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No. 137562
| The People of the State of Michigan, |
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Timothy A. Baughman |
Plaintiff-Appellant, |
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(Appeal from Ct of Appeals) |
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(Wayne - Townsent, L.) |
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| Darrell Wilder, |
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Valerie R. Newman |
Defendant-Appellee. |
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| __________________________________________ |
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Plaintiff-Appellant's Brief on Appeal>>
Defendant-Appellee's Brief on Appeal>>
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Background
Darrell Wilder appeared uninvited at the victim’s home. When she answered the door, Wilder entered and stated that he was taking her television because of a dispute with the victim’s son. When the victim protested, Wilder showed her a gun, then left with the television. Wilder was arrested and charged, as a third habitual offender, with first-degree home invasion, felon in possession of a firearm, and felony-firearm. Wilder waived his right to a jury trial. Following a bench trial, the trial judge convicted Wilder of third-degree home invasion and felony-firearm. The judge found that Wilder entered the victim’s home without permission and removed property, and that Wilder displayed the gun at “any suggestion of resistance.” Wilder appealed. Wilder argued that his right to due process was violated when the trial court convicted him of the uncharged lesser offense of third-degree home invasion. A trial court can only convict a defendant of a “lesser included” offense, Wilder argued, and the controlling inquiry is whether the lesser offense can be proved by the same facts that are used to establish the charged offense. Here, Wilder argued, third-degree home invasion cannot be proved by the same facts that would be used to establish the charged offense of first-degree home invasion, so it is a cognate offense, not a lesser included offense. The Court of Appeals agreed, vacating Wilder’s convictions and sentences in an unpublished per curiam opinion. The appellate court explained, “A trial court may only consider a lesser offense if it is a necessarily included lesser offense. MCL 768.32. We find that third-degree home invasion does not comprise a necessarily lesser-included offense of first-degree home invasion.” The concurring judge wrote separately to urge adoption of the rule that an “inferior” offense includes an offense designated as a lesser-degreed offense by the legislature. The prosecutor appeals.
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