Petition for Writ of Certiorari — Ballard v. Michigan
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Nold 970 OF 26
OFFICE OF THE CLE
IN THE
Supreme Court of the United States
TRAVIS WILLARD BALLARD,
Petitioner,
V.
PEOPLE OF THE STATE OF MICHIGAN,
Respondent.
Petition for a Writ of Certiorari
to the Michigan Court of Appeals
PETITION FOR A WRIT OF CERTIORARI
MICHAEL ALAN SCHWARTZ *
SARA OLTARZ-SCHWARTZ
30300 Northwestern Highway
Suite 260
Farmington Hills, Michigan 48334
(248) 785-0200
* Counsel of Record Counsel for Petitioner
October 25, 2004
—— ee ells SSS
LLL DELI LAE NIDA T ETE ALES SION IIT LENE EAN REE BEE: ta CNET IES
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001
QUESTIONS PRESENTED
Can a defendant be convicted of carrying a concealed
weapon when the prosecution offered no evidence establish-
ing the statutory elements required to prove the existence of
such weapon?
When no gun was recovered or observed being fired and
when the only evidence offered in a criminal prosecution for
carrying a concealed weapon is testimony from one witness
who stated that she was not positive that the defendant had a
gun in his possession, does reasonable doubt exist as a matter
of law?
Can a criminal conviction stand when the prosecution has
failed to prove every essential element of the crime charged
beyond a reasonable doubt?
(i)
il
PARTIES TO THE PROCEEDINGS
All parties to the proceedings are identified in the caption.
| ee ee a
TABLE OF CONTENTS
|. THIS CASE APPEARS TO BE ONE OF
FIRST IMPRESSION INSOFAR AS IT IN-
" VOLVES CONVICTION ON A> CHARGE
OF CARRYING A CONCEALED WEAPON
WHERE NO FIREARM WAS. RECOV-
ERED, WHERE NO ONE OBSERVED ANY
FIREARM BEING DISCHARGED OR
CLAIMED THAT ONE WAS BEING USED
TO THREATEN ANYONE, AND WHERE
THE ONLY EVIDENCE OF EXISTENCE
AND/OR POSSESSION OF A FIREARM
CAME FROM THE TESTIMONY OF A
WITNESS WHO WAS NOT POSITIVE
THAT SHE SAW A FIREARM ........................ 7
(iii)
iV
TABLE OF CONTENTS—Continued
Page
Il. THE ISSUES IN THIS PETITION INVOLVE
LEGAL PRINCIPLES OF MAJOR SIGNIFI-
CANCE TO THE UNITES STATES OF
AMERICA’S JURISPRUDENCE _ INAS-
MUCH AS IT CONCERNS KEY PRO-
VISIONS OF THE UNITED STATES
CONSTITUTION AND ITS IMPACT UPON
THE CONCEPT OF REASONABLE DOUBT
AND THE PRESUMPTION OF _ INNO-
CENCE IN A CRIMINAL TRIAL AND
WHETHER THE DEFINITION, AS SET
FORTH BY THE MICHIGAN LEGISLA-
TURE, OF A NECESSARY ELEMENT OF A
CRIME MUST BE SATISFIED AS A
PRECONDITION TO ANY CONVICTION.
AS SUCH THE PETITIONER’S FEDERAL
CONSTITUTIONAL RIGHTS ARE AT
STN scnicomscnidirsinassisinitadialistnuntinnitianasebnidnionsiabiuctiions 10
Core [niece Coes 16
APPENDICES
A. Mich S.Ct. No.125769 decided July 29, 2004..... la
B. Onder Demyiing ReRCOIiig....2.......ccrccceccssssesesessees 2a
C. Court of Appeals No. 241583 decided
PROG 2PUily BIE cnciencnsaicincsnagnacsanndanntoneniebes 3a
D. Lenawee Circuit No. 01-9495-FH judgement
of conviction entered March 8, 2002................. 17a
CASES
Vv
TABLE OF AUTHORITIES
Buggs v. U.S., 153 F.3d 439 (7th Cir. 1998), ........
Costello v Unites States, 350 U.S. 359 76 S Ct
965, 100 L. Ed 397 (2nd Cir. 1956)...
Fairchild v. Norris, 869 F.Supp. 672, reversed
21 F.3d 799, rehearing and suggestion for
rehearing denied, certiorari denied 115 S.Ct.
1092, 513 U.S. 1146, 130 L.Ed.2d 1061,
rehearing denied 115 S.Ct. 1726, 514 USS.
1078, 131 L.Ed.2d 583, rehearing denied 51
F.3d 129, certiorari denied 115 S.Ct. 2562,
515 U.S. 1134, 132 L.Ed.2d 815(1993).....0000....
Fiore v White, 531 US 225, 121 SCt 712, 148
LEG26 G29 (C908 Cir. 2001) nceccccccccsascassssosasecnaes
Jackson v Virginia, 443 US 307, 99 SCt 2781, 61
See SO CA Ce, UTD i vrsscccessnradaranivsrincannns
In re Winship, 397 US 358, 90 SCt 1068, 25
LSE SUN CUO WP PUUD des chssscnsncicsnrcnesncdarenins
People v Gardner, 194 Mich. App 652, 487
PE OE AN POD BOAR i cdkccdennphonwhinincabsnneuieaaieaias
People v Herbert, 444 Mich. 466, 511 N.W.2d
BO CF i iiint nesthccsheanacinlccncacsasadeaa
People v Lemmon, 456 Mich. 625, 576 N.W.2d
EP Fe intivnsasssuaiaaacsdtngniscanaaneicataialiitennnen
People v Parr, 197 Mich. App 41, 494 N.W.2d
Fe CF iiiess ic eidcnniis aeons
People v Silver, 466 Mich. 386, 646 N.W.2d 150
Scrivner v. Tansy, 68 F.3d 1234, certiorari denied
116 S.Ct. 1277, 516 U.S. 1178, 134 L.Ed.2d
EES CHE, FE i stdinsinatiaknaelntae
ee
Page
13
16
15
15
15
15
12
14
14
12
15
13
vi
TABLE OF AUTHORITIES—Continued
U.S. v. Alvarez, 972 F.2d 1000, certiorari denied
113 S.Ct. 1427, 507 U.S. 977, 122 L.Ed.2d
795, appeal after remand 21 F.3d 1116,
certiorari denied 115 S.Ct. 513 U.S. 881, 130
EMIGDS 16D CODD. ccomccisiinczesncensciiicinidiaialeninan
U.S. v. Brown, 763 F.2d 984, certiorari de-
nied 106 S.Ct. 273, 474 U.S. 905, 88 L.Ed.
BE Z34 COR Cie, BSED ciscstcnninstnsiaseeeneminanticmies
U.S. v. Castillo, 866 F.2d 1071, rehearing
denied, denial of habeas corpus affirmed 972
FOG USS7 COs Coe, BIG D ccrcetnesetiintncctntabintnaselaces
U.S. v. Garcia-Emanuel, 14 F.3d 1469, denial
of habeas corpus affirmed 141 F.3d 1186 (10th
Che. BGB GD. cxcciscipsusstistcvtnicentsetcsenanaanmanaen
U.S. v. Joseph, 939 F.Supp. 26, affirmed 169
F.3d 9, 335 U.S. App.D.C. 93, rehearing and
suggestion for rehearing denied, certiorari
denied 120 S.Ct. 266, 528 U.S. 914, 145
L..B6.36 223 CL. Cit. POD cccsatsacettcninninindas
U.S. v. Leos-Quidada, 107 F.3d 786 (10th Cir.
U.S. v. Meraz-Solomon, 818 F.Supp. 1320,
affirmed 3 F.3d 298 (S.D.Cal. 1992)............00..
U.S. v. Skodnek, 896 F.Supp. 60 (Mass. 1995)......
U.S. v. Smith, 82 F.3d 1564, appeal after remand
116 F.3d 857, certiorari denied 118 S.Ct. 256,
522 U.S. 903, 139 L.Ed.2d 183 (10th Cir.
U.S. v. Thomas, 8 F.3d 1552 (11th Cir. 1993).......
U.S. v Teffera, 985 F.2d 1082, 300 U.S.App.D.C.
23 (D.C, Cle, 30ND onccsscnse cee
U.S. v. Varoz, 740 F.2d 772 (10th Cir. 1984)........
Page
15
15
14
Vil
TABLE OF AUTHORITIES—Continued
Page
U.S. v. Wilson, 160 F.3d 732, 333 U.S.App. D.C.
103, certiorari denied 120 S.Ct. 81, 528 U.S.
828, 145 L.Ed.2d 69 (D.C. Cir. 1998)............... &
U.S .v. Yoakam, 116 F.3d 1346 (10th Cir. 1997). ... 14
STATUTES
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DOC, § T5022 EZ) CESSR) wccccsecscrerccccscssocccesones 2, 3, 10, 11
ECL, § TSO.ZZMB) (ZOGZ) acrcrcresssccreccrscssccccscosccssees 8
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U.S. CONSTITUTION
IS vccnccisnsisceeisinacuiciiadeimmeimmoiniadesiaaaanial 13
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IN THE
Supreme Court of the Anited States
No.
TRAVIS WILLARD BALLARD,
Petitioner,
V.
PEOPLE OF THE STATE OF MICHIGAN,
| Respondent.
Petition for Writ of Certiorari
to the Michigan Court of Appeals
PETITION FOR A WRIT OF CERTIORARI
PETITION FOR CERTIORARI
Petitioner, Travis Willard Ballard, respectfully petitions for
a writ of certiorari to review the opinion of the Michigan
Court of Appeals in this case.
OPINIONS BELOW
1. On April 12, 2002, Lenawee Circuit No. 01-9495-FH a
judgment of conviction was entered against Petitioner Travis
Ballard, an attorney, who was found guilty by a jury on three
counts, to wit: one felony count of Breaking and Entering
With Intent to Commit Larceny, one misdemeanor count of
Entry Without Permission, and one felony count of Carrying
a Concealed Weapon. (App. A)
2
2. On November 25, 2003, the Michigan Court of Appeals
No. 241583, in an unpublished opinion, reversed the felony
conviction of Breaking and Entering With Intent to Commit
Larceny, ordering that a misdemeanor conviction of Breaking
and Entering Without Permission be entered: affirmed the
misdemeanor count of Entry Without- Permission: and
affirmed the felony count of Carrying a Concealed Weapon.
(App. B)
3. On January 21, 2004, after Petitioner timely filed a
motion for rehearing, the Court of Appeals denied said
motion. (App. C)
4. The decision of the Supreme Court of Michigan
(App. D) was entered on July 29, 2004 No.125769 and is
published at __— Mich__, 683 N.W.2d 671, 2004 Mich.
LEXIS 1600 (2004).
JURISDICTION
The Supreme Court of Michigan entered its decision on
July 29, 2004. This court has jurisdiction pursuant to 28
U.S.C. Section 1257.
STATUTORY PROVISIONS INVOLVED
Carrying a Concealed Weapon in violation of MCL
750.227(2). That statute provides as follows:
A person shall not carry a pistol concealed on or about
his or her person, or, whether concealed or otherwise, in
a vehicle operated or occupied by the person, except in
his or her dwelling house, place of business, or on other
land possessed by the person, without a license to carry
the pistol as provided by law and if licensed, shall not
carry the pistol in a place or manner inconsistent with
any restriction upon said license. [Emphasis supplied. |
il
A ah NN De Mh ce
2
~
The term “pistol” is defined, pursuant to MCL 750.222(c),
as follows:
“Pistol” means a firearm, loaded or unloaded, 30 inches
or less in length, or any firearm, loaded or unloaded,
which by its construction and appearance conceals it as a
firearm. [Emphasis supplied. ]
To support a conviction for carrying a weapon in a vehicle
the prosecutor must show: |) The presence of a weapon... .
MCLA Sec 750.227(2)
“The term “firearm” is defined by the legislature in
MCL 750.222(B); MSA 2.212(20) which provide in
pertinent part:
“Firearm”, means a weapon from which a dangerous
projectile may be propelled by an explosive or by gas or
air. Firearm does not include any smooth bore Rifle or
handgun designed and manufactured exclusively for
propelling BB’s not exceeding .177 calibre by means of
spring, gas or air.
F INTRODUCTION
This case involves the most bizarre situation in which
Petitioner was convicted of the felony of carrying a concealed
weapon even though (1) no weapon was recovered; (2) no
one observed any weapon being fired; (3) there was no evi-
dence that any weapon was being utilized; and (4) the only
evidence that Petitioner possessed a weapon was in the form
of testimony from a person who stated that she thought the
Petitioner was in possession of a weapon but “was not
positive.”
The federal questions sought to be reviewed by this court
have been raised since the origination of the criminal pro-
ceedings.
4
In the instant case, no weapon was placed into evidence
and there was no testimony or other evidence establishing,
beyond a reasonable doubt, that Petitioner had a pistol at the
time that the only witness testified that she saw him place an
object in the trunk of his automobile. No gun was recovered.
The witness, herself, was not sure that Petitioner had a gun in
his possession.
This case should never have been presented to a jury since
the evidence proferred, as a matter of law, did not satisfy the
threshold of guilt beyond a reasonable doubt. The lack of any
physical evidence, combined with the testimony of the only
witness in support of the charge that she was not positive
that the object in Petitioner’s hand was a gun, constitutes
reasonable doubt, per se. :
STATEMENT OF THE CASE
On February 14, 2001, a valentine was placed in the Adrian
Daily Telegram and directed to “Travis” from “Pen-
ny.” The next day, February 15, 2001, the valentine was seen
by Linda Ballard, Petitioner’s wife, while she was at the
office where she worked for Petitioner. She made numerous
telephone calls and gave every indication that she would not
be returning. At the time, Petitioner was in Howell, Michigan
in connection with a legal matter for which he was
representing a client. Upon leaving the court in Howell, he
spoke to his secretary and was told his wife had seen the
valentine in the newspaper and had left the office. Petitioner
then began making telephone calls trying to locate his wife.
Thereafter, Petitioner became suicidal. He received a tele-
phone call from Janet Harsh, who was opposing counsel-in a
case. Attorney Harsh began speaking to Petitioner about a
legal matter when he told her that he was distressed by the
fact that his wife had left him and that she had taken his
children. He told her that he was contemplating suicide.
Attorney Harsh then went to his home where she found Peti-
Sha anh ita
5
—
tioner threatening himself with what appeared to be a gun. He
never threatened anyone with a gun, except for himself.
Attorney Harsh testified that she felt sure that Petitioner
would kill himself that night. She testified that when she saw
him at his home, it was obvious that Petitioner had been
crying, and that he was agitated and upset. Attorney Harsh
further testified that he wanted to find his wife, Linda.
When Petitioner was unable to contact his wife and
children after making numerous telephone calls from his
home, he called his wife’s cellular telephone and picked up
the messages left on voice mail. One such message was from
“Margaret”, asking that a return call be placed. Petitioner
recognized that voice as being Margaret Noe’s. Mrs. Noe is a
member of the staff of the Lenawee County Prosecuting
Attorney who has a side practice representing persons in
divorce cases.
Mrs. Harsh and Petitioner went around the City of Adrian
looking for his wife. They went over to Mrs. Noe’s home and
Mrs. Harsh approached the home and upon spoke with Mrs.
Noe’s son, Charles. However, he did not know her where-
abouts; neither did Mrs. Noe’s husband, Bill.
Ms. Harsh testified that, upon returning to Petitioner’s
vehicle, she believed she saw Petitioner place an object in the
trunk which she believed looked like a gun but that she was
not positive.
Q. Did he ever tell you what it was he better put in the
trunk?
No, he did not say I better put this gun in the trunk.
And he didn’t—he never showed you the object?
I could see it when he was putting it in the trunk.
Well, he didn’t—I’m saying he never showed it to
you?
No. No, he didn’t.
He never held it up and say, here, look at this?
ODP LP0>
No, he didn’t.
Okay. But this gun, which you said fit in his hand, as
he’s taking—you’re saying he took it out of his pocket
and you could see what it was?
A. No, not right away. i could see him pulling something
out of his pocket. It wasn’t till he got around to the
back of his car, because I was on the passenger side,
that I could see what he was doing.
Q. You're on the passenger side. Which side is he on?
A. He was on the driver’s side and then he walked to the
back of the car. )
But did he ever come to the passenger side?
No.
How long did the whole thing take?
The whole thing from?
Walking to the back, opening the trunk or the trunk
was open, presumably, if he’s got one of those trunk
releases in his car.
Well, he opened up the trunk. Probably less than a
minute.
Very quick?
I'd say it was pretty quick; it was less than a minute.
Okay, and you said you saw an object in his hand; you
Say it looked like the gun, but you’re not sure?
Yeah, it looked like the gun, but I’m not positive.
[Emphasis supplied. ]
O>
CPOPO
>
PrP OPA
That was the sole evidence regarding any alleged posses-
sion of a weapon away from Petitioner’s residence. Ms.
Harsh never testified that she observed any weapon being
discharged and no one else testified about any weapons in
Petitioner’s possession away from his house.' There was no
'A couple of police officers testified concerning some rifles which
were in Petitioner's home. However, those rifles were not linked to
anything in Petitioner's possession outside of his home. Petitioner was not
charged with possession of the rifles.
7
evidence that any item in Petitioner’s possession was, in fact,
a firearm. No firearm was put into evidence. No firearm was
seized by the police. There was no testimony as to any
weapon's being discharged in any testing by the police and
there was no evidence that any tests were performed with
respect to any of the weapons which were in Petitioner’s
home. Upon being questioned at trial regarding Petitioner’s
possession of a weapon, Ms. Harsh testified that from the
time she and Petitioner left Petitioner’s house in his vehicle
until the time that they stopped at Margaret Noe’s house, she
did not see a gun in his possession. She testified that she saw
him put something into the trunk of his car which she said
“looked like the gun, but I’m not positive.” Attorney Harsh
testified that while they were driving around the Adrian area,
Petitioner was trying to find his wife. :
REASONS FOR GRANTING THE PETITION
I. THIS CASE APPEARS TO BE ONE OF FIRST
IMPRESSION INSOFAR AS IT INVOLVES
CONVICTION ON A CHARGE OF CARRYING
A CONCEALED WEAPON WHERE NO FIRE-
ARM WAS RECOVERED, WHERE NO ONE
OBSERVED ANY FIREARM BEING _ DIS-
CHARGED OR CLAIMED THAT ONE WAS
BEING USED TO THREATEN ANYONE, AND
WHERE THE ONLY EVIDENCE OF EXIS-
TENCE AND/OR POSSESSION OF A FIREARM
CAME FROM THE TESTIMONY OF A WIT-
NESS WHO WAS NOT POSITIVE THAT SHE
SAW A FIREARM.
In the instant case, no weapon was placed into evidence
and there was no testimony or other evidence establishing,
beyond a reasonable doubt, that Petitioner had a pistol at the
time that the prosecution’s witness testified that she saw him
place an object in the trunk of his automobile. No gun was
8
recovered. The witness, herself, was not sure that Petitioner
had a gun in his possession. The government cannot prevail
in prosecution on the basis of jury speculation. U.S. vy.
Wilson, 160 F.3d 732, 333 U.S.App. D.C. 103, certiorari
denied 120 S.Ct. 81, 528 U.S. 828, 145 L.Ed.2d 69 (D.C. Cir.
1998). Jury may not base a verdict on mere speculation. U.S.
v. Teffera, 985 F.2d 1082, 300 U.S.App.D.C. 23 (D.C. Cir.
1993). Conviction for criminal offense cannot rest on mere
suspicion. U.S. v. Smith, 82 F.3d 1564, appeal after remand
116 F.3d 857, certiorari denied 118 S.Ct. 256, 522 U.S. 903,
139 L.Ed.2d 183 (10th Cir. 1996).
No jury instruction was ever given notifying the jury or
the petitioner that the court or prosecutor was placing any
affirmative duty on petitioner relieving the prosecutor of his
obligation to prove the required elements of the charge or
imposing affirmative obligations upon petitioner as part of his
defense.
The Michigan Court of Appeals noted, Harsh, herself,
testified that “she was ‘not positive’ that it was a gun that
defendant put in the trunk. . . ” (Appendix C). The only evi-
dence that the prosecution put forward in support of the claim
that Defendant-Appellant was in possession of a pistol while
driving his automobile was with respect to Harsh’s observation
of his putting an object in his trunk. No other evidence was
presented regarding Petitioner’s possession of a gun outside of
his residence or curtilage thereof. It is submitted that Harsh’s
own disclaimer constitutes reasonable doubt as a matter of law.
This is especially true since there is no other evidence showing
that Petitioner possessed a pistol in his vehicle.
The statutory definition, set forth in MCL 750.222(a) (b),
(c), requires that certain elements be established. In order to be
a pistol, an object must be a “firearm.” An object which is a
“handgun designed and manufactured exclusively for pro-
pelling BB’s not exceeding .177 calibre by means of spring,
gas or air” is specially exempted from the definition of a
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9 en
handgun. There was no testimony or other evidence showing
that the object which Ms. Harsh observed was a handgun
which satisfied the definition of a firearm under MCL 722(b).
Even if Ms. Harsh was absolutely positive that the object she
observed was a handgun, such would still be insufficient to
meet the definition of firearm.’
Here, the paucity of evidence provided neither circum-
stantial evidence that Petitioner possessed a pistol nor per-
mitted reasonable inference, since there was nothing upon
which to make such inference.’ For the jury to reject Peti-
tioner’s testimony and accept Janet Harsh’s testimony, they
still would be required to accept Harsh’s concession of
uncertainty that the item in question was a gun, thereby being
left with a genuine doubt. Additionally, the jury was required
to determine guilt without the statutory definition of a
pistol’s having been satisfied. This goes beyond a jury
legitimate ability. :
A conviction based on evidence that requires speculation or
mere conjecture by jury is invalid. U.S. v. Brown, 763 F.2d
984, certiorari denied 106 S.Ct. 273, 474 U.S. 905, 88
L.Ed.2d 234 (8th Cir. 1985).
? Perhaps the statutory definition under MCL 722(B), (C), explains why
the defense has been unable to locate any reported Michigan cases
involving conviction for Carrying a Concealed Weapon in the absence of
a weapon's having been recovered or other evidence establishing the
calibre and type of the projectile which the weapon is designed to propel,
ire-spective of whether the weapon is or is not operable.
* Inferring that Defendant-Appellant was in possession of a pistol while
driving his car would be no more appropriate than inferring that a person
was in possession of heroin or cocaine simply because he was seen to be
carrying a white powder in a bag, with nothing more. One might speculate
that the white powder could be a controlled substance; however, standing
by itself, such would not be sufficient to provide a basis for conviction
because the composition of powder, not being known, would not satisfy
the statutory definition of a controlled substance under MCL 333.7104. It
could be nothing more sinister than powdered sugar or flour.
10
Il. THE ISSUES IN THIS PETITION INVOLVE
LEGAL PRINCIPLES OF MAJOR SIGNIFI-
CANCE TO THE UNITES STATES OF
AMERICA’S JURISPRUDENCE INASMUCH AS
IT CONCERNS KEY PROVISIONS OF THE
UNITED STATES CONSTITUTION AND ITS
IMPACT UPON THE CONCEPT OF REASON-
ABLE DOUBT AND THE PRESUMPTION OF
INNOCENCE IN A CRIMINAL TRIAL AND
WHETHER THE DEFINITION, AS SET FORTH
BY THE MICHIGAN LEGISLATURE, OF A
NECESSARY ELEMENT OF A CRIME MUST
BE SATISFIED AS A PRECONDITION TO ANY
CONVICTION. AS SUCH THE PETITIONER’S
FEDERAL CONSTITUTIONAL RIGHTS ARE
AT ISSUE.
The Prosecution Failed to Produce Evidence from Which
the Jury Could Find Guilt Beyond a Reasonable Doubt under
Count III. Count III charged the Petitioner with Carrying a
Concealed Weapon in violation of MCL 750.227(2). That
statute provides as follows:
A person shall not carry a pistol concealed on or about
his or her person, or, whether concealed or otherwise, in
a vehicle operated or occupied by the in his or her
dwelling ho person, except use, place of business, or on
other land possessed by the person, without a license to
carry the pistol as provided by law and if licensed, shall
not carry the pistol in a place or manner inconsistent
with any restriction upon said license. [Emphasis
supplied. ]
The term “pistol” is defined, pursuant to MCL 750.222(c),
as follows:
“Pistol” means a firearm, loaded or unloaded, 30 inches
or less in length, or any firearm, loaded or unloaded,
11
which by its construction and appearance conceals it as a
firearm. [Emphasis supplied.]
The term “firearm” is defined, pursuant to MCL 722(b), as
: follows:
: The word “firearm”, except as otherwise specifically
defined in the statutes, shall be construed to include any
weapon from which a dangerous projectile may be
propelled by using explosives, gas or air as a means of
propulsion, except any smooth bore file or handgun “a
designed and manufactured exclusively for propelling
BB's not exceeding .177 calibre by means of spring, gas
or air. [Emphasis supplied. ]
Thus, the gravamen of the crime of carrying a concealed
weapon is that the “weapon” must be a pistol, which is de-
fined as a firearm, thirty (30) inches or less in length, which
must be such that a dangerous projectile may be propelled
from it using explosives, gas or air as a means of propulsion.
If the object in question does not have such a quality, then by
definition it is not a firearm, can neither be a pistol nor a
pistol carried in an automobile, and thereby cannot constitute
the basis of a prosecution under MCL 750.227(2).
The central issue with respect to the charge pf carrying a
. concealed weapon is whether the object which the witness,
Janet Harsh, testified she saw the Petitioner put in his trunk,
satisfies the definition of a “pistol” beyond a reason-
able doubt.
Janet Harsh testified that she is not familiar with firearms.
She stated that she has none at home and that neither she nor
her husband ever used firearms. She testified that she did not
focus much on the guns in Petitioner’s home and that she did
not want to look at the guns.
io RA REG Oa het 6 HAE
She stated that she saw two “guns” in the Petitioner’s
kitchen, one of which was considerably smaller than the
other. While in Petitioner’s home, she saw the Petitioner put
the barrel of one of the guns to his temple and in his mouth.
12
She did not testify seeing any of the guns being fired. She did
not testify whether she thought that either of these guns was
capable of discharging a projectile as set forth in the statu-
tory definition of “firearm.” There was no testimony as to
whether the guns in question were real or simulated. No gun
was ever recovered. No gun was ever introduced into evi-
dence. The totality of evidence as to the charge of carrying a
concealed weapon is that Janet Harsh saw the Petitioner pull
something out of his pocket, which at first she could not
identify, and later thought that it looked like the small gun
which she saw previously in Petitioner's house, but was not
positive. She had testified that he had put it in his pocket and
taken it out of his pocket, while in the house, on numerous
occasions. There was no testimony from her that she was
aware whether the gun was, or was not, in the Petitioner’s
pocket at the time they left his house to look for Petitioner’s
wife. Mrs. Harsh testified that Petitioner did not state what
he was putting in the trunk. She stated that the object which
Petitioner put in the trunk looked like the small gun, but she
was not positive.
The foregoing is the entirety of the evidence which the
prosecution produced for the charge of carrying a concealed
weapon.
Under such circumstances, the testimony from the sole
witness to possession of the “firearm” that she was “not posi-
tive” whether the object was a pistol constitutes reasonable
doubt, per se.
In Michigan, “a ‘pistol,’ as defined [by the Legislature]
under the concealed weapons statute, must be operable.”
People v. Gardner, 194 Mich App 652, 654 (1992). “The
pistol must be capable of propelling the requisite-sized
dangerous projectile or of being altered to do so within a
reasonably short period of time.” People v. Parr, 197 Mich
App 41, 45 (1992). There was absolutely no evidence
presented during the trial from which the trier of fact could
< wh edans wie
AUP Bee dre we Be
13
find whether, or not, the object which Ms. Harsh stated she
observed being put in the trunk satisfied these criteria. As
Ms. Harsh conceded, she was not positive as to what she saw.
How does such testimony, which is the only evidence in
support of Petitioner’s possession of a pistol outside of his
home, establish guilt beyond a reasonable doubt? If the only
witness is not positive, reasonable doubt is established as a
matter of law, unless there is some other evidence which
supports a claim of possession beyond a reasonable doubt.
But there is not! The sole witness, by her own admission,
expressed a reasonable doubt as to whether Petitioner was in
possession of a pistol at the rear of his automobile. With such
a reasonable doubt express by that witness, the charge should
have been dismissed prior to the jury’s consideration of
the same.
This evidence is simply insufficient, as a matter of law, to
result in a conviction. Claim based on insufficiency of evi-
dence raises a constitutional issue. U.S. Constitution
Amend. V; Buggs v. U.S., 153 F.3d 439 (7th Cir. 1998).
The concept of sufficiency, on the other hand, is designed
to determine whether all the evidence, considered as a whole,
justifies submitting the case to the trier of fact or requires
judgment as a matter of law. . . Because there is no
requirement that the evidence be sufficient to support a
conviction to be admissible, it does not necessarily follow
that merely because some evidence is admitted, the evidence
is sufficient to raise a jury issue. In quantitative terms, the
fact that a piece of evidence has some tendency to make the
existence of a fact more probable, or less probable, does not
necessarily mean that the evidence would justify a reasonable
juror in reasonably concluding the existence of that fact
beyond a reasonable doubt. To be sufficient, evidence
supporting conviction must be “substantial”; that is, it must
do more than raise mere suspicion of guilt. Scrivner v. Tansy,
14
68 F.3d 1234, certiorari denied 116 S.Ct. 1277, 516 U.S.
1178, 134 L.Ed.2d 223 (10th Cir. 1995). U.S .v. Yoakam, 116
F.3d 1346.(1997).U.S. v. Leos-Quidada, 107 F.3d 786.(10th
Cir. 1997). U.S. v. Garcia-Emanuel, 14 F.3d 1469, denial of
habeas corpus affirmed 141 F.3d 1186.(10th Cir. 1994). U.S.
v. Varoz, 740 F.2d 772 (10th Cir. 1994.
The Michigan Supreme Court has recognized that the issue
of sufficiency is of constitutional magnitude when involving
conviction of a crime.
Due process requires that the prosecutor introduce
sufficient evidence which could justify a trier of fact in
reasonably concluding that defendant is guilty beyond a
reasonable doubt before a defendant can be convicted of
a criminal offense. /d. See also People v Herbert, 444
Mich 466, 473 (1993); People v Lemmon, 456 Mich 625,
633-634 (1998).
As this Court stated almost 50 years ago in a case
involving accusations of carrying concealed weapons in an
automobile,
Citation of authority is unnecessary to establish the
principle that the defendant in a criminal case is pre-
sumed to be innocent, and in order to convict him of the
crime charged it must be shown by proper evidence that
his guilt is established beyond a reasonable doubt.
Here, a jury would have to speculate as to the object that
Mrs. Harsh observed, since she, herself, testified that she was
not positive that it was a gun. All she could say was that it
looked like the small gun that Petitioner had in the house, but
she was not positive. Looking like a gun but not being
positive is hardly a basis upon which a reasonable trier of fact
could conclude, beyond a reasonable doubt, that the object
was, in fact, a “pistol.” Moreover, “looking like a gun” does
not establish whether the object meets the statutory definition
of a pistol, or is a toy or simulated article. Evidence is legally
insufficient to support conviction where jury is presented with
theory of conviction that fails to come within statutory
oS oe eS a ee
15
definition of the crime. U.S. v. Joseph, 939 F. Supp. 26,
affirmed 169 F.3d 9, 335 U.S. App.D.C. 93, rehearing and
suggestion for rehearing denied, certiorari denied 120 S.Ct.
266, 528 U.S. 914, 145 L.Ed.2d 223 (D.C. Cir. 1996).
Here, the object in question is not in evidence. No one but
Janet Harsh claims to have seen the object and even she was
not positive as to what the object was.
It is a basic tenet of our criminal justice system that the
prosecution must prove all elements of a crime beyond a
reasonable doubt. Fiore v. White, 531 US 225, 121 SCt 712,
148 LEd2d 629 (3rd Cir. 2001); Jackson v. Virginia, 443 US
307, 99 SCt 2781, 61 LEd2d 560 (4th Cir. 1979); In re
Winship, 397 US 358, 90 SCt 1068, 25 LEd2d 368 (N.E.2d
1970); People v. Silver, 466 Mich 386, 393 n. 7 (2002).
Government is_required to prove beyond reasonable doubt
each element of crime. U.S. v. Alvarez, 972 F.2d 1000,
certiorari denied 113 S.Ct. 1427, 507 U.S. 977, 122 L.Ed.2d
795, appeal after remand 21 F.3d 1116, certiorari denied 115
S.Ct. 215, 513 U.S. 881, 130 L.Ed.2d 143.(1992). Govern-
ment may demonstrate dominion and control over object by
proof of actual physical custody or constructive possession.
U.S. v. Castillo, 866 F.2d 1071, rehearing denied, denial of
habeas corpus affirmed 972 F2d 1337 (9th Cir. 1998).
Conviction requires sufficient evidence to support all
necessary elements of crime. U.S. v. Thomas, 8 F.3d 1552
(11th Cir. 1993).
State has burden of providing each and every element of
offense beyond reasonable doubt.
Fairchild v. Norris, 869 F.Supp. 672, reversed 21 F.3d
799, rehearing and suggestion for rehearing denied,
certiorari denied 115 S.Ct. 1092, 513 U.S. 1146, 130
L.Ed.2d 1061, rehearing denied 115 S.Ct. 1726, 514
U.S. 1078, 131 L.Ed.2d 583, rehearing denied 51 F.3d
129, certiorari denied 115 S.Ct. 2562, 515 U.S. 1134,
16
132 L.Ed.2d 815(1993). U.S. v. Meraz-Solomon, 818
F.Supp. 1320, affirmed 3 F.3d 298.(S.D. Cal. 1992)
Prosecution always bears burden of proving beyond reason-
able doubt specific elements of crime charged or of lesser
included offenses. U.S. v. Skodnek, 896 F.Supp. 60.(1995)
The prosecutor’s obligation to meet its burden of proof is
merely one of the rules designed to bring about a fair verdict.
This court has held that, in a criminal trial on the merits,
defendants are entitle to a strict observance of all the rules
designed to bring about a fair verdict. Costello v United
States, 350 US 359, 76 S Ct 965, 100 L. Ed 397. (2nd Cir.
1956)
Inasmuch as no firearm was recovered; no evidence was
set forth by the prosecution as to whether the object in
question satisfies the statutory definition of a “firearm.” The
only witness to purport that Petitioner was carrying a firearm
in his automobile was not positive as to whether the object
which she claims to have seen was, in fact, a gun, and she
~ was therefore unable to provide evidence as to whether the
object in question constituted a “firearm” as defined- by
Michigan’s Legislature. Accordingly, there was insufficient
evidence to permit a conviction on Count III. For this reason,
the jury’s verdict on Count III should be vacated and that
count dismissed with prejudice.
CONCLUSION
For the reasons stated in this Petition for Writ Of
Certiorari, the decision of the Court of Appeals affirming the
felony count of Carrying a Concealed Weapon is a denial of
petitioner's Constitutional Right to the presumption of
innocence and has and will continue to cause material
injustice if allowed to remain.
It is respectfully requested that this Honorable Court grant
this Petition for Writ Of Certiorari, reverse so much of the
17
decision of the Court of Appeals as affirms the conviction for
Carrying a Concealed Weapon, granting petitioner such other
and further relief as may be deemed appropriate.
The petition for certiorari should be granted.
Respectfully submitted,
MICHAEL ALAN SCHWARTZ *
SARA OLTARZ-SCHWARTZ
30300 Northwestern Highway
Suite 260
Farmington Hills, Michigan 48334
(248) 785-0200
* Counsel of Record Counsel for Petitioner
October 25, 2004
APPENDICES
la
APPENDIX A
MICHIGAN SUPREME COURT
SC: 125769
PEOPLE OF THE STATE OF M ICHIGAN,
Plaintiff-Appellee,
¥.
TRAVIS WILLARD BALLARD,
Defendant-Appellant.
Entered: July 29, 2004
ORDER
On order of the Court, the application for leave to appeal
the November 25, 2003 judgment of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
2a
APPENDIX B
SUPREME COURT OF MICHIGAN
SC: 125769
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
V.
TRAVIS WILLARD BALLARD,
Defendant-Appellant.
July 29, 2004, Decided
OPINION
On order of the Court, the application for leave to appeal
the November 25, 2003 judgment of the Court of Appeals is
considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
3a
APPENDIX C
STATE OF MICHIGAN COURT OF APPEALS
UNPUBLISHED
November 25, 2003
No. 241583
Lenawee Circuit Court
LC No. 01-009495-FH
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
Vv
TRAVIS WILLARD BALLARD,
wefendant-Appellant.
Before: Whitbeck, C.j., and Zahra and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial con-
victions for breaking and entering with intent to commit
larceny, MCL 750.110, entry without permission, MCL
750.115, and carrying a concealed weapon (CCW), MCL
750.227. The trial court sentenced defendant to nine months
in jail for the breaking and entering with intent to commit
larceny conviction, ninety days in jail for the entry without
permission conviction, and nine months in jail for the CCW
conviction. We affirm defendant’s entry without permission
and CCW convictions, but reverse defendant’s breaking and
entering with intent to commit larceny conviction and remand
for entry of a judgment for the lesser included offense of
breaking and entering without permission.
4a
|. Facts and Procedure
On February 15, 2002, defendant, who was an attorney,
called his secretary from a hearing in Howell. Defendant’s
secretary told him that his wife, Linda Ballard, who also
worked in defendant’s office managing finances, had taken
some boxes of files and left the office after seeing a valentine
addressed to defendant from another woman in the news-
paper. After trying unsuccessfully to contact Linda, defendant
drove home. When defendant arrived home, neither Linda nor
their children were there. At this point, Janet Harsh, an
attorney who was the opposing counsel to defendant on a
case. called defendant. Defendant was suicidal because he
thought his wife had taken the children and was going to
leave him. Because of defendant’s condition, Harsh went to
defendant’s house, where defendant was handling two guns
and contemplating suicide. By listening to Linda’s voice mail
messages, defendant discovered that Margaret Noe, a divorce
lawyer, had called Linda. After unsuccessfully trying to
contact Noe by phone, defendant and Harsh decided to look
for Noe. Defendant testified that when he got into his car, he
felt a gun in his pocket and decided to put the gun into the
saddlebag of his motorcycle. Defendant testified that, as he
was putting the gun in the saddlebag, he told Harsh, “I better
not have this.” After defendant left, defendant’s father re-
trieved a gun from the saddlebag and put it in the trunk of his
own Car.
At one point when defendant and Harsh were looking for
Noe, they stopped at Noe’s house to see if she was there. The
trunk opened! and Harsh saw defendant transfer what looked
like a small gun from his pocket to the trunk of his car and
‘say, “I better put this away.” Harsh testified that she was not
positive that it was a gun she saw in defendant’s hands, but
! Defendant testified that, because of his size, he frequently opened the
trunk of his car by accidentally triggering the trunk release with his knee.
Sa
that “it looked like a gun.” Because Noe was not home,
defendant and Harsh went to her office. When they arrived at
about 8:00 p.m., a light was on in the office and a car, which
defendant thought belonged to Noe, was parked in the lot.
Defendant parked his car, left it running with the headlights
shining into the office, walked up to the front door (the public
entrance), opened it, called Linda and Noe’s names, and
walked in.” Despite the fact that defendant did not see
anybody in the office, he proceeded to open the door to Noe’s
private office and went in. Inside Noe’s office, defendant
recognized the boxes from his office that Linda had taken.
Defendant testified that he took the boxes because they
contained confidential records belonging to his clients. De-
fendant also opened one of the desk drawers to look for the
backup tapes for his computer. When he did not find it,
defendant took two boxes and carried them to his car. He then
reentered the office and took two more boxes and a bag of
documents from Noe’s office to his car. Defendant and Harsh
then drove around for a while looking for Linda’s car, but did
not find it and returned to defendant’s house.
After visiting Noe’s office, defendant called Noe’s husband
and told him that he had entered Noe’s office, taken the boxes
of files, and was burning them. When Noe found out from her
husband that defendant had been to her office, she went to her
office. As she was going in, she noticed that the lock on the
door to the private entrance had been “jimmied” and called
the police. Inside, Noe found that the shopping bag and boxes
of files Linda had brought in were missing. She also noticed
that the papers on her desk were mixed up, one of the drawers
was open, and her phone had been moved. Later, she
’ The last person to leave Noe’s office that night testified that the doors
to the office were locked when she left and that the only light that was left
on was a nightlight by the public entrance.
6a
discovered that several other miscellaneous documents were
missing.
Meanwhile, defendant was at home burning folders to trick
Linda into believing that he had burned the records. When the
police began to gather outside of defendant’s house,
defendant called Ric Hooten to go in his house and take the
guns from his motorcycle saddlebag and the kitchen and put
them in his safe in the basement. Hooten found one gun and
put it in the safe, but he did not find a gun in the motorcycle
saddlebag.
Defendant was charged with breaking and entering with
intent to commit larceny for his first entry of Noe’s office
through the front door, entry without permission with intent
to commit larceny for his second entry of Noe’s office
through the front door,’ and CCW for carrying a pistol in the
trunk of his car. The jury convicted and sentenced defendant
as outlined above.
Il. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence to
support his convictions for CCW and breaking and entering
with intent to commit larceny. In reviewing a claim of in-
sufficient evidence, this Court must determine whether,
taking the evidence in the light most favorable to the pro-
secution, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. People v Hardiman, 466
Mich 417, 421; 646 NW2d 158 (2002). Circumstantial evi-
dence and reasonable inferences that arise from the evidence
* These missing documents included a rough draft of a midterm
examination Noe was preparing to give to her business law students, a
piece of paper with the Ballards’ full names and dates of birth, and the
contents of a file concerning one of Noe’s clients.
* The jury acquitted defendant of the charge of entry without
permission with intent to commit larceny, but convicted him of the lesser
included offense of entry without permission.
7a
can constitute sufficient proof of the elements of the crime.
People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).
A. Carrying a Concealed Weapon
Defendant first argues that the evidence presented at trial
was insufficient to support his CCW conviction because there
was insufficient evidence to prove the presence of a weapon
in his vehicle. We disagree. To support a conviction for
carrying a concealed weapon in a vehicle, MCL 750.227(2),
the prosecution must show: “(1) the presence of a weapon in
a vehicle operated or occupied by the defendant, (2) that the
defendant knew or was aware of its presence, and (3) that he
was ‘carrying’ it.” People v Nimeth, 236 Mich App 616, 622;
601 NW2d 393 (1999). Defendant argues that, in addition to
the elements set forth in Nimeth, the prosecution should also
have to prove that the pistol was operable in order to convict
defendant. However, this Court has held that it is the defen-
dant’s burden to prove that the pistol was not operable: “An
affirmative defense to carrying a concealed pistol can be
made by the presentation of proof that the pistol would not
fire and could not readily be made to fire.” People v Gardner,
194 Mich App 652, 655; 487 NW2d 515 (1992). Here,
because defendant argued at trial that was not carrying a
pistol, he presented no evidence at trial that the alleged gun
was inoperable. Therefore, the jury was entitled to conclude
that the pistol was operable. People v Parr, 197 Mich App 41,
45; 494 NW2d 768 (1992).
Defendant also argues that the evidence was insufficient to
show that he was carrying a pistol in his car. Both defendant
and Harsh agree that defendant got out of the car and
removed the gun from his pocket. However, Harsh testified
that it happened at Noe’s house, and defendant testified that it
happened in his garage, before they left his house. Although
the testimony of defendant and Harsh differed about whether
defendant had the gun while he was driving his car, and
Harsh testified that she was “not positive” that it was a gun
.
8a
that defendant put in the trunk, issues of witness credibility
are for the jury, absent exceptional circumstances. People 'v
Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998). In
further support of the jury’s conclusion that defendant was
carrying a gun, Harsh testified that before defendant put the
gun in the trunk, he said, “I better put this away.” “This Court
will not interfere with the role of the trier of fact of
determining the weight of the evidence or the credibility of
witnesses.” People v Hill, 257 Mich App 126, 141; 667
NW2d 78 (2003). “[A]ppellate courts of this state refuse to
interfere with jury verdicts where sufficient although weak
evidence has been presented.” Cassette v General Motors
Corp, 73 Mich App 225, 228; 251 NW2d 275 (1977), citing
Tuttle v Dept of State Highways, 397 Mich 44, 46-47 n 3; 243
NW2d 244 (1976). While Harsh admitted she was not
positive that what she observed defendant put in the trunk
was in fact a gun, she believed that it was in fact a gun.
Further, Harsh was not equivocal that defendant said, “I
better put this away” before going to the trunk that defendant
alleges was opened accidentally. The jury was free to reject
defendant’s testimony and conclude that Harsh was correct
in her belief that defendant possessed a gun while driving his
car outside the curtilage of his home. We conclude that,
viewed in the light most favorable to the prosecution, a
rational trier of fact could have found beyond a reasonable.
doubt that defendant knowingly carried a concealed weapon
in his vehicle.
B. Breaking and Entering With Intent to Commit Larceny
Defendant also argues that there was insufficient evidence
to support his breaking and entering with intent to commit
larceny conviction. Specifically, defendant argues that there
was insufficient evidence of his intent to commit larceny.
“The elements of breaking and entering with intent to commit
larceny are: (1) the defendant broke into a building, (2) the
defendant entered the building, and (3) at the time of the
LORE te Nairn ai abs oF
EERE TE ee AT MET Ne PRL RF eg ON MEL OS | EE CP
ti i
9a
breaking and entering, the defendant intended to commit a
larceny therein.” People v Cornell, 466 Mich 335, 360-361;
646 NW2d 127 (2002). “Intent to commit larceny cannot be
presumed solely from proof of the breaking and entering.
However, intent may reasonably be inferred from the nature,
time and place of defendant’s acts before and during the
breaking and entering.” People v Uhl, 169 Mich App 217,
220; 425 NW2d 519 (1988) (citations omitted).
In the present case, both defendant and Harsh testified that
defendant went to Noe’s office for the purpose of looking for
Linda. However, at the time they went to Noe’s office,
defendant knew that Linda had taken boxes of files from their
office and had contacted Noe, who he knew was a divorce
lawyer. Therefore, a rational juror could assume that
defendant believed that there was a chance that Linda had
taken the boxes of files to Noe’s office, and that defendant
had entered Noe’s office with the intent to retrieve those files.
However, even if defendant entered Noe’s office with the
intent to retrieve the boxes of files, such intent does not
constitute intent to commit larceny if the files belonged to
him and he had the right to their possession. “Larceny
requires an intent to take and carry away someone else’s
property without that person’s consent.” People v Pohl, 202
Mich App 203, 205; 507 NW2d 819 (1993), remanded on
other grounds 445 Mich 918 (1994). For purposes of the
crime of larceny, the property must be taken from a person
who holds title to that property or has rightful possession and
control of the property. People v Sheldon, 208 Mich App 331,
334; 527 NW2d 76 (1995). In other words, the “owner” of the
property means the actual owner of the property or any other
person whose consent was necessary before the property
could be taken. /d., citing CJI2d 22.2.
“[IJf the defendant in good faith believed that the
[property] ... was his... . and that he was entitled to
its possession, he could not be guilty of . . . larceny in
10a -
taking it, because there would be no felonious intent,
‘and if the defendant, for any reason whatever, indulged
no such intent, the crime cannot have been committed.’ ”
People v Holcomb, 395 Mich 326, 333; 235 NW2d 343
(1975) (emphasis added), quoting People v Walker, 38
Mich 156 (1878). [Pohl, supra at 205-206. ]
_ Here, there is no evidence, circumstantial or otherwise, that
defendant entered Noe’s office with the intent to take
anything other than the boxes of files that Linda had taken
from their office.” Because defendant had rightful possession
to these boxes of files, he could not have had any felonious
intent when he entered Noe’s office with the intent to take
them.° Therefore, the evidence was insufficient to show that
defendant entered Noe’s office with intent to commit larceny
and his conviction for breaking and entering with intent to
commit larceny must be reversed.’
When the evidence is insufficient to support a conviction
for the greater offense, an appellate court may remand for
entry of judgment of a necessarily included lesser offense.
* Noe testified that several miscellaneous documents were missing
from her office, but there is no evidence that defendant even knew of the
existence of these documents before he entered or that he entered the
office with the intent to take these documents.
° This case is distinguishable from situations where the defendant,
although the rightful owner of the property, had no right to possession of
the property when the alleged larceny occurred. See Sheldon, supra at 336
(the defendant committed larceny when he took his vehicle from the
impound lot before paying the required fees or posting a bond); Pohl,
supra at 208 (the defendant committed breaking and entering an occupied
dwelling with intent to commit larceny when he broke into the marital
home and took his own property when he knew there was a court order
that prohibited him from entering the marital home and removing his own
property).
” Because we reverse defendant’s conviction for breaking and entering
with intent to commit larceny, we need not address defendant’s other
argument regarding this count.
lla
People v Bearss, 463 Mich 623, 631: 625 NW2d 10 (2001).
This remedy is available in cases “ ‘when a conviction for a
greater offense is reversed on grounds that affect only the
greater offense.’ ” /d., quoting Rutledge v United States, 517
US 292, 306; 116 S Ct 1241; 134 L Ed 2d 419 (1996).
Breaking and entering without permission, MCL 750.115,° is
a lesser included offense of breaking and entering with intent
to commit larceny. Cornell, supra at 360. Here, although
defendant is correct that there is insufficient evidence that he
had the intent to commit larceny when he entered Noe’s
office, defendant does not dispute that there was evidence
Supporting the breaking and entering without permission
elements of the offense. Therefore, we remand to the trial
court for entry of judgment for breaking and entering without
permission, MCL 750.115, and for resentencing.
Ill. Jury Instructions
Next, defendant argues that the trial court erred in failing to
instruct the jury regarding the statutory exception to the
charge for entry without permission. As an initial matter, we
conclude that defendant failed to properly preserve this issue
for appeal. “A party may assign as error the giving of or the
failure to give an instruction only if the party objects on the
* We recognize that both the offense of breaking and entering without
permission and the offense of entering without permission are governed
by the same statutory section, MCL 750.115(1), and have the same
punishment. The difference is that a suspect may not be convicted of
entering without breaking if the entry was open to the public, unless the
entry was expressly denied. MCL 750.115(2). In Issue III, infra,
defendant argues that the trial court erred in failing to instruct the jury
regarding this statutory exception to the charge that defendant entered
without permission (Count II). However, in challenging defendant’s
conviction for breaking and entering with intent to commit larceny (Count
I), defendant does not challenge the breaking and entering elements of the
offense and, thus, the statutory exception does not apply. For purposes of
clarity, we differentiate between the offense of breaking and entering
without permission and the offense of entering without permission.
12a
record before the jurv retires to consider the verdict... .
MCR 2.516(C) (emphasis added). Defendant objected on the
record to the trial court’s failure to give this instruction only
after the jury retired for deliberations.’ Therefore, this issue is
reviewed for plain error affecting defendant’s substantial
rights. People v Gonzalez, 468 Mich 636, 642-643; 664
NW2d 159 (2003).
Defendant argues that the trial court should have instructed
the jury that he could not be found guilty of entry without
permission if the office was open to the public when he
entered, as provided in MCL 750.115(2). The entry without
permissjon statute, MCL 750.115, provides, in pertinent part:
9
(1) Any person who breaks and enters or enters without
breaking, any . . . office . . . without first obtaining
permission to enter from the owner or occupant, agent,
or person having immediate control thereof, is guilty of a
misdemeanor.
(2) Subsection (1) does not apply to entering without
breaking, any place which at the time of the entry was
open to the public, unless the entry was expressly
denied. ...
In People v McKinney, 258 Mich App 157, 162-163; ___
NW2d __ (2003), this Court set forth the standard for
reviewing jury instructions:
Jury instructions afte reviewed in their entirety to
determine if error requiring reversal occurred. People v
Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001).
It is the function of the trial court to clearly present the
” From the context of defendant’s objection, it appears that defendant
might have requested this instruction earlier in the proceedings. However,
neither defendant’s earlier request for this instruction nor an earlier
objection to the trial court’s refusal to give the instruction were made on
the record.
l3a
case to the jury and instruct on the applicable law.
People v Katt, 248 Mich App 282, 310; 639 NW2d 815
(2001). Accordingly, jury instructions must include all
the elements of the charged offenses and any material
issues, defenses, and theories that are supported by the
evidence. People v Canales, 243 Mich App 571, 574:
624 NW2d 439 (2000). “The determination whether a
jury instruction is applicable to the facts of the case lies
within the sound discretion of the trial court.” People v
Ho, 231 Mich App 178, 189; 585 NW2d 357 (1998).
Here, defendant’s entry without permission conviction
stemmed from his second entry into Noe’s office. When
defendant went through the main entrance and the doorway of
Noe’s private office for the second time, he knew that the
office was unoccupied and that Noe was not in her private
office. Nonetheless, he entered the office and went back into
Noe’s private office to retrieve the rest of the boxes of files.
These facts do not support the theory that defendant believed
that the office building, including Noe’s private office, was
open to the public when he entered for the second time.
Therefore, we conclude that the trial court did not commit a
plain error that affected defendant’s substantial rights by
refusing to give a jury instruction regarding MCL 750.115(2).
IV. Prosecutorial Misconduct
Finally, defendant argues that he was denied a fair trial by
prosecutorial misconduct. We review claims of prosecutorial
misconduct to determine whether defendant was denied a fair
and impartial trial. People v Ackerman, 257 Mich App 434,
448; 669 NW2d 818 (2003). Because defendant failed to
preserve his allegations of prosecutorial misconduct, our
review regarding this issue is for plain error that affected
defendant’s substantial rights. /d. We will not find error
requiring reversal where a curative instruction could have
alleviated any prejudice. /d. at 449.
14a
Defendant first argues that the prosecutor attempted to shift
or change the burden of proof during his closing argument by
stating that he did not have to prove that defendant attempted
to break into Noe’s office building through the private
entrance. “The prosecutor may not suggest in closing argu-
ment that defendant must prove something or present a
reasonable explanation for damaging evidence as this argu-
ment tends to shift the burden of proof.” People v Foster, 175
Mich App 311, 317; 437 NW2d 395 (1989), overruled in part
on other grounds People v Fields, 450 Mich 94, 115 n 24; 538
NW2d 356 (1995). However, the prosecutor’s statement did
not change or shift the burden of proof with regard to the
crimes charged. In fact, the prosecutor’s statement that he did
not have to prove that defendant entered Noe’s office
building through the private entrance was correct, because
defendant was not charged for breaking into this private
entrance—he was only charged for his entry into the front
public entrance of the office. The prosecutor raised the
evidence that the private door lock had been “jimmied” in
order to help prove defendant’s intent to commit larceny by
showing that he or somebody else at his behest had earlier
entered the office through the private entrance to see what
was in the office. Prosecutors are free to argue the evidence
and all reasonable inferences arising from it as they relate to
the theory of the case. People v Schutte, 240 Mich App 713,
721; 613 NW2d 370 (2000). The prosecutor did not have to
prove beyond a reasonable doubt the theory that defendant
had entered the private door earlier in the night because
defendant was not charged with a crime for allegedly com-
mitting this act. Furthermore, the trial court properly instruct-
ed the jury that defendant is presumed to be innocent and that
the prosecution must prove defendant’s guilt of the crimes
charged beyond a reasonable doubt. The trial court also
instructed the jury that the lawyers’ statements are not evi-
dence. These instructions dispelled any prejudice caused by
the prosecutor’s statements. /d. at 721-722.
lSa
Defendant also argues that the prosecutor engaged in
misconduct by telling the jury to convict defendant based on
his character and for ruining Harsh’s reputation and career.
During his closing argument, the prosecutor made the
following relevant statements:
And the saddest case, probably, Janet Harsh. What do
you think her professional life is going to be like in this
county from now on and why?
* * *
Ms. Harsh was acting out of the kindness of her heart for
someone who she thought was in great despair and who
wasn’t. He was using her. She’s done in this county. I mean,
yeah, she can still go on about her business, but she testified
she is not treated the same as other lawyers, she does not have
the same privileges as other lawyers. Because she’s been
painted forever by this. And why? Because she tried to help
this guy. And what does he do in return? Ruins her. Why?
Because that’s the kind of person he is, and that’s why he’s
here today. That’s why he’s on trial and that’s why he should
be convicted.
There are givers in this world and there are takers in this
world. Clearly, he’s a taker, but he’s more than a taker; he’s a
destroyer. Anybody who comes in contact with him gets
destroyed.
We've heard all sorts of medical terms, all of his maladies,
all of these things that might be wrong with Travis Ballard.
There’s a non-medical term; he, quite simply, is a spoiled
brat. He has spent his whole life having his own way with
everything. And he’s got all the biggest and the best toys.
He’s got the biggest handgun ever made. He’s got the nicest
gun collection anybody’s ever seen. He’s got his Cadillac
STS. And all these other people that come into contact with
him and their lives get ruined, oh, that’s just too bad.
l6a
But the day has come now. The time has come for Mr.
Ballard to finally be held accountable for his actions. Thank
you.
Assuming, without deciding, that the prosecutor’s
arguments were improper, we nevertheless conclude that
defendant has failed to show that he was prejudiced by these
comments or that the outcome of the trial would have been
different. The trial court instructed the jury that the lawyers’
statements are not evidence and that the facts of the case
should be decided from the evidence. Furthermore, the
evidence supported defendant’s convictions for two counts of
entering without permission and CCW. Defendant has not
shown that the jury would have acquitted him of these
charges had it not been for the prosecutor’s comments during
his closing argument.
V. Conclusion
Defendant’s conviction for breaking and entering with
intent to commit larceny is reversed and the matter is re-
manded to the trial court for entry of a judgment for the lesser
included offense of breaking and entering without permission.
Accordingly, resentencing is required. Defendant’s convic-
tions for entry without permission and CCW are affirmed.
Affirmed in part, reversed in part, and remanded. We do
not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
17a
APPENDIX D
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE
COUNTY OF LENAWEE
File No. 01-9495 FH
HON. EDWARD J. GRANT
(By Assignment)
THE PEOPLE OF THE STATE OF MICHIGAN.
VS.
TRAVIS WILLARD BALLARD.
Defendant.
JUDGMENT OF GUILTY VERDICT JURY
At a session of said court held at the Rex B Martin Judicial
Building in the City of Adrian, County of Lenawee, on the
8th day of March, 2002.
PRESENT: HONORABLE EDWARD J. GRANT, Circuit Judge
The Defendant having been tried by a jury on the charges
of:
Count I—Breaking & Entering with Intent to Commit
Larceny
Count II—Breaking & Entering—Entry without Break-
ing with Intent
Count III—Weapons—Carrying Concealed
18a
and a verdict having been rendered, a judgment is hereby
entered to the following:
COUNT I—GUILTY AS CHARGED
COUNT II—GUILTY of the lesser included offense of
ENTRY WITHOUT PERMISSION (750.115)
COUNT III—GUILTY AS CHARGED
/s/ Edward J. Grant
EDWARD J. GRANT, Circuit Judge
By Assignment
Signed: March 8, 2002
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.