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____________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

FILED JUNE 18, 2002

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v No. 115833 ADAM KEITH CORNELL, Defendant-Appellant.

BEFORE THE ENTIRE BENCH WEAVER, J. In the case before us, we must consider two issues: (1) whether the t rial court erred in refusing to give the requested misdemeanor lesser included offense instruction of breaking and entering without permission, MCL 750.115, and (2) if the trial court did err, whether the error was harmless. We hold that it was error for the trial court to refuse the requested instructio n a nd that the error was harmless. Therefore, we affirm defendant’s conviction s .I Defendant Co rnel l was convicted by a jury in the RoscommonCircuit Court of breaking and ent ering with the intent to commit larceny, MCL 750.110. He was sentenced, as

anhabitual offender, to eight to twenty years’ imprisonment. Defendant Cornell’s conviction stems from an incident occurring in mid-February, 1996, when a house owned by Thomas Becker was completely destroyed by fire. 1 The fire ma rshal opined that the fire started in the living room/d ining room area of the home and that it was not accidental. Three sets of footprints were found leading away from the home, down the hill. Police followed the prints with a tracking dog and were ledto a home ab out two miles away, where defendant and his cousinChristopher C orn ell were present. The owner of the home told police that they should be looking for Ca ry Prescott. Some time later, the police stopped a vehicle with Prescott, Christopher Cornell, and defe ndant inside. All three men gave various statements to the police regarding the incident. At defendant’ s trial, Christopher Cornell and Prescott testified ag ainst defendant pursuant to a plea agreement.

1 The house, located inSt. Helen, Michigan, was known in the community as the “Heston house” because actor Cha rlet on Heston had spent time there. 2Defendant gave two written statements to the police, both of which were admittedinto evidence. Defendant gave varying

reasons in the statements for visiting the house. In one statement, defendant claimed that Prescott wanted to show him and Christopher Cornell the place where he had outrun a police dog. When they arrived at the house, Prescott began punching out windows and started the house on fire. Defendant stated that neither he nor Christopher Cornell did anything to th e house. In another statement, defendant claimedthat while the three of them were going for a walk, Prescott told them that there was a house in the woods that “ha d a lot of stuff in there that they could make a lot of money.” He stated that Prescott kicked in the door, but that “there was not anything inthe house to take.” Prescott began punching out windows and lit some curtains on fire. Defendant denied that he lit anything on fire and stated that he did not want to be there. Prescott testified that it was Christopher Cornell’s idea to go to the house and that they went there to look around and

see what was inside the house . He stated that they “hadn’t really planned on taking anything. It was empty.” However, during cross-examination, Prescott stated that, although he didn’t plan on stealing anything, he probably would have and that he thought that perhaps he “could get a little souvenir.” Prescott also stated that he tried to set a curtain on fire,

3but it wouldn’t burn. H e a lleged that defendant and Christopher Cornell started the fire. Christopher Cornell testified that he, defendant, and Prescott broke into the house to see what they could find and that they were looking for things to steal. However, they did not find anything of value to take. He also stated that Prescott broke windows and set a curtain on fire and that defendant set some mattresses on fire. In one of his written statements, Christopher indicated that Prescott had asked him and defendant if they wanted to “see someth ing wicked” and then had led them to the house. Defense counsel requested that the jury be instructed on the less er included misdemeanor of breaking and entering without permission, MCL 750.115. The trial court denied the request, stating: The Court would note for the rec ord entering without permi ssion is a misdemeanor. The Court takes note of the record that the defendant asserts and it was his position that there was no intent to commit a l arcenyand I think that the issue is squarely framed for the jury. Either there was a B and E with intent or the crime did n ot occur. I wouldnot give the entering without owner’s permissioninstruction under the circumstances of this case. Defendant appealed, and the Court of Appeals affirmed his conviction. 2 The Court of Appeals rejected defenda nt ’s

2 Unpublished opinion per curiam, issued November 2, 1999 (Docket No. 211215). 4argument that the trial court erred when it refused to instruct the jury on the lesser included misdemeanor. It reasoned that, in light of the evi denc e presented regarding defendant’s intent to commit larceny, “the ju ry c ould not rationally have found that defendant lacked t he i ntent to commit larceny when he entered the house.” S lip op at 3. Because the requested instruction was not supported by a rational view of the evidence, the Court of Appeals found that the trial court did not abuse its discretion in refusing to give the instruction. One judge dissented with respect to the instructional issue. The dissent opined that there was evidence to support defendan t’s th eory that he lacked the intent to commit a larceny. The dissenting judge explained: Not only was there evidence supporting defendant’s theory that he had no intent to commit larceny, but also the only disputed factual element was whether defend ant ha d an intent to commit larceny, which is an element not included in the lesser misdemeanor offense. In other words, the lesser misdemeanor instruction was proper in this case because the greater offense required the jury to find that the disputed factual element, whether defendant had the intent to commit larceny, existed and this element is not required for a convict ion of breaking and entering without permission. Therefore, the trial court abusedits discretion in denying defendant’s requested instruction of the lesser misdemeanor offense of breaking and entering without permission. [Slip op at 2 (citation omitted).]

5The dissent also noted that the requested instruct ion would not have resulted inundue confusion or some other injustice. Defendant sought leave to appeal from this Court. This Court g ranted lea ve to appeal in this case and in People v Silver , 466 Mich ___; ___ NW2d ___ (2002), ordering that the two cases be argued and submitted together. 3 II Althoughmuchof our more recent case law has disregarded it, resolution of the first issue presented in this case is governed by MCL 768.32(1), which provides: Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chap ter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense inthe degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense. MCL 768.29 requires the court to “instruct the jury as to the

3 463 Mich 958-9 59 ( 2001). The grant order limited the appeal to the following issues: [W]hether (1) the trial court erred in refusing to give the requested misdemeanor lesser includedoffense instruction, and (2) if so, whether the error was harmless. In addressing the harmless error issue, the parties shall discuss the applicability of People v Richardson, 409 Mich 126 (1980), People v Beach, 429 Mich 450 (1988), People v Mosko, 441 Mich 496 (1992), People v Lukity, 460 Mich484 (1999), People v Sn yder, 462 Mich 38 (2000), and People v Elston, 462 Mich 751 (2000).

6law applicable to the case” and indicates that “[t]he failure of the court to instruct the jury on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.” A

version of MCL 768.32 has been in existence since 1846. 1846 CL 5,952 provided: “[U]ponan indictment for any offense, consisting of different degrees, as prescribed in this title, the jur y may find the accused not guilty of the offense in the degree charged in the indictment, and may find such accusedperson guilty of any degree o f su ch offense, inferior to that chargedin the indictment, or of an attempt to commit such offense.” [ Hanna v People, 19 Mich316, 320-321 (1869).] In Hanna, the defendant was charged with assault with intent to kill. An issue befor e the Cour t was whether the trial court erred in instructing the jury that if it did not find the defendant guilty of the offense charged in the information, it might find the defendant guilty of s imple assault and battery, which was a misdemeanor. In addressing the issue, this Court first discussed the general common-law rule, stating: The general rule at common law was, that when anindictment charged an offense which included withinit anoth er less offense or one of a lower degree, the defendant, though acquitted of the higher offense, might be convicted of the less. This rule, however, was subject to the qualification, that upon an indictment for a felony, the defendant coul d no t be convicted of a misdemeanor. [ Id., 318.] 7After explaining that the bases for the misdemeanor qualificationhad ceased to exist, the Court construed the 1846 version of the stat ute be cause it believed that the statute governed the case before it. The Court’s analysis of the statute is enlightening. In construing the statute, Justice Christiancy, writing for the Court, stated: I do not think this provision was intended to be restricted in its application to offenses di vided by the statutes contained in this title (which included all the provisions in reference to crimes), into classes expressly designated by the name of “degrees.” Thus confined, it would apply, so far as I have been able to discover, only to the single case of an indictment for murder in the first degree, and would not even include manslaughter as a lower degree of the offense, but only murder in the second degre e; s ince murder is the only offense d ivi ded by the statute into classes expressly designated as “degrees.” Beside, if thus restricted to the crime of murder, it can apply only to that very class of cases in which it was not needed, either as d ecla ratory of, or as amending the common law; since, without the provision, the common law by the narrowest applicationever adopted, had already fully provided for the case; as no one can doubt that without this provision, the common law rule would, under the statute, dividing murder into degrees, have authorized a conviction not only for murder in the seconddegree, but for manslaughter also, under anindictment for murder in the first degree, all these offenses being felonies included in the charge. But, if this is not clear enough in itself, the statute has put this view in the clearest possible light; by expressly providing in the next section (Sec 3, Ch 153, Rev Stat of 1846), after dividing murder into degrees, for a convictionof murder in the second degree upon a charge of murder in the first, though it is silent as to a verdict of manslaughter in such a case. If, therefore, section sixteen of chapter 161, above quoted at length, is not to be applied to any 8offenses not divided in to d egrees eo nomine, then it can have no application or effect whatever, and mus t have been inserted in the statute for no p urpo se or object. Such a construction is inadmissible, if the provision will admit of any other. Whatever may have been the proper construction of this provision under the RevisedStatutes of New York, w her e it is preceded by very different provisions, it must, I think, in the connection in which it is found in our revision, be construed as extending to a ll cases in which the statute has substantially, or in effect, recognized and provided for the punishment of offenses of different grades, or degrees of enormity, wherever the charge for the higher grade in clud es a charge for the less. In this view only, can any effect be givento it, as declaratory of, or a lter ing the common law. [4] [ Id., 321-322.] The Co urt further noted that the circuit courts had consistently construedthe statute as removing the misdemeanor restrictionof t he c ommon-law rule and authorizing a conviction“for any substantive offense incl uded i n the offense charged, without reference to the fact that one was a felony and the other a misdemeanor . . . .” Id., 323. Onthe basis of its analysis of the statute, the Court concludedthat because the as sault statute provided for “assaults of various kinds and degrees of enormity, depending uponthe intent with which, and the circumstances under which

4 In 1861, this Court explained, “It is a general rule of criminal law, that a jury may acquit of the principal charge, andfind the prisoner guilty of an offense of lesser grade, if containedwithin it.” People v McDonald, 9 Mich 150, 153 (1861). 9the assault may have been made,” an indictment for any of the higher grades of assault must include the inferior degree of simple assault, and the defendant could be convicted of the included offense. Id. , 322-3 23. T he Court rejected the defendant’s argument th at h e could not be prosecuted by informationbecause he had never been examined on a charge of

a misdemeanor; because the misdemeanor was included in the charge of the felony, an examination upon the higher offense

was an examinationupon the lesser offense included withinit. Beginning with a series of cases released in 1975, this Court’s analysis moved away from MCL 768. 32 a nd the constructionthat the statute had been given by the Hanna Court. The two most noteworthy cases in this series are People v Jones, 395 Mich379; 236 NW2d 461 (1975), and People v Chamblis , 395 Mich 408; 236 NW2d 473 (1975). In Jones, the defendant, upon retrial, was charged with second-degree murder and convicted of that offense. The trial court instructed the jury on second-degree murder and volu ntary manslaughter. However, the trial court refused defense counsel’s request that the jury be instructed on the statutory offense of killing or injuring a personby careless, reckless, or negligent discharge of a firearm. In analyzing whether this was a lesser included offense

onwhich the jury should have been instructed, this Court

10first opined tha t the law of lesser included offenses in Michiganhad not been clear or consistent. It noted that the

commonlaw had defined lesser included offense to mean necessarily included lesser offenses—that is, the lesser offense “must be such that it is impossible to commit the greater without first having committed the lesser.” Id., 387. However, it then explained, without citation of any Michigan authority, that this definition was conceded to be “unduly restrictive” and that most jurisdictions, including Michigan, “have statutes that are broadly construed to permit conviction of ‘cognate’ or allied offenses of the same nature under a sufficient charge.” Id. This Court explained that these “lesser offenses are related andhence ‘cognate’ in the sense that they share several elements, and are of the same class or category, but may co ntain some elements not found in the higher offense.” Id. Furt her, applying this analysis to the case before it, the Jones Court concluded that reckless discharge of a firearm causing death may be a lesser included offense of seconddegree murder. Examination of the two offenses demonstrated “t he overlapping of certain elements and common statu tor y purpose.” Id. , 389. Thus, the two offenses were cognate. The Court then reasoned that while, in the case of a necessarily included lesser offense, the evidence wouldalways

11support the lesser if it supports the greater, in the case of

a cognate lesser offense, the evidence “mu st be examined to determine whether that evidence would support a conviction of the lesser offense.” Id. , 390. Because the evidence would have supported a gui lty ve rdict on the offense of careless, reckless, or negligent discharge of a firearm causing death, the Court concluded that the trial court should have given the requested instruction. Justice Cole man dissented from the majority opinion in Jones because she disagreedwith the theory of lesser included offenses adopted by the majority. She explained that it would blur the lines of responsibility in the criminal justice process, reasoning: The “cognate,” “related,” or “allied” lesser offense (it is not in reality “included”) theory as here presented conjures up visions of increased rather than diminished confusion. It invites appeals because of its formlessness. It blurs the roles of prosecutor, judge and defense counsel. If not contrary to our stat ute s, it adds a new act or section to the existing legislation. It threatens due process as to defendant a n d fundamental fair nes s as to the people in the preparation and presentation of the case. Unless the tendencies of past history are altered, we can anticipate in some cases a result the opposite of that desired b y my colleagues. Considering the number of offenses by our definition “rel ated” or “allied” to this or other

12major crimes, juries presented with foreseeable smorgasbords of possibilities conceivably will return unjustifiable verdicts of guilty. Inmy opinion, the theory adopted today neither promotes the efficient and careful operationof the criminal just ice s ystem nor is likely to result in a fairer trial for the defendant. [ Id., 406.] In explaining the reasons for her disagreement with the majority’s theory, Justice Coleman noted that the decision to charge a person with a crime was the prosecut or’ s responsibility and that the Court had held that courts may not interfere with that process. She explain ed that after the crime was charged and a trial held, MCL 768.32 permits the jury to consider other offenses. However, the statute did not leave the jury free to convict for any felony or misdemeanor; only degrees or an attempt of the offense charged could be considered. Thus, as Justice Coleman construed the statute, MCL 768.32 only permits considerationof necessarily included lesser offenses. Further, which necessarily included lesser offenses w arrant jury instructions should be determined in reference to the offense charged and the evidence presented. Analyzing the case before the Court, Justice Coleman concluded that the offense of careless, reckless, or negligent discharge of firearms was not a degree of murder within the meaning of MCL 768.32.

13In Chamblis , an opinion that was decided the same day as Jones, the defendant was charged with armed r obbery . “Over defense counsel’s objection, the jury was instructed on the lesser included offenses of unarmed robbery and larceny from the person.” Chamblis , supra at 413-414. The jury convicted the defendant of the larceny offe nse. On appeal, the defendant ch allenged the trial court’s decision to give the lesser included offense instructions. The Court first noted that unarmed robbery was a necessarily included lesser offense of armed robbery. Therefore, if there was evidence to allow the case to go to the jury on the armed robbery charge, there necessarily was evidence to supp ort a charge of unarmed robbery. The Court then considered the larceny offense. The Court appeared to conclude that larceny from a person was a necessarily included lesser offense of robbery. However, it also considered whether the larceny offense was supported by the evidence adduced at trial, concluding that it was. The Chamblis Court then discussed the problem of compromise verdicts and reinstated the common-law restriction

onmisdemeanor offenses. Re cognizing the position taken by the Hanna Court, the Chamblis Court stated: While the technical reasons that existed for the common law rule have disappeared, we see strong policy reasons which still support that common law qualificationon the doctrine of conviction of lesser included offenses. “There would be a great difference between a conviction for manslaughter 14under an indictment for seconddegree murder, and a conviction for disturbing the peace under the same charge. Does not the policy against harassment and a continual siege of accu sations and charges seem to have some application?” Comment, 57 Nw U L R 62, 73 (1962). We answer in the affirmative. We are convinced that the cause of justice is not well served by convi cti ng of assault and battery a defendant charged with murder. As a matter of policy people who commit seri ous crimes shouldbe punished for those offenses, and those who did not commit suc h serious crimes should not be tried for those crimes only to be fou nd guilty of a much lower offense. In the example cited, if the most serious offen se f or which a jury feels convictionis justifiedis assault andbattery, the original charge of murder appears to b ear no realistic relationship to the offense committed, andno g ood purpose would be served by allowing such instruction. * * * We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on the lesser included offenses for which the maximum allowable incarcerationperiod is one year or less. [ Id., 428-429.] [5] Justice Lindemer dissented. In discussing MCL 768.32 and MCL 768.29, he stated: As has been demonstrated, the informed choice of def ense counsel to restrict attention to the principal charge has not b een f oreclosed by the

5 People v Cazal, 412 Mich 680, 683; 316 NW2d 705 (1982), limited the Chamblis misdemeanor cutoff rule to jury trials. Incontrast, we hold in the present case that MCL 768.32(1) applies in both bench and jury trials. 15majority’s cases; neither is it prohibited by statute. [MCL 768.32] simply speaks to the possibility that the jury may find the accused not guilty of an offense in the degree charged in the indictment while still allowing a guilty verdict of any inferi or degree of such offense. It does not speak to instructions on lesser included offenses. [MCL 768.29] says that the court shall instruct the jury as to the law applicable to the case, but does n ot mandate what law is applicable to the c ase . [ Id., 433.] Justice Lindemer also disagreed with the majority’s “discussionof instructions on lesser included cognate offenses,” its “rule cutting off lesser in cl uded offense instructions for which the maximum allowable incarceration periodis one year or less when the charged offense is punishable by i ncarce ration for more than two years, and to the policy limitationon the extent of compromise allowable.” Id. Justice Coleman concurred in part and dissented in part. She concurred in the reinstatement of the defendant’s convictions and agreed that unarmedrobbery was a necessarily includedle sser offense of armed robbery. However, she reluctantly agreed with Justice Lindemer’s analysis of the majority opinion concerning the c utting off of included offense instructions according to penalty, stating: I agree with him because I belie ve him to be right. The reluctan ce i s born of the foreseeably lengthened“laundry list” of offenses and jurors who would be required to absorb possibly dozens of

16pages of instructions regarding the many offenses possible under the “cognate”, “related” or “allied” offense theory of Jones . [ Id., 431.] In People v Stephens, 416 Mich 252, 255; 330 NW2d 675 (1982), this Court overr ul ed the misdemeanor cutoff rule articulated in Chamblis , holding: [T]he policies behind the Chamblis rule would be better served by a more flexible app roach to lesser included offense instructions on misdemeanors. Whenever an adequate request for an appropriate instruction is supported by a rational view of the evidence adduced at trial, the trial judge shall give the requested instruction unless to do so would result in a violation of du e process, undue confusion, or some other injustice. The situation in Stephens is remarkably similar to that presentedin the case before us. The defendant was charged with breaking and entering with intent to commit a felony or larceny. The defendant did not dispute the allegation of breaking and entering a doctor’s office . T he defendant’s theory was tha t he l acked the requisite intent to commit larceny. Defense counsel requested that the jury be instructed on the lesser included misde meano r of entering without permission. The trial judge felt compelled by Chamblis to deny the request. The Stephens Court reasoned that the possibility of a

com promised verdict did not justify an arbitrary limitati o n according the maximum term of confinement. It noted that from the defendant’s point of view, an instruction on a lesser

17includedmisdemeanor offense might further a just resu lt by precluding a felony co nviction unsupported by the jury’s belief of guilt beyond a reasonable doubt. While the goal of avoiding jury con fusion was an important one, the Court believedthat the restrictions i t imposed on misdemeanor instructions would alleviate this problem by limit ing the number of such lesser included offense instructions. Moreover, its requirement that all lesser included offense instructions be rationally supported by the evidence would help to alleviate juror confusion by also limiting the number of instructions given. Id., 260. The Court articulated a five-part test for d eter mining whenlesser included misdemeanor instructions should be given. This test was derived from United States v Whitaker, 144 US App DC 344; 447 F2d 314 (1971). First, there must be a proper request for the instruction. Stephens, supra at 261. Second, “there must be an appropriate relationship between the charged offense and the requested misdemeanor.” Id., 262. In other words, the Court explaine d, t here must be an inherent relationship between the greater and lesser offense: “[T]hey must relate to the protectio n of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater o ff ense.” [ Id.,

18quoting Whitaker , supra at 319.] [6] Thi rd, the requested misdemeanor must be supported by a rational view of the evidence adduced at trial. Not only must there be some evidence that would support a conviction on the lesser offense, but “proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may c onsi stently find the defendant innocent of the greater and guilty of the lesser included offense.” [ Id., 263., quoting Whitaker, supra at 317.] Stated another way, “[a] lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a dis puted factual element which is not required for convictionof th e lesserincluded offense.” [ Id. (citations omitted).] Indiscussing this element, the Court expressly refused to extend the rule of Jones . Id ., 264. F ourth, if the prosecutor requests the instruction, the defendant must have adequate notice of it as one of the charges against which he

6 This Co urt further clarified the second element in People v Steele, 429 Mich 13, 19; 412 NW2d 206 (1987), stating: The second condition requires that an “appropriate relationship” exist between the charged offense and the requested misdemeanor. This “appropriate” or “inherent” relationship has a two-part inquiry. First, the greater and lesser offenses must both relate to the protection of the same interests. Second, they must be relatedin an evidentiary manner, so that, generally, proof of the misdemeanor is necessarily presented as part of the proof of the greater charged offense. 19must defend. Id . Fifth, the requested instructions must not

cause undue confusion or some other injustice. Id . The Court also noted that a trial court’s decisi on to grant or deny a requested lesser included misdemeanor instruction would only be reversed upon a find ing o f an abuse of discretion. Id., 265. As the preceding discussion illustrates, many of our more recent decisions concerning lesser included offenses have disr ega rded the statute and much of the older case law. Having done so, we now must decide how to reconcile these divergent approaches to lesser included offense instructions. As this Court has recognized, matters of substantive law are left to the Legislature. People v Glass (After Remand), 464 Mich266, 281; 627 NW2d 261 (2001); McDougall v Schanz, 461 Mich15, 27; 597 NW2d 148 (1999). Determining what charges a jury may cons ider does not concern merely the “judicial dispatchof litiga tio n.” Id. , 30. Rather, the statute

concerns a matter of substantive law. As this Court has noted, [t]he measure of control exercised in connection withthe prevention and detection of cri me and prosecutionand punishment of criminals is set forth in the statutes of the State pertaining thereto, particularl y th e penal code and the code of criminal procedure. The powers of the courts withreference to such matters are derived from the statutes. [ People v Piasecki, 333 Mich 122, 143; 52 NW2d 626 (1952).]
20Therefore, in our opinion, it is necessary to return to the statute and the construction it was given by the Hanna Court and by Justice Coleman in her dissent in Jones . Inpertinent part, the statute provides that the jury “may find the accused person guilty of a degree of that offense inferior to that charged in the indictment.” MCL 768.32( 1). A s the Hanna Court explained, the provision was not intended to be limited only to those expressly div ide d into “degrees,” but was intended to extend to all cases in whichdifferent grades of offenses or degrees of enormity had beenrecognized. Moreover the statute removed the common-law misdemeanor restriction. Thus, application of the statute is neither limited to those crimes expressly divided into degrees nor to lesser included felonies. Moreover, Justice Coleman opined that MCL 768.32 only permitted consideration of necessarily included lesser offenses, not cognate lesser offenses. The la nguage of the statute supports this conclusion. The statute permits the jury to convict a defendant of a degree of “that offense inferior to that charged in the indictment.” The language of the statute only p ermits consideration of a degree of those offenses t hat are inferior to the greater offense charged. 7

7 We note that M CL 7 68.32(1), which is quoted in its entirety on page 11, also permits instruction on an attempt to (continued...) 21In People v Torres (On Remand), 222 Mich App 411; 564 NW2d 149 (1997), the Cour t o f Appeals considered the meaning of the word “inferior,” as used in MCL 768.32. The Court stated: [W]e conclude that under MCL 768.32(1), an offense may be inferior to another even if the penalties for both offenses are identi ca l. We believe that the word “inferior” in the statute does not refer to inferiority in t he penalty associated with the offense, but, rather, to the absence of an element that distinguishes the chargedoffense from the lesser offens e. Th e controlling factor is whether the lesser offense canbe proved by the same facts that are used to establishthe charged offense. A s the Membres Court [8] noted, the defendant’s due process notice rights are not violatedbecause all the elements of the lesser offen se have already been alleged by charging the defendant with the greater offense. [ Id., 419-420.] This would foreclose considerationof cognate lesser offenses, whichare only “related” or of the same “class or category” as the greater offense and may contain some elements not found in the greater offense. Justice Coleman further explained that in determining whether a necessarily included lesser offense instruction or

anattempt instruction should be given, one must also consider whether the evidence presentedsupported such an instruction. Before the Jones and Chamblis decisions, th is had been a

7 (...continued) commit such offense. However, that aspect of the statute is not at issue in the present cases.

8 People v Membres, 34 Mich App 224; 191 NW2d 66 (1971). 22consideration. For example, in People v Repke , 103 Mich 459, 470-471; 61 NW 861 (1895), the Court concluded that it was proper for the trial court to instruct the jury that it must find the defendant guilty of first-degree murder or acquit him because there was “no evidence warranting a different direction, and no circumst anc es which would lessen the degree.” In People v Onesto, 203 Mich 490, 496; 170 NW 38 (1918), the Court held that “[u]nless the proofs showed that the jury would have been justified in convicting [codefendant] Damico of an offense of lesser grade, there was no occasion for the court to instruct them in regard to it.” In People v Patskan, 387 Mich 701, 713; 199 NW2d 458 (1972), the Court concluded that “the trial court would not have committed error inrefusing to give instructions on attempted assault with intent to rob being armed.” Quoting from Gillespie’s Michigan Criminal Law & Procedure, the Court noted that “it is not

error to omit an instruction on such lesser offe nses, where the evidence tends only to prove the grea ter . . . .” Id., 711. See also, People v Netzel, 295 Mich 353; 294 NW 708 (1940); People v Kolodzieski , 237 Mich 654; 212 NW 958 (1927). Additionally, Sansone v United States, 380 US 343; 85 S Ct 1004; 13 L Ed 2d 882 (1965), is instructive on this point. Similar to MCL 768.32, Rule 31(c) of the Federal Rules of Criminal Procedure provides that a “defendant may be found
23guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is

anoffense.” 9 In explaining when instructio ns sho uld be given under the rule, the Sansone Court stated: Thus, “(i)n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie(s) it . . . ( is) en titled to an instruction which would permit a fi ndin g of guilt of the lesser off ense.” But a lesser-offense charge is no t proper where, on the evidence presented, the fa ctual issues to be resolved by the jury are the same as to both the lesser and the greater offenses. In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disput ed f actual element which is not requiredfor a conviction of the lesser-included offense. [ Id., 349-350 (citations omitted).] [ 10 ]

9 While MCL 768.32 does not use the same phrasing as F R Crim P 31(c), which refers to “an offense necessarily included inthe offense charged,” as we have a lre ady explained, the wording of MCL 768.32 also limits consideration of lesser offenses to necessarily included lesser offenses.

10 This analysis is consistent with Sparf v United States, 156 US 51, 63-64; 15 S Ct 273; 39 L Ed 343 (1895), in which the Court stated: The court below assumed, and correctly, that section1035 of the Revised St atu tes did not authorize a jury in a criminal case to find the defendant gu ilty of a less offense than the one charged, unless the evidence justi fied them in so doing. Congress did not intend to invest juries in criminal cases with power to arbitrarily disregard the evidence and the principles o f la w applicable (continued...) 24We believe that th is analysis is consistent with our prior

case law and equally applicable to MCL 768.32. Therefore, we holdthat a requested instruction on a necessarily included lesser offens e is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence wouldsupport it. 11 To permit otherwise would be

10 (...continued) to the case on trial. The only object of that sectionwas to e nabl e the jury, in case the d efen dant was not shown to be guilty of the particular crime charged, and if the evidence permittedthem to do so, to find him guilty of a lesser offense necessarily included in the one charged, or of the offense of attempting to commit the one charged . Upon a careful scrutiny of the evidence, we cannot find any groundwha tever upon whichthe jury co ul d properly have reached the conclusionthat the defendant Hanson was only guilty of an offense included in t he o ne charged, or of a mere attempt to commit the offense charged.

11 Justice Ryan’s dissent in People v Kamin, 405 Mich 482; 275 NW2d 777 (1979), demonstrates this principle in acti on. In People v Cargill , one of the companion cases to Kamin, the defendant was charged with armed robbery. Defense counsel re questedthat the jury be instructed on unarmed robbe ry , among other lesser included offenses. The undisputed evidence establishedthat the men who robbed the store were armed with a sawed-off shotgunandthat they took the money with force or threat of violence. The defendant’s defense was alibi. The only question that the jury was required to res olve was whether defendant was one of the men present when the crime was committed. It was not required to resolve a dispute about whether the men were armed. Thus, the factual issue was the same with respect to both the lesser and greater offenses, and there was “no evidence which would justify the jury in concluding that the greater offense was not committed and the lesser included offenses w ere committed.” Id., 516. (continued...) 25inconsistent with the truth-seeking function of a tria l, as expressedin MCL 768 .29. 12 To the extent that our prior decisions, including Jones, Chamblis, Stephens, and People v Jenkins , 395 Mich 440; 236 NW2d 503 (1975) 13 and their progeny conflict with our holding today, they are overruled. 14

11 (...continued) Therefore, Justice Ryan would have affirmed th e de fendant’s conviction.

12 MCL 768.29 states inpertinent part, “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” (Emphasis added.)

13 Jenkins h eld that in a case involving a charge of first-degree murder, the trial court is always required to instruct the jury on the necessarily lesser-included offense of second-degree murder, even where such an instruction is not requested or is objected to. In light of our holding that a requested instruction on a necessarily included offense must be supported by the evidence, an instruction on second-degree murder, as a necessarily included lesser included offense of first-degree murder, is not automatically required. Rather, suchan instruction will be proper if the intent element differentiating the two offenses is disputed and the evidence would support a conviction of second-degree murder. However, giventhat in many cases involving first-degree murd er, the intent element is disputed, we suspect that more often than not, an instruction on second-degree murder will be proper.

14 The doctrine of stare decisis, which furthe rs t he interests of stability and continuity in the judicial process, does not tie us to the decisions in Jones, Chamblis, Stevens, and Jenkins . Stare decisis should not be invoked to prevent the Court from overruling wrongly decided cases or erroneous decisions determining the meaning of statutes. See Robinson v Detro it, 462 Mich 439, 463-468; 613 NW2d 307 (2000). The decisions we overrule today blatantly disregarded MCL 768.32 as well as previous case law. The interests in the (continued...) 26The dissent claims that MCL 768.32(1) is consistent with the Stephens test and that we have merely adopted a “watereddown” version of the Stephens test. We respectfully disagree. A

proper interpretation of MCL 768.32(1) renders some elements of the Stephens test irrelevant and unnecessary. First, the

concernregarding notice to a defendant is irrelevant because the principal charge contains all the eleme nts of the necessarily lesser includedoffense; thus defendant is already

onnotice. Second, the concern regarding jury conf usion is minimized to the extent that MCL 768.32(1) precludes cognate lesser misdemeanors and only permits necessarily included lesser misdemeanors if supported by a rat ional view of the evidence. Additionally, an “inherent relationship” between the charged offense and the re que sted misdemeanor is not a concern because MCL 768.32(1) does not permit cognate lesser instructions. Having clarified the proper analysis for determining when

a lesser included instruction must be given, we now turn to

14 (...continued) “evenhanded, predictable, consistent development of legal principles” and the “integrity of the judicial p rocess ” require that we rectify the conflict our case law has created. [ Id. , 463.] The dissent is mistaken in claiming that we have not even given “lip-service” to the principle of stare decisis. Slip op at 12. To the contrary, we have considered it and find that overruling the previous cases of this Court that ignored a statute to be warranted.

27the case before us. 15 Defendant Cornell was chargedwith breaking andentering with intent to commit larceny. MCL 750.110 provides: A

person who breaks andenters, with intent to commit a felony or a larceny th erein, a tent, hotel, office, store, shop, warehouse, barn,

15 We note that the rules regarding lesser included offenses are different when a defendant is charged with a major controlled substance offense. MCL 768.32(2) states: Upon an indictment for an offense specified in section7401(2)(a)(i) or (ii) or section 7403(2)(a)(i) or (ii) of the public health code, Act No. 368 of the Pub lic Acts of 1978, being sections 333.7401 and 333.7403 of the Michigan Compiled Laws, or conspiracy to commit 1 or more of these of fenses, the jury, or judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment but may find the accused guilty of a degree of that offense inferior to that charged in the indictment only if the lesser included offense is a major controlled substan ce o ffense. A jury shall not be instructed as to other lesser included offenses involvi ng the same controlled substance nor as to anattempt to commit e it her a major controlled substance offense or a lesser included offense involving the same controlled substance. The jury shall be instructed to return a verdict of not guilty of an offense involving the controlled substance at issue if it finds that the evidence does not establish the defendant's guilt as to the commission of a major controlled substance offense inv olvi ng that controlled substance. A judge in a trial without a jur y sh all find the defendant not guilty of an offense involving the controlled substance at issue if the judge finds that the evidence does not establish the defendant's guilt as to the commission of a major co ntro lled substance offense involving that controlled substance. [Emphasis added.]

28granary, factory or other building, structure, boat, ship, or railroad car is guilty of a felony, pun ishable by imprisonment for not more than10 years. Defendant Cornell requested that the jury also be instructed

onthe offense of brea king and entering without permission. MCL 750.115(1) provides in pertinent part: Any person who breaks and enters or enters without breaking, any dwelling, house, tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, boat, ship, railroad car or structure used or k ept for public or private use, or any privat e apar tment therein, or any cottage, clubhouse, boat house, hunting or fishing lodge, garage or the out-buildings belonging thereto, any ice shanty with a value of $100.00 or more, or any other structure whether occupied or unoccupied, without first obtaining permission to enter from the owner or occupant, agent, or person having immediate control thereof, is guilty of a misdemeanor. We hold that breaking andentering without permission is

a necessarily included lesser offense of breaking and entering withthe intent to commit a felony. The elements of breaking andent eri ng 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 Toole, 227 Mich App 656, 658; 576 NW2d 441 (1998). Breaking andentering without permission requires (1) brea king and entering or (2)entering the building (3) without the owner’s permission. It is impossible to commit the gre ater o ffense

29without first committing the lesser offense. Moreover, a conviction of the grea ter offense requires the jury to find a disputed factual element—the intent to commit larceny—which is not part of the lesser offense. The evidence presentedat trial offeredconflicting reasons about why defendant, Prescott, and Christopher Cornell went to the home and whether they intended to steal anything. There was testimony that Prescott wanted to show Christoph er and defendant where he had outrun a police dog or that he wanted to show them “a wicked place.” There was also testimony that the three just went there to look around. Finally, there was testimony that the three went to the house hoping to find things of value to steal. Thus, intent to commit larceny—the factual element differentiating the greater offense from the lesser offense—was in dispute. Because there was evidence to support a finding that defendant lacked the intent to commit larceny, the trial court erred in refusing to give the requested misdemeanor lesser offense instruction of breaking and entering without permission. III This Court has made it clear that harmless error analysis is applicable to instructional errors involving necessarily included lesser offenses: Properly understood, the doctrine of harmless error is perfectly consonant with the p urpo se and 30functionof an appellate court. Our constitutional mission, as the highest branch of the one court of justice, is to correct errors that have deprived a liti gant of a fair trial or have otherwise interferedsignificantly with the trial’s search for truth and a just verdict. With few exceptions, the judgment of a trial court may not be set aside onthe ground of error unless there is a determination that the error was not harmless. We see no reason to exclude from this rule errors involving a failure to provide a requested instructionon a necessarily included offense. [ People v Mosko, 441 Mich 496, 503; 4 95 NW2d 534 (1992).] Therefore, having concluded that the trial cou rt e rred in ref usin g to give the requested instruction, we now must consider whether the error was harmless. MCL 769.26 provides: No judgment or verdict shal l be set aside or reversed or a new trial be granted by any court of this state in any criminal case , on t he ground of misdirectionof the jury , or the improper admission or rejection of evid enc e, or for any error as to any matter of pleading or procedure, unless in the opi nionof the court, after an examination of t he entire cause, it shall affirmatively appear that the error complained of result ed i n a miscarriage of justice. [Emphasis added.] Further, MCR 2.613(A) states: Harmless Error. An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defe ct in anything done or omitted by the court or by the p art ies is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a j udgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. Applicationof these provisions, as developed inthis Court’s

31harmless error jurisprudence, requires error to be classified

as constitutional or nonconstitutional and as preserved or unpreserved. If the err or is constitutional, it must be further classified as structural or nonstructural. People v Carines, 460 Mich 750; 597 NW2d 130 (1999); People v Lukity , 460 Mich 484; 596 NW2d 607 (1999). 16 We are satisfied that the present case con cern s nonconstitutional error that has been preserved by defendant’s request for the lesser included misdemeanor instruction. 17 A preserved, nonconstitutional error is not a

16 Constitutional errors that are structural in nature are subject to automatic reversal. People v Anderson (After Remand) , 446 Mich 392, 405; 521 NW2d 538 (199 4). If a c ase involves nonstructural, preserved constitutional error, an appellate court should reverse unless the prosecution can show that the error was harmless beyond a reasonable doubt. Carines, supra at 774. If the constitutional error is not preserved, it is reviewed for plain error. Id. In cases involving preserved, nonconstitutional errors, the defendant must establish that it is more probable than not that the error undermined reliability in the verdict. Id.; Lukity, supra at 495. Unpreserved, nonconstitutional errors are reviewed for plain error. Carines, supra at 774.

17 One Sixth Circuit case has characterized the failure to instruct on a lesser included offense as “intrinsically harmful structural error” requiring reversal. United States v

Monger , 185 F3d 574, 578 (CA 6, 1999). Further, some older Michigan case law has suggested that the failure to instruct is automatically error requiring reversal. See, e.g., People v

Van Smith, 388 Mich 457, 461-462; 203 NW2d 94 (1972). However, we disagree with these assessments. Structural error is a concept that has typically been appliedto errors of constitutional magnitude, not to (continued...) 32groundfor reversa l, “unless ‘after an examination of the entire cause, it shall affirmatively appear’ that it is more probable than not that the error was outcome determinative.” Id., 49 5-4 96. Stated another way, the analysis focuses on whether the error undermined reliability in the verdict. Id., 495; see also People v Elston, 462 Mich 751, 766; 614 NW2d 595 (2000); People v Snyder , 462 Mich 38, 45; 609 NW2d 831 (2000). Therefore, to prevail, defendant must demonstrate that it is

more probable than not that the failure to give the requested lesser included misdemeanor instruction undermined reliability

17 (...continued) statutory errors as in this case. See, e.g., People v Breverman, 19 Cal 4 th142, 165; 77 Cal Rptr 2d 870; 960 P2d 1094 (1998) (holding that “the failure to instruct sua sponte ona lesser included offense in a noncapital case is, at most, anerror of California law alone, and is thus subject only to state standards of reversibility”) and Neder v United States, 527 US 1; 119 S Ct 1827; 144 L Ed 2d 35 (1999). In N eder , the Court determined that the failure to instruct the jury on an element of the offense for which the defendant was convicted, was not a “structural” error subject to automatic reversal. The Cou rt opined that the error differedfrom the limited class of cases in which it had found structural error, stating, Unlike such defects as the complete deprivationof counsel or trial b efore a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. [ Id., 9.]

33inthe verdict. Carines, supra at 774; Lukity, supra at 495. 18 People v Rodriguez , 463 Mich 466; 620 NW2d 13 (2000) provides further guidance concerning how these principles are applied in cases involving instructi onal errors. In Rodriguez , the defendant was convicted of evading the use tax. The trial court refused to instruct the ju ry reg arding a statutory exemption to the use tax, finding the pro visi on inappli cable to the defendant. Id., 469. This Court concluded that the statutory exemption would apply if th e evidence introduced by the defendant were believed by th e jury; thus, the instruction should have been given. Id., 474. We then considered whether the erro r was “outcome determinative” because it u ndermined the reliability of the

exceptionto the use tax statute that was crucial verdict. In concluding that the error was not harmless, we stated: The jury received no instruction on an to the defendant's defense and was clearly supported by the evidence. There is no question that the error undermined the reliability of the verdict, and thus was “outcome determinative” under

18 Lukity involved an evidentiary error and further ex plained that the effect of an evidentiary error “i s evaluatedby assessing it in the context of the untainted evi den ce to determine whether it is more probable than not that a different outcome would have resulted without the error.” Id. , 495. However, one cannot compare the “tainted” withthe “untainted” evidence whenthe only error asserted is aninstructional error. Nevertheless, pursuant to MCL 769.26, w e review the “entire cause” to determine whether the erro r undermined the reliability of the verdict. 34Lukity and Elston . [ Id., 474 (emphasis added).] Thus, pursuant to Rodriguez, th e reliability of the verdict is undermined when the evidence “clearly” supports the lesser included instruction, but the instruction is not given. Inother words, it is only when there is substantial evidence to support the requested instruction that an appellate court shouldreverse the conviction. 19 As we must con sid er the “entire cause” pursuant to MCL 769.26, in analyzing this question, we also invariably consider what evidence has been offered to support the greater offense. Also, it is importa nt t o note that this “substantial evidence” standard for determining whether reversal is required on the basis of an instructional error differs from the standard for determining whether the error occurred. As discussed, an evidentiary dispute supported by a rational view of the evidence regarding the element that differentiates the lesser from the greater offense will generally r equi re an instructionon the lesser offense. However, more than an evidentiary dispute regarding the element that differentiates the lesser from the greater offense is required to reverse a

19 We note that no intermediate lesser instructions were givenin this case. If other lesser instructions had been givenand been rejected by the jury, consideration of the “entire cause” would likely lead us to conclude that the error did not undermine the reliability of the verdict. See, e.g., People v Beach , 429 Mich 450; 418 NW2d 861 (1988), N W2d 5 26 (1977); People v Mosko , 441 Mich 496; 495 NW2d 534 (1992). 35conviction; pursuant to MCL 769.26, the “entire cause” must be surveyed. 20 Applying these harmless error principles to defendant Cornell’s cas e, w e conclude that the error was harmless because the evidence didnot clearly support a conviction for the lesser included misdemeanor of b re aking and entering without permission. It was defendant’s position at trial that he broke into the house, but had no intent to steal or commit any other felony. However, in a statement that was admitted into evidence, defendant explained that he, P resco tt, and Christopher Cornell went for a walk, during which Prescott stated that “there was a house back in the woods and they had

a lot of stuff inthere that they could make a lot of money.” Christopher Cornell confirmed that he, defendant, and Prescott broke into the house to see wh at they could find, and that they were “looking for things to steal.” Prescott stated that, although he had not planned on taking anything, he would have done so and thought that he “could get a little souvenir.” Conversely, there is little evidence in the record to support defendant’s assertionthat they just went into the

20 We note that substantial evidence in support of one offense do es not necessarily preclude there also being substantial evidence in support of the other offense. While not tru e of the present case, there may be cases where both the lesser and the greater offenses are supported by substantial evidence. Of course, each case must be evaluated on its own merits. 36house to look around. Thus, we cannot conclude that the evidence clearly supports the lesser included misdemeanor instruction of breaking entering without permission. Therefore, we conclude that defendant Cornell failed to satisfy his burden of showing that it was more probable than not that the failure to provide the requestedins truction undermined the reliability of the verdict and that the error in this case was harmless. IV We conclude that the trial court er red in refusing to give the requested misdemeanor lesser included offense instructionof breaking and entering without permission. The offense was necessarily included inthe greater offenses with whichthe defendant was charged, and convictionof the greater offenses required the jury to find a disputed factual element, namely, the intent to commit larceny, which was not part of the lesser included offense. However, becaus e th e lesser included instruction was not clearly supported by the evidence, defendant fai led to establish that it is more probable than not that a different outcome would have resulted had the lesser offense instruction been given. Therefore, the

error was harmless anddefendant’s conviction is affirmed. To the extent that our prior decisions, including Jones, Chamblis, Stephens , and Jenkins, conflict with our holding

37today, they are overruled. Our decision in this case is to be givenlimited retroactive effect, applying to thos e cases pending on appeal in which the issue has been raised and preserved. 21 C O RRIGAN , C.J., and T AYLOR , YOUNG, and M ARKMAN , JJ., concurred with WEAVER , J.

21 See, e.g., Lowe v Estate Motors Ltd, 428 Mich 439, 475; 410 NW2d 706 (1987); Murray v Beyer Mem Hosp, 409 Mic h 217 , 221-223; 293 NW2d 341 (1980). 38___________________________________ v S T A T E O F M I C H I G A N SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, No. 115833 ADAM KEITH CORNELL, Defendant-Appellant.
KELLY, J. ( dissenting ). I agree wi th the maj ority that it was an abuse of the trial court's discretion to refuse to deliver the lesser included offense instructions for breaking and entering without permission. MCL 750.115. However, I disagree with the majority's overruling of this Court's longstanding precedent in rendering its decision. I would retainand follow that precedent, adhering to the five-part test for lesser included misdemeanor instructions announced in People v Ste phen s 1 and consistent with MCL

1 416 Mich 252; 330 NW2d 675 (1985).768.32(1). Moreover, I would find that defendant was deprived of l esser included offense instructions critical to hi s defense, which was that he entered the house to look around, not to st eal. Because credible evidence was admitted that supportedthat def ense , the failure to give the instruction

was not harmless error. The majority asserted as much in People v Rodriguez , 463 Mich 466, 474; 620 NW2d 13 (2000). I. Lesser-Included Misdemeanor Offenses Neither party to this case disp uted that Stephens is controlling authority, and neither advocated that Stephens be overruled. Under Stephens , whenever the following conditions

are met, the trial judge must give an instructionto the jury on a lesser included misdemeanor: (1) the defendant makes a proper request, or (2) where the prosecutor requests the instructions, the defense has had adequate notice, and (3) there i s an " inherent relationship" between the charged offense and the requested misdemeanor, (4) the misdemeanor is supportedby a rational view of the eviden ce admitted at trial, and (5) the requested ins tructi ons do not "result in undue confusion or some other injustice." Stephens , supra at 261-264. The Stephens test is consistent with MCL 768.32(1), which reads: Except as provided in subsection (2) [regarding controlled substance offenses], upon an 2indictment for an offense, consisting of different degrees, as prescribed in this chapter , th e jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged inthe indictment, or of an attempt to commit that offense. The majority ann ounces the rule "that a requested instructionon a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the les ser included offense and a rational view of th e e vidence would support it." Slip op, p 26. It asserts that its rule better conforms to MCL 768.32(1) than does Stephens . I disagree. The rule tha t the majority articulates is merely a watered-downversion of the Stephens test. 2 Both require that the element distinguishing the lesser misdemeanor from the chargedoffense be at issue. Both require that the lesser

2 The majority's holding is not limited to overruling the Stephens test for lesser included misdemeanor offenses. Its real reach is the creation of a blanket rule for all lessor offense instructions, including cognate lesser offenses and necessarily included felony offenses. The rule imposes a high burdenfor proving error requiring reversal in lesser included felony cases and completely precludes the delivery of cognate les ser offense instructions. But the majority devotes no direct discussion to this dramatic change in Michigan law. See People v Mosko , 441 Mich 496, 500-501; 495 NW2d 534 (1992) (fai lure to give a requested instruction on a necessarily included lesser felony is error requiring reversal); People v Beach , 429 Mich 450, 453, 461-465; 418 NW2d 861 (1988) (co gnate lesser offense instructions must be delivered wh e n supported by the evidence). 3offense be suppo rted b y a rational view of the evidence. However, the rule articulated today omits the safeguards of notice to the defendant and protections against undue jury confusion. Although I recognize that these safeguards are not expl icitly required by MCL 768.32(1), neither is the evidentiary requirement to which the majority clings. 3 Wisely, the Stephens Court recognized that unrestricted misdemeanor instructions might result in compromise verdicts and convictions for misdemeanor offenses unsupp orte d by the evidence. It recognized, also, that the one-year cutoff rule established in People v Chamblis 4 is overly simplistic. The Stephens Court unanimously set forth a well-reasoned framework for deciding what lesser included misdemeanor instructions must be delivered to a jury. Whenthe majority discusses earlier interpretations of MCL 768.32(1), those more consistent with its view that lesser instructions always must be supported by the eviden ce, it refers to the statute's "construction. " Sl ip op, p 10. It reverts to the decision in People v Hanna , 5 which devotes much of its analysis to rejecting MCL 768.32(1)'s reference to

3 Neither notice nor jury confusion is at issue here, but the majority dismisses these basic procedural requirements without discussion.

4 395 Mich 408, 428-429; 236 NW2d 473 (1975).

5 19 Mich 316 (1869). 4"degree offenses." Hanna illustrates that MCL 768.32(1) does not provide a clear mandate that this Court must apply. In readopting Hanna , the majority does not returnto a statutory mandate that was d isre garded by this Court in Stephens . Rather, it reverts to a constructionof the statute long ago abandoned by this Court as unworkable. While recognizing that the law concerning lesser included offenses in Michigan has "not been clear or consistent," the majority has done nothing to promote consistency. I wo uld adhere to this Court's precedent in Stephens , as well as other precedent unnecessarily overruled by today's decision. 6 II. The Harmful Error Analyzing the instant case under Stephens, defendant satisfiedrequirements (1), (3), and (5). Requirement (2) is inapplicable. The only question concerns requirement (4), whether the instructions were supported by a rational view of the evidence. To satisf y t hat requirement, the element of defendant's intent to commit larceny must have been enough in dispute that the jury could find him innocent of breaking and entering with intent to commit larceny andguilty of breaking and entering without permission. See id. at 263.

6 Inadditionto Stephens, the majority overrules People v

Jenkins , 395 Mich 440; 236 NW2d 503 (1975), People v Chamblis, supra , People v Jones , 395 Mich 379; 236 NW2d 461 (1975), and their extensive progeny. 5Defendant's entire defense was that he did not intend to steal anything from the house. Although his position was not compelling, there was some evidence to support it in addition to his own conflicting statements to police, which the prosecution put in evidence. In his first written statement to police, defendant repeatedly emph as ized that he never intended to steal anything from the house. The prosecution's witnesses gave statements to police and testified at trial at least arguably consistent with the defense. The credibility of the evidence must be evaluated by the jury. People v Wolfe , 440 Mich 508, 514-515; 4 89 NW2d 748 (1992). The trial court usurped the jury's role when it refusedto give instructions that were supported by a rational view of the evidence. This was an abuse of the trial court's discretion. The majority agrees that the instructions should have beendelivered. The point of contention is whether the trial court's error was harmless. The majority applies the harmless

error test withlittle discussion about whether the error was constitutional in nature. Defendant argues that it was, and he makes a stro ng case. An instructional error may rise to the level of a constitutional error by violating a defendant's ri ght to due process. See People v Carines , 460 Mich 751 , 761; 597 NW2d 130 (1999); see also United States v Gaudin , 515

6US 506, 510; 115 S Ct 2310; 132 L Ed 2d 444 (1995) . An example is where the trial court omits from the instructions an element of the charged offense. Carines , supra ; People v Duncan , 462 Mich 47, 52; 610 NW2d 551 (2000). Here, the judge denied the jury an opportunity to consider defendant's theory of th e ca se. This deprived defendant of his right to a fair trial, an error constitutional in nature. Hence, it is the burden of the prosecutionto prove that the error was harmless. Carin es , supra at 774. I believe that the instructional error in this case was not harmless, even when analyzed as nonconstitutional error. It is well established that, where a court fails to give lesser included offense instructions, the error is harmless if the jury rejects an opti on to convict of another reduced off ense. In People v Beach , 7 the Court endorsed this tes t , whichis found in People v Ross , 73 Mich App 588; 252 NW2d 526 (1977). 8 However, where the trial court fai led to instruct

7 429 Mich 450; 418 NW2d 861 (1988).

8 The BeachCourt modified the holding in People v Richardson , 409 Mich 126; 293 NW2d 332 (1980), to the extent that it was inconsistent with Ross . The RichardsonCourt had held that it is not harmless error to refuse to instruct on a lesser included offense of involuntary manslaughter and reckless use of a firearm. It reasoned that "[t]he jury was . . . denied the freedom to act according to the evidence, and moreover was deprived of any option to convict (continued...) 7the jury regarding the only requested lesser included misdemeanor offense, the Ross test cannot be applied. In Mosko , this Court extended the harmless error test articulated in Beach , first considering whether the jury had rejectedan instructed lesser included offense to convict the defendant of the charged offense. Id. at 501-502. However, th e Mosko Court could not apply the "intermediate char ge " anal ysis on the facts of that case. 9 Instead, it concluded that the error was harmless because the distinguishing factor between the charged offense and the uninstructed offense was not disputed at trial. Id. at 505-506. Thus, when a jury does not reject a less er offense, the failure to deliver requestedinstructions is not harmless when the distinguishing element is at issue. This Court's regular application of harmless error

8 (...continued) consistently with the defendant's testimony . . . ." Id. at 141. It reached that conclusion even though the jury was instructed on first-degree murder, second-degree murder and voluntary manslaughter, and returned a guilty verdict on first-degree murder. Id. at 134-135.

9 The defendant in Mosko was convicted of first -deg ree criminal sexual conduct although the jury was given instructions for second-degree criminal sexual conduct. However, first-degree criminal sexual conduct is a penetration offense, wher eas second-degree criminal sexual conduct is a contact offense. The jury was not instructedon third-degree criminal sexual conduct, a penetration offense. Thus, its rejectionof second-degree criminal sexual conduct shed no light on whether it would have convicted the defendant of third-degree criminal sexual conduct. See id. at 497, 505. 8analysis to evidentiary issues is also instructive. In People

v

Luki ty , 10 a majority held that, in cases of preserved nonconstitutional error, the defendant bears the burden of proof. The defendant must show that the outcome of the trial wouldmore probably than not have been different, but for the evidentiary error. Id. at 496-497. This Court applied the Lukity standard to evidentiary error in People v Elston , 462 Mich 751; 614 NW2d 595 (2000), and People v Snyder , 462 Mich 38; 609 NW2d 831 (2000). There, whether the error was outcome determinative was held to depend on whether it undermined the reliability of the verdict. Elston , supra at 7 66; Snyder , supra at 45. The majority recently addressed an instructional error in Rod rigu ez , although not in the context of lesser included offe nse s. 11 It concluded that the error was not harmless beca use "[t]here was no question that [it] undermined the relia bi lity of the verdict, and thus was 'outcome determinative' under Lukity and Elston ." Rodriguez , supra 474. It was significant that the jury had received no instructionon law that was "crucial to the defen dant 's defense and [the instruction] was clearly supported by the

10 460 Mich 484; 596 NW2d 607 (1999).

11 The instructionunder review in Rodriguez concerned a statutory exception to culpability for failing to pay taxes. Id. at 468-469. 9evidence." Id . After applying the rule of harmless error that has emerged from this Court's precedent, I conclude that the error inthis case was not harmless. The fact that substantial evidence supported defendant's convictionmust be regardedas irrelevant under the circumstances of this case, where there

was evidence to support the lesser offense. Moreover, defendant admitted to the lesser offense in this case. The jury was put in the position either of convicting on the higher charge or seeing the admitted crime go unpunished. By being denied jury instructions on the lesser included misdemeanor, defendant was denied the opportunity to present his defense to the jury. The error was crucial in this case and cannot be considered harmless. The jury here, like the jury in Richardson , was unable to matchdefendant's statements and theory of defens e wi th a verdict option. Unl ike Richardsonand Beach , there was no indicationthat it would have rejected the lesser included offense, had it beengiven the opportunity. 12 Moreover, unlike in Mosko, the distinguishing element between defendant's

12 In fact, the circumstances suggest the opposite. When it acquitted defendant of the arson charge, the jury rejected the pr osec ution's claim that defendant intended to burn the house. Defendant admitted being in the house, but denied either setting the fire or intending to steal anything. It is possible that the jury would have believed him on both counts. 10chargedoffense and the requestedlesser included offense was very much in d ispute . 13 Therefore, the reliability of the verdict was undermined and the error was not harmless. Defendant is entitled to a new trial. The majority takes the word "clearly" from the Rodriguez requirement that the lesser offense be "clearly supported by the evidence," 14 and applies it to require substantial evidence supporting the lesser offense. Slip op, pp 35-36 . I n so doing, it expands Rodriguez to impose an unduly harsh burden on a defendant. Whena criminal defendant is denied the opportunity to present his defense to the jury, it should not matter that the evidence supporting the defense is not substantial. The error is significant if the le sser offense is supported by any credible evidence. It must clearly support the lesser offense inthat it must be more than a bare trace of evidence; it must be something concrete on which a jury could base its verdict. The majority's expansion of Rodriguez takes the power to

13 I n many i f not most cases of breaking and entering, a defendant's claim that he entered without any malicious intent is suspect. However, the house in this case is the "Heston house," the one -tim e home of famed actor Charlton Heston. Certainly, one could conclude that such a house would be an attractive local curiosity. Defendant's testimony that he went to the house only to look around was both corroborated and contradicted by his companions.

14 Id. at 474. 11decide a defendant's guilt or innocence, consistent with the evidence before it, out of the hands of the jury. III. Other Lesser Offenses The majority strays beyond the matter at hand, lesser included misdemeanor offenses, to overrule precedent not even controlling in the in stant case. It devotes pages of discussionto cognate lesser offenses, and its holding clearly applies to necessarily included felony offenses. Not only do I disagree with the reasoning and the result, I also oppose the majority's wholesale overruling of the precedent of this Court. In defiance of stare decisis, the majority contributes to a constant state of flux in Michigan law. Here, the majority fails even to give lip service to the princ iple of stare decisis, instead dismissing this Court's precedent as "wrongly decided." IV. Conclusion The trial court abused its discr etio n by refusing to deliver the lesser included misdemeanor instructions for breaking andentering without permission. Those instructions shouldbe given in every case where a defendant has offered

some credible evidence to support a lesser included misdemeanor offense. Moreover, I would not stray fro m the well established and long recognized precedent of this Court that conforms with the legislative mandate of MCL 768.32(1).

12Applying that precedent, I would find the error in this case was not harmless, and I would grant defendant a new trial. C AVANAGH , J., concurred with K ELLY , J.

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