People of Michigan v. Nathaniel Gabriel Brock ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 18, 2023
Plaintiff-Appellee,
v No. 358619
Shiawassee Circuit Court
NATHANIEL GABRIEL BROCK, LC No. 2021-005355-FH
Defendant-Appellant.
Before: GLEICHER, C.J., and O’BRIEN and MALDONADO, JJ.
PER CURIAM.
A jury convicted defendant, Nathaniel Brock, of first-degree home invasion, MCL
750.110a(2), and assault and battery, MCL 750.81(1), for unlawfully entering the home of Kevin
Richter and assaulting him. Brock contends that his trial counsel was ineffective for failing to
request certain jury instructions and that the trial court erroneously scored three offense variables
when imposing sentence. These challenges lack merit. We affirm.
I. BACKGROUND
Shannon Wilson lived with Richter, her ex-fiancé, and their young daughter. In the year
leading up to the current events, Wilson had ended her relationship with Richter, moved in with
Brock, and became pregnant with Brock’s child. Wilson moved back in with Richter when her
relationship with Brock hit a rough patch.
On December 6, 2020, Brock picked Wilson up from Richter’s home and brought her back
to his house. Shortly thereafter, Richter sent a text message to Wilson stating that if she continued
seeing Brock she would need to find a new place to live. Wilson feared that if she did not comply,
Richter would block her access to their child. Brock was angered by this threatening message.
Brock drove Wilson to Richter’s house. While Wilson sat in the vehicle, Brock entered the house
and walked into the kitchen.
Inside the home, Brock told Richter to go outside so that they could “settle this once and
for all.” Richter ordered Brock out of his home and indicated that he would not fight Brock as his
young daughter was in the home. Wilson and Richter both testified that Brock swung his fist at
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Richter while the two were on the porch steps and that the fight continued onto the home’s enclosed
porch. Wilson attempted to break up the fight and was struck in the process. 1 Richter suffered
significant head wounds that required 10 staples to close and left permanent scars. Richter testified
that he believed Brock used brass knuckles based on the extent of his head injuries.
Brock took the stand in his own defense. Brock testified that Richter was standing in the
doorway when he and Wilson arrived at the home, and was not inside the kitchen. Brock
contended that he placed his hand on Richter’s chest and that Richter then threw the first porch.
Brock described that the fight started outside but spilled onto the enclosed porch. Brock denied
that he entered the home before that point.
As noted, the jury convicted Brock of first-degree home invasion and assault and battery.
At sentencing, the trial court overruled multiple defense objections to the scoring of offense
variables (OVs) and sentenced Brock, within the guidelines range, to 100 to 320 months’
imprisonment for the home invasion conviction.
After sentencing, Brock filed a motion for a new trial, arguing that his trial counsel was
ineffective for failing to request jury instructions on specific intent, entry without permission, and
third-degree home invasion. Brock also filed a motion for resentencing, arguing that OVs 1, 2,
and 9 were scored incorrectly and that his sentence was disproportionate and unreasonable. The
trial court denied both motions. Brock appeals.
II. INEFFECTIVE ASSISTANCE
Brock argues that his trial counsel was ineffective for failing to request jury instructions on
specific intent, entering without permission, and third-degree home invasion. We can adequately
review these challenges from the existing record and discern no need to remand for an evidentiary
hearing on this issue.
To establish the right to a new trial based on the ineffective assistance of counsel, a
defendant must satisfy two components: “First, the defendant must show that counsel’s
performance was deficient . . . Second, the defendant must show that the deficient performance
prejudiced the defense.” Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d
674 (1984). To establish that counsel’s performance was deficient, a defendant must show that
counsel’s performance fell below an objective standard of reasonableness under prevailing
professional norms. Solmonson, 261 Mich App at 663. To establish prejudice, the defendant must
demonstrate a reasonable probability that, but for counsel’s errors, the result of the proceedings
would have differed. Id. at 663-664.
“A defendant in a criminal trial is entitled to have a properly instructed jury consider the
evidence against him or her.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).
“Jury instructions must clearly present the case and the applicable law to the jury.” People v
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The prosecution dismissed a charge of a domestic violence charge arising from that blow before
trial.
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McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005).
Jury instructions must include all the elements of the offenses charged against the
defendant and any material issues, defenses, and theories that are supported by the
evidence. Jury instructions are reviewed in their entirety, and there is no error
requiring reversal if the instructions sufficiently protected the rights of the
defendant and fairly presented the triable issues to the jury. [Dobek, 274 Mich App
at 82 (citations omitted).]
Brock first contends that he was entitled to an instruction on specific intent in relation to
his first-degree home invasion charge. MCL 750.110a(2) defines this offense as follows:
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 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.
MCL 750.110a(2) allowed the prosecution in this case to prove first-degree home invasion
under one of two different theories: (1) that Brock had the intent to commit an assault when he
entered Richter’s home, or (2) that Brock committed an assault at any time while he was entering,
present in, or exiting Richter’s home. The first theory requires a showing of specific intent; the
second does not. The prosecution proceeded under the second theory, so specific intent was not a
required element. The trial court properly used M Crim JI 25.2c to instruct the jury on the required
elements according to the prosecution’s theory. Brock now argues that his counsel should have
requested a specific intent instruction. Such an instruction was not warranted under the
prosecution’s theory of the case and defense counsel cannot be deemed ineffective for failing to
request it. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Brock also argues that his trial counsel should have requested instructions on the lesser
offenses of entering without permission and third-degree home invasion. “A lesser offense is
necessarily included in the greater offense when the elements necessary for the commission of the
lesser offense are subsumed within the elements necessary for the commission of the greater
offense.” People v Wilder, 485 Mich 35, 41; 780 NW2d 265 (2010). A defendant is entitled to an
instruction on 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.” People v Lowery, 258 Mich App 167, 173; 673 NW2d 107(2003). See also People v Reese, 466 Mich 440, 446; 647 NW2d 498 (2002).
The Michigan Supreme Court has held that “entering without permission is a necessarily
included lesser offense of first-degree home invasion.” People v Silver, 466 Mich 386, 392; 646
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NW2d 150 (2002). The answer is not so straightforward in relation to the third-degree home
invasion issue. “[B]oth first-degree home invasion and third-degree home invasion can be
committed in several different ways, each of which involves alternative elements necessary to
complete the crime.” Wilder, 485 Mich at 43.
[A] more narrowly focused evaluation of the statutory elements at issue is necessary
when dealing with degreed offenses that can be committed by alternative methods.
Such an evaluation requires examining the charged predicate crime to determine
whether the alternative elements of the lesser crime committed are subsumed within
the charged offense. As long as the elements at issue are subsumed within the
charged offense, the crime is a necessarily included lesser offense. Not all possible
statutory alternative elements of the lesser offense need to be subsumed within the
elements of the greater offense in order to conclude that the lesser offense is a
necessarily included lesser offense. Accordingly, in order to determine whether the
specific elements used to convict defendant of third-degree home invasion in this
case constitute a necessarily included lesser offense of first-degree home invasion,
one must examine the offense of first-degree home invasion as charged and
determine whether the elements of third-degree home invasion as convicted are
subsumed within the charged offense. [Id. at 44-45.]
As charged by the prosecution in this case, the elements of first-degree home invasion were
(1) a person enters a dwelling without permission, (2) at any time while entering, present in, or
exiting the dwelling commits an assault, and (3) another person is lawfully present in the dwelling.
MCL 750.110a(2). Third-degree home invasion does not require the lawful presence of another
person in the dwelling and the elements are satisfied if the defendant commits a misdemeanor
while entering, present in, or exiting the dwelling. MCL 750.110a(4)(a). The prosecution
contends that third-degree home invasion is only a cognate offense in this case as the greater
offense requires proof of an assault and the lesser only proof of a misdemeanor. However, even
accepting that third-degree home invasion is a necessarily included lesser offense, counsel was not
ineffective for failing to request the instruction in this case.
If supported by a rational view of the evidence, the trial court would be required to give
instructions on the necessarily included lesser offenses of entering without permission and third-
degree home invasion. Indeed, there was conflicting evidence given by the parties regarding the
fight between Richter and Brock that might have supported the reading of these instructions.
However, it may be sound trial strategy to avoid requesting an instruction on a lesser included
offense if that instruction would be inconsistent with the chosen defense theory of the case. See
People v Blevins, 314 Mich App 339, 351-352; 886 NW2d 456 (2016). The defense in this case
was that Brock did not enter Richter’s home without permission or unlawfully, making him
innocent of any charge that included entry. The cited lesser included offense instructions are
contrary to that defense theory. Accordingly, counsel made a reasonable strategic decision not to
request those instructions. Counsel is not effective simply because his trial strategy is ultimately
unsuccessful. People v Petri, 279 Mich App 407, 412; 760 NW2d 882 (2008). Brock has not
established that he is entitled to relief on this ground.
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III. SENTENCING
Brock challenged the trial court’s scoring of OVs 1, 2, and 9 below and revives those
arguments on appeal. He also contends that his within-guidelines home invasion sentence is
disproportionate and unreasonable. We review a trial court’s scoring decisions for clear error and
must ensure that a preponderance of the evidence supports the score. People v Hardy, 494 Mich
430, 438; 835 NW2d 340 (2013). “Clear error exists when [this Court is] left with a definite and
firm conviction that a mistake was made.” People v Abbott, 330 Mich App 648, 654; 950 NW2d
478 (2019). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed
by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which
an appellate court reviews de novo.” Hardy, 494 Mich at 438.
The trial court assessed 10 points for OV 1 (aggravated use of a weapon). Ten points must
be assessed if “[t]he victim was touched by any other type of weapon,” meaning something other
than a gun, knife, or harmful chemical substance. MCL 777.31(1)(d). An “offender’s bare hands”
do not qualify as a weapon. People v Hutcheson, 308 Mich App 10, 15; 965 NW2d 44 (2014). At
trial, Richter testified that he believed Brock used brass knuckles during the assault. This was
based on the indentations left on his head by the blows and that fact that bare-knuckled punches
would not have caused such a severe injury. Wilson also indicated that she believed some sort of
weapon other than bare fists was used. Brock’s presentence investigation report (PSIR) recounted
that Wilson told the police that Brock obtained metallic knuckles from his roommate prior to
driving to Richter’s house and that Brock wore the metallic knuckles during the assault. This
evidence was sufficient to support the trial court’s assessment of 10 points for OV 1.
The court assessed one point for OV 2 (lethal potential of the weapon used or possessed),
reflecting that “[t]he offender possessed or used any other potentially lethal weapon.” MCL
777.32(1)(e). This score was also based on Brock’s use of brass knuckles and is similarly
supported by the record.
Finally, the court assessed 10 points for OV 9 (number of victims). Ten points is
appropriate when “[t]here were 2 to 9 victims who were placed in danger of physical injury or
death.” MCL 777.39(1)(c). During Brock’s home invasion he committed assault. Richter clearly
was a victim of that assault. However, Wilson, too, was a victim. Wilson was in close proximity
to the fray and tried to break up the fight. Richter struck Wilson in the face, chipping her tooth.
Therefore, Wilson was a victim for purposes of OV 9.
The trial court committed no scoring errors and his placement on the legislative sentencing
grid for his offenses remains unchanged. Brock’s guidelines range for the greater home invasion
offense was 99 to 320 months. The court sentenced Brock at the low end of that range—a
minimum sentence of 100 months’ imprisonment.
A within-guidelines sentence is presumptively proportionate. People v Powell, 278 Mich
App 318, 323; 750 NW2d 607 (2008). As the sentences imposed are within the appropriate
guidelines ranges and Brock has failed to establish any scoring errors or identify any inaccurate
information relied upon by the court, we must affirm his sentences. MCL 769.34(10). See People
v Schrauben, 314 Mich App 181, 196, 196 n 1; 886 NW2d 173 (2016).
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We affirm.
/s/ Elizabeth L. Gleicher
/s/ Colleen A. O’Brien
/s/ Allie Greenleaf Maldonado
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