PEOPLE OF MI V RICHARD LEE BAKER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
May 11, 2010
9:00 a.m.
Plaintiff-Appellee,
v
No. 286769
Wayne Circuit Court
LC No. 07-014236-FC
RICHARD LEE BAKER,
Defendant-Appellant.
Before: CAVANAGH, P.J., and O’CONNELL and WILDER, JJ.
O’CONNELL, J.
After a jury trial, defendant Richard Lee Baker was convicted of two counts of firstdegree criminal sexual conduct (CSC I), MCL 750.520b(1)(c) (during felony) and MCL
750.520b(1)(e) (weapon used), two counts of first-degree home invasion, MCL 750.110(a)(2),
and one count of assault with intent to do great bodily harm less than murder, MCL 750.84.
Defendant was sentenced as an habitual offender, fourth offense, MCL 769.12, to concurrent
sentences of 30 to 50 years’ imprisonment for each CSC I conviction, 10 to 20 years’
imprisonment for each first-degree home invasion conviction, and 5 to 10 years’ imprisonment
for the assault conviction. Defendant now appeals as of right. We reverse.
In the early morning hours of August 19, 2007, defendant entered the victim’s apartment
through an open window, took a knife from her kitchen, bound her eyes and limbs, sexually
assaulted her, and stole her Bridge card and keys. When the victim managed to free her hands
and uncover her eyes, defendant attacked her with the knife. The victim recognized defendant,
because she had hired him to install cable television in her apartment a few days before. The
victim escaped from defendant and fled into the hallway outside her apartment, where neighbors
found her and called the police. Defendant fled, but was apprehended a few days later.
On appeal, defendant does not dispute the validity of his CSC I and assault convictions.
He only challenges his convictions for first-degree home invasion, arguing that his two
convictions for first-degree home invasion arose from the same offense and, consequently,
violated his constitutional protections against double jeopardy. Instead, defendant claims that
because “the home invasion was continuous, involving both sexual acts and committed with the
intent to commit a larceny, while armed with a knife,” his convictions for two separate counts of
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home invasion constitute a double jeopardy violation. Essentially, defendant argues that he has
been punished twice for the same offense.1 We agree.
The United States and Michigan Constitutions prohibit placing a defendant twice in
jeopardy for the same offense. US Const, Am V; Const 1963, art 1, § 15; People v Herron, 464
Mich 593, 599; 628 NW2d 528 (2001). The double jeopardy clause protects a defendant from
both multiple prosecutions and multiple punishments for the same offense. Herron, 464 Mich at
599. The purpose of this prohibition, in a multiple-punishment context, is to prevent a court
from imposing a greater sentence than that intended by the Legislature. Hawkins v Dep’t of
Corrections, 219 Mich App 523, 526; 557 NW2d 138 (1996).
In People v Smith, 478 Mich 292, 315; 733 NW2d 351 (2007), our Supreme Court held
that the “same elements” test set forth in Blockburger v United States, 284 US 299, 304; 52 S Ct
180; 76 L Ed 306 (1932), is “the appropriate test to determine whether multiple punishments are
barred by Const 1963, art 1, § 15.” The Smith Court explained,
At the time of ratification [of Const 1963, art 1, § 15], we had defined the
language “same offense” in the context of successive prosecutions by applying
the federal “same elements” test. In interpreting “same offense” in the context of
multiple punishments, federal courts first look to determine whether the
legislature expressed a clear intention that multiple punishments be imposed.
Missouri v Hunter, 459 US 359, 368; 103 S Ct 673; 74 L Ed 2d 535 (1983); see
also Wayne Co Prosecutor [v Recorder’s Court Judge, 406 Mich 374; 280 NW2d
793 (1979)]. Where the Legislature does clearly intend to impose such multiple
punishments, “‘imposition of such sentences does not violate the Constitution,’”
regardless of whether the offenses share the “same elements.” Id. (citation and
emphasis deleted). Where the Legislature has not clearly expressed its intention
to authorize multiple punishments, federal courts apply the “same elements” test
of Blockburger to determine whether multiple punishments are permitted.
Accordingly, we conclude that the “same elements” test set forth in Blockburger
best gives effect to the intentions of the ratifiers of our constitution. [Id. at 316.]
The Blockburger test focuses on the statutory elements of the offense, without considering
whether a substantial overlap exists in the proofs offered to establish the offense. Id. at 307;
People v Nutt, 469 Mich 565, 576; 677 NW2d 1 (2004). If each offense requires proof of
elements that the other does not, the Blockburger test is satisfied and no double jeopardy
violation is invoked. Smith, 478 Mich at 307.
In this case, defendant was convicted of two counts of first-degree home invasion
pursuant to MCL 750.110a(2), which states:
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
1
Because defendant failed to preserve this issue, we review it for plain error affecting
defendant’s substantial rights. People v Matuszak, 263 Mich App 42, 47; 687 NW2d 342 (2004).
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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 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.
The parties do not dispute that the two first-degree home invasion charges brought
against defendant did not correspond to two separate instances in which defendant wrongfully
entered the victim’s apartment. Defendant broke into the victim’s apartment once, and when he
was in her apartment he sexually assaulted her and tried to steal from her. Instead, the
prosecution argues that defendant’s two convictions for first-degree home invasion do not
constitute double jeopardy because each of defendant’s convictions for first-degree home
invasion contains at least one element that is not an element of the other first-degree home
invasion conviction. Specifically, the prosecution claims,
[I]n count three,[2] the prosecution was required to prove (a) that Defendant
entered the dwelling without permission with the intent to commit a first-degree
criminal sexual conduct and (b) that Defendant was armed with a knife and/or
another person was lawfully present in the dwelling; and in count four,[3] the
prosecutor had to prove (a) that Defendant entered the dwelling without
permission, with the intent to commit a larceny, and (b) that Defendant was armed
with a knife and/or another person was lawfully present in the dwelling.
[Emphasis in original.]
In making this statement, the prosecution appears to argue that defendant committed two
separate acts of first-degree home invasion because he intended to commit two separate crimes
while inside the victim’s apartment. However, the prosecution’s argument on appeal does not
comport precisely with the charges that the prosecution actually brought to the jury. In count
three, the jury found defendant guilty of “Home Invasion—First Degree while entering, present
in, or exiting did commit Criminal Sexual Conduct First Degree. . . ,” while in count four, the
jury found defendant guilty of “Home Invasion—First Degree – with the intent to commit a
Larceny therein . . . .” Accordingly, it appears that defendant was actually convicted of one
count of first-degree home invasion because he broke into and entered the victim’s apartment
with the intent to commit a larceny, and was convicted of another count of first-degree home
2
This count corresponds to defendant’s conviction for first-degree home invasion arising from
his breaking and entering into the victim’s apartment and committing an act of criminal sexual
conduct therein.
3
This count corresponds to defendant’s conviction for first-degree home invasion arising from
his breaking and entering into the victim’s apartment with the intent to commit a larceny therein.
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invasion because he broke into and entered the victim’s apartment and, while inside her
apartment, actually committed criminal sexual conduct.
Yet despite whether defendant was charged with and convicted of two separate counts of
first-degree home invasion because he intended to commit two separate underlying crimes or
because he intended to commit one underlying crime and actually committed another, neither
distinction is sufficient to establish that defendant committed two separate offenses of firstdegree home invasion. Instead, as our Supreme Court recently noted in People v Wilder, ___
Mich ___, *3; ___ NW2d ___ (2010), MCL 750.110a identifies several ways in which firstdegree home invasion can be committed by providing “alternative elements” that must be
established, i.e., each element of first-degree home invasion can be established by satisfying one
of two alternatives set forth in the statute. The Wilder Court broke down the alternative elements
of first-degree home invasion as follows:
Element One: The defendant either:
1. breaks and enters a dwelling or
2. enters a dwelling without permission.
Element Two: The defendant either:
1. intends when entering to commit a felony, larceny, or assault in the dwelling or
2. at any time while entering, present in, or exiting the dwelling commits a felony,
larceny, or assault.
Element Three:
dwelling, either:
While the defendant is entering, present in, or exiting the
1. the defendant is armed with a dangerous weapon or
2. another person is lawfully present in the dwelling. [Id. at *3-*4.]
Accordingly, intending to commit a felony, larceny, or assault, and actually committing a felony,
larceny, or assault simply constitute two different methods of establishing the same element of
first-degree home invasion. Therefore, the Blockburger test is not satisfied because defendant’s
two first-degree home invasion convictions are not premised on the establishment of different
sets of elements. See Smith, 478 Mich at 307.
Instead, defendant’s first-degree home invasion convictions arose from the same offense.
The jury, when presented with two counts of home invasion arising from the same wrongful
breaking and entering, was essentially asked to determine whether defendant was guilty of home
invasion under each of the theories for establishing the second element of this offense.
To the extent the prosecution contends that a separate home-invasion charge can be
brought corresponding to each felony, larceny, or assault that defendant committed while in the
dwelling, it has provided no authority to support this argument and, for this reason, we need not
consider this argument. People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998);
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People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006), aff’d 482 Mich 851 (2008).
Further, the Legislature has not created separate statutes criminalizing home invasion when
different underlying wrongful acts committed during the home invasion are at issue, and the
statute itself does not support the notion that the Legislature intended to create a separate offense
for home invasion corresponding to each type of actual or intended underlying crime occurring
within the dwelling during the same invasion. See Smith, 478 Mich at 316. Instead, the statute
simply indicates that establishing that defendant committed (or intended to commit) at least one
felony, larceny, or assault while in the dwelling is sufficient to satisfy this element. If anything,
the claims that defendant intended to commit two predicate offenses while in the victim’s
apartment simply constitute two separate theories under which his first-degree home-invasion
conviction could be established.
Accordingly, defendant’s convictions for two counts of first-degree home invasion
constitute plain error. Instead, in light of the jury’s verdict, defendant should have been
convicted and sentenced for one count of first-degree home invasion supported by two theories.
Therefore, following the example set forth in People v Bigelow, 229 Mich App 218, 222; 581
NW2d 744 (1998), we direct the trial court to vacate one of defendant’s convictions and
sentences for first-degree home invasion and modify defendant’s judgment of sentence to specify
that defendant’s relevant conviction and sentence is for one count of first-degree home invasion
supported by two theories.4 Of course, the balance of defendant’s judgment of sentence and
conviction would remain unaltered, meaning that defendant’s convictions and sentences for two
counts of CSC I and one count of assault with intent to do great bodily harm less than murder
still stand.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Mark J. Cavanagh
/s/ Kurtis T. Wilder
4
We note that defendant has raised no additional claims of error.
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