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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION April 21, 2016

9:00 a.m.

v No. 326658
Kalamazoo Circuit Court TROY EDWARD BUSH, LC No. 2014-001674-FH

Defendant-Appellant.

Before: S AAD , P.J., and B ORRELLO and G ADOLA , JJ.

G ADOLA

, J.

Following an incident that occurred on November 17, 2014, at a home in Portage, Michigan, defendant was charged with one count of first-degree home invasion, MCL 750.110a(2); one count of assault with a dangerous weapon ( felonious assault), MCL 750.82(1); and one count of resisting or obstructing a poli ce officer, MCL 750.81d(1). Before trial, defendant sought lea ve to appeal an order grantin g the prosecution’s motion for a special jury instruction relative to his charge of first-degree home invasion, which this Court
denied. People v Bush , unpublished order of the Court of Appeals, entered July 16, 2 015 (Docket No. 326658). Defendant then sought leave to appeal in the Michigan Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded the case back to this Court for consideration of the jury instru ction issue as on leave granted

. People v Bush , 498 Mich 900; 870 NW2d 718 (2015). For the reasons below, we reverse the tr ial court’s order granting the prosecution’s motion and remand the case to the trial court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

The circumstances underlying the charges in this case were set forth in the prosecution’s motion for a special jury instruction. According to the allege d victim, Melissa Partain, on November 17, 2014, she barricaded h erself in an upstairs bedroo m of her home using a dresser after defendant sent her threatening text messages. Thereafter , defendant came upstairs and kicked the bedroom door open, forced the dresser out of the way , then entered the room and
assaulted Partain. Partain indi cated that she did not give def endant permission to be in the home.

The prosecutor also stated in his motion that Partain’s adult son, Jason Switzer, who also resided in the home, would testify that he asked defendant to c ome over on November 16, 2014, to fix a bathtub, and defendant entered the home with Switzer’s permission. Switzer indicated-2- that he heard his mother and defendant talking on the evening o f November 16, 2014, and the morning of November 17, 2014. He left the home at 3:15 p.m. onNovember 17, 2014, and returned at around 6:00 p.m. to fi nd the police at the home inv estigating the incident.

Defendant stated in an affidavit that the home was his primary residence until his arrest on November 17, 2014, and he received mail at the home, kept cl othes and tools at the home, and occasionally spent the night at the home sleeping on a couch in the basement. Defendant explained that on November 16, 2014, Switzer asked him to come to the house to repair bathroom plumbing, and he staye d at the house until his arrest. According to defendant, the plumbing access panel for the bathtub was in the closet of the bedroom that Partain allegedly barricaded herself in, and at no time did he force his way into the bedroom by kicking the door open or forcing a dresser out of the way.

Before trial, the prosecution filed a motion requesting a spec ial jury instruction on the home-invasion charge. In the motion, the prosecution recited t he standard jury instruction found in CJI2d 25.2a, 1 and asserted that the standard instruction was insufficient to “cover a fact

1 CJI2d 25.2a, which is now contai ned in M Crim JI 25.2a, provid es the following:

(1) The defendant is charged with home invasion in the first d egree. To prove this charge, the prosecutor must prove each of the follow ing elements beyond a reasonable doubt:

(2) First, that the defendant broke into a dwelling. It does not matter whether anything was actually br oken; however, some force must have been used. Opening a door, raising a window, and taking off a screen are a ll examples of enough force to count as a breaking. Entering a dwelling throu gh an already open door or window without using any for ce does not count as a brea king.

(3) Second, that the defendant entered the dwelling. It does not matter whether the defendant got [his/ her] entire body inside. If the defendant put any part of [his/her] body into the d welling after the breaking, th at is enough to count
as an entry.

[ Choose (4)(a) or (4)(b) as appropriate .]

(4) Third,

(a) that when the defendant b roke and entered the dwelling, [h e/she] intended to commit [ state offense ].

(b) that when the defendant entered, was present in, or was le aving the dwelling, [he/she] committed the offense of [ state offense ].

(5) Fourth, that when the defenda nt entered, was present in, o r was leaving the dwelling, either of the follo wing circumstances existed:-3- pattern where a person lawfully enters the home, but then break s into a room within the home to which he had no permi ssion [to enter].” Citing People v Clark , 88 Mich App 88; 276 NW2d 527 (1979), People v Toole , 227 Mich App 656; 576 NW2d 441 (1998), and People v Mosher

, unpublished opinion per curiam of the Court of Appeals, issued January 23, 2014 (Docket No. 312996), the prosecution argued that there was sufficient autho rity to support the proposition that when a defendant gains lawful access to a building, but has no right to enter an inner portion thereof, the defendant’s use of force to gain entry into an inn er portion is sufficient to constitute a “breaking” for purposes of the home-invasion statute. Accordin gly, the prosecution requested the following special jury instruction: “Where a [d]efendant [g ]ains access to a building without breaking, but has no right to e nter an inner portion of that bu ilding, the defendant’s use of force to gain entry into that in ner portion is a breaking.”

Defendant objected to the prosecution’s motion, arguing that “ the reason the Standard Jury Instruction does not ‘cover a fact pattern where a person lawfully enters the home, but then breaks into a room within the home to which he had no permissio n to enter’ [is because] such a fact pattern is outside the purview of [MCL 750.110a(2)].” Def endant reasoned that the term “dwelling,” as defined by MCL 750.110a(1)(a), did not encompass “[a] room within the dwelling,” and therefore a person could not be convicted of hom e invasion for breaking into an inner room of a dwelling if that person was already lawfully pr esent in the dwelling. Following a hearing on the matter, the trial c ourt granted the prosecution’ s motion.

II. STANDARD OF REVIEW

This Court reviews de novo a claim of instructional error inv olving a question of law. People v Dobek , 274 Mich App 58, 82; 732 NW2d 546 (2007). Likewise, this Cou rt reviews de novo issues of statutory interp retation and construction. People v Loper , 299 Mich App 451, 463; 830 NW2d 836 (2013).

III. ANALYSIS

“A defendant in a criminal trial is entitled to have a properl y instructed jury consider the evidence against him or her.” Dobek , 274 Mich App at 82. “The trial court’s role is to clearly present the case to the jury and to instruct it on the applicab le law.” Id . “Jury instructions must include all the elements of the offense charged against the def endant and any material issues, defenses, and theories that ar e supported by the evidence.” Id . Pursuant to MCR 2.512(D)(2), pertinent model jury instructions “must be given in each action in which jury instructions are given” if the model instructions “are applicable,” “accurately state the applicable law,” and “are requested by a party.” The Michigan Court Rules do not limit t he power of trial courts to give “additional instructions on appli cable law not covered by the m odel instructions” as long as the
additional instructions are “co ncise, understandable, conversat ional, unslanted, and

(a) [he/she] was armed w ith a dangerous weapon, and/or

(b) another person was lawfully present in the dwelling.-4- nonargumentative,” and are “patte rned as nearly as practicable after the style of the model instructions.” MCR 2.512(D)(4). See also Bouverette v Westinghouse Electric Corp , 245 Mich App 391, 401-402; 628 NW2d 86 (2001) (“When the standard jury i nstructions do not adequately cover an area, the trial court is obligated to give additional instructions when requested, if the supplemental instructions properly inform the jury of the applicable law and are supported by the evidence.”).

The home-invasion statute, M CL 750.110a, provides in pertinent part the following:

(2) A person who breaks and enters a dwelling with intent to c ommit a felony, larceny, or assault in the dwelling, a person who enter s a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling wi thout permission and, at any time while he or she is entering, present in, or ex iting the dwelling, commits a felony, larceny, or assault is guilty of home invasio n in the first degree if at any time while the person is entering, present in, or exi ting the dwelling either of the following circumstances exists:

(a) The person is armed w ith a dangerous weapon.

(b) Another person is lawfu lly present in the dwelling.

Therefore, the elements of first -degree home invasion are: (1) the defendant either breaks and enters a dwelling or enters a dw elling without permission; (2) the defendant either intends when entering to commit a felony, larceny, or assault in the dwellin g or at any time while entering, present in, or exiting the dwelling actually commits a felony, larceny, or assault; and (3) while the defendant is entering, present in, or exiting the dwelling, either (a) the defendant is armed with a dangerous weapon or (b) another person is lawfully prese nt in the dwelling. MCL 750.110a(2); People v Wilder , 485 Mich 35, 43; 780 NW2d 265 (2010).

As the prosecution acknowledged below, CJI2d 25.2a accurately states the law as it pertains to a typical first-degr ee home invasion prosecution inwhich a defendant breaks and enters a dwelling, as defined by MCL 750.110a(1)(a). According ly, the trial court was required to give the instruction in this case. MCR 2.512(D)(2). 2 However, as the prosecution acknowledged, neither CJI2d 25.2a nor any other standard instru ction covers the situation alleged to be present in this ca se, in which “a person lawfully enters the home, but then breaks into a room within the home to which he had no permission [to e nter].” In the absence of a standard jury instruction, the trial court may only give a spec ial jury instruction if the instruction properly informs the jury of the applicable law. MCR 2.512(D)( 4); Bouverette , 245 Mich App at 401-402. The question, then, is whether MCL 750.110a(2) allows the prosecution of a person who, while lawfully inside a dwelling, accesses an inner portio n of the dwelling that he or she does not have permission to enter. Stated another way, we must determine whether the word

2 Alternatively, if the prosecution’s theory is that the defenda nt entered the dwelling without permission, M Crim JI 25.2c is th e appropriate instruction. Se e Use Note 1 to M Crim JI 25.2a.-5- “dwelling” as used in MCL 750.110a, is meant to separately incl ude each of the internal components of the dwelling in addi tion to the exterior or “enve lope” of the “dwelling.”

When interpreting statutes, the first step is to look at the s tatutory text. Loper , 299 Mich App at 464. “The Legislature is pr esumed to have intended the meaning it plainly expressed, and clear statutory language must be enforced as written.” Id. If the plain and ordinary meaning of statutory language is clear, j udicial construction is neither r equired nor permitted. Id. Courts may resort to dictionary definitions to ascertain the plain and ordinary meaning of words that are not defined by statute. People v Armstrong , 212 Mich App 121, 127; 536 NW2d 789 (1995). If a word is defined by statute, the word must be applied in accor dance with its statutory definition

. People v Giovannini , 271 Mich App 409, 413; 722 NW2d 237 (2006).

MCL 750.110a(2) proscribes the unlawful breaking and entering or entering without permission of a “dwelling.” MCL 750.110a(1)(a) defines the wor d “dwelling” to mean “a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter.” Although the word “dwelling” must be construed in accordance with its statutory definition, Giovannini , 271 Mich App at 413, the inquiry does not end here. The s tatute does not further define the terms “structure,” “shelter,” or “abode,” which are found within the statutory definition of “dw elling,” so it is appropriate to refer to the dictionary definitions of these terms. Armstrong , 212 Mich App at 127. MerriamWebster’s Collegiate Dictionary (11th ed), defines “structure” as “something (as a building) t hat is constructed,” and defines “shelter” as “something that cover s or affords protection.” Further, “abode” means “the place where one abides: H OME .” Merriam-Webster’s Collegiate Dictionary (11th ed). When viewed in the context of these additional defi nitions, it is plainly evident that the term “dwelling” as defined by MCL 750.110a(1)(a), refers to the whole of a structure or shelter used as a place of residence. Importantly, MCL 750.110 a(1)(a) does not specifically indicate that a “dwelling” also includes the dwelling’s inner p arts. In the absence of any indication from the Legislature that the term “dwelling” includ es the inner portions thereof, we agree with defendant’s statutory argument that he could not be convicted of home invasion for entering an internal room of a dwelling that he was already law fully within.

Notwithstanding the plain language of MCL 750.110a, however, p ublished Michigan caselaw addressing a similar criminal statute, MCL 750.110, as well as unpublished caselaw addressing the home-invasion stat ute, run counter to this inter pretation. In Clark , 88 Mich App 88, and Toole , 227 Mich App 656, this Court addressed the scope of MCL 750.1 10, which proscribes the breaking and ente ring, with intent to commit a f elony or a larceny therein, of any “tent, hotel, office, store, shop, warehouse, barn, granary, fa ctory or other building, structure, boat, ship, shipping container, or railroad car.” In Clark , 88 Mich App at 90-91, the defendant gained access to a boiler room, which abutted the kitchen of a restaurant, through “two warped doors that could not be locked,” and thereafter broke into the kitchen by creating a hole in the wall that separated the two rooms. Challenging the sufficiency of the evidence underlying his conviction, the defendant argued that “breaking an interior wal l to enter the main part of a building after initially enteri ng without breaking into the out er room is not a ‘breaking’ as contemplated by the statute.” Id. at 91. This Court rejected the defendant’s argument, relying on cases from other jurisdictions that stood for the proposition that “a breaking of an inner portion of a building constitutes the re quisite element for burglary.” Id . at 91-92, citing Bowie v State

,-6- 401 SW2d 829, 831 (Tex Crim App, 1966); Cartey v State , 337 So2d 835, 837 (Fla App, 1976);

State v Cookson , 293 A2d 780 (Me, 1972); and 43 ALR 3d 1147.

In Toole , 227 Mich App at 658-659, this Court relied on Clark to reject a defendant’s challenge to the sufficiency of the evidence supporting his bre aking and entering conviction.
The evidence established that the defendant was seen inside a c ollege classroom moments before a theft was discovered in an adjacent storage room that had a “ keep out” sign posted on the door.

Id. at 657, 659. The defendant was t hen seen carrying a computer monitor that was missing from the storage room. Id . at 657-658. The defendant argued that there was insufficient evidence to support his conviction under MC L 750.110 “because he was lawful ly in the building, which was open to the public, and only opened an inner door of the buildi ng.” Id. at 658. This Court acknowledged that the defendant had a right to enter the buildi ng, and that, under Michigan law, “[t]here is no breaking if the d efendant had the right to enter the building.” Id. at 659, citing People v Brownfield (After Remand) , 216 Mich App 429, 432; 548 NW2d 248 (1996). Nonetheless, relying on Clark , this Court held that the defendant’s entry into the storage r oom was sufficient to support his c onviction because “a breaking of an inner portion of a building constitutes the requisite element for burglary.” Toole , 227 Mich App at 659.

Finally, in Mosher , unpub op at 1-2, a defendant was convicted of first-degree ho me invasion after he was given permission to enter the victim’s at tached garage, but then entered the living area of the victim’s home without permission. The defen dant argued that there was insufficient evidence to support his conviction under MCL 750.1 10a(2) because the attached garage was part of the “dwelling” as defined by MCL 750.110a(1) (a), and once he lawfully entered the garage, he “obtained permission to enter the entire dwelling.” Id. at 1. This Court acknowledged that the home and at tached garage “constituted one ‘dwelling’ within the meaning of MCL 750.110a,” but concluded after examining Clark and Toole that “where a defendant gains access to a building without breaking, but has no right t o enter an inner portion of that building, the defendant’s use of force to gain entry into that inner portion is a breaking.” Id. at 3. Accordingly, this Court held that the defendant’s lawful presen ce in the dwelling did not preclude his conviction under MCL 750.110a(2) because the evide nce established that he entered an interior portion of the dw elling without permission before a ssaulting the victim. Id.

Neither Clark nor Mosher 3 is binding on this Court, and Clark and Toole both dealt with a statute, MCL 750.110, that is not implicated in this case. M oreover, in Clark , the Court did not examine the plain language of MCL 750.110 to determine that the defendant’s entry without permission into an interior room of a building that the defenda nt was otherwise lawfully within violated MCL 750.110, but rather relied on cases from other jur isdictions to reach its conclusion.

Clark , 88 Mich App at 91-92, citing Bowie , 401 SW2d 829; Cartey , 337 So2d 835; Cookson

, 293 A2d 780. Likewise, the Toole Court did not examine the plain language of MCL 750.110, but instead relied on this Court’s holding in Clark . The Mosher Court did not examine the plain

3 Pursuant to MCR 7.215(J)(1), a d ecision of the Court of Appeal s published before November 1, 1990, is not binding on this Court. Further, pursuant to MCR 7 .215(C)(1), unpublished opinions are not binding. See also People v Green , 260 Mich App 710, 720 n 5; 680 NW2d 477 (2004).-7- language of MCL 750.110a, but relied on the holdings in Clark and Toole . Upon reviewing the plain language of the home-invasion statute, it is evident that the term “dwelling” as used in MCL 750.110a(2) refers to the whole structure or shelter used a s a place of residence. 4 Once a defendant enters a dwelling with permission, he cannot unlawful ly enter the same dwelling where he is already lawfully present. This becomes clear when one considers that a “dwelling,” under the definition of the term the Legislature supplied, incl udes a “structure,” used as a “place of abode.” Nowhere did the Legislature define this term to inc lude the component parts of the structure. If instead the Legislature wanted to include interi or rooms within “a structure or shelter that is used permanently or temporarily as a place of a bode,” MCL 750.110a(1)(a), as “dwellings” for purposes of MCL 750.110a(2), it could have done so, and might still do so, but
thus far has not.

Accordingly, the reason CJI2d 25.2a does not cover a factual s cenario in which a person lawfully enters a home, but then breaks and enters or enters wi thout permission an interior room within the home, is because such a fact pattern does not fall w ithin proscribed conduct under the plain language of MCL 750.110a(2). 5 Therefore, the trial cour t erred by granting the prosecution’s request to provide t he special jury instruction b ecause the instruction did not properly inform the jury of the applicable law.

Reversed and remanded for further proceedings consistent with this opinion.

/s/ Michael F. Gadola /s/ Henry William Saad /s/ Stephen L. Borrello

4 Indeed, this Court in Mosher , unpub op at 3, recognized as much when it concluded that “the garage and living area of the victim’s home constituted one ‘dw elling’ within the meaning of

MCL 750.110a . . . .”

5 We further note that a conclusion that unauthorized entry into an interior room of a dwelling constitutes first-degree home invasion under MCL 750.110a(2) wo uld raise a host of problematic questions. For instance, if multiple residents live in the sam e dwelling, who sets the limits as to which rooms can or cannot be entered? Once a person obtains per mission to enter an interior portion of a dwelling, can that permission be revoked? And if so, how must the revocation be communicated? What if a person who has general permission to be in a dwelling enters an interior room without permission, intending to commit a larceny therein, and another person is lawfully within the dwelling, but no t within the room itself?