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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V JASON MATTHEW MEYER,

UNPUBLISHED November 10, 2011

No. 300025 Saginaw Circuit Court LC No. 09-032554-FH, 09-032556-FH, 09-032557-FH, 09-032558-FH

Defendant-Appellant.

Before: WHITBECK, P.J., and MURRAY and DONOFRIO, JJ. PER CURIAM. Defendant appeals as of right his jury trial convictions of domestic violence, MCL 750.81(2), two counts of resisting or obstructing a police officer, MCL 750.81d(1), two counts of malicious destruction of property under $200, MCL 750.377a(1)(d), first-degree home invasion, MCL 750.110a(2), felonious assault, MCL 750.82, and aggravated stalking, MCL 750.411i. The trial court sentenced defendant to 93 days' imprisonment for the domestic violence conviction, 1 year imprisonment for the resisting or obstructing a police officer convictions, 93 days' imprisonment for the malicious destruction of property convictions, 7 years and 3 months to 20 years' imprisonment for the first-degree home invasion conviction, 1 year and 6 months to 4 years' imprisonment for the felonious assault conviction, and 2 to 5 years' imprisonment for the aggravated stalking conviction. Because defendant's first-degree home invasion conviction is not against the great weight of the evidence, he was not denied the effective assistance of counsel, the trial court did not abuse its discretion by denying his request for self-representation, and his remaining arguments lack merit, we affirm. Defendant first argues that his first-degree home invasion conviction is against the great weight of the evidence. We review for an abuse of discretion the denial of a motion for a new trial on the ground that the verdict contravenes the great weight of the evidence. People v McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001). A trial court abuses its discretion when it chooses an outcome that falls outside the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). A verdict is against the great weight of the evidence when "the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand." -1-

McCray, 245 Mich App at 637. MCL 750.110a(2) sets forth the elements of first-degree home invasion: 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. Defendant argues that he did not enter Lawanda Klonowski's home without permission because Alyssa Ashley, his former girlfriend, invited him there to retrieve some of his belongings. It is unclear from Ashley's testimony whether she invited defendant to the home. However, Bryan Anderson, Ashley's boyfriend at the time, testified that defendant entered the home without permission. Anderson and Ashley were in the home, packing for a trip that they were taking together. According to Anderson, defendant walked into the home without knocking or requesting entry. He was carrying a decorative shovel, which he swung at Anderson when Ashley ordered defendant to leave. Because the evidence shows that defendant entered the dwelling without permission, his first-degree home invasion conviction does not contravene the great weight of the evidence. Next, defendant argues that the trial court erred when it instructed the jury on the elements of first-degree home invasion. A criminal defendant is entitled to have a properly instructed jury consider the evidence against him. People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). Jury instructions must include all elements of the charged offenses and any material defenses and theories supported by the evidence. Id. If the instructions, reviewed in their entirety, sufficiently protected the defendant's rights and fairly presented the issues to the jury, reversal is not required. Id. When it instructed the jury on an element of first-degree home invasion, the trial court stated that the prosecutor must prove, "[t]hat when the defendant entered, was present in, or leaving the dwelling, either of the following circumstances existed: He was armed with a dangerous represent, and/or another person was lawfully present in the dwelling." (Emphasis added.) Because the instruction as stated in the record is nonsensical, it appears that a transcription error occurred in which the court reporter substituted the word "represent" for "weapon." Further, defense counsel's approval of the instructions waived any challenge on appeal. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002). In any event, even if the trial court misspoke, reversal is not required because the instructions as a whole fairly presented the issues to be tried and sufficiently protected defendant's rights. Dobek, 274 Mich App at 82. The trial court correctly instructed the jury that it could convict defendant if it concluded that another person was lawfully present in the dwelling when defendant entered, and -2-

the evidence showed that two people were lawfully in the home when defendant entered. Moreover, the trial court correctly instructed the jury on the same element in the context of the attempted first-degree home invasion charge against defendant.1 Accordingly, defendant is entitled to no relief. Defendant next argues that he was denied the effective assistance of counsel when his trial counsel failed to object to the joinder of the charges against him. Because no evidentiary hearing was conducted in the trial court, our review of this issue is limited to mistakes apparent on the record. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). We review de novo the constitutional question whether a defendant was denied his Sixth Amendment right to counsel. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A defendant's right to counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1,

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