People of Michigan v. Marquis Deshaune Jenkins ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 20, 2021
Plaintiff-Appellee,
V No. 351524
Kent Circuit Court
MARQUIS DESHAUNE JENKINS, LC No. 19-000294-FH
Defendant-Appellant.
Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ.
PER CURIAM.
Defendant Marquis Deshaune Jenkins appeals by right his jury trial conviction of first-
degree home invasion, MCL 750.110a(2). He was sentenced to 132 months to 50 years’
imprisonment for the conviction. We affirm defendant’s conviction and sentence, but we remand
to the trial court for the ministerial task of correcting the presentence investigation report (PSIR).
This case arises out of a home invasion in which the victim, a grandmother, was assaulted
when defendant made forcible entry into her home. On December 12, 2018, the victim was at her
home along with 12 other family members, friends, and acquaintances, not including defendant.
Defendant arrived and visited at the home in the afternoon, but he left later that afternoon following
an incident that resulted in the victim’s not wanting him in her home. He was not invited back.
When defendant was unable to stay at a local shelter as planned, he returned to the victim’s home
at approximately 1:30 a.m. Defendant knocked on the door of the home, and when the victim was
unable to see anyone through the peephole, she cracked the door open approximately three inches.
The victim saw defendant and told him that he could not come inside. The victim testified that
defendant then “came barreling through the front door and shoved [her] back onto the couch.” She
indicated that the door hit her first and then defendant “came at [her].” The victim asserted that
defendant plowed through the front door with unexpected force. There were a number of
eyewitnesses who testified at trial that defendant pushed the door open, which threw the victim
backward, and/or that defendant shoved the victim after he had burst into the home. All of the
eyewitnesses to the assault indicated that defendant was not invited into the house and that the
victim looked scared when defendant came through the front door.
-1-
The victim then ran upstairs to get her phone, and she told a friend to lock herself in a
bedroom with the friend’s three children. The victim locked herself in a bathroom and called 911.
When the police arrived, defendant went to the front door. An officer commanded defendant to
come outside with his hands up, but defendant instead ran to the home’s back door. Other police
officers, however, were already stationed at the back door; consequently, defendant ran upstairs to
a bedroom in which there were two children. Defendant had lain down on a bed with one of the
children and told them to pretend that he was asleep. Officers entered the home and found
defendant in the bedroom on the bed. After a struggle, the police subdued and arrested him.
Defendant testified on his own behalf and asserted that he did not assault or batter the victim in
any form or fashion. The jury convicted defendant of first-degree home invasion.
At the sentencing hearing, the prosecutor indicated that he had no additions or corrections
to the PSIR, which included the sentencing information report showing the scoring of the
guidelines by a probation officer. The trial court then asked defense counsel whether he had
reviewed the PSIR, and counsel replied in the affirmative. On further query by the court, defense
counsel stated that there were no objections to the PSIR. Defendant himself then interjected with
objections regarding the accuracy of the information about his criminal history found in the PSIR.
After some discussion concerning defendant’s criminal record and the impact on the scoring of the
prior record variables (PRVs), along with a brief adjournment for the court to verify information,
the trial court struck or decided not to consider some of defendant’s past listed offenses while also
confirming convictions on other listed offenses. Ultimately, defendant remained at PRV Level
F—the highest level. See MCL 777.63 (sentencing grid for Class B offenses such as first-degree
home invasion, MCL 777.16f). Additionally, the trial court agreed to strike language in the PSIR
with respect to an alleged sexual assault defendant committed during the home invasion. The trial
court noted that defendant was not charged with the sexual assault and that the court had excluded
evidence on that incident at the trial. The prosecutor agreed to strike the sexual assault language.
On our review of the PSIR, we note, however, that the language has not been redacted as agreed
upon; this forms the basis of one of defendant’s arguments on appeal. With regard to the offense
variables (OVs), defendant was assessed 25 points for OV 9, MCL 777.39(1)(b) (“10 or more
victims who were placed in danger of physical injury or death”). The remaining OVs were
assessed zero points, and defendant’s total OV score of 25 points placed him at OV Level III on
the grid for Class B offenses. MCL 777.63. Defendant did not challenge the scoring of OV 9 at
sentencing, in a motion for resentencing, or in a motion to remand. But he does argue on appeal
that OV 9 should have been assessed 10 points at most on the basis of “2 to 9 victims” being placed
in danger, MCL 777.39(1)(c), which would alter the OV level and guidelines range.
There is another aspect of the sentencing that we feel compelled to discuss. We begin with
a little background information to give context to our discussion. The PSIR indicated that on
March 30, 2018, more than eight months before defendant committed the home invasion,
defendant engaged in conduct that led to the following four charges: unarmed robbery, resisting
and obstructing an officer, possession of marijuana, and attempted larceny in a building. There
was also a fourth-offense habitual offender notice. According to the PSIR, defendant pleaded
guilty on October 25, 2018, to resisting and obstructing an officer and attempted larceny in a
building. It appears that the habitual offender notice was dismissed under the plea along with the
unarmed robbery and marijuana charges. Defendant was sentenced on December 10, 2018, in that
case, which was a couple of days before the home invasion occurred.
-2-
The PSIR indicated on page 1 that defendant was convicted by a jury of first-degree home
invasion. But just below that information, the PSIR stated: “In exchange for his plea Ct 4 Habitual
Offender 4th was dismissed.” Here, there was no plea, nor was there a Count 4. The reference
appears to have pertained to the prior case against defendant. In preparing the sentencing
information report with the scored OVs and PRVs, the probation agent stated on the form that
there was no habitual enhancement, and indeed the applied guidelines range of 84 to 140 months’
imprisonment reflected no habitual enhancement. See MCL 777.63 (PRV Level F; OV Level III).
The amended felony information, however, contained a charge of first-degree home invasion and
a fourth-offense habitual offender notice, identifying as the three underlying felonies the October
2018 plea-based convictions of attempted larceny in a building and resisting and obstructing an
officer and a plea-based conviction from February 2018 for attempted fleeing and eluding.
The judgment of sentence and an amended judgment of sentence both indicated that
defendant was found “guilty” of being a fourth-offense habitual offender.1 At the sentencing
hearing, the trial court noted that “[t]he crime in question is home invasion in the first degree as a
fourth habitual offender.” (Emphasis added.) But the court then found that “[t]he sentencing
guidelines call for a minimum sentence of 84 to 140 months[,]” which was the guidelines range
absent any habitual enhancement, and the court imposed a minimum sentence of 132 months. For
a fourth-offense habitual offender under the grid for a Class B offense, PRV Level F and OV Level
III, the minimum sentence range is 84 to 280 months. See MCL 777.21(3)(c) (increasing the upper
limit of the minimum sentence range for fourth habitual offenders by 100%). The prosecution
raised no issue on the matter at sentencing and has not even filed a brief on appeal. Defendant,
however, seeks resentencing on the assertion that OV 9 was improperly assessed 25 points.
On appeal, defendant first argues that there was insufficient evidence to support the
conviction for first-degree home invasion. The charge of first-degree home invasion was premised
on the theory that defendant broke into the victim’s dwelling or entered without permission with
people present inside the home and committed an “assault” against the victim while entering or
inside the home. See MCL 750.110a(2). Defendant contends “that the evidence was insufficient
to show an assault because there was no evidence that he committed any act with the intent to
injure or to place anyone in apprehension of an immediate battery.” Defendant notes that the
Legislature used the term “assault” in MCL 750.110a(2), absent any reference to a “battery.”
Therefore, according to defendant, a misdemeanor battery committed in the process of a home
invasion does not elevate the crime to first-degree home invasion.
In People v Kenny, 332 Mich App 394; 956 NW2d 562 (2020), this Court discussed the
principles governing a sufficiency argument and the establishment of intent, observing as follows:
This Court reviews de novo whether there was sufficient evidence to
support a conviction. In reviewing the sufficiency of the evidence, this Court must
1
The original judgment of sentence indicated that defendant had been found guilty by plea of first-
degree home invasion and being a fourth-offense habitual offender. The amended judgment of
sentence reflected that defendant was convicted by a jury of first-degree home invasion and that
the court found that defendant was a fourth-offense habitual offender.
-3-
view the evidence—whether direct or circumstantial—in a light most favorable to
the prosecutor and determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. A jury, and
not an appellate court, observes the witnesses and listens to their testimony;
therefore, an appellate court must not interfere with the jury’s role in assessing the
weight of the evidence and the credibility of the witnesses. Circumstantial evidence
and any reasonable inferences that arise from such evidence can constitute
satisfactory proof of the elements of a crime. The prosecution need not negate every
reasonable theory of innocence; it need only prove the elements of the crime in the
face of whatever contradictory evidence is provided by the defendant. All conflicts
in the evidence must be resolved in favor of the prosecution. The element of intent
may be inferred from circumstantial evidence. Because it can be difficult to prove
a defendant’s state of mind on issues such as intent, minimal circumstantial
evidence suffices to establish a defendant’s state of mind. A defendant’s intent can
be gleaned or inferred from his or her actions. [Quotation marks and citations
omitted.]
“[A]ssault is an underlying crime that elevates a home invasion to first-degree home
invasion,” and MCL 750.110a(2) does not specify “any particular type of assault.” People v Sands,
261 Mich App 158, 163; 680 NW2d 500 (2004). A misdemeanor assault can constitute the crime
underlying first-degree home invasion. Id.In People v Nickens, 470 Mich 622, 628; 685 NW2d 657 (2004), our Supreme Court
explained the crimes of assault and battery and their interrelationship:
An assault is made out from either an attempt to commit a battery or an
unlawful act which places another in reasonable apprehension of receiving an
immediate battery. The first type is referred to as an “attempted-battery assault,”
whereas the second is referred to as an “apprehension-type assault.” As such, an
assault can occur in one of two ways.
Moreover, a battery is an intentional, unconsented and harmful or offensive
touching of the person of another, or of something closely connected with the
person. Therefore, a battery is the successful accomplishment of an attempted-
battery assault. When we speak of an assault we usually have in mind a battery
which was attempted or threatened. The attempt may have failed or it may have
succeeded. If it failed it constitutes an assault only. If it succeeded it is an assault
and battery. Stated differently, an attempted-battery assault is a necessarily lesser
included offense of a completed battery because it is impossible to commit a battery
without first committing an attempted-battery assault. [Quotation marks, citations,
and brackets omitted; emphasis added.]
“For assault and battery, intent is an element of the crime to be proved.” People v Terry,
217 Mich App 660, 662; 553 NW2d 23 (1996). M Crim JI 17.1(3), which instruction defines
“assault,” provides in part that it must be shown that “the defendant intended either to commit a
battery . . . or to make [a person] reasonably fear an immediate battery.” In this case, defendant
accepts the latter proposition in M Crim JI 17.1 on intent, but he also contends that with respect to
-4-
attempted-battery assault there must be an “ ‘intent to injure,’ ” quoting People v Johnson, 407
Mich 196, 210; 284 NW2d 718 (1979), as opposed to the mere intent to commit a battery. Johnson,
however, concerned the elements of felonious assault. Id. at 209-210. And felonious assault does
require proof of an intent to injure. See People v Nix, 301 Mich App 195, 205; 836 NW2d 224
(2013); M Crim JI 17.9(3). In a recent Supreme Court order, the Court indicated that “the intent
necessary for assault and battery” is that the defendant “either intended to commit a battery upon
. . . [the victim] or intended to make her reasonably fear an immediate battery.” People v Haynie,
505 Mich 1096 (2020). Accordingly, the prosecution here was not required to prove that defendant
intended to “injure” the victim. We also note that “the lack of physical injury [is] irrelevant.”
Terry, 217 Mich App at 663.
Viewing the evidence in a light most favorable to the prosecution, deferring to the jury’s
assessment of credibility and the weight of the evidence, and resolving all conflicts in the evidence
in favor of the prosecution, we hold that there was sufficient evidence to establish that defendant
assaulted the victim. There was evidence that after the victim declined to allow defendant to enter
the home, he pushed the door open with great force, knocking the victim backward. There was
also evidence that defendant directly pushed the victim after making entry. Although there was a
battery under either circumstance, it was impossible for defendant to have committed the batteries
without having first committed attempted-battery assaults. See Nickens, 470 Mich at 628.
Additionally, the victim testified that after the door hit her, defendant “came at [her].” Witnesses
also indicated that the victim looked scared. Accordingly, there was evidence that defendant
engaged in an unlawful act that placed the victim in reasonable apprehension of receiving an
immediate battery, i.e., an apprehension-type assault. Thus, there was sufficient evidence of the
two types of assault discussed in Nickens for purposes of the “assault” element in MCL
750.110a(2) under the prosecution’s theory of the case.
With respect to intent, we note there was evidence that although the victim told defendant
at the partially-opened door that he could not enter the home, defendant immediately barreled
through the door. Under these circumstances, a juror could have reasonably inferred that defendant
was fully aware that forcefully pushing the door open would knock the victim backward, thereby
establishing his intent to commit a battery against her.2 And to the extent that defendant came at
the victim and directly pushed her after gaining entry to the home, the surrounding circumstances
easily supported a conclusion that defendant intended to batter the victim. But there is a problem
concerning intent that we must address. The trial court did not instruct the jury on the element of
intent relative to the law of assault. As discussed later in this opinion in relation to a Standard 4
argument, we conclude that defendant waived an instructional challenge based on the court’s
failure to instruct on intent. We are therefore faced with a sufficiency argument on an element of
the crime upon which the jury never deliberated. Again, there was more than sufficient evidence
of an intent to commit a battery, and it was unnecessary to prove an intent to injure. We are not
prepared to reverse the conviction on a sufficiency argument with respect to intent where defendant
voiced complete approval of instructions that did not contain an intent element and where there
2
We do believe, contrary to defendant’s argument, that the same evidence would support an
inference that defendant intended to injure the victim, although, as explained earlier, no such proof
was required to convict defendant.
-5-
was sufficient evidence of intent. We later address why reversal is not automatically mandated for
omitting an instruction on an element of the offense.
Defendant next argues that he is entitled to resentencing because the trial court improperly
assessed 25 points for OV 9. We conclude that defendant appeared to have waived this issue when
counsel stated that he had no objections to the PSIR, which encompassed the sentencing
information report containing the scored guidelines. Assuming that this alone was inadequate to
establish a waiver, see People v Hershey, 303 Mich App 330, 351-353; 844 NW2d 127 (2013), we
conclude the waiver becomes clear when after a lengthy discussion regarding defendant’s criminal
history and the impact on the PRVs, the court asked defense counsel if there were anything more
to address before imposing sentence and counsel answered, “No, your Honor.” See People v
Kowalski, 489 Mich 488, 505; 803 NW2d 200 (2011) (waiver occurred when counsel indicated
that there was no objection to jury instructions, thereby reflecting express and unequivocal
approval of the instructions, and to hold otherwise would allow counsel to harbor error as an
appellate parachute).
Moreover, even without a waiver, resentencing is not appropriate even if there were a
scoring error that altered the guidelines range. MCL 769.34(10) provides in relevant part:
If a minimum sentence is within the appropriate guidelines sentence range,
the court of appeals shall affirm that sentence and shall not remand for resentencing
absent an error in scoring the sentencing guidelines or inaccurate information relied
upon in determining the defendant’s sentence. A party shall not raise on appeal an
issue challenging the scoring of the sentencing guidelines or challenging the
accuracy of information relied upon in determining a sentence that is within the
appropriate guidelines sentence range unless the party has raised the issue at
sentencing, in a proper motion for resentencing, or in a proper motion to remand
filed in the court of appeals. [Emphasis added.]
Here, the issue regarding the scoring of OV 9 was not raised at sentencing, in a motion for
resentencing, or in a motion to remand. In People v Kimble, 470 Mich 305, 310-311; 684 NW2d
669 (2004), our Supreme Court, citing MCL 769.34(10), ruled that, “if [a] sentence is within the
appropriate guidelines sentence range, it is only appealable if there was a scoring error . . . and the
issue was raised at sentencing, in a motion for resentencing, or in a motion to remand.”3 The
3
In Kimble, the guidelines range used at sentencing was 225 to 375 months, the minimum sentence
imposed was 360 months (within range), and the appropriate guidelines range was actually 180 to
300 months (pushing minimum sentence outside the range) after the Supreme Court concluded
that OV 16 had been scored incorrectly. The Court held, “Because defendant's sentence is outside
the appropriate guidelines sentence range, his sentence is appealable under § 34(10), even though
his attorney failed to raise the precise issue at sentencing, in a motion for resentencing, or in a
motion to remand.” Kimble, 470 Mich at 312. But even though the scoring challenge was
appealable, the Court reviewed the challenge under the plain-error standard because the defendant
had not properly preserved the issue. Id.-6-
question becomes whether the 132-month minimum sentence imposed on defendant fell within the
appropriate guidelines range. Assuming for the sake of argument that OV 9 should have been
assessed 10 points as argued by defendant, the appropriate guidelines range, as increased by
defendant’s status as a fourth-offense habitual offender, would be 78 to 260 months’
imprisonment. See MCL 777.63; MCL 777.21(3)(c). Therefore, the 132-month minimum
sentence would fall within the appropriate guidelines range, and no appeal would be available
under MCL 769.34(10) because of the preservation failure. Indeed, even if OV 9 should have been
assessed zero points, the appropriate guidelines range would be 72 to 240 months’ imprisonment,
encompassing the 132-month minimum sentence. Accordingly, we conclude that resentencing is
not appropriate.4
Defendant next argues that the trial court erred by failing to remove or redact the
information about the purported sexual assault referenced in the PSIR. Given that the trial court
agreed to strike the information, that the prosecution below agreed that the information should be
redacted, and that the prosecution has not presented us with an appellate brief, we remand to the
trial court for the ministerial task of correcting the PSIR.
In addition to the issues already addressed, defendant has raised several issues in a
Standard 4 brief. First, defendant is not entitled to reversal on the basis that the district court did
not timely conduct his preliminary examination, which, after an adjournment, took place about a
week later than the timeframe provided in MCL 766.4(1). There could be no due process violation
as defendant argues because preliminary examinations are solely statutorial. People v Hall, 435
Mich 599, 603; 460 NW2d 520 (1990). Further, defendant is precluded from obtaining appellate
review because before the trial he did not file an application for leave to appeal from the court’s
rejection of his timeliness challenge at the preliminary examination. See People v Crawford, 429
Mich 151, 157; 414 NW2d 360 (1987). Moreover, defendant has not shown that good cause for
the adjournment did not exist where the district court found that good cause in fact existed to
adjourn the preliminary examination because the court’s docket was overflowing with 26
scheduled preliminary examinations. Id. at 161. Finally, assuming any reviewable error, we find
defendant has not shown that the short adjournment affected the bind over and adversely affected
the fairness or reliability of the trial itself, both necessarily present to warrant reversal. See People
v McGee, 258 Mich App 683, 698; 672 NW2d 191 (2003).
Defendant next argues that he was denied the effective assistance of counsel because
defense counsel did not object to the victim’s testimony as constituting perjury. We disagree.
There were some minor inconsistencies on peripheral issues between the victim’s trial testimony
and her testimony at the preliminary examination and statements to the police. There is no
indication of anything more than memory and recollection issues as opposed to perjury, and there
4
We would also note that if there were a resentencing, the trial court would likely increase the
minimum sentence even with a change in the OV 9 score in light of the habitual enhancement that
was overlooked.
-7-
was certainly no proof that the prosecution knowingly used perjured testimony.5 Moreover,
defense counsel thoroughly cross-examined the victim on the inconsistencies and discrepancies.
Defendant has simply failed to establish deficient performance by counsel or the requisite
prejudice. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001). Therefore, we
conclude that reversal for ineffective assistance of counsel is unwarranted.
Defendant next argues that the prosecution committed misconduct by not providing him
with discovery of impeachment evidence, i.e., body camera footage from the responding police
officers that was not saved. We conclude that there was no violation of Brady v Maryland, 373
US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), because defendant has failed to demonstrate that the
evidence was favorable to him for exculpatory or impeachment purposes. See People v Chenault,
495 Mich 142, 149; 845 NW2d 731 (2014) (discussing Brady requirements). More importantly,
and assuming that the evidence could have actually impeached an officer’s testimony, any
evidence showing interactions between defendant and the police after the home invasion and
assault took place is simply immaterial. Id. at 150. The relevant events concerning the only crime
charged—first-degree home invasion—had transpired by the time the police arrived, none of
whom testified as witnesses to the home invasion and assault, as they were not present. Moreover,
apart from the alleged Brady violation but for similar reasons, defendant has not demonstrated that
the prosecution violated due process by failing to preserve evidentiary material, the body camera
footage, that may have exonerated defendant. See People v Hunter, 201 Mich App 671, 677; 506
NW2d 611 (1993). Furthermore, there is no evidence that the police or prosecutor acted in bad
faith by not saving the body camera footage. Id.Defendant next argues that he was denied his right to a speedy trial. We disagree. The
sentencing offense occurred on December 13, 2018. On March 7, 2019, defendant obtained new
counsel. On April 16, 2019, the trial court ordered defendant to undergo a competency
examination, and on April 23, 2019, the trial court scheduled the trial for June 17, 2019. The trial
court held the competency hearing and found that defendant was competent to stand trial. On
May 14, 2019, and June 13, 2019, after the trial court received handwritten motions by defendant
to dismiss the case on the basis that his right to a speedy trial had been violated, the trial court
adjourned the trial in order to address the motions. Defendant’s trial ultimately began on
September 3, 2019, approximately nine months following the sentencing offense. Because the
delays were mostly attributable to defendant and because defendant has not presented us with any
relevant and rational argument demonstrating prejudice, we conclude that defendant has not
5
“If a conviction is obtained through the knowing use of perjured testimony, it must be set aside
if there is any reasonable likelihood that the false testimony could have affected the judgment of
the jury.” People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009) (quotation marks and
citation omitted). The defendant has the burden to demonstrate that testimony was “actually false.”
People v Bass, 317 Mich App 241, 274; 893 NW2d 140 (2016). A party cannot object to testimony
“simply because one thinks a witness is lying.” People v Odom, 276 Mich App 407, 416; 740
NW2d 557 (2007). Instead, the “veracity of a witness is a matter for the trier of fact to discern.”
Id.-8-
established a speedy-trial violation. See People v Williams, 475 Mich 245, 261-262; 716 NW2d
208 (2006).
Finally, as touched on earlier, defendant argues that the trial court failed to instruct the jury
that intent was a required element of the first-degree home invasion charge. In this case, defense
counsel reviewed the jury instructions and agreed to them before the trial court instructed the jury.
After the trial court instructed the jurors, the court confirmed that neither party had any objections
to the jury instructions, and defense counsel agreed. Therefore, defendant’s claim of instructional
error was waived. See Kowalski, 489 Mich at 505. But we must continue with the analysis because
there was instructional error, and it concerned an element of the offense given that assault supplied
the basis to elevate the crime of home invasion to first-degree home invasion.
“Structural error is a concept that has typically been applied to errors of constitutional
magnitude, not to statutory errors[.]” People v Cornell, 466 Mich 335, 363 n 17; 646 NW2d 127
(2002). The failure to instruct a jury on an element of the offense for which the defendant was
convicted is not a structural error subject to automatic reversal. Id., citing Neder v United States,
527 US 1, 9; 119 S Ct 1827; 144 L Ed 2d 35 (1999). An instruction that omits an element of the
crime does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for
determining the guilt or innocence of the defendant. Cornell, 466 Mich at 363 n 17. “[T]he
omission of an element is an error that is subject to harmless-error analysis.” Neder, 527 US at
15. The United States Supreme Court further explained:
Of course, safeguarding the jury guarantee will often require that a
reviewing court conduct a thorough examination of the record. If, at the end of that
examination, the court cannot conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the error—for example, where the
defendant contested the omitted element and raised evidence sufficient to support
a contrary finding—it should not find the error harmless. [Id. at 19.]
Considering that harmless-error analysis applies in circumstances in which a jury is not
instructed on an element of an offense and that the error is not structural, we certainly believe that
a defendant can waive an appellate challenge of instructions omitting an element of the crime. In
this case, defendant testified on his own behalf, and he later argued to the jury that he walked into
the home peacefully and never touched the victim or caused the door to strike the victim. In other
words, he claimed that there was no assault or battery, which may have explained why defense
counsel was not concerned with instructions on intent; there was no focus or argument on intent.
Moreover, there was strong evidence of an intent to commit a battery.6 Thus, the omission of an
instruction on intent to commit a battery or intent to make a person reasonably fear an immediate
battery did not render the criminal trial fundamentally unfair or an unreliable vehicle for
determining the guilt or innocence of defendant. Reversal is unwarranted.
6
We also note that the court did instruct the jury that an assault entails an “attempt” to commit a
battery, which conveys the thought or concept of an intentional act.
-9-
We affirm defendant’s conviction and sentence, but we remand to the trial court for the
ministerial task of correcting the PSIR. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
-10-