Copy
May 21, 2004
Before: Neff, P.J., and Wilder and Kelly, JJ.
NEFF, P.J.
In these consolidated appeals, both defendants appeal as of right their bench trial
convictions of first-degree home invasion, MCL 750.110a, and their underlying assault
convictions. Defendants argue that the home invasion statute is unconstitutionally vague. We
find no constitutional infirmity and therefore affirm each defendant's convictions.
I
In Docket No. 243339, defendant Sands appeals his convictions of first-degree home
invasion and assault and battery, MCL 750.81. He was sentenced, as a fourth-offense habitual
offender, MCL 769.12, to thirty months' to twenty years' imprisonment for the home invasion
conviction and ninety days for the assault and battery conviction. In Docket No. 243409,
defendant Jenkins appeals his convictions of first-degree home invasion and aggravated assault,
MCL 750.81a. He was sentenced as a third-offense habitual offender, MCL 769.11, to fifty-one
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months' to twenty years' imprisonment for the home invasion conviction and six months to one
year for the aggravated assault conviction.
II
Defendants present substantially identical arguments on appeal. They argue that the
home invasion statute, MCL 750.110a, under which they were convicted of first-degree home
invasion, is unconstitutionally vague. We disagree.
A
Defendants failed to preserve this issue for appellate review by failing to challenge the
constitutionality of the statute below. People v Jensen, 222 Mich App 575, 579; 564 NW2d 192
(1997), vacated in part on other grounds 456 Mich 935 (1998). Generally, an issue is
unpreserved if it is not properly raised before the trial court. People v Grant, 445 Mich 535,
546-547; 520 NW2d 123 (1994). Unpreserved constitutional issues are reviewed for plain error
that affected a defendant's substantial rights. People v Carines, 460 Mich 750, 763-764, 774;
597 NW2d 130 (1999).
B
Statutes are presumed to be constitutional unless their unconstitutionality is readily
apparent. People v Wilson, 230 Mich App 590, 593-594; 585 NW2d 24 (1998). A party
challenging the constitutionality of a statute has the burden of proving its unconstitutionality.
People v Abraham, 256 Mich App 265, 280; 662 NW2d 836 (2003). A party challenging the
facial validity of a statute must show that no circumstances exist under which it would be valid.
Id. A vagueness challenge must be considered in light of the facts at issue. Wilson, supra at
593.
A penal statute may be unconstitutionally vague if it (1) fails to provide fair notice of the
conduct proscribed, (2) permits arbitrary and discriminatory enforcement, or (3) is overbroad and
impinges on First Amendment freedoms. People v Boomer, 250 Mich App 534, 539; 655 NW2d
255 (2002); People v Noble, 238 Mich App 647, 651; 608 NW2d 123 (1999). Defendants
challenge the constitutionality of MCL 750.110a, the statute defining home invasion and its
degrees, under the first and second grounds.
"When presented with a vagueness challenge, we examine the entire text of the statute
and give the words of the statute their ordinary meanings." People v Morey, 230 Mich App 152,
163; 583 NW2d 907 (1998), aff 'd 461 Mich 325; 603 NW2d 250 (1999). To afford proper
notice of the conduct proscribed, a statute must give a person of ordinary intelligence a
reasonable opportunity to know what is prohibited. Noble, supra at 652. A statute cannot use
terms that require persons of ordinary intelligence to speculate regarding its meaning and differ
about its application. Id. For a statute to be sufficiently definite, its meaning must be fairly
ascertainable by reference to judicial interpretations, the common law, dictionaries, treatises, or
the commonly accepted meanings of words. Id.
C
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Defendants argue that the home invasion statute fails to clearly define what conduct will
elevate an offense from third-degree home invasion to first-degree home invasion. The statute
provides in relevant part:
(2) A person who breaks and enters a dwelling with intent to commit a
felony, larceny, or assault in the dwelling, a person who enters a dwelling without
permission with intent to commit a felony, larceny, or assault in the dwelling, or a
person who breaks and enters a dwelling or enters a dwelling or enters a dwelling
without permission and, at any time while he or she is entering, present in, or
exiting the dwelling, commits a felony, larceny, or assault, is guilty of home
invasion in the first degree if at any time while the person is entering, present in,
or exiting the dwelling either of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
* * *
(4) A person is guilty of home invasion in the third degree if the person
does either of the following:
(a) Breaks and enters a dwelling with intent to commit a misdemeanor in
the dwelling, enters a dwelling without permission with intent to commit a
misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling
without permission and, at any time while he or she is entering, present in, or
exiting the dwelling, commits a misdemeanor. [MCL 750.110a (emphasis
added).]
Defendants contend that when the criminal act underlying home invasion is a
misdemeanor assault, as in these cases, the statute is ambiguous regarding whether the offense is
punishable as a third-degree offense, MCL 750.110a(4)(a), or a first-degree offense, MCL
750.110a(2). Accordingly, because their conduct only rose to the level of a misdemeanor
offense, defendants arguably should only be charged with third-degree home invasion,
subsection 110a(4)(a).
Defendants argue that the statute is facially void for vagueness. Further, because
defendants could be charged under either provision, the statute leads to arbitrary and
discriminatory enforcement as applied. We conclude the statute is neither vague on its face nor
as applied.
We find defendants' argument defeated by the plain language of the statute. The plain
language of the statute clearly indicates that assault is an underlying crime that elevates a home
invasion to first-degree home invasion under MCL 750.110a(2). Subsection 110a(2) does not
limit the term "assault" to any particular type of assault. Therefore, under MCL 750.110a(2),
both misdemeanor and felony assaults may properly be charged as crimes underlying first-degree
home invasion. Further, because felonies are specifically listed as underlying crimes for first-
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degree home invasion, it would be redundant to list assault and larceny separately if subsection
110a(2) was referring to only felony assaults and larcenies. It is clear that "assault" under MCL
750.110a(2) refers to both misdemeanors and felonies.
MCL 750.110a clearly differentiates when it is appropriate to charge a misdemeanor
assault under subsection 110a(2) as opposed to subsection 110a(4). Under subsection 110a(2),
the additional element of a dangerous weapon or another person's lawful presence is required for
a criminal act to constitute first-degree home invasion. A misdemeanor assault may be
prosecuted under subsection 110a(2) only if the person is armed with a dangerous weapon or
another person is lawfully present in the dwelling. MCL 750.110a(2)(a) and (b). Under
subsection 110a(4), a misdemeanor assault may be prosecuted in the absence of either of these
elements.
The two subsections, MCL 750.110a(2) and MCL 750.110a(4), are distinct in the conduct
proscribed, giving a person of ordinary intelligence a reasonable opportunity to know what
conduct is prohibited under each subsection. Noble, supra at 652. The statute provides fair
notice of the conduct proscribed under each subsection. Because each subsection is enforceable
under different circumstances with respect to the two additional elements under MCL
750.110a(2)(a) and (b), the statute does not encourage arbitrary or discriminatory enforcement.
Boomer, supra at 539. Defendants have failed to carry their burden of proving that the statute is
unconstitutional. Abraham, supra at 280.
Affirmed.
/s/ Janet T. Neff
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly
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