After a jury trial, defendant, Richard Lee Baker, was convicted of two counts of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(c) (during any other felony) and MCL 750.520b(1)(e) (weapon used), two counts of first-degree home invasion, MCL 750.110a(2), and one count of аssault with intent to do great bodily harm less than murder, MCL 750.84. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to concurrent sentences of 30 to 50 years’ imprisonment for each CSC I conviction, 10 to 20 years’ imprisonment for eаch first-degree home invasion conviction, and 5 to 10 years’ imprison
In the early morning hours of August 19, 2007, defendant entered the victim’s apartment through an open window, took a knife from her kitchen, covered her eyes and bound her limbs, sexually assaulted her, and stole her Bridge card and keys. When the victim managed to free her hands and uncover her eyes, defendant attacked her with the knife. The victim recognized defendant, because she had hired him to install cable television in her apartment a few days before. The victim escaped from defendant and fled into the hallway outside her apartment, where neighbors found her and called the police. Defendant fled, but was apprehended a few days later.
On appeal, defendant does not dispute the validity of his CSC I and assault сonvictions. He only challenges his convictions of first-degree home invasion, arguing that his two convictions of first-degree home invasion arose from the same offense and, consequently, violated his constitutional protections against double jeopardy. Instead, defendant claims that because “the home invasion was continuous, involving both sexual acts and committed with the intent to commit a larceny, while armed with a knife,” his convictions of two separаte counts of home invasion constitute a double jeopardy violation. Essentially, defendant argues that he has been punished twice for the same offense.
The United States and Michigan constitutions prohibit placing a defendant twice in jeopardy for the same offense. US Const, Am V; Const 1963, art 1, § 15; People
In People v Smith,
At the time of ratification [of Const 1963, art 1, § 15], we had defined the language “same offense” in the context of successive prosecutions by applying the federal “same elements” test. In interpreting “same offense” in the context of multiple punishments, federal courts first look to determine whether the legislature expressed a clear intention that multiple punishments be imposed. Missouri v Hunter,459 US 359 , 368;103 S Ct 673 ;74 L Ed 2d 535 (1983); see also Wayne Co Prosecutor [v Recorder’s Court Judge,406 Mich 374 ;280 NW2d 793 (1979)]. Where the Legislature does clearly intend to impose such multiple punishments, “ ‘imposition of such sentences does not violate the Constitution,’ ” regardless of whether the offenses share the “same elements.” Id. (citation and emphasis deleted). Where the Legislature has not clearly expressed its intention to authorize multiple punishments, federal courts apply the “same elements” test of Block-burger to determine whether multiple punishments are permitted. Accordingly, we conclude that the “same elements” test set forth in Blockburger best gives effect to the intentions of the ratifiers of our constitution. [Smith,478 Mich at 316 .]
In this case, defendant was convicted of two counts of first-degree home invasion pursuant to MCL 750.110a(2), which states:
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, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or 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 timе 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.
The parties do not dispute that the two first-degree home invasion charges brought against defendant did not correspond to two separate instances in which defendant wrongfully entered the victim’s apartment. Defendant broke into the victim’s apartment once, and when he was in her apartment he sexually assaulted her and tried to steal from her. Instead, the prosеcution argues that defendant’s two convictions of first-degree home invasion do not violate double jeopardy protections because each of defendant’s convictions of first-degree home invasion contains at least one element that
[I]n count three,[2 ] the prosecution was required to prove (a) that Defendant enterеd the dwelling without permission with the intent to commit a first-degree criminal sexual conduct and (b) that Defendant was armed with a knife and/or another person was lawfully present in the dwelling; and in count four[3 ] the prosecutor had to prove (а) that Defendant entered the dwelling without permission, with the intent to commit a larceny, and (b) that Defendant was armed with a knife and/or another person was lawfully present in the dwelling. [Emphasis in original.]
In making this statement, the prosecution appears to argue that defendant committed two separate acts of first-degree home invasion because he intended to commit two separate crimes while inside the victim’s apartment. However, the prosecution’s argument on appeal does not comport precisely with the charges that the prosecution actually brought to the jury. In count three, the jury found defendant guilty of “Home Invasion— First Degree while entering, present in, or exiting did commit Criminal Sexual Conduct First Degree... ,” while in сount four, the jury found defendant guilty of “Home Invasion — First Degree — with the intent to commit a Larceny therein ... .” (Emphasis added.) Accordingly, it appears that defendant was actually convicted of one count of first-degree home invasion because hе broke into and entered the victim’s apartment with the intent to commit a larceny, and was convicted
Yet despite whether defendant was charged with and convicted of two separate counts of first-degree home invasion because he intended to cоmmit two separate underlying crimes or because he intended to commit one underlying crime and actually committed another, neither distinction is sufficient to establish that defendant committed two separate offenses of first-degree home invasion. Instead, as our Supreme Court recently noted in People v Wilder, 485 Mich; 35, 43;
Element One: The defendant either:
1. breaks and enters a dwelling or
2. enters a dwelling without permission.
Element Two: The defendant either:
1
1. intends when entering to commit a felony, larceny, or assault in the dwelling or
2. at any time while entering, present in, or exiting the dwelling commits a felony, larceny, or assault.
Element Three: While the defendant is entering, present in, or exiting the dwelling, either:
1. the defendant is armed with a dangerous weapon or
2. another person is lawfully present in the dwelling. [Wilder,485 Mich, at 43 (emphasis omitted).]
Instead, defendant’s first-degree home invasion convictions arose from the same offense. The jury, when presented with two counts of home invasion arising from the same wrongful breaking and entering, was essеntially asked to determine whether defendant was guilty of home invasion under each of the theories for establishing the second element of this offense.
To the extent that the prosecution contends that a separate hоme-invasion charge can be brought corresponding to each felony, larceny, or assault that defendant committed while in the dwelling, it has provided no authority to support this argument and, for this reason, we need not consider this argument. People v Kelly,
Accordingly, defendant’s convictions for two counts of first-degree home invasion constitute рlain error. Instead, in light of the jury’s verdict, defendant should have been convicted and sentenced for one count of first-degree home invasion supported by two theories. Therefore, following the example set forth in People v Bigelow,
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
Because defendant failed to preserve this issue, we review it for plain error affecting defendant’s substantial rights. People v Matuszak,
This count corresponds to defendant’s conviction of first-degree home invasion arising from his breaking and entering into the victim’s apartmеnt and committing an act of criminal sexual conduct therein.
This count corresponds to defendant’s conviction of first-degree home invasion arising from his breaking and entering into the victim’s apartment with the intent to commit a larceny therein.
We note that defendant has raised no additional claims of error.