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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MICHAEL ANTHONY KNIGHT, Defendant-Appellant.

UNPUBLISHED May 27, 2008

No. 275446 St. Clair Circuit Court LC No. 06-001453-FH

Before: Servitto, P.J., and Cavanagh and Kelly, JJ. PER CURIAM. Defendant was convicted of first-degree home invasion, MCL 750.110a, and was sentenced as a fourth-offense habitual offender, MCL 769.12, to 72 months to 240 months jail, with no credit for time served. Defendant appeals as of right. We affirm. In May 2006, Annabell Jemison, an elderly blind woman, was getting dressed in her bedroom. At the time, her husband, Gene Jemison, was out running an errand. Mrs. Jemison testified that she heard a thump in the kitchen. Thinking it was her husband, she called out to him but he did not answer. When she heard the thump again, she yelled out once more. Again, there was no answer. Before she could investigate, she heard her husband talking to someone. Hearing a "scuffle," she called back to her husband. When he did not respond, Mrs. Jemison called the operator for help. Mr. Jemison testified that he entered his house through the garage upon returning from his errand. Once inside the garage, he noticed that his lawn mower and snow blower had been moved to the center of the garage. At this point, he noticed broken glass next to the door leading inside the house. Mr. Jemison then entered the house and saw defendant standing between the stove and freezer. Frozen waffles, sausage, and ice cream that the Jemisons usually stored in the freezer were strewn across the kitchen counter. Mr. Jemison's hammer, usually kept in the garage, was also on the kitchen counter, as was diabetic medication that had also been opened and moved from its usual place. Defendant and Mr. Jemison had an altercation and defendant left the Jemisons' house. Before he left, defendant told Mr. Jemison that he had come to the house to help Mr. Jemison look for "two white boys" that had broken into the Jemison house. Defendant was eventually arrested and charged with first-degree home invasion. Because defendant was on parole for another Michigan offense at the time of the instant offense, he remained in jail pending the outcome of the home invasion charge.

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I. Ineffective Assistance of Counsel The first issue defendant raises on appeal is whether he was denied effective assistance of counsel. Defendant argues that his conviction should be overturned because counsel did not request the court to instruct the jury on the necessarily lesser included offense of breaking and entering without permission. We disagree. Defendant took no steps at trial to develop a testimonial record supporting his claim, so our review is limited to facts existing on the record. See People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). A claim of ineffective assistance of counsel is a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). Questions of constitutional law are reviewed de novo. Id.1 The United States and Michigan Constitutions guarantee defendant effective assistance of counsel. US Const, Am VI; Const 1963, art 1,

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