PEOPLE OF MI V TRAVIS WILLARD BALLARD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 25, 2003
Plaintiff-Appellee,
v
No. 241583
Lenawee Circuit Court
LC No. 01-009495-FH
TRAVIS WILLARD BALLARD,
Defendant-Appellant.
Before: Whitbeck, C.J., and Zahra and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions for breaking and entering
with intent to commit larceny, MCL 750.110, entry without permission, MCL 750.115, and
carrying a concealed weapon (CCW), MCL 750.227. The trial court sentenced defendant to nine
months in jail for the breaking and entering with intent to commit larceny conviction, ninety days
in jail for the entry without permission conviction, and nine months in jail for the CCW
conviction. We affirm defendant’s entry without permission and CCW convictions, but reverse
defendant’s breaking and entering with intent to commit larceny conviction and remand for entry
of a judgment for the lesser included offense of breaking and entering without permission.
I. Facts and Procedure
On February 15, 2002, defendant, who was an attorney, called his secretary from a
hearing in Howell. Defendant’s secretary told him that his wife, Linda Ballard, who also worked
in defendant’s office managing finances, had taken some boxes of files and left the office after
seeing a valentine addressed to defendant from another woman in the newspaper. After trying
unsuccessfully to contact Linda, defendant drove home. When defendant arrived home, neither
Linda nor their children were there. At this point, Janet Harsh, an attorney who was the
opposing counsel to defendant on a case, called defendant. Defendant was suicidal because he
thought his wife had taken the children and was going to leave him. Because of defendant’s
condition, Harsh went to defendant’s house, where defendant was handling two guns and
contemplating suicide. By listening to Linda’s voice mail messages, defendant discovered that
Margaret Noe, a divorce lawyer, had called Linda. After unsuccessfully trying to contact Noe by
phone, defendant and Harsh decided to look for Noe. Defendant testified that when he got into
his car, he felt a gun in his pocket and decided to put the gun into the saddlebag of his
motorcycle. Defendant testified that, as he was putting the gun in the saddlebag, he told Harsh,
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“I better not have this.” After defendant left, defendant’s father retrieved a gun from the
saddlebag and put it in the trunk of his own car.
At one point when defendant and Harsh were looking for Noe, they stopped at Noe’s
house to see if she was there. The trunk opened1 and Harsh saw defendant transfer what looked
like a small gun from his pocket to the trunk of his car and say, “I better put this away.” Harsh
testified that she was not positive that it was a gun she saw in defendant’s hands, but that “it
looked like a gun.” Because Noe was not home, defendant and Harsh went to her office. When
they arrived at about 8:00 p.m., a light was on in the office and a car, which defendant thought
belonged to Noe, was parked in the lot. Defendant parked his car, left it running with the
headlights shining into the office, walked up to the front door (the public entrance), opened it,
called Linda and Noe’s names, and walked in.2 Despite the fact that defendant did not see
anybody in the office, he proceeded to open the door to Noe’s private office and went in. Inside
Noe’s office, defendant recognized the boxes from his office that Linda had taken. Defendant
testified that he took the boxes because they contained confidential records belonging to his
clients. Defendant also opened one of the desk drawers to look for the backup tapes for his
computer. When he did not find it, defendant took two boxes and carried them to his car. He
then reentered the office and took two more boxes and a bag of documents from Noe’s office to
his car. Defendant and Harsh then drove around for a while looking for Linda’s car, but did not
find it and returned to defendant’s house.
After visiting Noe’s office, defendant called Noe’s husband and told him that he had
entered Noe’s office, taken the boxes of files, and was burning them. When Noe found out from
her husband that defendant had been to her office, she went to her office. As she was going in,
she noticed that the lock on the door to the private entrance had been “jimmied” and called the
police. Inside, Noe found that the shopping bag and boxes of files Linda had brought in were
missing. She also noticed that the papers on her desk were mixed up, one of the drawers was
open, and her phone had been moved. Later, she discovered that several other miscellaneous
documents were missing.3
Meanwhile, defendant was at home burning folders to trick Linda into believing that he
had burned the records. When the police began to gather outside of defendant’s house,
defendant called Ric Hooten to go in his house and take the guns from his motorcycle saddlebag
and the kitchen and put them in his safe in the basement. Hooten found one gun and put it in the
safe, but he did not find a gun in the motorcycle saddlebag.
1
Defendant testified that, because of his size, he frequently opened the trunk of his car by
accidentally triggering the trunk release with his knee.
2
The last person to leave Noe’s office that night testified that the doors to the office were locked
when she left and that the only light that was left on was a nightlight by the public entrance.
3
These missing documents included a rough draft of a midterm examination Noe was preparing
to give to her business law students, a piece of paper with the Ballards’ full names and dates of
birth, and the contents of a file concerning one of Noe’s clients.
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Defendant was charged with breaking and entering with intent to commit larceny for his
first entry of Noe’s office through the front door, entry without permission with intent to commit
larceny for his second entry of Noe’s office through the front door,4 and CCW for carrying a
pistol in the trunk of his car. The jury convicted and sentenced defendant as outlined above.
II. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence to support his convictions for CCW
and breaking and entering with intent to commit larceny. In reviewing a claim of insufficient
evidence, this Court must determine whether, taking the evidence in the light most favorable to
the prosecution, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.
People v Hardiman, 466 Mich 417, 421; 646 NW2d 158 (2002). Circumstantial evidence and
reasonable inferences that arise from the evidence can constitute sufficient proof of the elements
of the crime. People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).
A. Carrying a Concealed Weapon
Defendant first argues that the evidence presented at trial was insufficient to support his
CCW conviction because there was insufficient evidence to prove the presence of a weapon in
his vehicle. We disagree. To support a conviction for carrying a concealed weapon in a vehicle,
MCL 750.227(2), the prosecution must show: “(1) the presence of a weapon in a vehicle
operated or occupied by the defendant, (2) that the defendant knew or was aware of its presence,
and (3) that he was ‘carrying’ it.” People v Nimeth, 236 Mich App 616, 622; 601 NW2d 393
(1999). Defendant argues that, in addition to the elements set forth in Nimeth, the prosecution
should also have to prove that the pistol was operable in order to convict defendant. However,
this Court has held that it is the defendant’s burden to prove that the pistol was not operable:
“An affirmative defense to carrying a concealed pistol can be made by the presentation of proof
that the pistol would not fire and could not readily be made to fire.” People v Gardner, 194
Mich App 652, 655; 487 NW2d 515 (1992). Here, because defendant argued at trial that was not
carrying a pistol, he presented no evidence at trial that the alleged gun was inoperable.
Therefore, the jury was entitled to conclude that the pistol was operable. People v Parr, 197
Mich App 41, 45; 494 NW2d 768 (1992).
Defendant also argues that the evidence was insufficient to show that he was carrying a
pistol in his car. Both defendant and Harsh agree that defendant got out of the car and removed
the gun from his pocket. However, Harsh testified that it happened at Noe’s house, and
defendant testified that it happened in his garage, before they left his house. Although the
testimony of defendant and Harsh differed about whether defendant had the gun while he was
driving his car, and Harsh testified that she was “not positive” that it was a gun that defendant
put in the trunk, issues of witness credibility are for the jury, absent exceptional circumstances.
People v Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998). In further support of the jury’s
conclusion that defendant was carrying a gun, Harsh testified that before defendant put the gun in
4
The jury acquitted defendant of the charge of entry without permission with intent to commit
larceny, but convicted him of the lesser included offense of entry without permission.
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the trunk, he said, “I better put this away.” “This Court will not interfere with the role of the trier
of fact of determining the weight of the evidence or the credibility of witnesses.” People v Hill,
257 Mich App 126, 141; 667 NW2d 78 (2003). “[A]ppellate courts of this state refuse to
interfere with jury verdicts where sufficient although weak evidence has been presented.”
Cassette v General Motors Corp, 73 Mich App 225, 228; 251 NW2d 275 (1977), citing Tuttle v
Dept of State Highways, 397 Mich 44, 46-47 n 3; 243 NW2d 244 (1976). While Harsh admitted
she was not positive that what she observed defendant put in the trunk was in fact a gun, she
believed that it was in fact a gun. Further, Harsh was not equivocal that defendant said, “I better
put this away” before going to the trunk that defendant alleges was opened accidentally. The
jury was free to reject defendant’s testimony and conclude that Harsh was correct in her belief
that defendant possessed a gun while driving his car outside the curtilage of his home. We
conclude that, viewed in the light most favorable to the prosecution, a rational trier of fact could
have found beyond a reasonable doubt that defendant knowingly carried a concealed weapon in
his vehicle.
B. Breaking and Entering With Intent to Commit Larceny
Defendant also argues that there was insufficient evidence to support his breaking and
entering with intent to commit larceny conviction. Specifically, defendant argues that there was
insufficient evidence of his intent to commit larceny. “The elements of breaking and entering
with intent to commit larceny are: (1) the defendant broke into a building, (2) the defendant
entered the building, and (3) at the time of the breaking and entering, the defendant intended to
commit a larceny therein.” People v Cornell, 466 Mich 335, 360-361; 646 NW2d 127 (2002).
“Intent to commit larceny cannot be presumed solely from proof of the breaking and entering.
However, intent may reasonably be inferred from the nature, time and place of defendant’s acts
before and during the breaking and entering.” People v Uhl, 169 Mich App 217, 220; 425 NW2d
519 (1988) (citations omitted).
In the present case, both defendant and Harsh testified that defendant went to Noe’s
office for the purpose of looking for Linda. However, at the time they went to Noe’s office,
defendant knew that Linda had taken boxes of files from their office and had contacted Noe, who
he knew was a divorce lawyer. Therefore, a rational juror could assume that defendant believed
that there was a chance that Linda had taken the boxes of files to Noe’s office, and that defendant
had entered Noe’s office with the intent to retrieve those files.
However, even if defendant entered Noe’s office with the intent to retrieve the boxes of
files, such intent does not constitute intent to commit larceny if the files belonged to him and he
had the right to their possession. “Larceny requires an intent to take and carry away someone
else’s property without that person’s consent.” People v Pohl, 202 Mich App 203, 205; 507
NW2d 819 (1993), remanded on other grounds 445 Mich 918 (1994). For purposes of the crime
of larceny, the property must be taken from a person who holds title to that property or has
rightful possession and control of the property. People v Sheldon, 208 Mich App 331, 334; 527
NW2d 76 (1995). In other words, the “owner” of the property means the actual owner of the
property or any other person whose consent was necessary before the property could be taken.
Id., citing CJI2d 22.2.
“[I]f the defendant in good faith believed that the [property] . . . was his . .
. and that he was entitled to its possession, he could not be guilty of . . . larceny in
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taking it, because there would be no felonious intent, ‘and if the defendant, for
any reason whatever, indulged no such intent, the crime cannot have been
committed.’ ” People v Holcomb, 395 Mich 326, 333; 235 NW2d 343 (1975)
(emphasis added), quoting People v Walker, 38 Mich 156 (1878). [Pohl, supra at
205-206.]
Here, there is no evidence, circumstantial or otherwise, that defendant entered Noe’s
office with the intent to take anything other than the boxes of files that Linda had taken from
their office.5 Because defendant had rightful possession to these boxes of files, he could not
have had any felonious intent when he entered Noe’s office with the intent to take them.6
Therefore, the evidence was insufficient to show that defendant entered Noe’s office with intent
to commit larceny and his conviction for breaking and entering with intent to commit larceny
must be reversed.7
When the evidence is insufficient to support a conviction for the greater offense, an
appellate court may remand for entry of judgment of a necessarily included lesser offense.
People v Bearss, 463 Mich 623, 631; 625 NW2d 10 (2001). This remedy is available in cases “
‘when a conviction for a greater offense is reversed on grounds that affect only the greater
offense.’ ” Id., quoting Rutledge v United States, 517 US 292, 306; 116 S Ct 1241; 134 L Ed 2d
419 (1996). Breaking and entering without permission, MCL 750.115,8 is a lesser included
offense of breaking and entering with intent to commit larceny. Cornell, supra at 360. Here,
although defendant is correct that there is insufficient evidence that he had the intent to commit
5
Noe testified that several miscellaneous documents were missing from her office, but there is
no evidence that defendant even knew of the existence of these documents before he entered or
that he entered the office with the intent to take these documents.
6
This case is distinguishable from situations where the defendant, although the rightful owner of
the property, had no right to possession of the property when the alleged larceny occurred. See
Sheldon, supra at 336 (the defendant committed larceny when he took his vehicle from the
impound lot before paying the required fees or posting a bond); Pohl, supra at 208 (the
defendant committed breaking and entering an occupied dwelling with intent to commit larceny
when he broke into the marital home and took his own property when he knew there was a court
order that prohibited him from entering the marital home and removing his own property).
7
Because we reverse defendant’s conviction for breaking and entering with intent to commit
larceny, we need not address defendant’s other argument regarding this count.
8
We recognize that both the offense of breaking and entering without permission and the offense
of entering without permission are governed by the same statutory section, MCL 750.115(1), and
have the same punishment. The difference is that a suspect may not be convicted of entering
without breaking if the entry was open to the public, unless the entry was expressly denied.
MCL 750.115(2). In Issue III, infra, defendant argues that the trial court erred in failing to
instruct the jury regarding this statutory exception to the charge that defendant entered without
permission (Count II). However, in challenging defendant’s conviction for breaking and
entering with intent to commit larceny (Count I), defendant does not challenge the breaking and
entering elements of the offense and, thus, the statutory exception does not apply. For purposes
of clarity, we differentiate between the offense of breaking and entering without permission and
the offense of entering without permission.
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larceny when he entered Noe’s office, defendant does not dispute that there was evidence
supporting the breaking and entering without permission elements of the offense. Therefore, we
remand to the trial court for entry of judgment for breaking and entering without permission,
MCL 750.115, and for resentencing.
III. Jury Instructions
Next, defendant argues that the trial court erred in failing to instruct the jury regarding the
statutory exception to the charge for entry without permission. As an initial matter, we conclude
that defendant failed to properly preserve this issue for appeal. “A party may assign as error the
giving of or the failure to give an instruction only if the party objects on the record before the
jury retires to consider the verdict . . . .” MCR 2.516(C) (emphasis added). Defendant objected
on the record to the trial court’s failure to give this instruction only after the jury retired for
deliberations.9 Therefore, this issue is reviewed for plain error affecting defendant’s substantial
rights. People v Gonzalez, 468 Mich 636, 642-643; 664 NW2d 159 (2003).
Defendant argues that the trial court should have instructed the jury that he could not be
found guilty of entry without permission if the office was open to the public when he entered, as
provided in MCL 750.115(2). The entry without permission statute, MCL 750.115, provides, in
pertinent part:
(1) Any person who breaks and enters or enters without breaking, any . . .
office . . . without first obtaining permission to enter from the owner or occupant,
agent, or person having immediate control thereof, is guilty of a misdemeanor.
(2) Subsection (1) does not apply to entering without breaking, any place
which at the time of the entry was open to the public, unless the entry was
expressly denied. . . .
In People v McKinney, 258 Mich App 157, 162-163; ___ NW2d ___ (2003), this Court set forth
the standard for reviewing jury instructions:
Jury instructions are reviewed in their entirety to determine if error
requiring reversal occurred. People v Aldrich, 246 Mich App 101, 124; 631
NW2d 67 (2001). It is the function of the trial court to clearly present the case to
the jury and instruct on the applicable law. People v Katt, 248 Mich App 282,
310; 639 NW2d 815 (2001). Accordingly, jury instructions must include all the
elements of the charged offenses and any material issues, defenses, and theories
that are supported by the evidence. People v Canales, 243 Mich App 571, 574;
624 NW2d 439 (2000). “The determination whether a jury instruction is
9
From the context of defendant’s objection, it appears that defendant might have requested this
instruction earlier in the proceedings. However, neither defendant’s earlier request for this
instruction nor an earlier objection to the trial court’s refusal to give the instruction were made
on the record.
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applicable to the facts of the case lies within the sound discretion of the trial
court.” People v Ho, 231 Mich App 178, 189; 585 NW2d 357 (1998).
Here, defendant’s entry without permission conviction stemmed from his second entry
into Noe’s office. When defendant went through the main entrance and the doorway of Noe’s
private office for the second time, he knew that the office was unoccupied and that Noe was not
in her private office. Nonetheless, he entered the office and went back into Noe’s private office
to retrieve the rest of the boxes of files. These facts do not support the theory that defendant
believed that the office building, including Noe’s private office, was open to the public when he
entered for the second time. Therefore, we conclude that the trial court did not commit a plain
error that affected defendant’s substantial rights by refusing to give a jury instruction regarding
MCL 750.115(2).
IV. Prosecutorial Misconduct
Finally, defendant argues that he was denied a fair trial by prosecutorial misconduct. We
review claims of prosecutorial misconduct to determine whether defendant was denied a fair and
impartial trial. People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003). Because
defendant failed to preserve his allegations of prosecutorial misconduct, our review regarding
this issue is for plain error that affected defendant’s substantial rights. Id. We will not find error
requiring reversal where a curative instruction could have alleviated any prejudice. Id. at 449.
Defendant first argues that the prosecutor attempted to shift or change the burden of proof
during his closing argument by stating that he did not have to prove that defendant attempted to
break into Noe’s office building through the private entrance. “The prosecutor may not suggest
in closing argument that defendant must prove something or present a reasonable explanation for
damaging evidence as this argument tends to shift the burden of proof.” People v Foster, 175
Mich App 311, 317; 437 NW2d 395 (1989), overruled in part on other grounds People v Fields,
450 Mich 94, 115 n 24; 538 NW2d 356 (1995). However, the prosecutor’s statement did not
change or shift the burden of proof with regard to the crimes charged. In fact, the prosecutor’s
statement that he did not have to prove that defendant entered Noe’s office building through the
private entrance was correct, because defendant was not charged for breaking into this private
entrance—he was only charged for his entry into the front public entrance of the office. The
prosecutor raised the evidence that the private door lock had been “jimmied” in order to help
prove defendant’s intent to commit larceny by showing that he or somebody else at his behest
had earlier entered the office through the private entrance to see what was in the office.
Prosecutors are free to argue the evidence and all reasonable inferences arising from it as they
relate to the theory of the case. People v Schutte, 240 Mich App 713, 721; 613 NW2d 370
(2000). The prosecutor did not have to prove beyond a reasonable doubt the theory that
defendant had entered the private door earlier in the night because defendant was not charged
with a crime for allegedly committing this act. Furthermore, the trial court properly instructed
the jury that defendant is presumed to be innocent and that the prosecution must prove
defendant’s guilt of the crimes charged beyond a reasonable doubt. The trial court also
instructed the jury that the lawyers’ statements are not evidence. These instructions dispelled
any prejudice caused by the prosecutor’s statements. Id. at 721-722.
-7-
Defendant also argues that the prosecutor engaged in misconduct by telling the jury to
convict defendant based on his character and for ruining Harsh’s reputation and career. During
his closing argument, the prosecutor made the following relevant statements:
And the saddest case, probably, Janet Harsh. What do you think her
professional life is going to be like in this county from now on and why?
***
Ms. Harsh was acting out of the kindness of her heart for someone who
she thought was in great despair and who wasn’t. He was using her. She’s done
in this county. I mean, yeah, she can still go on about her business, but she
testified she is not treated the same as other lawyers, she does not have the same
privileges as other lawyers. Because she’s been painted forever by this. And
why? Because she tried to help this guy. And what does he do in return? Ruins
her. Why? Because that’s the kind of person he is, and that’s why he’s here
today. That’s why he’s on trial and that’s why he should be convicted.
There are givers in this world and there are takers in this world. Clearly,
he’s a taker, but he’s more than a taker; he’s a destroyer. Anybody who comes in
contact with him gets destroyed.
We’ve heard all sorts of medical terms, all of his maladies, all of these
things that might be wrong with Travis Ballard. There’s a non-medical term; he,
quite simply, is a spoiled brat. He has spent his whole life having his own way
with everything. And he’s got all the biggest and the best toys. He’s got the
biggest handgun ever made. He’s got the nicest gun collection anybody’s ever
seen. He’s got his Cadillac STS. And all these other people that come into
contact with him and their lives get ruined, oh, that’s just too bad.
But the day has come now. The time has come for Mr. Ballard to finally
be held accountable for his actions. Thank you.
Assuming, without deciding, that the prosecutor’s arguments were improper, we
nevertheless conclude that defendant has failed to show that he was prejudiced by these
comments or that the outcome of the trial would have been different. The trial court instructed
the jury that the lawyers’ statements are not evidence and that the facts of the case should be
decided from the evidence. Furthermore, the evidence supported defendant’s convictions for two
counts of entering without permission and CCW. Defendant has not shown that the jury would
have acquitted him of these charges had it not been for the prosecutor’s comments during his
closing argument.
V. Conclusion
Defendant’s conviction for breaking and entering with intent to commit larceny is
reversed and the matter is remanded to the trial court for entry of a judgment for the lesser
included offense of breaking and entering without permission. Accordingly, resentencing is
required. Defendant’s convictions for entry without permission and CCW are affirmed.
-8-
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
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