PEOPLE v LEFFEW
Docket No s
. 161797 and 161805 . Argued on application for leave to appeal November 9, 2021 . Decided January 26 , 2022

. Jeremiah J. Leffew and his wife, Micheline N. Leffew, were convicted following a jury trial in the Arenac Circuit Court of first

- degree home invasi on and third

- degree home invasion, respectively. Defendants went to the home of Michael Porter with Jeremiah’s mother, Donna Knezevich, to pick up Lisa Seibert, Knezevich’s partner. Seibert had been staying with Porter following an argument between Seibe rt and Knezevich, but the two had reconciled and Seibert had asked to be picked up and driven home. When defendants and Knezevich arrived at Porter’s residence, Porter briefly answered the door before closing it ; Seibert did not leave . Defendants and Por ter disagreed as to whether Porter had prevented Seibert from leaving the home. Defendants testified that Porter had dragged Seibert into a room in the back of the home and forcibly held her down in a chair, while Porter claimed that he had picked Seibert up and put her in a chair to help her get her bearings after she had become unsteady on her feet. Both defendants testified that they heard Seibert scream for help and that they had then entered the home without Porter’s permission

. Micheline had entere d the home first after kicking in the back door, and she was immediately hit over the head with a glass ashtray by Porter, causing bleeding and a seizure. Jeremiah entered the home after seeing his injured wife on the floor and got into a physical altercation with Porter . The fight eventually ended when, according to Jeremiah, he threatened Porter with a knife while pleadin g with him to let his family go; or, according to Porter, the fight ended when Knezevich called out to Jeremiah, after Jeremiah had struck Porter with a knife and cut Porter’s wrist. Defendants’ attorneys both argued that defendants’ i ntrusions into Porter’s home were justified because of their reasonable fear that Seibert was in imminent danger, but neither attorney requested a jury instruction on defen se of others. Defendants appealed, and t he Court of Appeals consolidated defendants’ cases. The Court of Appeals, B OONSTRA , P.J., and T UKEL , J. ( L ETICA , J., concurring in part and dissenting in part) , affirmed defendants’ convict ions. Defendants sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on whether to grant the applications or take other action. The Supreme Court directed the parties to file supplemental briefs addressing w hether the defense

- of

- others justification was applicable to defendants’ char ges and whether the defense attorneys were ineffective for failing to request an instruction on defense of others. 506 Mich 1031 (2020). Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Bridget M. McCormack Justices: Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader
. Reporter of Decisions: Kathryn L. LoomisIn a unanimous opinion by Chief Justice M C C ORMACK , the Supreme Court , in lieu of granting leave to appeal, held : Defendants were prejudiced and received ineffective assistance of counsel when their attorneys failed to request a jury instruction on the defense of others, and defendants were entitled to a new trial.
1. Under t he defense

- of

- others doctrine , a person may use force in defense of another when they reasonably believe that the other is in immediate danger of harm and force is necessary to prevent the harm; deadly force is per missible to repel an attack that reasonably appears deadly. Although the Court of Appeals expressed skepticism that defense of others, which was traditionally used to excuse assaultive conduct, was available as a defense to a nonassaultive offense, Michig an courts have recognized the application of defense of others to nonassaultive crimes , including in People v Dupree , 486 Mich 693 (2010). Dupree held that self

- defense was applicable to the nonassaultive offense of being a felon in possession of a firear m . The Court of Appeals distinguished Dupree on the basis that it was decided before the effective date of the Self

Defense Act (SDA), MCL 780.971 et seq

. But this analysis misread Dupree and the SDA. The act expanded the ability to invoke the affirmati ve defenses of self

- defense and defense of others. Section 4 of the act , MCL 780.974, specifically preserves the common

- law right of an individual to use force in self

- defense or in defense of another person, and § 2 , MCL 780.792, removes the traditional common
- law duty to retreat so long as the person asserting the affirmative defense was not committing a crime and had the legal right to be where they were when they used force. Although § 2 could appear to preclude defendants’ rights to assert defense of others because they entered Porter’s home without his permission, § 2 was not relevant here because it is a statutory precondition to standing one’s ground under the SDA, which is a right that defendants did not invoke. The applicability of defense of ot hers must be determined on the particular facts of each case, not on the charges brought by the prosecution , and defense of others was available in this case to defendants in response to the nonassaultive home

- invasion charges

. 2. Criminal defendants ha ve the constitutional right to present a defense, and instructional errors that directly affect a defendant’s theory of defense can infringe upon this right. However, an affirmative

- defense instruction is not automatically given upon request, and a defend ant has the burden of producing some evidence from which the jury c ould conclude that the essential elements of the defense are present. The defendant’s burden is not heavy, and an instruction on th e theory of defense must be given even when the evidence presented by the defendant in support of the theory is weak or of doubtful credibility. In this case, defendants put forward “some evidence” that they reasonably believed their entry into Porter’s h ome was necessary to prevent harm to Seibert, and Jeremiah testified that he also acted to protect his wife after she entered the home and was injured by Porter. Indeed, defendants’ trial strategy turned on a defense

- of

- others theory, and attorneys for bo th defendants presented evidence and arguments leading the jury to ward an acquittal under a defense

- of

- others theory but then failed to request an instruction in support of the theory. Th e failure of the attorneys to request the instruction was objectivel y unreasonable.
3. Error does not result from the omission of a jury instruction as long as the instructions as a whole cover the substance of the missing instruction. Micheline’s jury was instructed that it could only convict her if it found that she had destroyed Porter’s property “knowing that it was wrong, without just cause or excuse.” The Court of Appeals concluded that the lack of a defense

-of

- others inst ruction did not prejudice Micheline because the verdict indicated that the jury rejected the theory that she was justified in her actions and a defense

- of

- others instruction would not have altered the jury’s conclusion. However, if defense counsel had requested a defense

- of

- others instruction, the trial court would have explained to the jury, in part, that if Micheline had acted in lawful defense of others, her actions were justified and she was not guilty of home invasion. Further , the “without just cause or excuse” language in the instruction for malicious destruction of property offered no gu idance about what constituted “just cause or excuse” and was inadequate to explain why Micheline’s conduct could be excused. The defense

- of

- others instruction would have explained to the jury that the circumstances described by Micheline were defined as j ust cause under the law, and the jury could then have decided whether the prosecution proved beyond a reasonable doubt that Micheline’s belief that her conduct was necessary to protect Seibert was not reasonable. A defense

- of

- others instruction also would have provided jurors a framework for how to judge Micheline’s conduct given the differing accounts of the incident. Specifically, the instruction would have explained that the jury could consider how the circumstances had appeared to Micheline at the tim e of the incident and that as long as her belief was reasonable and honest, it did not matter if Seibert had not, in fact, been facing imminent, unlawful force. There was a reasonable probability that the jurors concluded that Seibert was not in imminent danger without understanding that what was important was Micheline’s perspective. Similarly, the instructions given to Jeremiah’s jury for first

- degree home invasion and felonious assault did not inform the jury that the law excused Jeremiah’s conduct if he reasonably and honestly believed that Seibert or Micheline w as in danger. This omission was prejudicial, and moreover, Jeremiah conceded the elements of the home

- invasion charge on the basis of his argument that he was acting to protect others. If the jury had been told that the law supported his defense, a different outcome was reasonably probable.
4. The Court of Appeals improperly concluded that defense of others was not available to Jeremiah because he was the initial aggressor. To reach this co nclusion, the Court of Appeals credited Porter’s testimony over Jeremiah’s, which was a question for the jury to decide

. T he relevant question was whether Jeremiah had put forward “some evidence” that he had acted in defense of others and was not the init ial aggressor. Given Jeremiah’s claim that he had acted to defend Micheline after Porter smashed an ashtray on her head, the jury could have considered Porter’s conduct to be the initial act of aggression. Regarding the felonious

- assault charge, whether Jeremiah reasonably and honestly believed that his wife was in imminent danger when he gained possession of the knife presented a closer question. But Jeremiah’s testimony that he had picked up the knife and pleaded with Porter to let them go , after obser ving his severely injured wife , could have allowed a jury to find that he reasonably and honestly believed that he needed to use force to protect Micheline.
5. As with the home

- invasion charge, Jeremiah conceded the elements of felonious assault but clai med that he took these actions to defend Seibert and Micheline. The lack of a defense

- of

others instruction denied the jury an avenue to an acquittal because it was not informed that the law excused Jeremiah’s conduct if his belief that his loved ones wer e in danger was honest and reasonable. Therefore, Jeremiah was prejudiced by his attorney’s failure to request a defense

- of

others instruction for his felonious

- assault charge. Reversed and remanded for a new trial.FILED January 26, 2022

S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN
Plaintiff

- Appell ee ,

v No. 161797
MICHELINE NICOLE LEFFEW , Defendant

- Appell ant

.

PEOPLE OF THE STATE OF MICHIGAN
Plaintiff

- Appell ee ,

v No. 161805 JEREMIAH JAMES LEFFEW,
Defendant

- Appell ant

.

BEFORE THE ENTIRE BENCH
M C C ORMACK , C. J

. Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack Justices: Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch2 An Arenac County jury convicted Jeremiah and Micheline Leffew of first

- degree
and third

- degree home invasion , respectively. Jeremiah was also convicted of felonious
assault. Jeremiah and Micheline believe that the court should have instructed their jury on
the defense of others and that their attorneys ’ failure to request the instruction deprived
them of their Sixth Amendment right to effective assistance of counsel, US Const, Am VI ; Const 1963, art 1, § 20

. We agree

. We reverse the judgment of the Court of Appeals and remand for a new trial.
I. FACTS AND PROCEDURAL HISTORY
I n September 2017, Jeremiah Leffew and his wife, Mich eline Leffew, moved to Michigan, where t hey stayed with Jeremiah ’ s biological mother, Donna Knezevich, and her partner of more than 25 years , Lisa Seibert

. A few months before Micheline ’ s and
Jeremiah ’ s arrival, Seibert and Knezevich had opened their relationship to include Michael
Porter. On November 14, 2017, Knezevich and Seibert argued

. Seibert would later describe
it as a “ little squabble ” that got “ pretty heated. ” P olice arrived , and Seibert, on Knezevich ’ s insistence, left the family home and stay ed with Porter. A few days later, though, tempers
cooled and Knezevich sought to reconcil e
. She called Seibert, who was still staying at
Porter ’ s home, and proposed marriage. Seibert accepted and a sked Knezevich to pick her
up. Knezevich, happy to oblige, went to Porter ’ s house, accompanied by Jeremiah and
Micheline.
J ere miah drove. H e pulled into Porter ’ s driveway, honked the horn twice, and waited for Seibert to emerge. But she did not. Meanwhile, i nside the home, Porter called3 911 when he recognized Jeremiah ’ s vehicle in his driveway . He would later testify that he called 911 because Jeremiah had recently lunged at him with a knife , and he had hoped to
defuse the situation. At this poin t, the fact s diverge

. A. MICHELINE ’S AND JEREMIAH ’ S ACCOUNT S
Jeremiah and Micheline testified that a f ter waiting for several minutes for Seibert

to emerge from the house , they walked to the front door with Knezevich

. Micheline
knocked. Porter answered

. Seibert stood behind him , putting on her coat and gathering her sunglasses . Micheline told Porter that they were there to pick up Seibert . Micheline
asked Seibert if she wanted to leave and Seiber t said, “ Yes

. ” Micheline recalled Porter saying, “ G ive me a few minutes, ” while Jeremiah recalled Porter saying, “ L isa ’ s not coming. ” M i cheline and Jeremiah agree that Porter then slammed the door shut. Moments later, Jeremiah and Micheline

— looking through the large window next to
the front door

— watched as Por ter grabbed Seibert by her shoulders and dragged her into the back room of the home. Jeremiah testified that he saw Seibert momentarily br eak free, only for Porter to grab her and throw her to the floor. Micheline and Jeremiah both said Porter pushed Sei bert down into a chair, and Seibert cried out for help. Upon hearing Seibert ’ s scream, Micheline and Jeremiah ran to the back of the house, where there was both a sliding glass door and a separate backdoor. Jeremiah looked through the sliding glass door, where he saw Porter forcibly holding Seibert in a chair as she screamed. Jeremiah was screaming, too, yelling at Porter to stop harming his stepmother. T hen, a loud bang rang out. Micheline had kicked down the back door to4 rescue Seibert. But the mome nt she stepped into Porter ’ s home, Porter smashed a heavy glass ashtray over her head, knocking her to the ground and triggering a seizure. Jeremiah, following the sounds of commotion, went to the kicked

- down door, where he saw his wife lying facedown, bl eeding, and having a seizure. A shocked Jeremiah did not have time to process the scene, though, because Porter began punching him as soon as he reached the
backdoor threshold. J eremiah saw a kitchen knife on the nearby counter. H e grabbed it,
held it t hreateningly, and asked Porter to leave his family alone and let them go . Porter backed down, Jeremiah set down the knife, helped his wife out of the home, and drove his family to the hospital.
B. PORTER ’ S ACCOUNT
Porter recalls things differently. Porter testified that only Micheline and Knezevich
came to his front door. Porter asked for 5 to 10 minutes so he could speak with Seibert and find out what was going on. He closed the door and locked it. By that point, Jeremiah had
made his way to the back of the house and was beating on Porter ’ s patio window, threatening to kill Porter. At about the same time, Seibert had slumped against a door, and was slowly sliding down it. Porter took her by the hands, picked her up, and sat her down
in the dini ng room to help her get her bearings. Within seconds, both Mi cheline and Jeremiah were beating on the back door and kicking it. P orter watched as the bottom of
his back door began to give way

. He again dialed 911.
A moment later, the back door blew open. From the corner of his eye, Porter saw someone entering his home. F earing for his life, he picked up an ashtray and smashed it
on the intruder ’ s head. Michelin e fell to the floor. Jeremiah, only a step behind, then5 entered the home and began atta cking Porter. Porter fought back , and as he did, Micheline rejoined the fray, jumping on his back, knocking him over against the sink, and shouting

“ L et ’ s kill him, let ’ s kill him. ” Jeremiah rifled through the kitchen drawers, found a steak
knife and tried to stab Porter, cutting his wrist and knoc king a diamond out of his watch. The fight ended only after Knezevich called out to her son. Jeremiah, knife still in hand, exited through the front door with his wife.
C. SEIBERT ’ S ACCOUNT
Seibert tes tified that when Jeremiah and Micheline came to the front door, “ [ t ] hey were kind of giving [Porter] a hard time, and Micheline slapped him ” as Porter repeatedly insisted that he just needed a few minutes. After Porter finally closed the front door, both she and Porter were afraid that things would escalate

. She sat down in a chair and Porter
stood in front of her. A t that point, Jeremiah and Micheline were “ beating the backdoor
in ” as Porter dialed 911 for a second time. Seibert heard the back door get kicked in , and
she ran to the front door because “ t hey were telling me to run

. ” At some later point,
Micheline

— incoherent and with blood on her face

— and Jeremiah exited out the front door.
On cross

- examination, defense counsel impeached Seibert with he r police statement
and her preliminary

- examination testimony

. I n her statement, she wr ote that when Micheline and Jeremiah were on Porter ’ s front porch, she had “ tr [ i ] ed to go out the front
door , ” but Porter “ pushed me to the floor and the [ n ] got me up and pushed [ me ] in the chair and kept me there [ , ] he wouldn ’ t let me get up. ” Seibert had also told police that Porter

“ grabbed me and pushed me in the dining room and held me there ” and that Porter “ kept me there [and] he wouldn ’ t let me get u p. ” At the preliminary examination, she testified6 that Porter told her she could not leave, prevented her from exiting the home by pushing her away as she placed her hand on the doorknob , and knocked her to the floor

. When presented with this impeachment evidence , Seibert insisted that Porter had never intentionally harmed her.
D. CRIMINAL PROCEEDINGS Following a joint two

- day jury trial, the jury convicted Micheline of third

- degree home invasion based on her commission of a misdemeanor (malicious destruction of a building ) while breaking into the home and Jeremiah of first

- degree home invasion based on entering the home without permission and commit ting an assault against Porter.
Jeremiah was also co nvicted of felonious assault. T hough defense co unsel argued that
Micheline ’ s and Jeremiah ’ s intrusion into Porter ’ s home was justified because of their reasonable fear that Seibert was in imminent danger, they never requested a defense

- of

others instruction ; as a result , the jury wasn ’ t told that the l aw allowed Jeremiah ’s and
Micheline ’ s defense

. M icheline was sentenced to five months in jail and two years ’ probation

. Jeremiah , as a third

- offense habitual offender , was sentenced to concurrent terms of 25 to 40 years for home invasion and 2 to 8 years for felonious assault

. Following a n evidentiary hearing pursuant to People v Ginther , 39 0 Mich 436; 212 NW2d 922 (1973) , and the trial court ’ s denial of a new trial on an issue unrelated to this appeal, t he Court of Appeals consolidated the defendants ’ ca ses. The panel issued an unpublished opinion that affirmed both defendants ’ convictions , with a partial dissent
related to the length of Jeremiah ’ s sentence

. People v Leffew , unpublished per curiam opinion of the Court of Appeals, issu ed April 9 , 20 20 (D ocket Nos. 343818 and 344240).7 The panel was skeptical that the affirmative defense of defense of others , traditionally used to excuse assaultive conduct, was available in response to a home

invasion prosecution. That skepticism was bolstered by MCL 780.972(2) of the Self

Defense Act (SDA) , MCL 780.971 et seq ., which states that the defense may be invoked when t he defendant is “ anywhere he or she has the legal right to be. ” By definition , a home invader is somewhere they do not have a legal right to be

. The panel considered People v Dupree , 486 Mich 693 ; 788 NW2d 399 (2010), in which this Court held that the traditional common

- law affirmative defense of self

- defense
could be raised as a defense to the nonassaultive crime of fe lon in possession of a firearm.
Th e panel thought Dupree was distinguishable, though , because the felon

- in

- possession offense occurred before the effective date of the SDA

. The panel thought that whether the
defense

- of

- others defense applied to home invasion w a s “ far from certain, at best, ” and
therefore concluded that “ [ d ] efense counsel cannot be deemed deficient for failing to advance a novel legal argument. ” Leffew , unpub op at 5, quoting People v Crews , 299 Mich App 381, 400 ; 829 NW2d 898 (2013).
E ven if the performance were deficient, the panel concluded there was no prejudice.
T he underlying misdemeanor in Micheline ’ s third

- degree home invasion charge was malicious destruction of a building under $200, MCL 750.380(5). Leffew , unpub op at 4. The jury received instructions that to commit that offense, Micheline must have destroyed or damaged property “ knowing that it was wrong, without just cause of [sic, or] excuse, and with the intent to damage or destroy the property

. . . . ” Id . at 5 ( alte ration in original)

. Micheline ’ s defense counsel argued that Micheline had just cause for breaking down the
door

— she did so to protect Seibert. The panel found this significant : “ The jury ’ s verdict8 indicates that, despite defense counsel ’ s arguments, the jury rejected the theory that Micheline was justified in her actions; there is no reason to conclude that an instruction on
defense of others would have altered that conclusion. ” Id . at 6. Jeremiah ’ s ineffective

- assistance

- of

- counsel claims fared no bett er. The panel held
that l ike his wife, Jeremiah failed to show that defense of others was available as a defense to home invasion, and Jeremiah ’ s counsel was not deficient for failing to put forward a novel legal argument. Nor was the panel persuaded that the defense was available in response to the felonious

- assault charge

. Initial aggressors may not claim self

- defense or
defense of others , and here, Porter testified that Jeremiah “ came at ” him, grabbed a knife , and tried to stab him. Id . at 7. What ’ s more, Jeremiah

— like Micheline

— was not somewhere he had “ the legal right to be, ” so he could not claim entitlement to the defense
under the SDA for that reason , too

. Both defendants sought leave to appeal in this Court. We ordered oral argument on
their application s and instructed the parties to address two issues:
whether the common

- law affirmative defense of defense of others may be raised as a defense to the felony and misdemeanor charges against them, see People v Dupre e , 486 Mich 693 (2010); People v Triplett , 499 Mich 52 (2016), and whether trial defense counsel ’ s failure to request such an instruction deprived the defendants of the effective assistance of counsel, see Strickland v Washington , 466 US 668 (1984). [ Peop le v Leffew , 506 Mich 1031 , 1031 (2020) ].

II. STANDARD OF REVIEW The defendants claim that they were denied effective assistance of counsel. That question raises a mixed question of fact and constitutional law. People v Vaughn , 491 Mich 642, 650; 821 NW2d 288 (2012). The trial court ’ s findings of fact are reviewed for9 clear error , and the questions of constitutional law are reviewed de novo. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). A de novo analysis “ means that
we review the issue in dependently, without any required deference to the trial court. ” Millar v Constr Code Auth , 501 Mich 233, 237; 912 NW2d 521 (2018).
III. ANALYSIS
To obtain relief under either the state or federal C onstitution for the ineffective
assistance of counsel , a defendant must satisfy the two

- part test set out in Strickland v Washington , 466 US 6 68; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984). People v Carbin , 463 Mich 590, 599

- 600 ; 623 NW2d 884 (2001). First, the defendant must establish that counsel ’ s performance was deficient. I d

. at 600. In evaluating deficient performance we consider “ whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance

. ” Strickland , 466 US at 690. Sec ond, the error must have prejudiced the defendant. T o establish prejudice , the defendant “ must show that there
is a reasonable probability that, but for counsel ’ s unprofessional error s , the result of the proceeding would have been different. ” Id . at 694. R easonable probability means “ a probability sufficient to undermine confidence in the outcome. ” Id

. A. T HE C OMMON

- LAW DEFENSE

- OF

- OTHER S AFFIRMATIVE DEFENS E IS AVAILABLE TO DEFENDA NTS ACCUSED OF HOME INVASION
D efense counsel is not ineffective f or failing to advance a meritless or frivolous argument. S ee People v Riley (After Remand) , 468 Mich 135, 142 ; 659 NW 2d 611 (2003)

. Whether the defense

- of

- others instruction is available to defendants accused of nonassaultive crimes is therefore the firs t question

.10 Under the defense

- of

- others doctrine, “ [o] ne may use force in defense of another when he or she reasonably believes the other is in immediate danger of harm and force is necessary to prevent the harm; deadly force is permissible to repel an at tack which reasonably appears deadly. ” 3A Gillespie, Michigan Criminal Law & Procedure (2d ed) , § 91 : 59, p 399 ; s ee also 2 LaFave, Substan tive Criminal Law , § 10.5 , p 222 (3d ed ). As with self

- defense, defense of others is generally not available to a person who is the initial
aggressor. See People v Riddle , 467 Mich 116, 120 n 8 ; 649 NW2d 30 (2002)

. Though invoked less commonly than its more popular sibling , self

- defense, the
defense

- of

- others doctrine has deep roots in Michigan jurisprudence . In 186 0 , we addressed the narrow class of “ excusable homicide [ s ] ” and not ed that the accused in such

cases acts in “ the defense of [his] own life, or that of his family, relatives or depend a nts [sic] , within those relations where the law permits the defense of others as of one ’ s self. ” Pond v People , 8 Mich 150, 175 (1860) (emphasis added)

. In the century and a half following Pond , Michigan courts have repeatedly recognized the common
- law defense

- of

others doctrine

. See People v Curtis , 52 Mich 616, 622

- 624; 18 NW 385 (1884) ( the
defendant in a homicide case “ was entitled and bound to take an interest in the life and safety o f his brother, ” and his use of a deadly weapon to that end was not necessarily evidence of malice); People v Burkard , 374 Mich 430, 437

- 438 ; 132 NW2d 106 (1965), partially abrogated on other grounds by People v Heflin , 434 Mich 482 ; 456 NW2d 10 (1990) ( the defendant was entitled to an accurate jury instruction related to his claim that
his act of homicide was based on his belief that his wife ’ s life was in danger ); People v Wright , 25 Mich App 499, 503 ; 181 NW 2d 649 (1970) (per Curtis , the defendant had a right to protect his brother, even though that right had no applica tion on the facts of this11 manslaughter case); People v Kurr , 253 Mich App 317; 654 NW2d 651 (2002) ( applying
the defense

- of

- others doctrine in a homicide prosecution where the pregnant defendant stabbed a man who was repeatedly punching her stomach); s ee also Bendinelli & Edsall, Defense of Others: Origins, Requirements, Limitations and Ramifications , 5 Regent U L
Rev 153 (1995) (tracing the common

- law history of the defense

- of

- others doctrine, as the early English self

- defense doctrine gradually evolve d to include defense of family members and, eventually, strangers). The Court of Appeals was not convinced that the defense

- of

- others affirmative
defense was available to defendants charged with home invasion : “ [g]enerally, the defense

of

- others defense i s used to excuse assaultive conduct, i.e., the use of force directly against
a person, ” while home invasion is, by its nature, non assaultive. L effew , unpub op at 4. But generally true is not always true , and Michigan and sister jurisdictions recognize bo th self

defense and defense of others as justifications for nonassaultive crimes. See Dupree , 486 Mich at 705

- 706 ( finding self

- defense applicable to nonassaultive felon

- in

- possession charge ); People v Triplett , 499 Mich 52 , 58; 878 NW2d 811 (2016) ( the defendant should have been permitted to claim self

- defense in response to the nonassaultive crime of carrying a concealed weapon); People v Goree , 296 Mich App 293, 305 ; 819 NW2d 82 (2012) ( the trial court erred by instructing the jury that self

- defense di d not apply to the possessory, nonassaultive felony

- firearm charge); People v Miller, unpublished per curiam opinion of the Court of Appeals, issued June 5, 2008 (Docket No. 276589), p 5 (noting in
a home

- invasion prosecution that the “ [d]efendant ’ s testim ony presented some facts to support a defense of others instruction ” before ultimately concluding that failure to provide the requested instruction was not prejudicial on the facts of the case); People v Torrez ,12 unpublished per curiam opinion of the Court of Appeals, issued April 24, 2008 (Docket No. 274582), p 2 ( extending the defense

- of

- others justification to home

- invasion prosecutions where assault is used to establish an element of the offense)

. See also People v Coahran , 436 P3d 617, 622

- 623; 2019 CO A 6 (Colo App, 2019) ( the defendant , charged with the property crime of criminal mischief , was entitled to a jury instruction on self

defense where she kicked at her boyfriend ’ s car door to distract him and free herself from his grasp); Boget v State , 74 S W 3d 23, 24

- 25 , 31 (Tex Crim App , 2002) ( a self

- defense instruction was appropriate in response to a criminal

- mischief prosecution where the defendant alleged that he had smashed the window of a truck because it was driving recklessly toward him). Therefor e , it would not have been novel for Jeremiah ’s and
Micheline ’ s attorneys to request a defense

- of

- others instruction

. C f

. People v Reed , 453 Mich 685, 695; 556 NW2d 858 (1996) (defense counsel not deficient for failing to advance a novel legal argument that no Michigan authority had recognized )

. This C ourt ’ s recent caselaw should have made that clear. T he Court of Appeals acknowledged th at Dupree h eld that sel f

- defense may be invoked against the nonassaultive crime of felon in possession of a firearm, MCL 750.224f, but the panel found Dupree distinguishable because it involved conduct that took place before the October 1, 2006
effective d ate of the SDA

. Leffew , unpub op at 5. That factual distinction, though, misreads both Dupree and the SDA , which expanded , rather than contracted , the ability to invoke the affirmative defenses of self

defense and defense of others

. The SDA codified and expanded “ the circumstances in which a person may use deadly force in self

- defense or in defense of another person without having the duty to retreat. ” Dupree , 486 Mich at 708. Section 2 of the SDA removed the13 traditional common

- law duty to retreat , so long as the individual engaging in self

- defense
or defense of others was not committing or had not committed a crime and had a legal right to be where they were when they used force. MCL 780.972; 1 Gillespie , § 1:63 , pp 162

- 163

. But a side from limiting one ’ s duty to retreat, the statute did not modify or abrogate
the common

- law defenses of self

- defense or defense of others. People v Conyer , 281 Mich App 526, 530 ; 762 NW2d 198 (2008) ; see also People v Guajardo , 300 Mich App 26, 35

- 36 ; 832 NW2d 409 (2013)

. As we have said many times, “ [w]e will not lightly presume that the Legislature has abrogated the common law. ” Velez v Tuma , 492 Mich 1, 11 ; 821 NW2d 432 (2012) ; Dupree , 486 Mich at 706 ; Triplett , 499 Mich at 58

. But here we don ’ t have to presume because the Legislature left no doubt: § 4 of the SDA states that the statute

“ does not diminish an individual ’ s right to use deadly force or force other than deadly force
in self

- defense or defense of another individual as provided by the commo n law of this

state

. . . . ” MCL 780.974.
T he Court of Appeals thought that § 2 of the SDA , which explains that defendants invoking the defense

- of

- others instruction must be “ anywhere he or she has the lega l right
to be , ” MCL 780.972(2) , was an insurmount able hurdle for Jeremiah and Micheline

. The panel reasoned that “ a person who has entered a home without permission from the lawful owner appears by definition not to be ‘ anywhere he or she has the legal right to be. ’ ” Leffew , unpub op at 4, quoting MCL 780.972(2). To be sure, kicking down a door and entering a home without permission does not give the kicker legal rights

. But § 2 of the
SDA is n ’ t relevant

. It is only a statutory precondition to standing one ’ s ground under the
SDA

. Micheline and Jeremiah were not invok ing any right to stand their ground in Porter ’ s14 home. The statutory duty to retreat was not at issue ; Jeremiah ’s and Micheline ’ s claims of
defense of others are rooted not in statute, but in the common law. Dupree agr ees
. Indeed, we said that “ the traditional common law affirmative
defense of self

- defense is generally available to a defendant charged with being a felon in possession if supported by sufficient evidence. ” Dupree , 486 Mich at 712. And the panel
missed Triplett , in which we relied on Dupree to find that a defendant charged with carrying a concealed weapon was entitled to an instruction on self

- defense if supported by sufficient evidence because “ there is no clear indication that the Legislature abrogated or modified the common

- law affirmative defense of self

- defense in the [carrying a concealed weapon] statute.

. . . ” Triplett , 499 Mich at 57

- 58 (quotation marks omitted)

. Here again ; the SDA neither abrogat ed n or limit ed the common

- law affirmative defe nse of defense of
others. The Court of Appeals ’ view would raise public

- policy concerns , too . The Attorney General, representing the Are nac County prosecutor on appeal, conceded this issue and explained why: It cannot be the law that “ someone might be ex cused from taking the life of a kidnapper if they reasonably and sincerely believed a hostage ’ s life was in imminent danger, but they could not be excused from crossing the threshold of the kidnapper ’ s home in order to kill that kidnapper

. ”
T he Court of Ap peals erred by assuming that defense of others is unavailable to defendants facing prosecution for nonassaultive crimes. T he applicability of the defense
must be determined on the particular facts of each case, not the charges the prosecution brings.15 B. THE F AILURE TO R EQUEST A D EFENSE

- OF

- O THERS J URY I NSTRUCTION F ELL B ELOW AN O BJECTIVE S TANDARD OF R EASONABLENESS
T hat the common
- law affirmative defense of defense of others may apply to nonassaultive crimes is only step one. Whether Jeremiah and Micheli ne were entitled to
the instructi on is next

. We conclude that they were and that the ir attorneys’ failure s to request the instruction constituted deficient performance, satisfying Strickland ’ s first
prong. Under the state and federal C onstitution s , a criminal defendant has a right to present
a defense. Const 1963 , art 1, § 13; US Const, Ams VI and XIV; People v Hayes , 421 Mich 271, 278 ; 364 NW2d 635 (1984)

. “ Instructional errors that directly affect a defendant ’ s theory of defense can infringe a defendant ’ s due process right to present a defense

. ” Kurr , 253 Mich App at 326

- 327. That said, a n affirmative

- defense instruction is not automatic upon request. “ In order to properly raise the defense, the defendant has the burden of producing ‘ some evi dence from which the jury can conclude that the essential elements of [the defense] are present. ’ ” People v Lemons , 454 Mich 234, 246; 562 NW2d 447 (1997), quoting CJI2d 7.6, commentary ; s ee also Guajardo , 300 Mich App at 34

- 35; People v Crawford , 232 Mi ch App 608, 6 19 ; 591 NW2d 669 (1998).
The defendant ’ s burden is not a heavy one. United States v Johnson , 416 F3d 464, 467 (CA 6, 2005)

. “ Even when the supporting evidence is weak or of doubtful credibility its presence requires an instruction on the theory of defense

. ” U nited S tates v Garner , 529 F2d 962, 970 (CA 6, 1976) . In short, a defendant who puts forward some evidence in support of their affirmative

- defense theory is entitled to an instruction on tha t theory. People v Rajput , 505 Mich 7, 10

- 11; 949 NW2d 32 (2020) ; Riddle , 467 Mic h at 124

. “ O nce16 a defendant satisfies the initial burden of producing some evidence from which a jury could conclude that the elements necessary to establish a prima facie defense of [defense of others] exist, the pr osecution bears the burden of disproving the affirmative defense of [defense of others] beyond a reasonable doubt. ” Dupree , 486 Mich at 712

. “ The sufficiency of the evidence of a defendant’ s [defense

- of

- others] theory is ‘ for the jury to
decide under proper instructions

. . . .’ ” Rajput , 505 Mich at 11 , quoting People v Hoskins , 403 Mich 95, 100 ; 267 NW2d 417 (1978)

. Jeremiah and Micheline have cleared the hurdle of putting forward “ some evidence ” that they reasonably believe d the ir entry into Porte r ’ s home was nec essary to prevent additional, imminent harm to Seibert

. Micheline testified that she watched Porter grab
S eibert by the back and drag her away from t he front door as Seibert screamed : Once I heard her scream for help, I knew I had to help her. So I ran around back, and I originally tried to open the door but it was locked. So I took my boots, the ones I ’ m wearing today, and gave two or three kicks, and it came open.
Jeremiah likewise testified that after he watched Porter “ proceed to drag [Seibert] into the
back of the house ” and “ c [ o ] m e up behind her, grab[] her, and thr[o ] w her straight back on the floor, ” he followed his wife to the back of the home.
Jeremiah also testified that he acted to protect Michel ine

. M oments after hearing a
loud bang , Jeremiah came to the back door and saw his wife lying facedown on Porter ’ s broken

- glass

- strewn kitchen floor, convulsing mid

- seizure. “ And I come in to help
her

. . . . I was just trying to think of how I could he lp my wife. ” That testimony establish ed that Jeremiah and Micheline each believed that their entry into Porter ’ s home was undertaken with the reasonable belief that doing so was17 necessary to protect another. Cf. People v Fowler , unpublished per curiam opinion of the Court of Appeals, issu ed May 26, 2000 (Docket No

. 217832 ) , p 3 (finding that defense counsel did not perform deficiently in failing to request a self

- defense instruction when the
defendant testified that he had not fired the weapon in self

- defense, but to frighten the victims a nd show that his gun was real). Indeed, Jeremiah and Micheline ’ s trial strategy turned on a defense

- of

- others theory

. As Micheline ’ s attorney said in opening : “ She was going in there to save her
mother

- in

- law. She was going in there to rescue someone. ” And as Jeremiah ’ s attorney said in closing : “ Did Mr. Leffew do anything wrong [? No ] , h e went there and rescued, as he calls it, his mother

- in

- law, who ’ d been his mother for 25 years. He went there because he was re quested to be there by [Seibert]

. ”
Both defense attorneys presented evidence and arguments leading the jury to an acquittal under a defense

- of

- others theory only to deprive jurors of a judge

- given map to
reach that destination. Their failure s to request t he defense

- of

- others instruction that supported their trial strategy was objectively unreasonable

. Cf. People v Pickens , 446 Mich 298, 330 ; 521 NW2d 797 (1994) (defense counsel ’ s failure to present a diminished

capacity defense reflected a strategic choice to focus instead on the insanity defense); People v Dunigan , 299 Mich App 579, 583

- 584; 831 NW2d 243 (2013) (theory of the defense precluded the need for the jury instruction at issue because “ that instruction would have been inconsistent with, and potentially detrimental to, defendant ’ s theory that he was not the perpetrator and had been falsely accused by the victim ” ) ; People v Robinson , 154 Mich App 92, 94 ; 397 NW2d 229 (1986) (defense counsel ’ s failure to re quest a jury18 instruction on lesser offenses was a matter of trial strategy because such instructions may have reduced the chance of acquittal)

. C. DEFENSE COUNSEL ’ S ERRORS PREJUDICED BOTH DEFENDANTS

Deficient performance isn ’ t enough for relief; t he error m ust have prejudiced
Jeremiah and Micheline

. That is, there must be a reasonable probability of a different
outcome had the error not been committed. Strickland , 466 US at 694. Jury

- instruction challenges often focus on imperfections. “ E ven if the instructions are somewhat imperfect, reversal is not required as long as they fairly presented the issues to be tried and sufficiently protected the defendant ’ s rights. ” People v Aldrich , 2 46 Mich App 101, 124; 631 NW 2d 67 (2001). Likewise, “ [i] nstructio nal errors that omit an element of an offense, or otherwise misinform the jury of an offense ’ s elements, do ‘ not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt
or innocence. ’ ” People v Kowalski , 48 9 Mich 488, 501; 803 NW2d 200 (2011) , quoting Neder v United States , 527 US 1, 9; 119 S Ct 1827 ; 144 L Ed 2d 35 (1999).
But Jeremiah and Micheline ’ s jury was not presented with merely an “ imperfect instruction, ” id

. at 501

- 502 , about the defense

- of

- others justification ; the jury was provided
with no instruction

. Even so, “ [n] o error results from the absence of an instruction as long as the instructions as a whole cover the subst ance of the missing instruction. ” Kurr , 253 Mich App at 327. Because “ [j] ury instructions are to be read as a whole rather than

extract ed piecemeal to establish error, ” id ., w e consider each defendant ’ s claim of prejudice separately, given their entire individual jury instructions.19 1. MICHELINE ’ S HOME

- INVASION CHARGE Micheline was charged with third

- degree home invasion, MCL 750.110a(4)a, which requires a showing that the defendant either intended to, or did, commit a misdemeanor during the breaking and entering of a dwelling. In Micheline ’ s case, the underlying
misdemeanor was m alicious d estruction of p roperty less than $200, MCL 750.380(5) , b ased on the damage she caused to Porter ’ s door. One element of m alicious d estruction of
p roperty less than $200 is that the defendant knows what they are doing i s wrong. Micheline ’ s jury was instructed: In determining whether she committed that misdemeanor you must consider, with the evidence, and she ’ s not charged with a misdemeanor, but you have to find that there was an intent to commit a misdemeanor before you can find her guilty of the breaking and entering. And that Malicious Destruction of Property, of a Building under $200, the elements are: First, that the building or anything permanently attached to it belongs to someon e else. Second, that the defendant destroyed or damaged that building or anything permanently attached to it. Third, that the defendant did this knowing that it was wrong , without just cause [ or ] excuse , and with the intent to damage or destroy the property, and fourth, that the extent of the damage was some am ount less than $200. [ E mphasis added

. ] The Court of Appeals held that because the jury was informed that it could only convict if it found Micheline destroyed Porter ’ s property “ knowing that it was wrong, without just cause [or] excuse, ” the lack of a defense

- of

- others instruction did not prejudice
her

. Leffew , unpub op at 5

- 6. As the panel saw it: “ T he jury ’ s verdict indicates that, despite
defense counsel ’ s arguments, the jury rejected the theory that Micheline was justified in her actions; there is no reason to conclude that an instruction on defense of others would
have altered that conclusion. ” Id

. at 6. The panel seems to have reasoned that the jury ’ s20 conviction meant it found Micheline had acted “ without just cause or excuse , ” so a defense

of

- others instruction would not have made a difference

. We disagree. Had defense counsel requested a defense

- of

- others jury instruction, the trial court would have explained to the jury that : (1) The defendant claims that she acted in lawful defense of Lisa Seibert. A person has the right to

. . . [ act ] in defense of another person under certain circumstances. If a person acts in lawful defense of others, her act ions are justified and she is not guilty of home invasion. (2) You should consider all the evidence and use the following rules to decide whether the defendant acted in lawful defense of Lisa Seibert. Remember to judge the defendant ’ s conduct according t o how the circumstances appeared to her at the time she acted. (3) First, at the time she acted, the defendant must not have been engaged in the commission of a crime. (4) Second, when she acted, the defendant must have honestly and reasonably believed that she had to

. . . [ act ] to protect Lisa Seibert from the imminent unlawful use of force by another. If her belief was honest and reasonable, she could act at once to defend Lisa Seibert, even if it turns out later that she was wrong about how much dan ger Lisa Seibert was in. ( 5 ) Third,

. . . w hen you decide whether [ the defendant ’ s actions ] seemed necessary , you should consider whether the defendant knew about any other ways of protecting Lisa Seibert, but you may also consider how the excitement of t he moment affected the choice the defendant made. ( 6 ) Fourth , the right to defend another person only lasts as long as it seems necessary for the purpose of protection. ( 7 ) Fifth , the person claiming self

- defense must not have acted wrongfully and brough t on the assault. However, if the defendant only used words, that does not prevent her from claiming self

- defense if she was attacked. [ See M Crim JI 7.22 , as amended September 2007

. ]
The defense

- of

- others instruction would have come with a corollary ju ry instruction explaining that the prosecution had to disprove that Micheline acted in defense of Seibert21 beyond a reasonable doubt. M Crim JI 7.20 ; s ee also Dupree , 486 Mich at 709

- 710 ( “ Having concluded that the common law affirmative defense of self

- defense may be interposed in this felon

- in

- possession case, we also conclude that the prosecution bears the burden of disproving the common law defense of self

- defense beyond a reasonable
doubt

. . . . T his allocation of the burden of proof is well se ttled in this Court

. . . . ” )

. We disagree with the Court of Appeals; counsel ’ s failure to request a defense

- of

others jury instruction prejudiced Micheline

. First, the “ without just cause or excuse ” language in the malicious

- destruction

- of

- property instruction , which offered no guidance about what might constitute “ just cause or excuse , ” was inadequate to explain why
Micheline ’ s conduct was, in fact, excused

. H er defense hinged on a n excuse the law recognizes

— defense of others

— but those dot s were never connected for the jury. The prosecution has argued that “ without just cause or excuse ” is so broad that it
benefited Micheline and made her acquittal more likely. But the opposite is true.

“ [W] ithout just cause or excuse ” is broad, but it is also t oo undefined to be analytically
useful in this context . The affirmative

- defense instruction, because of its specificity , would have told the jury that the circumstances described by Micheline are defined by the law as just cause

. The jury would not have had to guess about what causes are sufficien tly “ just ”
to break into a home o r whether Micheline , knowing that breaking down a door “ was
wrong , ” was still justified in doing so. Instead, the jury would have been told that
Micheline “ ha [d] the right to

. . . [ act ] to defend another person under certain
circumstances ” and could then have decide d whether the prosecution proved beyond a
reasonable doubt that Micheline ’ s belief that her conduct was necessary to protect Seibert was not reasonable

. M Crim JI 7.22 , as amended September 2007

.22 Second, and relatedly, the defense

- of

- others instruction would have provided jurors

a framework for how to judge Micheline ’ s conduct given the divergent testimony

. The
court would have told the jury that it should judge Micheline ’ s “ conduct according to how
the circumstan ces appeared to her at the time ” and that it could consider “ how the excitement of the moment affected the choice [Micheline] made. ” M Crim JI 7.22 (2) and ( 5 ) , as amended September 2007

. And the jury would have learned that so long as
Micheline ’ s belief was honest and reasonable, it did not matter if Seibert had not, in fact, been facing imminent, unlawful force. M Crim JI 7.22 ; Heflin , 434 Mich 482

. There is a reasonable probability that jurors who concluded that Seibert was not in imminent danger felt compelled to convict Micheline, without understanding that what was important was
Micheline ’ s perspective

. P eople v Adamowicz , 503 Mich 880 , 880 (2018 ) ( “ I n a self

defense claim, the accused ’ s conduct is judged according to how the circumstances appeared to him at the time he acted. ” ). If the “ without just cause [or] excuse ” clause in the malicious

- destruction

- of

property instruction could replace the defense

- of

- others instruction, it is hard to imagine how a defendant could ever show prejudice whenever the charged offense includes some reference to a lack of justification. A defendant charged with first

- degree premeditated murder, for which the prosec ution must establish that the “ killing was not justified [or] excused, ” M Crim JI 16.1 (6) , who acted in self

- defense, could not establish prejudice if their attorney failed to request a self

- defense instruction. The affirmative

- defense instruction gives m eaning to the offense element. The jury heard four accounts of what happened

. H ad the court instructed
Micheline ’ s jur y that the law allowed her conduct if she reasonably and honestly believed23 Seibert was in danger , a different outcome is reasonably probable

. T he absence of the
instruction is “ sufficient to undermine confidence in the outcome. ” Strickland , 466 US

at 694.
2. JEREMIAH ’ S H OME

- I NVASION C HARGE The trial court instructed the jury about the elements of Jeremiah ’ s home

- inva sion charge : The defendant, Mr. Leffew , is charged with Home Invasion in the 1st Degree. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt: First, that the defendant entered a dwelling without permission. It does not matter whether the defendant got his entire body inside. If the defendant put any part of his body into the dwelling without permission, that is enough to count as an entry. Second, that when the defendant entered, was present in, or was leaving the dwe lling, he committed the offense of assault. Third, that when the defendant entered, was present in, or was leaving the dwelling, either one of the following circumstances existed, the circumstance in this case was that another person was lawfully pr esent in the dwelling. The court also explained the elements of assault, the underlying offense supporting
Jeremiah ’ s home

- invasion charge: The defendant is charged with the crime of Felonious Assault, that would be Mr. Leffew, and felonious assault is just ano ther name for assault with a dangerous weapon. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt. First, that the defendant either attempted to commit a battery on Michael Porter or did an act that w ould cause a reasonable person to fear or apprehend an immediate battery. A battery is a forceful or violent touching of the person or something clos ely connected with the person. Second, that the defendant intended either to injure Michael Porter, or to make Michael Porter reasonably fear an immediate battery. Third, that at the time, the defendant had the ability to commit a battery, appeared to have the ability, or thought he had the ability. Fourth, that the defendant committed an assault with a kni fe.24 That the jury was not told that the law excused Jeremiah ’ s conduct if he reasonably and honestly believed Seibert or Micheline were in imminent danger prejudiced him for many of the same reasons it prejudiced his wife. But where Micheline ’ s underlyin g charge of malicious destruction of a building requir ed the prosecution to show she acted “ knowing that it was wrong, without just cause or excuse, ” neither offense Jeremiah was charged
with included a similar element

. I t is hard to imagine how a juror he aring the instructions
could acquit Jeremiah

. Jeremiah conceded the elements of the home

- invasion charge; he argued that he was justified nonetheless because he was acting to protect Seibert and
Micheline

. Had the jury been told that the law supported Je remiah ’ s defense, a different outcome was reasonably probable

. The prosecution believes that because the jury was not persuaded that Micheline

acte d with “ just cause or excuse, ” we can assume that a defense

- of

- others instruction would not have made a dif ference for Jeremiah. That is, because Jeremiah and Micheline had the

same factual defense, and the jury didn ’ t believe Micheline ’s actions were justified, it would likewise not have been persuaded that Jeremiah ’ s actions were justified.
T his argument depends on an understanding that Micheline ’ s jury instructions were
sufficient. They were not. But the argument fail s for a more fundamental reason , too

. It asks us to assume that jurors, when tasked with judging two defendants in a joint trial, would , without being instructed to do so, impute jury instructions for one defendant to the
other. “ It is well established that jurors are presumed to follow their instructions. ” People
v Graves , 458 Mich 476, 486 ; 581 NW2d 229 (1998). If the court had explain ed to the jury that the law supported Jeremiah ’ s defense, a different outcome was reasonably probable

.25 D. THE FAILURE TO REQ UEST A DEFENSE

- OF

- OT HERS INSTRUCTION FOR JEREMIAH ’ S FELONIOUS

- ASSAULT CHARGE CONST ITUTED INEFFECTIVE ASSISTANCE OF COUNSE L The jury c onvicted Jeremiah of felonious assault for his knife

- wielding confrontation with Porter in the kitchen

. The Court of Appeals correctly noted that a defendant cannot assert the affirmative defenses of self

- defense or defense of others if they
are the initial aggressor. S ee Riddle , 467 Mi ch at 119, 120 n 8

. The panel summarized
Jeremiah ’s and Porter ’ s divergent testimonies before reaching two conclusions

. The panel first held that the affirmative defense was unavailable to Jerem iah
because he was the initial aggressor. L effew , unpub op at 8 n 9. To reach this conclusion, the panel credited Porter ’ s version of events over Jeremiah ’ s. But t he question of who was the initial aggressor was for the jury to decide, not the panel. People v Kolanek , 491 Mich 382, 411; 817 NW2d 528 (2012) ( “ [T] hose issues requiring factual resolution and pertaining to the credibility of witne sses and weight of the evidence ” are left to the jury) ;

s ee also Rajput , 505 Mich at 12 ( holding that the Court of Appeals engaged in “ improper
fact

- finding ” when it found that the defendant was not entitled to a self

- defense instruction because he was the initial aggressor ); People v Martin , unpublished per curiam opinion of the Court of Appeals, issued November 1 8, 2021 (Docket No

. 348584) , p 4 ( “ Although Rajput was a case in which the jury instructions were denied

— not one in which defense counsel failed to request th em

— the same principles apply

. ” )

. The relevant question is whether Jeremiah put forward “ some evidence ” that he
acted in defense of others and was not the initial aggressor. Jeremiah testified that right after he entered the home, Porter began punching him repeatedly. What ’ s more, because
Jeremiah claimed that he was also acting to defe nd his wif e , Porter ’ s act of smashing a26 glass ashtray over Micheline ’ s head moments before Jeremiah entered the home could also be considered the initial act of aggression. These are questions a jury determines, not the Court of Appeals.
The Court of Appeals also concluded that “ [t]here is no indication, under either version of events, that Micheline was under any threat of physical assault by Porter at the time Jeremiah gained possession of the knife. ” Leffew , unpub op at 8. This second

con clusion presents a clo ser question. Jeremiah did not specifically testify that he reasonably and honestly believed that his wife faced imminent harm

. But he did say that
when he entered the home and wielded the knife, he saw his wife lying facedown in a pool
of her own blood and having a seizure in the same room as Porter

. These facts might have given Jeremiah reason to believe that his severely injured wife was in imminent danger of
further attack by Porte r
. Indeed, upon picking up the knife, Jeremiah testified that he plea ded with Porter , “ P lease , just stop and let us go. ” He testified that he picked up the knife “to defend [him]self and [his] wife.” A jury could find that Jeremiah honestly and reasonably believed that he needed to use force to protect his injured wife.
Jeremiah ’ s counsel ’ s failure to request a defense

- of

- others instruction for the
felonious

- assault charge prejudiced Jeremiah. As with the home

- invasion charge, counsel
conceded that the elements of felonious assault had been satisfied: Jeremiah had acted in a way to reasonably cause Porter to fear a violent touching. He had intended to cause Porter
fear. He had the ability to cause an injury. And he was armed with a knife. He conceded
all of this because , he explained, Jeremiah acted to defend Se ibert and Micheline. The jury
heard Jeremiah and his counsel concede that the prosecution had proven all the elements of felonious assault but never knew that the law excused Jeremiah ’ s conduct if his belief27 that his loved ones were in danger was honest a nd reasonable. That is, the jur y was never given any avenue to an acquittal. Had it been properly instructed, i t is reasonably probable
that a different outcome would have resulted

. IV. CONCLUSION
Jeremiah and Micheline have consistently maintained that t heir otherwise illegal entry into Porter ’ s home and Jeremiah ’ s assault with a knife were justified under an honest and reasonable belief that their conduct was necessary to protect another. The Court of Appeals erred by determining that defendants’ attorn eys , whose defense theory at trial was that their clients had acted to defend others , did not render ineffective assistance of counsel by failing to request a jury instruction reflecting that defense

. The defense attorneys in this case provided ineffective assistance, and their errors prejudiced the ir clients , who are entitled to a new trial. We therefore reverse the judgment of the Court of Appeals and
remand for a new trial.

Bridget M. McCormack Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch