Defendant appeals as of right his jury trial conviction of second-degree home invasion, MCL 750.110a(3). He was sentenced to 5 to 40 years’ imprisonment. We affirm.
Second-degree home invasion requires proof that the defendant entered a dwelling by breaking or without the permission of any person in ownership or lawful possession or control of the dwelling and did so with the intent to commit a felony, larceny, or assault therein or committed a felony, larceny, or assault while entering, present in, or exiting the dwelling. MCL 750.110a. “We examine the evidence in a light most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond reasonable doubt.” People v Ericksen, 288 Mich App 192, 196; 793 NW2d 120 (2010). We do not interfere with the jury’s assessment of the weight and credibility of witnesses or the evidence, People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), and the elements of an offense may be established on the basis of circumstantial evidence and reasonable inferences from the evidence, People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). It is the jury’s duty to determine the weight to be accorded any inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
Defendant first asserts that the evidence at trial was insufficient to support his conviction. Defendant argues that there was insufficient evidence to establish that he
In reverse order, defendant’s contention that he could not be convicted of home invasion because he had a right to be in the dwelling turns on the fact that the dwelling belonged to his girlfriend. “There is no breaking if the defendant had the right to enter the building.” People v Toole, 227 Mich App 656, 659; 576 NW2d 441(1998). However, the fact that a person is in a dating relationship in no way entitles that person to be present in his or her partner’s dwelling at will. The fact that defendant spent some nights at the house is immaterial. In any event, even if we were to presume that defendant had some right to be in the house — which he did not — it is possible to “break and enter” one’s own home if one has lost the legal right to be present in that home, for example, by operation of a court order. People v Szpara, 196 Mich App 270, 272-274; 492 NW2d 804 (1992). In this case, not only did defendant’s relationship not confer any rights upon him, his girlfriend had affirmatively refused his repeated requests for a key, a garage door opener, and alarm access codes for the house. The record overwhelmingly shows, and the jury would have properly concluded, that defendant had no right to be in the house at the time of the invasion.
Moreover, defendant’s theory of his defense was that he was not the perpetrator, not that it was technically impossible for him to have committed his charged offense. There would have been no reason for defense counsel to request a jury instruction specifying that the jury must find that defendant could not break into a home that he had a right to enter. Indeed, that instruction would have been inconsistent with, and potentially
Defendant also contends, consistently with his theory at trial, that the evidence did not show him to have been the individual who committed the breaking and entering and theft of his girlfriend’s cashbox. However, there was only a dearth of direct evidence that he committed the crime. The circumstantial evidence was substantial. The victim testified that defendant was the only person who knew where she kept the missing cashbox in her desk drawer and that he had seen the contents — including more than $10,000 in $100 bills — recently when she told him that she had won jackpots at the casino. She testified that defendant remained behind her and walked out of the house that morning after her, which was unusual. Positioning himself to leave the house last allowed defendant the opportunity to leave the kitchen door unlocked and unlock the pedestrian door to the garage as he walked to his car, which was parked at the street. The victim also recognized shoe prints left in the kitchen after the break-in as matching defendant’s work shoes. Notably, there was no sign of a forced entry, the footprints in the house matched defendant’s work boots, and nothing in the house was disturbed other than the cashbox, about which only defendant knew.
In summary, the evidence, when viewed in the light most favorable to the prosecution, strongly supported the conclusion that defendant entered the victim’s home without permission and with the intent to commit a larceny therein. Therefore, the prosecutor presented sufficient evidence to conclude that the elements of second-degree home invasion were proved beyond a reasonable doubt.
Defendant next contends that he was denied his right to a fair trial because two jurors were noticed to be sleeping during the first day of testimony. Defendant further contends that trial counsel was ineffective for failing to seek the jurors’ exclusion. We disagree with both contentions.
Defendant sought a remand for an evidentiary hearing under People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), concerning his counsel’s ineffectiveness; however, because this Court denied defendant’s motion, review is limited to mistakes apparent on the record. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). Among other things, a defendant must at a minimum establish that any mistake made by counsel prejudiced the defendant, meaning there is a reasonable probability that the proceedings would have had a different outcome if counsel had not made the alleged error. See People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001). Once again, defendant has not shown that the sleeping juror affected the outcome of the proceedings. Furthermore, assuming the juror missed any testimony, it would have been testimony from the prosecution’s witnesses; defense counsel could reason
Defendant next argues that he was denied his constitutional right to represent himself at trial. We disagree.
The right of self-representation is secured by both the Michigan Constitution, Const 1963, art 1, § 13, and by statute, MCL 763.1. The right of self-representation is also implicitly guaranteed by the Sixth Amendment of the United States Constitution. People v Anderson, 398 Mich 361, 366; 247 NW2d 857 (1976). To invoke the right of self-representation: (1) a defendant must make an unequivocal request to represent himself, (2) the trial court must determine that the choice to proceed without counsel is knowing, intelligent, and voluntary, and (3) the trial court must “determine that the defendant’s acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court’s business.” Id. at 367-368.
Apparently, a month before trial, defendant and the trial court had a discussion about defendant representing himself. We have not been provided a transcript from that proceeding. Defendant is responsible for providing us a transcript, MCR 7.210(B)(1), and we generally refuse to consider issues for which an appellant has failed to do so, PT Today, Inc v Comm’r of Fin & Ins Servs, 270 Mich App 110,
Defendant next contends that the prosecutor committed misconduct by commenting during closing argument that the victim’s testimony was uncontroverted. Defendant reasons that this was an inappropriate comment because only defendant could have contradicted her testimony, so it interfered with his right against self-incrimination. We disagree.
Claims of prosecutorial misconduct are generally reviewed de novo to determine whether the defendant was denied a fair trial. People v Wilson, 265 Mich App 386, 393; 695 NW2d 351 (2005). The constitutional privilege against self-incrimination and the right to due process restrict the use of a defendant’s silence in a criminal trial. People v Dennis, 464 Mich 567, 573-574; 628 NW2d 502 (2001). However, the prosecutor may fairly respond to defense arguments. People v Lawton, 196 Mich App 341, 353-354; 492 NW2d 810 (1992). Here, defendant’s theory of the case, as shown by defense counsel’s opening statement and questioning throughout the case, was that the entire case rested on the victim’s word alone, that her testimony could not be corroborated or otherwise proved, and that she was not worthy of belief. Defense counsel specifically stated that
Additionally, the trial court instructed the jurors that they were the sole judges of the evidence and that the attorneys’ statements and arguments were not evidence. The court also instructed that the prosecution had the burden to “prove each element of the crime beyond a reasonable doubt,” that defendant had “an absolute right not to testify,” and that the jurors must not let the fact that defendant did not testify “[a]ffect your verdict in anyway.” There is nothing in the record to even suggest that this Court should not presume that the jury followed these clear instructions. See People v Unger, 278 Mich App 210, 235-236; 749 NW2d 272 (2008). Finally, defense counsel’s failure to object could not be ineffective assistance because counsel cannot be deemed ineffective for failing to object to comments that were proper in the context of this case. Counsel is not required to advocate a meritless position. People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005).
Finally, defendant argues that counsel was ineffective for failing to obtain casino records that would have provided impeachment and exculpatory evidence. We disagree.
Defense counsel’s failure to present certain evidence will only constitute ineffective assistance of counsel if it deprived defendant of a substantial defense. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). Moreover, decisions regarding what evidence to present
Moreover, contrary to defendant’s assertions on appeal, the records do not provide defendant an alibi. The casino records show that defendant was present at one casino at a time when he told the police and the victim that he was at the unemployment office, and again later on; all these instances were at times other than when the crime was committed. Records from another casino do not show defendant to have been present on the dates in question, but this evidence is dubious because if defendant had gambled cash without a member card for the casino, there would have been no record of his presence. Consequently, the records do not significantly impeach any of the prosecution’s testimony or support defendant’s theory of the case. We conclude that it would have been sound trial strategy for counsel to avoid seeking to admit the casino records, so we find no ineffective assistance on that basis.
Affirmed.