____________________________________________________________________________________________ 

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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 Opinion Robert P. Young, Jr. 

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 trial 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 instruction and that the error was harmless.
 

Therefore, we affirm defendant’s convictions.
 
I
 

Defendant Cornell was convicted by a jury in the
 

Roscommon Circuit Court of breaking and entering with the
 

intent to commit larceny, MCL 750.110. He was sentenced, as
 

an habitual 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 marshal
 

opined that the fire started in the living room/dining 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
 

led to a home about two miles away, where defendant and his
 

cousin Christopher Cornell were present. The owner of the
 

home told police that they should be looking for Cary
 

Prescott. Some time later, the police stopped a vehicle with
 

Prescott, Christopher Cornell, and defendant inside. All
 

three men gave various statements to the police regarding the
 

incident. At defendant’s trial, Christopher Cornell and
 

Prescott testified against defendant pursuant to a plea
 

agreement. 


1 The house, located in St. Helen, Michigan, was known in


the community as the “Heston house” because actor Charleton


Heston had spent time there.
 

2
 
Defendant gave two written statements to the police, both
 

of which were admitted into 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 the
 

house. In another statement, defendant claimed that while the
 

three of them were going for a walk, Prescott told them that
 

there was a house in the woods that “had 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
 

in the 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,
 

3
 
but it wouldn’t burn. He alleged 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 something wicked” and
 

then had led them to the house. 


Defense counsel requested that the jury be instructed on
 

the lesser included misdemeanor of breaking and entering
 

without permission, MCL 750.115. The trial court denied the
 

request, stating:
 

The Court would note for the record entering


without permission 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 larceny and I think that the issue is


squarely framed for the jury. Either there was a B
 

and E with intent or the crime did not occur. I
 

would not give the entering without owner’s
 

permission instruction under the circumstances of


this case.
 

Defendant appealed, and the Court of Appeals affirmed his
 

conviction.2 The Court of Appeals rejected defendant’s
 

2 Unpublished opinion per curiam, issued November 2, 1999


(Docket No. 211215).
 

4
 
argument that the trial court erred when it refused to
 

instruct the jury on the lesser included misdemeanor. It
 

reasoned that, in light of the evidence presented regarding
 

defendant’s intent to commit larceny, “the jury could not
 

rationally have found that defendant lacked the intent to
 

commit larceny when he entered the house.” Slip 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
 

defendant’s theory 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 defendant had 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 conviction


of breaking and entering without permission.


Therefore, the trial court abused its discretion in


denying defendant’s requested instruction of the


lesser misdemeanor offense of breaking and entering


without permission. [Slip op at 2 (citation


omitted).]
 

5
 
The dissent also noted that the requested instruction would
 

not have resulted in undue confusion or some other injustice.
 

Defendant sought leave to appeal from this Court. This
 

Court granted leave 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
 

Although much of 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 chapter, the 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 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 958-959 (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


included offense 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
 

Mich 484 (1999), People v Snyder, 462 Mich 38
 

(2000), and People v Elston, 462 Mich 751 (2000).
 

6
 
law 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]pon an indictment for any offense,


consisting of different degrees, as prescribed in


this title, the jury may find the accused not


guilty of the offense in the degree charged in the


indictment, and may find such accused person guilty


of any degree of such offense, inferior to that


charged in the indictment, or of an attempt to


commit such offense.” [Hanna v People, 19 Mich 316,
 

320-321 (1869).]
 

In Hanna, the defendant was charged with assault with
 

intent to kill. An issue before the Court 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 simple
 

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


an indictment charged an offense which included


within it another 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 could not be convicted of a


misdemeanor. [Id., 318.]
 

7
 
After explaining that the bases for the misdemeanor
 

qualification had ceased to exist, the Court construed the
 

1846 version of the statute because 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
 

divided 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 degree; since murder is


the only offense divided 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 declaratory of, or as


amending the common law; since, without the
 

provision, the common law by the narrowest
 

application ever 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 second degree, but for manslaughter also, under


an indictment 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
 

conviction of 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
 

8
 
offenses not divided into degrees eo nomine, then
 

it can have no application or effect whatever, and


must have been inserted in the statute for no
 

purpose 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 Revised Statutes of New


York, where 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 all 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 includes a charge


for the less. In this view only, can any effect be


given to it, as declaratory of, or altering the


common law.[4] [Id., 321-322.]
 

The Court further noted that the circuit courts had
 

consistently construed the statute as removing the misdemeanor
 

restriction of the common-law rule and authorizing a
 

conviction “for any substantive offense included in the
 

offense charged, without reference to the fact that one was a
 

felony and the other a misdemeanor . . . .” Id., 323.
 

On the basis of its analysis of the statute, the Court
 

concluded that because the assault statute provided for
 

“assaults of various kinds and degrees of enormity, depending
 

upon the 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,


and find the prisoner guilty of an offense of lesser grade, if


contained within it.” People v McDonald, 9 Mich 150, 153


(1861).
 

9
 
the 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., 322-323. The Court rejected the
 

defendant’s argument that he could not be prosecuted by
 

information because 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 examination upon the lesser offense included within it.
 

Beginning with a series of cases released in 1975, this
 

Court’s analysis moved away from MCL 768.32 and the
 

construction that the statute had been given by the Hanna
 

Court. The two most noteworthy cases in this series are
 

People v Jones, 395 Mich 379; 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
 

voluntary manslaughter. However, the trial court refused
 

defense counsel’s request that the jury be instructed on the
 

statutory offense of killing or injuring a person by careless,
 

reckless, or negligent discharge of a firearm. 


In analyzing whether this was a lesser included offense
 

on which the jury should have been instructed, this Court
 

10
 
 

first opined that the law of lesser included offenses in
 

Michigan had not been clear or consistent. It noted that the
 

common law 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 and hence ‘cognate’ in the sense
 

that they share several elements, and are of the same class or
 

category, but may contain some elements not found in the
 

higher offense.” Id.
 

Further, 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
 

“the overlapping of certain elements and common statutory
 

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 would always
 

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

a cognate lesser offense, the evidence “must be examined to
 

determine whether that evidence would support a conviction of
 

the lesser offense.” Id., 390. Because the evidence would
 

have supported a guilty verdict 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 Coleman dissented from the majority opinion in
 

Jones because she disagreed with 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


statutes, it adds a new act or section to the


existing legislation.
 

It threatens due process as to defendant and


fundamental fairness 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 by my colleagues.


Considering the number of offenses by our
 

definition “related” or “allied” to this or other
 

12
 
major crimes, juries presented with foreseeable


smorgasbords of possibilities conceivably will
 

return unjustifiable verdicts of guilty.
 

In my opinion, the theory adopted today
 

neither promotes the efficient and careful
 

operation of the criminal justice system 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 prosecutor’s
 

responsibility and that the Court had held that courts may not
 

interfere with that process. She explained 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 consideration of necessarily included
 

lesser offenses. Further, which necessarily included lesser
 

offenses warrant 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.
 

13
 
In Chamblis, an opinion that was decided the same day as
 

Jones, the defendant was charged with armed robbery. “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 offense. On appeal, the
 

defendant challenged 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 support 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
 

on misdemeanor offenses. Recognizing 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


qualification on the doctrine of conviction of


lesser included offenses. “There would be a great


difference between a conviction for manslaughter
 

14
 
under an indictment for second degree murder, and a


conviction for disturbing the peace under the same


charge. Does not the policy against harassment and


a continual siege of accusations 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 convicting of assault and


battery a defendant charged with murder. As a
 

matter of policy people who commit serious crimes


should be punished for those offenses, and those


who did not commit such serious crimes should not
 

be tried for those crimes only to be found guilty


of a much lower offense. In the example cited, if


the most serious offense for which a jury feels


conviction is justified is assault and battery, the


original charge of murder appears to bear no
 

realistic relationship to the offense committed,


and no good 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
 

incarceration period 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 defense counsel to restrict attention to the
 

principal charge has not been foreclosed by the
 

5 People v Cazal, 412 Mich 680, 683; 316 NW2d 705 (1982),
 

limited the Chamblis misdemeanor cutoff rule to jury trials.


In contrast, we hold in the present case that MCL 768.32(1)


applies in both bench and jury trials.
 

15
 
majority’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 inferior 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


not mandate what law is applicable to the case.


[Id., 433.]
 

Justice Lindemer also disagreed with the majority’s
 

“discussion of instructions on lesser included cognate
 

offenses,” its “rule cutting off lesser included offense
 

instructions for which the maximum allowable incarceration
 

period is one year or less when the charged offense is
 

punishable by incarceration for more than two years, and to
 

the policy limitation on 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 unarmed robbery was a necessarily
 

included lesser offense of armed robbery. However, she
 

reluctantly agreed with Justice Lindemer’s analysis of the
 

majority opinion concerning the cutting off of included
 

offense instructions according to penalty, stating:
 

I agree with him because I believe him to be


right. The reluctance is born of the foreseeably


lengthened “laundry list” of offenses and jurors


who would be required to absorb possibly dozens of
 

16
 
pages 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 overruled the misdemeanor cutoff rule
 

articulated in Chamblis, holding: 


[T]he policies behind the Chamblis rule would
 

be better served by a more flexible approach 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 due
 

process, undue confusion, or some other injustice.
 

The situation in Stephens is remarkably similar to that
 

presented in 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. The defendant’s
 

theory was that he lacked the requisite intent to commit
 

larceny. Defense counsel requested that the jury be
 

instructed on the lesser included misdemeanor of entering
 

without permission. The trial judge felt compelled by
 

Chamblis to deny the request. 


The Stephens Court reasoned that the possibility of a
 

compromised verdict did not justify an arbitrary limitation
 

according the maximum term of confinement. It noted that from
 

the defendant’s point of view, an instruction on a lesser
 

17
 
included misdemeanor offense might further a just result by
 

precluding a felony conviction unsupported by the jury’s
 

belief of guilt beyond a reasonable doubt. While the goal of
 

avoiding jury confusion was an important one, the Court
 

believed that the restrictions it imposed on misdemeanor
 

instructions would alleviate this problem by limiting 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 determining
 

when lesser 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 explained, there must be an inherent
 

relationship between the greater and lesser offense:
 

“[T]hey must relate to the protection 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 offense.” [Id.,
 

18
 
 

quoting Whitaker, supra at 319.][6]
 

Third, 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 consistently 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 disputed factual element which


is not required for conviction of the lesserincluded offense.” [Id. (citations omitted).]
 

In discussing this element, the Court expressly refused to
 

extend the rule of Jones. Id., 264. Fourth, if the
 

prosecutor requests the instruction, the defendant must have
 

adequate notice of it as one of the charges against which he
 

6 This Court 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 related in an


evidentiary manner, so that, generally, proof of


the misdemeanor is necessarily presented as part of


the proof of the greater charged offense.
 

19
 
must 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 decision to grant or deny a
 

requested lesser included misdemeanor instruction would only
 

be reversed upon a finding of an abuse of discretion. Id.,
 

265.
 

As the preceding discussion illustrates, many of our more
 

recent decisions concerning lesser included offenses have
 

disregarded 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
 

Mich 266, 281; 627 NW2d 261 (2001); McDougall v Schanz, 461
 

Mich 15, 27; 597 NW2d 148 (1999). Determining what charges a
 

jury may consider does not concern merely the “judicial
 

dispatch of litigation.” Id., 30. Rather, the statute
 

concerns a matter of substantive law. As this Court has
 

noted,
 

[t]he measure of control exercised in connection


with the prevention and detection of crime and
 

prosecution and punishment of criminals is set


forth in the statutes of the State pertaining


thereto, particularly the penal code and the code


of criminal procedure. The powers of the courts


with reference to such matters are derived from the
 

statutes. [People v Piasecki, 333 Mich 122, 143; 52
 

NW2d 626 (1952).] 


20
 
 

Therefore, 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. 


In pertinent 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). As the Hanna Court explained, the provision was
 

not intended to be limited only to those expressly divided
 

into “degrees,” but was intended to extend to all cases in
 

which different grades of offenses or degrees of enormity had
 

been recognized. 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 language 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 permits consideration of a degree of those
 

offenses that are inferior to the greater offense charged.7
 

7 We note that MCL 768.32(1), which is quoted in its


entirety on page 11, also permits instruction on an attempt to


(continued...)
 

21
 
In People v Torres (On Remand), 222 Mich App 411; 564 NW2d 149
 

(1997), the Court of 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 identical. We
 

believe that the word “inferior” in the statute
 

does not refer to inferiority in the penalty


associated with the offense, but, rather, to the


absence of an element that distinguishes the
 

charged offense from the lesser offense. The
 

controlling factor is whether the lesser offense


can be proved by the same facts that are used to


establish the charged offense. As the Membres
 

Court[8] noted, the defendant’s due process notice


rights are not violated because all the elements of


the lesser offense have already been alleged by


charging the defendant with the greater offense.


[Id., 419-420.]
 

This would foreclose consideration of cognate lesser offenses,
 

which are 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
 

an attempt instruction should be given, one must also consider
 

whether the evidence presented supported such an instruction.
 

Before the Jones and Chamblis decisions, this 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).
 

22
 
 

consideration. 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 circumstances 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
 

in refusing 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 offenses, where
 

the evidence tends only to prove the greater . . . .” 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
 

23
 
guilty 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
 

an offense.” 9 In explaining when instructions should 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) entitled to an instruction which


would permit a finding of guilt of the lesser


offense.” But a lesser-offense charge is not
 

proper where, on the evidence presented, the
 

factual 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 disputed factual element which is not


required for 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


in the offense charged,” as we have already 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


section 1035 of the Revised Statutes did not
 

authorize a jury in a criminal case to find the


defendant guilty of a less offense than the one


charged, unless the evidence justified them in so


doing. Congress did not intend to invest juries in


criminal cases with power to arbitrarily disregard


the evidence and the principles of law applicable


(continued...)
 

24
 
We believe that this analysis is consistent with our prior
 

case law and equally applicable to MCL 768.32. Therefore, we
 

hold that a requested instruction on 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 lesser included offense and a rational view of
 

the evidence would support it.11 To permit otherwise would be
 

10(...continued)


to the case on trial. The only object of that


section was to enable the jury, in case the


defendant was not shown to be guilty of the


particular crime charged, and if the evidence


permitted them 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 ground whatever upon


which the jury could properly have reached the


conclusion that the defendant Hanson was only


guilty of an offense included in the one 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 action.


In People v Cargill, one of the companion cases to Kamin, the
 

defendant was charged with armed robbery. Defense counsel
 

requested that the jury be instructed on unarmed robbery,


among other lesser included offenses. The undisputed evidence


established that the men who robbed the store were armed with
 

a sawed-off shotgun and that 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 resolve 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 were committed.” Id., 516.
 

(continued...)
 

25
 
 

inconsistent with the truth-seeking function of a trial, as
 

expressed in 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 the defendant’s


conviction. 


12 MCL 768.29 states in pertinent 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 held 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,


such an 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,


given that in many cases involving first-degree murder, 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 furthers the


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 Detroit, 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...)
 

26
 
The 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
 

concern regarding notice to a defendant is irrelevant because
 

the principal charge contains all the elements of the
 

necessarily lesser included offense; thus defendant is already
 

on notice. Second, the concern regarding jury confusion 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 rational view of the
 

evidence. Additionally, an “inherent relationship” between
 

the charged offense and the requested 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 process”


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.
 

27
 
the case before us.15
 

Defendant Cornell was charged with breaking and entering
 

with intent to commit larceny. MCL 750.110 provides:
 

A person who breaks and enters, with intent to


commit a felony or a larceny therein, 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


section 7401(2)(a)(i) or (ii) or section
 

7403(2)(a)(i) or (ii) of the public health code,


Act No. 368 of the Public Acts of 1978, being


sections 333.7401 and 333.7403 of the Michigan


Compiled Laws, or conspiracy to commit 1 or more of


these offenses, 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 substance offense. A jury shall not be
 

instructed as to other lesser included offenses
 

involving the same controlled substance nor as to
 

an attempt to commit either 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


involving that controlled substance. A judge in a


trial without a jury shall 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 controlled
 

substance offense involving that controlled
 

substance. [Emphasis added.]
 

28
 
granary, factory or other building, structure,


boat, ship, or railroad car is guilty of a felony,


punishable by imprisonment for not more than 10


years.
 

Defendant Cornell requested that the jury also be instructed
 

on the offense of breaking 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 kept for public or private


use, or any private apartment 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 and entering without permission is
 

a necessarily included lesser offense of breaking and entering
 

with the intent to commit a felony. The elements of breaking
 

and entering with intent to commit larceny are: (1) the
 

defendant broke into a building, (2) the defendant entered the
 

building, and (3) at the time of the breaking and entering,
 

the defendant intended to commit a larceny therein. People v
 

Toole, 227 Mich App 656, 658; 576 NW2d 441 (1998). Breaking
 

and entering without permission requires (1) breaking and
 

entering or (2)entering the building (3) without the owner’s
 

permission. It is impossible to commit the greater offense
 

29
 
without first committing the lesser offense.
 

Moreover, a conviction of the greater 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 presented at trial offered conflicting 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 Christopher 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 purpose and
 

30
 
function of an appellate court. Our constitutional
 

mission, as the highest branch of the one court of


justice, is to correct errors that have deprived a


litigant of a fair trial or have otherwise
 

interfered significantly 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


on the 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


instruction on a necessarily included offense.


[People v Mosko, 441 Mich 496, 503; 495 NW2d 534
 

(1992).]
 

Therefore, having concluded that the trial court erred in
 

refusing to give the requested instruction, we now must
 

consider whether the error was harmless. 


MCL 769.26 provides: 


No judgment or verdict shall be set aside or


reversed or a new trial be granted by any court of


this state in any criminal case, on the ground of


misdirection of the jury, or the improper admission


or rejection of evidence, or for any error as to


any matter of pleading or procedure, unless in the


opinion of the court, after an examination of the


entire cause, it shall affirmatively appear that


the error complained of resulted in 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 defect in anything done or


omitted by the court or by the parties is not


ground for granting a new trial, for setting aside


a verdict, or for vacating, modifying, or otherwise


disturbing a judgment or order, unless refusal to


take this action appears to the court inconsistent


with substantial justice.
 

Application of these provisions, as developed in this Court’s
 

31
 
 

harmless error jurisprudence, requires error to be classified
 

as constitutional or nonconstitutional and as preserved or
 

unpreserved. If the error 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 concerns
 

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 (1994). If a case


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


applied to errors of constitutional magnitude, not to
 

(continued...)
 

32
 
ground for reversal, “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., 495-496. 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 4th 142, 165; 77 Cal Rptr 2d 870; 960 P2d


1094 (1998) (holding that “the failure to instruct sua sponte


on a lesser included offense in a noncapital case is, at most,


an error 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 Neder, 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 Court opined that the error


differed from the limited class of cases in which it had found
 

structural error, stating,
 

Unlike such defects as the complete


deprivation of counsel or trial before 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.]
 

33
 
 

in the 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 instructional errors. In
 

Rodriguez, the defendant was convicted of evading the use tax.
 

The trial court refused to instruct the jury regarding a
 

statutory exemption to the use tax, finding the provision
 

inapplicable to the defendant. Id., 469. This Court
 

concluded that the statutory exemption would apply if the
 

evidence introduced by the defendant were believed by the
 

jury; thus, the instruction should have been given. Id., 474.
 

We then considered whether the error was “outcome
 

determinative” because it undermined the reliability of the
 

exception to 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


explained that the effect of an evidentiary error “is
 

evaluated by assessing it in the context of the untainted


evidence 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”


with the “untainted” evidence when the only error asserted is


an instructional error. Nevertheless, pursuant to MCL 769.26,


we review the “entire cause” to determine whether the error
 

undermined the reliability of the verdict.
 

34
 
Lukity and Elston. [Id., 474 (emphasis added).]
 

Thus, pursuant to Rodriguez, the reliability of the
 

verdict is undermined when the evidence “clearly” supports the
 

lesser included instruction, but the instruction is not given.
 

In other words, it is only when there is substantial evidence
 

to support the requested instruction that an appellate court
 

should reverse the conviction.19 As we must consider 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 important to 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 require an
 

instruction on 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
 

given in this case. If other lesser instructions had been
 

given and 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), NW2d 526
 

(1977); People v Mosko, 441 Mich 496; 495 NW2d 534 (1992). 


35
 
conviction; pursuant to MCL 769.26, the “entire cause” must be
 

surveyed.20
 

Applying these harmless error principles to defendant
 

Cornell’s case, we conclude that the error was harmless
 

because the evidence did not clearly support a conviction for
 

the lesser included misdemeanor of breaking 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, Prescott, 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 in there that they could make a lot of money.”
 

Christopher Cornell confirmed that he, defendant, and Prescott
 

broke into the house to see what 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 assertion that they just went into the
 

20 We note that substantial evidence in support of one


offense does not necessarily preclude there also being


substantial evidence in support of the other offense. While
 

not true 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.
 

36
 
house 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 requested instruction
 

undermined the reliability of the verdict and that the error
 

in this case was harmless.
 

IV
 

We conclude that the trial court erred in refusing to
 

give the requested misdemeanor lesser included offense
 

instruction of breaking and entering without permission. The
 

offense was necessarily included in the greater offenses with
 

which the defendant was charged, and conviction of 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, because the lesser
 

included instruction was not clearly supported by the
 

evidence, defendant failed 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 and defendant’s conviction is affirmed. To
 

the extent that our prior decisions, including Jones,
 

Chamblis, Stephens, and Jenkins, conflict with our holding
 

37
 
today, they are overruled. Our decision in this case is to be
 

given limited retroactive effect, applying to those cases
 

pending on appeal in which the issue has been raised and
 

preserved.21
 

CORRIGAN, C.J., and TAYLOR, YOUNG, and MARKMAN, 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 Mich 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 with the majority 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 retain and follow that precedent, adhering to the
 

five-part test for lesser included misdemeanor instructions
 

announced in People v Stephens1 and consistent with MCL
 

1416 Mich 252; 330 NW2d 675 (1985).
 
768.32(1). Moreover, I would find that defendant was deprived
 

of lesser included offense instructions critical to his
 

defense, which was that he entered the house to look around,
 

not to steal. Because credible evidence was admitted that
 

supported that defense, 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 disputed 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 instruction to 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 is an "inherent relationship" between the charged
 

offense and the requested misdemeanor, (4) the misdemeanor is
 

supported by a rational view of the evidence admitted at
 

trial, and (5) the requested instructions 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
 

2
 
indictment for an offense, consisting of different


degrees, as prescribed in this chapter, the 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 in the indictment, or of an attempt


to commit that offense.
 

The majority announces the rule "that a requested
 

instruction on 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 lesser
 

included offense and a rational view of the evidence 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 that the majority articulates is merely a
 

watered-down version of the Stephens test.2 Both require that
 

the element distinguishing the lesser misdemeanor from the
 

charged offense 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


burden for proving error requiring reversal in lesser included


felony cases and completely precludes the delivery of cognate


lesser 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)


(failure 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)


(cognate lesser offense instructions must be delivered when


supported by the evidence).
 

3
 
offense be supported by 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
 

explicitly 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 unsupported by the
 

evidence. It recognized, also, that the one-year cutoff rule
 

established in People v Chamblis4 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.
 

When the majority discusses earlier interpretations of
 

MCL 768.32(1), those more consistent with its view that lesser
 

instructions always must be supported by the evidence, it
 

refers to the statute's "construction." Slip 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
 

3Neither notice nor jury confusion is at issue here, but


the majority dismisses these basic procedural requirements


without discussion.
 

4395 Mich 408, 428-429; 236 NW2d 473 (1975).
 

519 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 return to a statutory
 

mandate that was disregarded by this Court in Stephens.
 

Rather, it reverts to a construction of 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 would
 

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
 

satisfied requirements (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 satisfy that 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 and guilty of breaking
 

and entering without permission. See id. at 263.
 

6In addition to 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.
 

5
 
 

Defendant'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 emphasized 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; 489 NW2d 748
 

(1992). The trial court usurped the jury's role when it
 

refused to 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
 

been delivered. The point of contention is whether the trial
 

court's error was harmless. The majority applies the harmless
 

error test with little discussion about whether the error was
 

constitutional in nature. Defendant argues that it was, and
 

he makes a strong case. An instructional error may rise to
 

the level of a constitutional error by violating a defendant's
 

right to due process. See People v Carines, 460 Mich 751,
 

761; 597 NW2d 130 (1999); see also United States v Gaudin, 515
 

6
 
US 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 the case. This deprived
 

defendant of his right to a fair trial, an error
 

constitutional in nature. Hence, it is the burden of the
 

prosecution to prove that the error was harmless. Carines,
 

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 option to convict of another reduced
 

offense. In People v Beach,7 the Court endorsed this test,
 

which is found in People v Ross, 73 Mich App 588; 252 NW2d 526
 

(1977).8 However, where the trial court failed to instruct
 

7

429 Mich 450; 418 NW2d 861 (1988).
 

8The Beach Court modified the holding in People v
 

Richardson, 409 Mich 126; 293 NW2d 332 (1980), to the extent


that it was inconsistent with Ross. The Richardson Court 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...)
 

7
 
the 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
 

rejected an instructed lesser included offense to convict the
 

defendant of the charged offense. Id. at 501-502. However,
 

the Mosko Court could not apply the "intermediate charge"
 

analysis 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 lesser offense, the failure to deliver
 

requested instructions 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-degree
 

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, whereas second-degree criminal sexual conduct is a


contact offense. The jury was not instructed on third-degree


criminal sexual conduct, a penetration offense. Thus, its


rejection of 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.
 

8
 
analysis to evidentiary issues is also instructive. In People
 

v Lukity,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
 

would more 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 766; Snyder,
 

supra at 45.
 

The majority recently addressed an instructional error in
 

Rodriguez, although not in the context of lesser included
 

offenses.11 It concluded that the error was not harmless
 

because "[t]here was no question that [it] undermined the
 

reliability of the verdict, and thus was 'outcome
 

determinative' under Lukity and Elston." Rodriguez, supra
 

474. It was significant that the jury had received no
 

instruction on law that was "crucial to the defendant's
 

defense and [the instruction] was clearly supported by the
 

10460 Mich 484; 596 NW2d 607 (1999).
 

11The instruction under review in Rodriguez concerned a
 

statutory exception to culpability for failing to pay taxes.


Id. at 468-469.
 

9
 
evidence." Id.
 

After applying the rule of harmless error that has
 

emerged from this Court's precedent, I conclude that the error
 

in this case was not harmless. The fact that substantial
 

evidence supported defendant's conviction must be regarded as
 

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
 

match defendant's statements and theory of defense with a
 

verdict option. Unlike Richardson and Beach, there was no
 

indication that it would have rejected the lesser included
 

offense, had it been given the opportunity.12 Moreover, unlike
 

in Mosko, the distinguishing element between defendant's
 

12In fact, the circumstances suggest the opposite. When
 

it acquitted defendant of the arson charge, the jury rejected


the prosecution'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.
 

10
 
charged offense and the requested lesser included offense was
 

very much in dispute.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. In so
 

doing, it expands Rodriguez to impose an unduly harsh burden
 

on a defendant. 


When a 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 lesser offense is supported by any
 

credible evidence. It must clearly support the lesser offense
 

in that 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
 

13In many if 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-time 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.
 

14Id. at 474.
 

11
 
decide 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 instant case. It devotes pages of
 

discussion to 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
 

principle of stare decisis, instead dismissing this Court's
 

precedent as "wrongly decided."
 

IV. Conclusion
 

The trial court abused its discretion by refusing to
 

deliver the lesser included misdemeanor instructions for
 

breaking and entering without permission. Those instructions
 

should be given in every case where a defendant has offered
 

some credible evidence to support a lesser included
 

misdemeanor offense. Moreover, I would not stray from the
 

well established and long recognized precedent of this Court
 

that conforms with the legislative mandate of MCL 768.32(1).
 

12
 
Applying that precedent, I would find the error in this case
 

was not harmless, and I would grant defendant a new trial.
 

CAVANAGH, J., concurred with KELLY, J.
 

13