PEOPLE OF MI V MICHAEL E STAHL

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED March 27, 2003 Plaintiff-Appellee, v MICHAEL E. STAHL, No. 234937 Wayne Circuit Court LC No. 00-010768 Defendant-Appellant. Before: Murphy, P.J., and Markey and R. S. Gribbs*, JJ. MURPHY, P.J. (concurring). In light of our Supreme Court’s decision in People v Cornell, 466 Mich 335; 646 NW2d 127 (2002), and this Court’s ruling in People v Alter, __Mich App__; __NW2d__ (Docket No. 228005, issued January 24, 2003), I conclude that it was improper for the trial court to convict defendant on the offense of third-degree home invasion predicated on the underlying misdemeanor of malicious destruction of property. This offense is not a necessarily included lesser offense of first-degree home invasion, predicated on the underlying felony of felonious assault, as required by MCL 768.32 as that statute has now been interpreted in Cornell and Alter. For this reason alone, I would reverse defendant’s conviction. /s/ William B. Murphy * Former Court of Appeals judge, sitting on the Court of Appeals by assignment.

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