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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 25, 2002
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellee,
 

v	 No. 117024
 

SHAWN JOSEPH SILVER,
 

Defendant-Appellant.
 

BEFORE THE ENTIRE BENCH
 

TAYLOR, J.
 

In People v Cornell, 466 Mich __; ____ NW2d ___ (2002),
 

we overruled contrary prior case law and explained that
 

pursuant to MCL 768.32(1),1

 a trial court, upon request,
 

1
 

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


(continued...)
 
should instruct the jury regarding any necessarily included
 

lesser offense, or an attempt, (irrespective of whether the
 

offense is a felony or misdemeanor), 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. 


We further held that the failure to instruct the jury
 

regarding such a necessarily lesser included offense is error
 

requiring reversal, and retrial with a properly instructed
 

jury, if, after reviewing the entire cause, the reviewing
 

court is satisfied that the evidence presented at trial
 

“clearly” supported the lesser included instruction.2
 

As explained below, consistent with People v Cornell, we
 

hold that the trial court’s failure to instruct Mr. Silver’s
 

jury regarding a necessarily included lesser offense was error
 

requiring reversal.
 

I
 

The complainant, Amber Gardner, testified that on October
 

12, 1997, she left her home for approximately ten to fifteen
 

minutes to run to the store. When she left, the doors to her
 

1(...continued)


to commit that offense.
 

2A offense is “clearly” supported when there is
 

substantial evidence to support the requested lesser
 

instruction. People v Cornell, supra.
 

2
 
home were closed, but unlocked. Upon returning to her home,
 

she heard a noise in the kitchen. When she entered the
 

kitchen, she saw defendant standing there. She began yelling
 

at him to leave. Ms. Gardner testified that as defendant was
 

leaving through the back door, he commented that “I was just
 

here to use your potty,” and then ran through the field behind
 

her home.
 

Ms. Gardner also testified that she called 911, and
 

Officer Robert Wesch arrived approximately three to five
 

minutes later. She told him what defendant said as he left
 

and that, at that time, she did not notice anything missing
 

from her home. A few days later she said she told Detective
 

Dennis Maurey that she believed that two to three weeks’ worth
 

of change, accumulated on a dresser in her bedroom and visible
 

through her bedroom window, was missing. Although the change
 

was never recovered, it was this missing change that gave the
 

circumstantial basis for the assertion that defendant had
 

entered with the intent to commit a larceny. 


Defendant testified that on the day of the incident, as
 

he was walking in the neighborhood, he observed an elderly
 

woman having trouble starting her lawn mower. He offered to
 

help her and ended up mowing her whole yard. When he asked to
 

use her bathroom, she would not let him because she did not
 

know him. Defendant indicated his brother lived in the
 

3
 
neighborhood, so he left the woman’s home and went to his
 

brother’s house. However, his brother was not home. The only
 

other person he knew in the area was Ms. Gardner, with whom he
 

had a “wave back and forth” relationship because he had helped
 

her, about six months earlier, move some boxes into her house.
 

He decided to go to her house, which was about half a block
 

from his brother’s, to see if he could use the bathroom. When
 

he arrived, he knocked on the door, and, receiving no
 

response, he opened the door and asked if anyone was home.
 

Receiving no reply, he went in and used the bathroom. As he
 

was leaving through the back door, he heard a noise and Ms.
 

Gardner entered the kitchen. She yelled at him to get out.
 

As he was leaving, he told her that he was sorry and that he
 

had just used the bathroom. 


On rebuttal, Ms. Gardner denied that she had ever met
 

defendant, that he had helped her carry boxes into her home,
 

or that she and defendant would exchange waves when they saw
 

each other.
 

The trial court instructed the jury regarding the charged
 

offense of first-degree home invasion MCL 750.110a(2),3 but
 

3

MCL 750.110a(2) provides in relevant part:
 

A person who breaks and enters a dwelling with


intent to commit a felony, larceny, or assault in


the dwelling, a person who enters a dwelling


without permission with intent to commit a felony,


(continued...)
 

4
 
denied defense counsel’s request that the jury be instructed
 

on the lesser included offense of breaking and entering
 

without permission, MCL 750.115(1).4
 

The trial court denied the request, indicating that it
 

might cause some confusion to give the requested instruction
 

and that if the jury believed defendant it would be duty bound
 

to acquit him. The jury returned a verdict of guilty of the
 

charged offense.
 

Defendant appealed, and the Court of Appeals affirmed his
 

3(...continued)


larceny, or assault in the dwelling, or a person


who breaks and enters a dwelling without permission


and, at any time while he or she is entering,


present in, or exiting the dwelling, commits a
 

felony, larceny, or assault is guilty of home


invasion in the first degree if at any time while


the person is entering, present in, or exiting the


dwelling either of the following circumstances


exists:
 

(a) The person is armed with a dangerous


weapon.
 

(b) Another person is lawfully present in the


dwelling. 


4MCL 750.115(1) provides in pertinent part:
 

Any person who breaks and enters or enters


without breaking, any dwelling, house, . . .


without first obtaining permission to enter from


the owner or occupant, agent, or person having


immediate control thereof, is guilty of a
 

misdemeanor.
 

5
 
conviction in a divided opinion.5 All three judges of the
 

Court of Appeals panel determined that the trial court erred
 

in refusing to give the instruction because the only element
 

in dispute was whether defendant possessed the requisite
 

intent to commit larceny and there was little danger that the
 

jury would become confused. However, the majority, citing
 

People v Lukity, 460 Mich 484; 596 NW2d 607 (1999), concluded
 

that the error was harmless because it was not more probable
 

than not that a different outcome would have resulted had the
 

jury been given the lesser included instruction.
 

One judge dissented from the majority’s conclusion that
 

the error was harmless. The dissent noted that the jury may
 

have resolved any doubts it had about defendant’s intent in
 

favor of conviction. Further, the dissent was not convinced
 

that the majority’s application of Lukity was correct or that
 

the comparison of the tainted and untainted evidence was the
 

proper approach for addressing a jury instruction error.
 

Additionally, the dissent noted that the situation was not one
 

in which the jury had a choice of some other lesser offense
 

and had rejected it in favor of a conviction of a higher
 

offense. 


This Court subsequently granted defendant’s application
 

5
 Unpublished opinion per curiam, issued May 23, 2000


(Docket No. 212508).
 

6
 
for leave to appeal and ordered his case argued with People v
 

6
 Cornell.


II
 

We hold that breaking and entering without permission is
 

a necessarily included lesser offense of first-degree home
 

invasion. 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 first-degree home invasion without first committing a
 

breaking and entering without permission. The two crimes are
 

distinguished by the intent to commit “a felony, larceny, or
 

assault,” once in the dwelling.
 

In this case the intent to commit a larceny in the house
 

was clearly disputed at trial. Indeed, it was defendant’s
 

unvarying position, unblemished by inconsistent statements,
 

that there was an entry without permission, but that there was
 

no intent to steal. The opening statement giving his theory
 

of the case, the cross-examination of Ms. Gardner, as well as
 

officer Wesch, and his closing argument were all directed to
 

one end: that he was wrongfully inside the house, but did not
 

intend to steal. The Legislature thinks such things can
 

happen. After all, they made it a lesser crime to be in a
 

6 463 Mich 958-959 (2001).
 

7
 
house without permission if there is no felonious intent.
 

Said plainly, the person that would be guilty of this would be
 

a person inside, surely with some motive, just not a criminal
 

motive. If the jurors believed defendant was such a person ,
 

they realistically could not act on it unless they had an
 

instruction that gave them that choice.7 Not to give them an
 

instruction that allowed them to agree with defendant’s view
 

of the events in this case undermines the reliability of the
 

verdict. The reason is that there was substantial evidence
 

supporting the lesser offense of breaking and entering without
 

permission. Accordingly, MCL 768.32(1) was violated.
 

Response to the dissents
 

Justice Weaver agrees that the trial court erred in
 

failing to give the lesser offense instruction, but concludes
 

7One might argue that the jury would have acquitted


defendant if it believed his testimony. However, this is too


facile. The United States Supreme Court rejected such an


argument in Keeble v United States, 412 US 205, 212-213; 93 S


Ct 1993; 36 L Ed 2d 844 (1973), when it stated:
 

[I]f the prosecution has not established
 

beyond a reasonable doubt every element of the


offense charged, and if no lesser offense
 

instruction is offered, the jury must, as a
 

theoretical matter, return a verdict of acquittal.


But a defendant is entitled to a lesser offense
 

instruction . . . precisely because he should not


be exposed to the substantial risk that the jury's


practice will diverge from theory. Where one of
 

the elements of the offense charged remains in


doubt, but the defendant is plainly guilty of some


offense, the jury is likely to resolve its doubts


in favor of conviction. 


8
 
the error was harmless. She finds incriminating that Silver
 

was found in the kitchen, not the bathroom. However, Silver
 

testified with the answer: he was in transit from the bathroom
 

to the back door in this small8 house. This is why he was in
 

the kitchen. Rather than being damaging to Silver’s version
 

of events, this fact is consistent with it. 


Justice Markman’s dissent is notable in that he is the
 

one appellate judge out of the ten who have considered this
 

case who finds that the trial court did not err at all. Save
 

for him, all have agreed on the crucial issue that the lesser
 

offense was supported by a rational view of the evidence. 


Justice Markman’s dissent seems to focus on what he perceives
 

to be the irrationality of defendant’s story itself, i.e.,
 

whether it would have been rational to go into someone’s house
 

simply to use the bathroom, rather than, in accord with
 

Cornell, if a rational view of the evidence supports
 

defendant’s story. It just must be said: maybe a gentleman
 

such as Justice Markman would not do this, but a less discrete
 

person just might. Once evidence that rationally supports a
 

lesser crime has been introduced, it’s believability is for
 

the jury to decide, not appellate judges.
 

On the basis of these considerations, we have concluded
 

that the dissents misapprehend the strength of Silver’s claim.
 

8

The house had approximately 720 square feet.
 

9
 
While a jury might not agree with his theory, there was
 

substantial evidence to support it.
 

Conclusion
 

Accordingly, Silver is entitled to a new trial. The
 

judgment of the Court of Appeals is reversed, as is Silver’s
 

conviction, and this case is remanded for a new trial with a
 

properly instructed jury.
 

YOUNG, J., concurred with TAYLOR, J.
 

10
 
___________________________________ 

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. 117024
 

SHAWN JOSEPH SILVER,
 

Defendant-Appellant.
 

KELLY, J. (concurring).
 

I agree that it was error for the trial court to refuse
 

to instruct the jury on the lesser included misdemeanor
 

offense of breaking and entering without permission.9 I also
 

agree that the error was not harmless, under either the
 

Stephens10 test for lesser included misdemeanor instructions
 

or under the newly articulated Cornell11 framework that
 

replaces Stephens. I therefore concur in the result.
 

9

MCL 750.115(1).
 

10People v Stephens, 416 Mich 252; 330 NW2d 675 (1982).
 

11People v Cornell, 466 Mich ___; ___ NW2d ___ (2002).
 
I write separately to point out that the decisions in
 

Cornell and Silver evidence the difficulty of applying the
 

rules established by the Cornell majority. The rule to be
 

applied in this case, pursuant to Cornell, is that a trial
 

court's erroneous refusal to deliver lesser included offense
 

instructions requires reversal only where substantial evidence
 

supported the instructions. In this case, there was no
 

evidence to contradict defendant's claim that he did not
 

intend to steal when he entered the house. Instead, there was
 

substantial evidence supporting giving instructions for
 

breaking and entering without permission.
 

This is not to say that evidence supporting a requested
 

instruction must always be uncontroverted to be deemed
 

substantial. I point out that the defendant in Cornell
 

advanced a more convincing case for breaking and entering
 

without permission than did the defendant in Silver. Mr.
 

Cornell broke into the "Heston house," a local attraction
 

because it was the boyhood home of actor Charlton Heston.
 

Although there was evidence to contradict his claim that he
 

did not intend to steal, there was also evidence supporting
 

his position. Moreover, the jury in Cornell believed the
 

defendant when he claimed that he had no intention of burning
 

the house, and acquitted him of the charged arson. MCL
 

750.73. The jury could have believed just as easily that Mr.
 

2
 
Cornell did not intend to steal anything. Mr. Cornell made an
 

even stronger case that the error required reversal under the
 

substantial evidence test than did Mr. Silver, who claimed he
 

only wanted to use the bathroom.
 

Unlike my dissenting colleagues, I believe that both
 

Cornell and Silver were cases of error requiring reversal,
 

rather than harmless error or no error at all. The Cornell
 

majority has created an unworkable rule that even it cannot
 

agree to apply in more than an arbitrary fashion. It is clear
 

from today's decisions that the Cornell rule leads to
 

arbitrary results.
 

CAVANAGH, J., concurred with KELLY, J.
 

3
 
 

____________________________________ 

 

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,
 

v No. 117024
 

SHAWN JOSEPH SILVER,
 

Defendant-Appellant.
 

WEAVER, J. (concurring in part and dissenting in part).
 

I agree with the majority that the trial court erred in
 

refusing to give the requested lesser offense instruction
 

because breaking and entering is a necessarily included lesser
 

offense of first-degree home invasion, the element
 

differentiating the two crimes was disputed and a rational
 

view of the evidence would support an instruction on the
 

lesser offense. However, I dissent from its conclusion that
 

the error was not harmless because, in my opinion, the
 

evidence presented at trial did not clearly support a
 

conviction of the lesser included misdemeanor of breaking and
 
entering. Therefore, I would conclude that the error was
 

harmless and would affirm defendant’s conviction. 


As we explained in People v Cornell, 466 Mich ___, ___;
 

___ NW2d ___ (2002), 


[T]he 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. 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.


[Slip op at 37.][1]
 

Applying the harmless error principles we articulated in
 

Cornell to defendant Silver’s case, I would conclude that the
 

error was harmless because the evidence did not clearly
 

support a conviction of the lesser included misdemeanor of
 

breaking and entering without permission. Although defendant
 

stated that his intent upon entering the home was to use the
 

1 We also clarified that this “substantial evidence”
 

standard for determining whether the error is harmless differs


from the standard for determining whether the error occurred.


As we explained, 


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 conviction; pursuant to MCL 769.26, the


entire cause must be surveyed. [Slip op at 38.]
 

2 
 

bathroom,2 the evidence presented at trial overwhelmingly
 

showed the contrary. First, the complainant testified that
 

upon returning to her home, she heard a noise in the kitchen,
 

not the bathroom. When she entered the kitchen, she saw
 

defendant standing there. Defendant then fled through the
 

field behind her home. Second, an investigation by Officer
 

Wesch revealed no signs that defendant had used the bathroom.
 

Third, the complainant testified that she believed that
 

approximately two to three week’s worth of change was missing
 

from the top of a dresser in her bedroom. Complainant
 

testified that this change was visible through the bedroom
 

window. Fourth, complainant testified that, although she had
 

observed defendant in the neighborhood, she did not know him,
 

and he had not helped her carry boxes into her home.3
 

While a rational view of the evidence supporting
 

defendant’s “bathroom argument” might have warranted an
 

instruction on the lesser included offense, the borderline
 

nature of this argument may also be taken into consideration
 

in evaluating the extent to which the failure to give such
 

2 According to defendant, the elderly woman, whose yard


he gratuitously mowed after helping her start her lawnmower,


would not let him use her bathroom because she did not know
 

him, and his brother, who lived in the area, was not home. 


3 This was contrary to defendant’s assertions that he had


helped complainant carry boxes into her home and that they


knew each other and would wave to each other.
 

3
 
instruction was harmful. 


I believe that the misdemeanor of breaking and entering
 

without permission was not clearly supported by the evidence,
 

and that the refusal to instruct on the lesser included
 

offense was harmless error. Therefore, I would affirm
 

defendant’s conviction.4
 

CORRIGAN, C.J., concurred with WEAVER, J.
 

4 I note that the Court of Appeals remanded defendant’s


case to the trial court for resentencing because the trial


court failed to properly respond to defendant’s objections to


the accuracy of the presentence investigation report. Leave
 

to appeal was not sought on this determination. 


4
 
 

____________________________________ 

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. 117024
 

SHAWN JOSEPH SILVER,
 

Defendant-Appellant.
 

MARKMAN, J. (dissenting).
 

I respectfully dissent. As stated in People v Cornell,
 

466 Mich __; __ NW2d __ (2002), a trial court should instruct
 

the jury regarding a necessarily included lesser offense 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.” Here, I do not believe that the disputed issue,
 

the element of intent to commit a felony within the dwelling,
 

was supported by a rational view of the evidence. 


In this case, defendant, an utter stranger to the victim,
 

was discovered inside the victim’s home, from which a small
 

amount of money was subsequently found to be missing. Upon
 

being discovered in the home by the victim, defendant
 
asserted, “I was just here to use your potty.”1 On the basis
 

of this evidence, and nothing more, the majority concludes
 

that the issue of defendant’s intent to commit a felony was
 

placed in dispute, and that defendant’s contention that he
 

lacked such intent was supported by a “rational view” of the
 

evidence. 


I disagree. It is not the law that any theory asserted
 

by a defendant, no matter how preposterous, must be treated as
 

the equivalent of a “rational view” of the evidence, thereby
 

requiring an instruction. Trial courts need not suspend their
 

common sense in assessing what constitutes a “rational view”
 

of the evidence.2 Indeed, I am concerned that, while the ink
 

is still not yet dry on Cornell, the majority is transforming
 

the standard for instructions on necessarily included lesser
 

1 As Justice Weaver’s dissent correctly points out, the


evidence further shows that the victim testified that, upon


returning home, she heard a noise in the kitchen, not the


bathroom; money was missing from a dresser in her bedroom, not


the bathroom; and there is no evidence whatsoever that


defendant had ever used the bathroom. Contrary to the


majority’s contention, there are many forms of evidence that


might suffice to show that one has recently been in a


bathroom, e.g., fingerprints, shoeprints in or approaching the


bathroom, an unflushed toilet, a raised toilet seat, a wet


towel or basin, wet soap, and so forth. In any event, it


should not be seen as surprising that, the more incredible the


defense, the less evidence can generally be found in support


of it.
 

2 That, as the majority observes, it was defendant’s


“unvarying position” that he was merely in the home in order


to use the “potty” does not transform an irrational argument


into a rational one. 


2
 
offenses by effectively reading out of the law the requirement
 

that there must be a “rational view” of the evidence in
 

support of such instructions.3 Instead, what appears
 

dispositive for the majority here is that there was a
 

“dispute,” a dispute evidenced exclusively by defendant’s
 

“potty” statement. The mere fact of such dispute apparently
 

compels an instruction, and the absence of such an instruction
 

requires that defendant’s conviction be reversed. However,
 

the additional requirement of Cornell that a “rational view”
 

of the evidence must exist in support of an instruction
 

implies that, in some circumstances, there will be no such
 

“rational view,” despite the existence of a genuine “dispute.”
 

This further implies, contrary to the majority, that not all
 

issues of “believability . . . [are] for the jury to decide.”
 

Ante at 9. The “rational view” requirement makes clear that
 

the trial court must bring some degree of judgment to its
 

responsibilities, and that neither the trial court nor the
 

jury need be infinitely credulous in seeking to ascertain the
 

truth. 


Because I do not believe that the requested lesser
 

offense instruction here was supported by a “rational view” of
 

3
 If the majority is not, in fact, altogether reading


this requirement out of the law in this case, it is at the


very least transforming the concept of a “rational view” of


the evidence into a “not a logically impossible view” of the


evidence.
 

3
 
 

the evidence,4 the trial court did not err, in my judgment, in
 

failing to give such an instruction. Therefore, I would
 

affirm defendant’s conviction.5
 

4 Much less is it the case that the evidence presented
 

here “clearly” supported the defendant’s requested


instruction, thereby compelling reversal in the absence of


such an instruction. Cornell, supra.
 

5 While, as the majority feels impelled to point out, I


am in the minority on this case, this tends to be true of


those who dissent. Ante at 9. More to the point, the


majority considerably overstates my isolation. First, a
 

review of the Court of Appeals analysis indicates that it did


not specifically analyze the “rational view” of the evidence;


instead, it focused on the fifth prong of the test in People
 

v Stephens, 416 Mich 252, 260; 330 NW2d 675 (1982), stating


that a requested lesser included offense instruction must not


result in undue confusion or injustice. Specifically, the


Court concluded that the trial court erred in its refusal to
 

instruct because “the use of similar terms in the two offenses
 

[would not] create confusion for the jury.” Unpublished


opinion per curiam, issued May 23, 2000 (Docket No. 212508)


at 2. Despite such a conclusion, two members of the panel


still determined that the error was harmless. Second, I note


that the chasm between myself and Justice Weaver’s dissent may


be considerably less wide than suggested by the majority; her


dissent characterizes defendant’s “bathroom argument” as one


that is of a “borderline nature,” ante at 3, and concludes


that the instructional error was harmless. Finally, I note


that the trial judge himself, who sat through the entire


trial, concluded that no lesser included instruction was


warranted in this case.
 

In further response to the majority, it is not merely a


“gentleman” who would not invade the home of a stranger, but


it is any person who is prepared to live by the fundamental


norms of society. Ante at 9. While the majority is correct


that the jury has a broad fact-finding role, the role has


never been without limits. No jury has a right to nullify,


nor has the jury here asserted such a right to nullify, the


fundamental rules of society by exonerating individuals


charged with serious crimes on the basis of preposterous and


irrational defenses.
 

4