PEOPLE OF MI V MARK Z HOAG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 182196
Recorder’s Court
LC No. 94-001962
MARK Z. HOAG,
Defendant-Appellant.
Before: Markman, P.J., and McDonald and Cavanagh, JJ.
MARKMAN, J. (dissenting).
I respectfully dissent. I disagree with the majority’s conclusion that there is a reasonable
probability that the outcome of the proceedings would have been different if defendant’s trial counsel
had been aware that the complainant, Willie Howard, on behalf of “Willie & Sons,” no longer owned
the property at issue at the time of the underlying incident.
Here, defendant was convicted of entering without breaking, MCL 750.111; MSA 28.306.
The elements of this offense are “(1) entering without breaking (2) a building for public or private use
(3) with the intent to commit larceny.” People v Jackson, 71 Mich App 487, 490; 247 NW2d 382
(1976). I do not understand the majority to disagree that sufficient evidence was produced at trial to
prove each of these elements beyond a reasonable doubt.
However, the majority concludes that defense counsel’s performance was deficient because
counsel failed to discover that “Willie & Sons” no longer had a legal interest in the property at the time
of the alleged criminal offense. Apparently, such interest had earlier been transferred to the State as the
result of non-payment of taxes by “Willie & Sons.”1
People v Brownfield (After Remand), 216 Mich App 429, 432; 548 NW2d 248 (1996),
citing People v Rider, 411 Mich 496, 498, 307 NW2d 690 (1981), states:
Under Michigan law, even if a defendant enters a building and commits a larceny, he has
not committed a burglary when he has the right to enter the building.
-1
Having the right to enter a building, e.g., by permission, would constitute an affirmative defense to the
charge at issue. But lack of permission to enter is not an element of the offense that the prosecution
must prove beyond a reasonable doubt. Neither the statute nor the case law setting forth the elements
of this offense state that lack of permission to enter is an element. Because the question of permission
constitutes an affirmative defense, defendant had the burden to come forward with evidence that he had
permission to enter the building from whomever did, in fact, have authority to grant such permission.
See People v Mezy, 453 Mich 269, 283, 286; 551 NW2d 389 (1996); People v D’Angelo, 401
Mich 167, 183; 257 NW2d 655 (1977), both citing Patterson v New York, 432 US 197; 97 S Ct
2319; 53 L Ed 2d 281 (1977) for the proposition that it does not violate the Due Process Clause to
burden a defendant with proving an affirmative defense, so long as the burden of persuasion to negate
an element of an offense is not placed on defendant. Here, there is no indication in the record that
defendant alleged in any manner that he had permission to enter the building at the time of the offense;
he did not assert that he had permission either from “Willie & Sons” or the State.2 Thus, defendant did
not raise any affirmative defense of permission to enter.3 Accordingly, the evidence that the complainant
did not grant defendant permission to enter the building was simply immaterial; it was neither relevant to
any of the elements of the charged offense nor to any affirmative defense raised by defendant. While it
was improper for the complainant to testify regarding this issue when he apparently did not have
authority to grant such permission,4 any error in the admission of this evidence was harmless because
defendant did not raise the affirmative defense that he had permission to enter the building from anyone
else.5 Because defendant did not make allegations that implicated such an affirmative defense, any error
relating to who had authority to grant such permission is harmless. Accordingly, I disagree with the
majority’s conclusion that defendant’s trial counsel’s lack of preparation requires reversal of defendant’s
conviction. I would affirm defendant’s conviction because there is no reasonable probability that any
errors of his trial counsel regarding this issue affected the outcome of the proceedings.
/s/ Stephen J. Markman
1
That “Willie & Sons” was the actual complainant in this case seems irrelevant to whether the
prosecution could have proceeded. Criminal actions are brought on behalf of the “People of the State
of Michigan,” not an individual complainant.
2
MCL 750.111; MSA 28.306 makes no distinction between private and public property.
Accordingly, the same elements and affirmative defenses apply to both private and public property. In
order to raise the affirmative defense of permission to enter here, defendant would have been required
to allege that he had permission from the State to enter the property. He made no such allegation.
3
Defendant’s defense was that he thought the building was abandoned and that he merely entered it to
use the bathroom.
4
The extent to which Willie Howard was aware that he was no longer in a position to assert authority
over the property at issue is unclear from the record. At the time of the offense, there was a “Willie &
Sons” sign in front of the building. Howard testified that, at the time of the offense, he kept a chain and
pad lock on the back door and that he kept rotors and alternators in the building. This evidence
suggests that Howard continued to assert authority over the building after his interest had been
-2
transferred to the State for non-payment of taxes. In any event, contrary to defendant’s contention, any
damage to Howard’s credibility that might have been raised by cross-examination indicating that he no
longer had an interest in the property at the time of the offense would not have been serious enough to
undermine the sufficiency of the evidence to support defendant’s conviction.
5
It was unfortunate that defense counsel apparently conducted a title search of the wrong address.
However, in the absence of any allegation by defendant that would raise the possibility of asserting an
affirmative defense on the basis of permission to enter the building, any error regarding the title search is
harmless, in my judgment.
-3
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