People of Michigan v. Jackson Fredrick Kelly ( 2015 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
    May 12, 2015
    Plaintiff-Appellee,
    v                                                                    No. 320450
    Clinton Circuit Court
    JACKSON FREDERICK KELLY,                                             LC No. 13-009171-FH
    Defendant-Appellant.
    Before: BOONSTRA, P.J., and SAAD and MURRAY, JJ.
    PER CURIAM.
    Defendant appeals his jury conviction of third-degree home invasion, MCL 750.110a(4).
    The court sentenced defendant to serve two years’ probation with 210 days’ jail incarceration,
    and we affirm.
    I. PERTINENT FACTS AND PROCEDURAL HISTORY
    This case arises from a home invasion that took place in the City of DeWitt in the early
    morning hours of July 20, 2013. The owner of the home, Trina Day, an ex-girlfriend of
    defendant, was not home during the break-in. Day testified that defendant was at the residence
    the preceding day and left driving a pickup truck, and defendant called her three times that
    evening. The first was amicable, and Day and defendant discussed the possibility of resuming
    their intimate relationship. The second and third calls were less amicable, as defendant wanted
    to resume romantic relations immediately, but Day, believing that defendant was “tipsy,” insisted
    on delaying further discussion of the subject until defendant was sober. Day added that, during
    the second and third calls, defendant said some “mean things,” spoke in an angry tone, and hung
    up on her.
    Later that night, around 3:15 a.m., a gold Chevy Silverado pickup truck with a fiberglass
    bed cap was seen driving from the front lawn of Day’s residence and away from the scene
    sometime after the break-in occurred. Shortly thereafter, a City of DeWitt police officer, John
    Drolett, spotted a truck, matching the description of the truck that had left Day’s house, parked in
    a nearby neighborhood outside of Steven Karshner’s house. Defendant, a friend of Karshner,
    had arrived at Karshner’s house in the truck. Defendant was taken into custody; the officer
    described him as obviously intoxicated, “loud and boisterous,” and said he refused to answer any
    questions. Drolett testified that the truck appeared to have come from the general direction of
    Day’s house, although he admitted that it was possible the truck had come from the Lansing area.
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    No witness actually saw the break-in occur, or saw defendant at the residence around the time of
    the incident.
    At trial, the prosecution planned to call Karshner as a witness. Karshner was
    subpoenaed; when he failed to appear at trial, the trial court authorized a bench warrant and
    declared a short break to give the witness more time to appear. Police officers went to
    Karshner’s home over the break but did not locate him. The prosecution sought to introduce
    Karshner’s preliminary examination testimony at trial. Defense counsel objected, and stated to
    the trial court that she had informed the prosecuting attorney the week before that Karshner
    might be absent. Specifically, she stated that defendant had heard that Karshner was taking his
    family to Disney World at the time of trial. The trial court determined that the subpoena satisfied
    the prosecution’s duty of due diligence, and so denied defendant’s request to instruct the jury that
    it might infer that the missing witness’s testimony would have been unfavorable to the
    prosecution’s case. See M Crim JI 5.12. Over a defense objection, Karshner’s preliminary
    examination testimony was read into the record.
    Karshner testified at the preliminary examination that he lived on Appletree Lane in
    DeWitt Township, and was friends with defendant. According to Karshner, he told the police on
    the night of the incident that defendant had just come from his ex-girlfriend’s house. On cross-
    examination, Karshner explained that he had told this to the police because defendant had said
    something about having had sex with her. Karshner had assumed that this meant that defendant
    had just come from there, but acknowledged that it was possible that defendant had been
    referring to a point in time earlier in the day, and that Karshner did not in fact know the time
    frame during which defendant was actually at Day’s home.
    The jury convicted defendant as described above. This appeal followed.
    II. SUFFICIENCY OF THE EVIDENCE
    Defendant says that there is insufficient evidence to support his conviction. This Court
    reviews de novo a claim of insufficient evidence. People v Lueth, 
    253 Mich. App. 670
    , 680; 660
    NW2d 322 (2002). In doing so, this Court must view the evidence in the light most favorable to
    the prosecution to determine if the fact-finder could conclude that the essential elements of the
    crime were proved beyond a reasonable doubt. See People v Reese, 
    491 Mich. 127
    , 139; 815
    NW2d 85 (2012). “The scope of review is the same whether the evidence is direct or
    circumstantial.” People v Nowack, 
    462 Mich. 392
    , 400; 614 NW2d 78 (2000).
    MCL 750.110a(4) provides that a person is guilty of third-degree home invasion if he or
    she
    [b]reaks and enters a dwelling with intent to commit a misdemeanor in the
    dwelling, enters a dwelling without permission with intent to commit a
    misdemeanor in the dwelling, or 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 misdemeanor.
    Defendant does not dispute that a home invasion occurred. Rather, he argues that the
    prosecution failed adequately to prove that he was the person responsible for the offense, the
    -2-
    jury’s contrary conclusion notwithstanding. Defendant relies on People v Fisher, 
    193 Mich. App. 284
    ; 483 NW2d 452 (1992), which states that circumstantial evidence may prove the elements of
    a crime, but that inferences may not be based on evidence that is uncertain or speculative, or that
    otherwise offers mere conjecture. 
    Id. at 289.
    Fisher concerned a person who disappeared
    without explanation. 
    Id. at 287.
    The prosecution introduced evidence of the defendant’s motive
    and opportunity, but had no way of actually tying the accused to the disappearance, or even
    showing that the disappearance resulted from any crime at all. 
    Id. at 287.
    Here, by contrast, the inference that defendant was responsible for the crime arises
    largely from witness accounts of events leading up to, and immediately after, the break-in. The
    prosecution presented evidence not only of defendant’s motive (anger at his ex-girlfriend) and
    opportunity to commit the crime, but also that the victim’s home was in fact criminally invaded,
    that a truck fitting the description of defendant’s truck was seen leaving the scene, and that
    defendant and his truck were found nearby shortly afterward. These evidentiary developments
    supported the prosecution’s theory; unlike Fisher, the evidence here did not merely relate to a
    potential motive for defendant, but to the actual elements of the crime and defendant’s identity as
    the perpetrator. 
    Id. Although the
    evidence was entirely circumstantial, Fisher itself reiterated
    that “[c]ircumstantial evidence and the reasonable inferences that arise from the evidence can
    constitute satisfactory proof of the elements of a crime.” 
    Id. at 289.
    Therefore we reject defendant’s challenge to the sufficiency of the evidence.
    III. MISSING WITNESS INSTRUCTION
    Defendant contends that the trial court abused its discretion when it refused the defense’s
    request to include M Crim JI 5.12,1 concerning the prosecution’s failure to produce a witness,
    among its jury instructions. Jury instructions that involve questions of law are reviewed de novo,
    but a trial court’s determination whether an instruction is applicable to the facts of a case is
    reviewed for an abuse of discretion. People v Gillis, 
    474 Mich. 105
    , 113; 712 NW2d 419 (2006).
    We also “review a trial court’s determination of due diligence and the appropriateness of a
    ‘missing witness’ instruction for an abuse of discretion.” People v Eccles, 
    260 Mich. App. 379
    ,
    389; 677 NW2d 76 (2004). “A trial court abuses its discretion when it fails to select a principled
    outcome from a range of reasonable and principled outcomes.” People v Kahley, 
    277 Mich. App. 182
    , 184; 744 NW2d 194 (2008).
    M Crim JI 5.12 states, in relevant part, as follows: “[State name of witness] is a missing
    witness whose appearance was the responsibility of the prosecution. You may infer that this
    witness’s testimony would have been unfavorable to the prosecution’s case.” The trial court
    1
    At the time of trial, the version of this instruction was referred to as CJI2d 5.12. On
    October 30, 2013, our Supreme Court issued Administrative Order 2013-13, which among other
    things issued new Michigan Model Criminal Jury Instructions. Defendant’s trial took place
    before the promulgation of these new instructions. The instruction referenced here from the
    Criminal Jury Instructions Second Edition (CJI2d) corresponds to M Crim JI 5.12. The
    substance of the instruction has not changed.
    -3-
    declined to provide this instruction because it concluded that the prosecution had exercised due
    diligence to produce Karshner at trial. Defendant argues that the trial court erred, because the
    prosecution had reason to know that the witness had plans that would take him out of town at the
    time of trial. We disagree.
    “[I]n every instance, the propriety of reading [M Crim JI] 5.12 will depend on the
    specific facts of that case.” People v Perez, 
    469 Mich. 415
    , 420-21; 670 NW2d 655 (2003). Due
    diligence is the attempt to do everything reasonable, not necessarily everything possible, to
    obtain the presence of a witness. People v Cummings, 
    171 Mich. App. 577
    , 585; 430 NW2d 790
    (1988). We hold that the trial court did not choose an unprincipled outcome by declining to hold
    that mere rumors that the witness had notions of going out of town obligated the prosecution to
    expend efforts to secure that witness beyond seeing that a subpoena was issued and served,
    securing a bench warrant, and sending police to Karshner’s house to attempt to locate him when
    he failed to appear. See 
    Kahley, 277 Mich. App. at 184
    ; 
    Cummings, 171 Mich. App. at 585
    .
    Further, were we to hold there was an error in the trial court’s due diligence
    determination, Karshner’s previous testimony, including direct and cross-examination, was read
    at trial. Defendant offers only speculation that Karshner’s failure to appear in person, or the trial
    court’s failure to give the missing witness instruction, prejudiced his case in light of the fact that
    Karshner’s early testimony was admitted, and that Karshner acknowledged during that testimony
    that he was uncertain as to when defendant had been at his ex- girlfriend’s home. See People v
    Dupree, 
    486 Mich. 693
    , 702; 788 NW2d 399 (2010) (“The defendant bears the burden of
    establishing that the asserted instructional error resulted in a miscarriage of justice.”). Thus,
    were we to find the trial court’s failure to give the missing witness instruction was an abuse of
    discretion, we would find the error harmless.
    Affirmed.
    /s/ Mark T. Boonstra
    /s/ Henry William Saad
    /s/ Christopher M. Murray
    -4-
    

Document Info

Docket Number: 320450

Filed Date: 5/12/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021