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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CHRISTOPHER SCOTT WHITBURN, Defendant-Appellant.

UNPUBLISHED December 20, 2011

No. 300195 Ogemaw Circuit Court LC No. 10-003396-FH

Before: CAVANAGH, P.J., and SAWYER and METER, JJ. PER CURIAM. Defendant appeals as of right from his jury conviction of first-degree home invasion, MCL 750.110a(2), for which he was sentenced to 20 months to 20 years in jail. We affirm. Defendant argues that the trial court abused its discretion by denying his motion for a new trial. Defendant had argued that he was denied the effective assistance of counsel at trial because counsel failed to request a self-defense instruction. We review a trial court's decision to grant or deny a new trial for an abuse of discretion. People v Terrell, 289 Mich App 553, 558; 797 NW2d 684 (2010). The trial court does not abuse its discretion when its decision is within the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003); Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). To establish a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense. People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007). The defendant must also show that the resultant proceedings were fundamentally unfair or unreliable. People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). Counsel's performance was deficient if it fell below an objective standard of professional reasonableness. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). The performance prejudiced the defense if it is reasonably probable that, but for counsel's error, the result of the proceedings would have been different. Id. Jury instructions must be read as a whole to determine whether error occurred. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). "The instructions must include all elements of the crime charged and must not exclude consideration of material issues, defenses, -1-

and theories for which there is supporting evidence." People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002). A new trial may be warranted if the jury instructions exclude consideration of a defendant's viable defense. Id. Defendant was convicted of first-degree home invasion, which, in the context of this case, required proof that he broke into and entered a dwelling and that, while he entered, was present in, or left the dwelling, he committed an assault and another person was lawfully present in the dwelling. MCL 750.110a(2). Self-defense is an affirmative defense that justifies otherwise punishable criminal conduct. People v Dupree, 486 Mich 693, 707; 788 NW2d 399 (2010). `"[O]ne who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger."' Id., quoting 2 LaFave, Substantive Criminal Law (2d ed),

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