A home invasion charge is one of the most serious criminal offenses you can be accused of in Michigan. Not only is the act of breaking into someone’s home for mischief reprehensible by itself, but the act also has the lasting effect of totally shattering that family’s sense of security in their own house forever. As a result, prosecutors and judges will not take these matters lightly and convicted offenders are subject to substantial fines and lengthy prison terms.
For purposes of home invasion, “dwelling” means “a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter.” MCL 750.110a(1)(a). There are three degrees of home invasion charges in Michigan:
HOME INVASION – FIRST DEGREE
A person is guilty of home invasion in the first degree by breaking and entering, contrary to MCL 750.110a(2), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 25.2a):
- First, that the individual broke into a dwelling. It does not matter whether anything was actually broken; however, some force must have been used. Opening a door, raising a window, and taking off a screen are all examples of enough force to count as a breaking. Entering a dwelling through an already open door or window without using any force does not count as a breaking.
- Second, that the individual entered the dwelling. It does not matter whether the individual got his or her entire body inside. If the individual put any part of his or her body into the dwelling after the breaking, that is enough to count as an entry.
- Third, EITHER that when the individual broke and entered the dwelling, he or she intended to commit a felony, larceny or assault OR that when the individual entered, was present in, or was leaving the dwelling, he or she committed a felony, larceny or assault.
- Fourth, that when the individual entered, was present in, or was leaving the dwelling, EITHER he or she was armed with a dangerous weapon, OR another person was lawfully in the dwelling.
In addition, a person is guilty of home invasion in the first degree by entering without permission contrary to MCL 750.110a(2), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 25.2c):
- First, that the individual entered a dwelling without permission. It does not matter whether the individual got his or her entire body inside. If the individual put any part of his or her body into the dwelling without permission, that is enough to count as an entry. “Without permission” means “without having obtained permission to enter from the owner or lessee of the dwelling or from any other person lawfully in possession or control of the dwelling.” MCL 750.110a(1)(c).
- Second, EITHER that when the individual broke and entered the dwelling, he or she intended to commit a felony, larceny or assault OR that when the individual entered, was present in, or was leaving the dwelling, he or she committed a felony, larceny or assault.
- Third, that when the individual entered, was present in, or was leaving the dwelling, EITHER he or she was armed with a dangerous weapon, OR another person was lawfully in the dwelling.
For the purposes of home invasion-first degree, “dangerous weapon” means one or more of the following:
- “A loaded or unloaded firearm, whether operable or inoperable.” MCL 750.110a(1)(b)(i).
- “A knife, stabbing instrument, brass knuckles, blackjack, club, or other object specifically designed or customarily carried or possessed for use as a weapon.” MCL 750.110a(1)(b)(ii).
- “An object that is likely to cause death or bodily injury when used as a weapon and that is used as a weapon or carried or possessed for use as a weapon.” MCL 750.110a(1)(b)(iii).
- An object or device that is used or fashioned in a manner to lead a person to believe the object or device is a firearm, stabbing instrument or other weapon. MCL 750.110a(1)(b)(iv).
Home invasion in the first degree is a felony punishable by a fine up to $5,000.00 or up to 20 years in prison, or both. MCL 750.110a(5). “The court may order a term of imprisonment imposed for home invasion in the first degree to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.” MCL 750.110a(8).
HOME INVASION – SECOND DEGREE
A person is guilty of home invasion in the second degree by breaking and entering, contrary to MCL 750.110a(3), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 25.2b):
- First, that the individual broke into a dwelling. It does not matter whether anything was actually broken; however, some force must have been used. Opening a door, raising a window, and taking off a screen are all examples of enough force to count as a breaking.
- Second, that the individual entered the dwelling. It does not matter whether the individual got his or her entire body inside. If the individual put any part of his or her body into the dwelling after the breaking, that is enough to count as an entry.
- Third, EITHER that when the individual broke and entered the dwelling, he or she intended to commit a felony, larceny or assault OR that when the individual entered, was present in, or was leaving the dwelling, he or she committed a felony, larceny or assault.
In addition, a person is guilty of home invasion in the second degree by entering without permission contrary to MCL 750.110a(2), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 25.2d):
- First, that the individual entered a dwelling without permission. It does not matter whether the individual got his or her entire body inside. If the defendant put any part of his or her body into the dwelling without permission, that is enough to count as an entry. “Without permission” means “without having obtained permission to enter from the owner or lessee of the dwelling or from any other person lawfully in possession or control of the dwelling.” MCL 750.110a(1)(c).
- Second, EITHER that when the individual broke and entered the dwelling, he or she intended to commit a felony, larceny or assault OR that when the individual entered, was present in, or was leaving the dwelling, he or she committed a felony, larceny or assault.
Home invasion in the second degree is a felony punishable by a fine up to $3,000.00 or up to 15 years in prison, or both. MCL 750.110a(6).
HOME INVASION – THIRD DEGREE
A person is guilty of home invasion in the third degree by intending to commit a misdemeanor, contrary to MCL 750.110a(4)(a), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 25.2e):
- First, that the individual broke and entered, OR entered without permission a dwelling. It does not matter whether anything was actually broken; however, some force must have been used. Opening a door, raising a window, and taking off a screen are all examples of enough force to count as a breaking. For an entry, it does not matter whether the individual got his or her entire body inside. If the individual put any part of his or her body into the dwelling, that is enough to count as an entry.
- Second, EITHER that when the individual broke and entered OR entered without permission a dwelling, he or she intended to commit a misdemeanor OR that when the individual entered, was present in, or was leaving the dwelling, he or she committed a misdemeanor.
In addition, a person is guilty of home invasion in the third degree by violating an order to protect a person, contrary to MCL 750.110a(4)(b), if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 25.2f):
- First, that the individual broke and entered, OR entered without permission a dwelling. It does not matter whether anything was actually broken; however, some force must have been used. Opening a door, raising a window, and taking off a screen are all examples of enough force to count as a breaking. For an entry, it does not matter whether the individual got his or her entire body inside. If the individual put any part of his or her body into the dwelling, that is enough to count as an entry.
- Second, that when the individual entered, was present in, or was leaving the dwelling, he or she violated a term or condition of probation, parole, a personal protection order, a bond or pretrial release.
- Third, that the term or condition the individual violated was ordered to protect a named person or persons.
Home invasion in the third degree is a felony punishable by a fine up to $2,000.00 or up to 5 years in prison, or both. MCL 750.110a(7).
Home invasion in the third degree is a necessarily included lesser offense of home invasion in the first degree. People v Wilder, 485 Mich 35; 780 NW2d 265 (2010).
DEFENSES
There are many defenses to home invasion that can be asserted by a skilled criminal defense lawyer to beat the charges, provided that the facts support the assertion:
- CONSENT – If the owner of the premises (or the person in possession of the premises such as a tenant) consented to the defendant’s presence at the dwelling, then the elements of breaking or entering or lack of permission can be negated.
- MISTAKE – It may be a defense to home invasion if the defendant mistakenly believed he was entering his own dwelling. For example, in an apartment building, the defendant may have mistakenly entered the wrong apartment that he thought was his own.
- ALIBI OR MISTAKEN IDENTITY – The defendant may assert that he was in another location at the date and time that the home invasion occurred, provided that there are sufficient witnesses and proper notice to the prosecutor to establish the alibi.
- LACK OF INTENT TO COMMIT A FELONY OR MISDEMEANOR – The prosecutor may be unable to prove that the defendant, although having entered the dwelling, intended to commit a crime therein due to evidence of intoxication by alcohol or drugs, mistake of fact or mental impairment.
- DURESS, COERCION OR INDUCEMENT BY ANOTHER – If you were forced or manipulated into an home invasion due to the influence of another person, then you may have a defense to the prosecutor’s required showing that you had the mindset to commit a crime.
A charge of home invasion should not be taken lightly, and you will only get one opportunity to properly present your case to the court. It can take years to reverse a wrongful conviction on appeal. You need a skilled criminal defense lawyer in your corner from the very beginning to ensure the best outcome.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
