12.12 Jury Instructions
A defendant has a constitutional right to jury instructions that include: (1) the elements of the offense, United States v Gaudin , 515 US 506, 510 (1995); (2) any applicable defenses, Mathews v United States , 485 US 58, 63 (1988); (3) the requisite intent, Morissette v United States , 342 US 246, 274 (1952); and (4) a proper reasonable doubt instruction, In re Winship , 397 US 358, 363 (1970). Taken as a whole, the instructions must be accurate and fair. Estelle v McGuire , 502 US 62, 72 (1991).
The court is required to instruct the jury on the law applicable to the case. MCL 768.29 . “The trial court must instruct the jury not only on all the elements of the charged offense, but also, upon request, on material issues, defenses, and theories that are supported by the evidence. People v Anstey , 476 Mich 436, 453 (2006). Instructions for which no supporting evidence exists should not be given. People v Wess , 235 Mich App 241, 243 (1999).
MCR 2.512 1 governs instructions to the jury. “At any time during the trial, the court may, with or without request, instruct the jury on a point of law if the instruction will materially aid the jury in understanding the proceedings and arriving at a just verdict.” MCR 2.512(B)(1) . Additionally, “[b]efore or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in [ MCR 2.512(A)(2) ], that party’s theory of the case.” MCR 2.512(B)(2) . See also MCR 2.513(N)(1) , which provides, in part, that “[a]fter closing arguments are made or waived, the court must orally instruct the jury as required and appropriate, but at the discretion of the court, and on notice to the parties, the court may orally instruct the jury before the parties make closing arguments.” The trial court must “provide a written copy of the final jury instructions to take into the jury room for deliberation.” MCR 2.513(N)(3) .
The court should be careful to characterize the instructions given as the court’s instructions rather than identify them as instructions requested by a party. People v Hunter (Ralph) , 370 Mich 262, 267 n * (1963).
B. Model Jury Instructions
The Committee on Model Civil Jury Instructions and the Committee on Model Criminal Jury Instructions are authorized to adopt, amend, and repeal model jury instructions. MCR 2.512(D)(1) . Trial courts are required to use the model civil jury instructions and model criminal jury instructions in the manner set out in MCR 2.512(D)(2)-(4) , which provides as follows:
“(2) Pertinent portions of the instructions approved by the Committee on Model Civil Jury Instructions or the Committee on Model Criminal Jury Instructions or a predecessor committee must be given in each action in which jury instructions are given if
(a) they are applicable,
(b) they accurately state the applicable law, and
(c) they are requested by a party.
(3) Whenever a committee recommends that no instruction be given on a particular matter, the court shall not give an instruction unless it specifically finds for reasons stated on the record that
(a) the instruction is necessary to state the applicable law accurately, and
(b) the matter is not adequately covered by other pertinent model civil jury instructions.
(4) [ MCR 2.512(D) ] does not limit the power of the court to give additional instructions on applicable law not covered by the model instructions. Additional instructions, when given, must be patterned as nearly as practicable after the style of the model instructions and must be concise, understandable, conversational, unslanted, and nonargumentative.”
C. Request for Instructions
“(1) At a time the court reasonably directs, the parties must file written requests that the court instruct the jury on the law as stated in the requests. In the absence of a direction from the court, a party may file a written request for jury instructions at or before the close of the evidence.
(2) In addition to requests for instructions submitted under [ MCR 2.512(A)(1) ], after the close of the evidence, each party shall submit in writing to the court a statement of the issues and may submit the party’s theory of the case regarding each issue. The statement must be concise, be narrative in form, and set forth as issues only those disputed propositions of fact that are supported by the evidence. The theory may include those claims supported by the evidence or admitted.
(3) A copy of the requested instructions must be served on the adverse parties in accordance with MCR 2.107 .
(4) The court shall inform the attorneys of its proposed action on the requests before their arguments to the jury.
(5) The court need not give the statements of issues or theories of the case in the form submitted if the court presents to the jury the material substance of the issues and theories of each party.”
MCR 2.513(N)(1) provides, in relevant part:
“Before closing arguments, the court must give the parties a reasonable opportunity to submit written requests for jury instructions. Each party must serve a copy of the written requests on all other parties. The court must inform the parties of its proposed action on the requests before their closing arguments.”
“The Michigan Court Rules do not limit the power of trial courts to give additional instructions on applicable law not covered by the model instructions as long as the additional instructions are concise, understandable, conversational, unslanted, and nonargumentative, and are patterned as nearly as practicable after the style of the model instructions.” People v Montague , 338 Mich App 29, 38-39 (2021) (quotation makes and citation omitted).
MCR 2.513(N)(1) gives “the trial court broad authority to carry out its duty to instruct the jury properly, and this authority extends to instructing the jury even during deliberations.” People v Craft , 325 Mich App 598, 607 (2018). “There is nothing in the court rules that preclude the trial court from supplementing its original instructions . . ., nor is there anything in the rules to suggest that a party’s acquiescence to the original instructions [bars] the trial court [from] supplementing its instructions.” 2 Id . at 607.
D. Preliminary Instructions
“After the jury is sworn and before evidence is taken, the court shall orally provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case. Such instructions, at a minimum, shall communicate the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence. The jury also shall be orally instructed about the elements of all civil claims or all charged offenses, as well as the legal presumptions and burdens of proof. The court shall also provide each juror with a written copy of such instructions. MCR 2.512(D)(2) [(requiring the court to give requested model civil and criminal jury instructions where applicable and accurate)] does not apply to such preliminary instructions.”
E. Interim Instructions
“At any time during the trial, the court may, with or without request, instruct the jury on a point of law if the instruction will materially aid the jury in understanding the proceedings and arriving at a just verdict.” MCR 2.512(B)(1) .
The court must also instruct the jury on the applicable law, issues presented, and, if requested under MCR 2.512(A)(2) , a party’s theory of the case. MCR 2.512(B)(2) . These instructions may be given “[b]efore or after arguments or at both times, as the court elects[.]” Id.
F. Final Instructions
“After closing arguments are made or waived, the court must orally instruct the jury as required and appropriate.” MCR 2.513(N)(1) . Additionally, the trial court has the discretion (after giving notice to the parties) to orally instruct the jury before the parties give their closing arguments. Id . After deliberations begin, additional instructions may be given as appropriate. Id .
Additionally, the court must provide the jury with a written copy of the final instructions to take into the jury room during deliberations. MCR 2.513(N)(3) . If a juror requests additional copies of the written instructions, the court may provide them as necessary. MCR 2.513(N)(3) . The court also has discretion to provide the jury with a copy of electronically recorded instructions. Id.
G. Juror s’ Questions About Instructions and Clarifications
Jurors may submit questions about the court’s jury instructions. See MCR 2.513(N)(2) . As part of its final instructions, the court must “advise the jury that it may submit in a sealed envelope given to the bailiff any written questions about the jury instructions that arise during deliberations.” Id. In addition, after orally delivering its final instructions, the court must “invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate.” Id.
If the jurors have questions, “the court and the parties shall convene, in the courtroom or by other agreed-upon means.” MCR 2.513(N)(2) . The question must be read aloud on the record, and the attorneys must offer suggestions for an appropriate response. Id. The court has discretion whether to provide the jury with a specific response. Id. No matter what it decides, the court must respond to all questions asked by the jury, “even if the response consists of a directive for the jury to continue its deliberations.” Id.
“When it appears that a deliberating jury has reached an impasse, or is otherwise in need of assistance, the court may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.” MCR 2.513(N)(4) . See also People v Kosik , 303 Mich App 146, 156 (2013) (a trial court may provide an instruction clarifying an issue that the trial court believes the jurors might question).
“‘There is no requirement that when a jury has asked for supplemental instruction on specific areas that the trial judge is obligated to give all the instructions previously given. The trial judge need only give those instructions specifically asked.’” People v Katt , 248 Mich App 282, 311 (2001) (citation omitted).
H. Instructions on Lesser Included Offenses
1. Necessarily Included Offenses
“‘Necessarily included’ lesser offenses encompass situations in which it is impossible to commit the greater of fense without first having committed the lesser.” People v Hendricks , 446 Mich 435, 443 (1994). In other words, “‘[n]ecessarily included lesser offenses are offenses in which the elements of the lesser offense are completely subsumed in the greater offense.’” People v Nickens , 470 Mich 622, 626 (2004) (citation omitted). Either party may request instructions on lesser included offenses. Id. at 442. “[A] requested instruction on a necessarily included lesser offense is proper if [(1)] the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and [(2)] a rational view of the evidence would support it.” People v Cornell , 466 Mich 335, 357 (2002); see also People v Jones , 497 Mich 155, 163-165 (2014).
MCL 768.32 expressly allows a jury to find a defendant guilty of an inferior degree of an offense. Hendricks , 446 Mich at 441-442. MCL 768.32(1) provides:
“(1) Except as provided in [ MCL 768.32(2) , 3 ] upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.”
“[T]he word ‘inferior’ in [ MCL 768.32(1) ] does not refer to inferiority in the penalty associated with the offense, but, rather, to the absence of an element that distinguishes the charged offense from the lesser offense. The controlling factor is whether the lesser offense can be proved by the same facts that are used to establish the charged offense.” People v Torres (On Remand) , 222 Mich App 411, 419-420 (1997). MCL 768.32(1) permits instructions on only necessarily included offenses, not cognate offenses . 4 People v Reese , 466 Mich 440, 446 (2002); Cornell , 466 Mich at 355-357.
The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. Torres , 222 Mich App at 416. If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is error requiring reversal. Id. at 416. Even over the objection of counsel, however, a defendant can make a knowing waiver of the right to instructions on lesser included offenses. People v Jones , 424 Mich 893, 893 (1986).
Offenses divided into degrees. Where an offense is divided into degrees, MCL 768.32(1) permits finding a defendant guilty of a lesser degree of the charged offense if the lesser degree is an “inferior” offense as defined in Cornell , 466 Mich 335. People v Nyx , 479 Mich 112, 121, 136 (2007) (plurality opinion). In other words, the lesser degree of the offense must be a necessarily included offense and not a cognate offense of the crime charged. Id . (holding that second-degree criminal sexual conduct (CSC-II) is a cognate offense of first-degree criminal sexual conduct (CSC-I) and, therefore, a defendant charged with CSC-I could not properly be convicted of CSC-II under MCL 768.32(1)) .
However, “when dealing with degreed offenses that can be committed by alternative methods,” “a more narrowly focused evaluation of the statutory elements at issue is necessary[.]” People v Wilder , 485 Mich 35, 44 (2010). “Such an evaluation requires examining the charged predicate crime to determine whether the alternative elements of the lesser crime committed are subsumed within the charged offense. As long as the elements at issue are subsumed within the charged offense, the crime is a necessarily included lesser offense. Not all possible statutory alternative elements of the lesser offense need to be subsumed within the elements of the greater offense in order to conclude that the lesser offense is a necessarily included lesser offense.” Id. at 44-45.
Home invasion offenses. In Wilder , 485 Mich at 38, the defendant entered a residence without permission, displayed a weapon, and committed a larceny; he was charged with first-degree home invasion under MCL 750.110a(2) (requiring commission/intent to commit a felony , larceny, or assault in the dwelling), and was convicted of third-degree home invasion under MCL 750.110a(4)(a) (requiring commission/intent to commit a misdemeanor in the dwelling). The Michigan Supreme Court instructed that “in order to determine whether the specific elements used to convict [the] defendant of third-degree home invasion in this case constitute a necessarily included lesser offense of first-degree home invasion, one must examine the offense of first-degree home invasion as charged and determine whether the elements of third-degree home invasion as convicted are subsumed within the charged offense.” Wilder , 485 Mich at 45.
In Wilder , 485 Mich at 44, the Court of Appeals erred in concluding that third-degree home invasion in this case was not a necessarily included offense of first-degree home invasion because “it failed to confine its analysis to the elements at issue in this case; rather, it based its decision on an analysis of alternative elements that were not at issue.” In reaching its conclusion, the Court of Appeals wrongly “reasoned that if there could be any instance in which the underlying misdemeanor is not subsumed within the predicate felony , then the entire crime is a cognate offense.” Id . The Michigan Supreme Court concluded that in this case, third-degree home invasion under MCL 750.110a(4)(a) based on the commission of misdemeanor larceny is a necessarily included offense of first-degree home invasion, MCL 750.110a(2) , because “every felony larceny necessarily includes within it a misdemeanor larceny.” Wilder , 485 Mich at 46. The remaining alternative elements on which a third-degree home invasion conviction can be based were not relevant to the analysis in this case. Id . at 44.
“[E]ither a misdemeanor or felony larceny . . . may serve as the predicate offense for second-degree home invasion[, MCL 750.110a(3) ; c]onsequently, where . . . the predicate offense for [a] home invasion charge [is] a larceny, third-degree home invasion[, MCL 750.110a(4) , is] a lesser-included offense of second-degree home invasion.” People v Jackson (On Reconsideration) , 313 Mich App 409, 422-423 (2015), applying Wilder , 485 Mich at 46. However, a trial court errs in giving an instruction on third-degree home invasion where there “is no record evidence that [the] defendant entered [a] home to commit any crime other than a larceny.” Jackson (On Reconsideration) , 313 Mich App at 423-424 (nevertheless concluding “that the improper jury instruction did not affect [the] defendant’s substantial rights” because “the instruction allowed [the] defendant the chance to be convicted of a lesser offense than that which the evidence supported”).
Larceny and robbery. Larceny from the person, MCL 750.357 , is not a necessarily included offense of robbery, MCL 750.530 . People v Smith-Anthony , 494 Mich 669, 672, 674 n 7, 687 n 53 (2013) (because, generally, 5 a defendant must take property from the physical person or immediate presence of a victim to commit a larceny from the person, while robbery, under MCL 750.530(2) , does not require that the taking have been made in the immediate presence of the victim, the trial court erred in instructing the jury on larceny from the person as a lesser included offense of robbery).
Entering without permission. “[E]ntering without permission[, MCL 750.115 ,] is not a lesser offense of entering with the intent to commit a larceny[, MCL 750.111 ],” because “entering without permission contains an additional element—the lack of permission—on which the prosecution would have to prove additional facts that are not necessary for the prosecution to prove entering with intent to commit a larceny.” People v Heft , 299 Mich App 69, 75-76 (2012). Although the Michigan Supreme Court in Cornell , 466 Mich at 360, held that entering without permission is necessarily included in entering with intent to commit larceny, Cornell was distinguishable “because it expressly concerned a situation in which the prosecution charged the defendant with ‘breaking and entering,’ not merely entering.” Heft , 299 Mich App at 75-76. In contrast, in Heft , 299 Mich App at 76-77, “the [defendant’s theory] of [the] case [was] inconsistent with entering without permission,” and “[t]he prosecution was not required to prove that [the defendant] did not have permission to enter the house to prove entering with intent to commit larceny, but would have been required to prove that [he] did not have permission to enter the house to prove entering without permission.”
Assault with intent to commit murder and assault with intent to do great bodily harm less than murder. Assault with intent to do great bodily harm less than murder is a lesser included offense of assault with intent to commit murder; therefore, the trial court properly instructed the jury on both offenses. People v Brown , 267 Mich App 141, 150-151 (2005) (holding that the specific intent necessary for the offense of assault with intent to do great bodily harm less than murder was “completely subsumed” by the specific intent necessary for the offense of assault with intent to commit murder).
Possession with intent to deliver controlled substances. Where “the only difference . . . between . . . possession with intent to deliver offenses is the amount of the illegal substance, it [is] not . . . possible to commit the greater offense without committing the lesser offense.” People v McGhee , 268 Mich App 600, 607 (2005). However, this does not necessarily mean that a trial court must give instructions for all possible amounts if the defendant so requests. Id. at 607-608. “[A]n instruction on the lesser offense need only be given if a rational review of the evidence indicates that the element distinguishing the lesser offense from the greater offense is in dispute.” Id . at 607.
Similarly, simple possession under MCL 333.7403 is a necessarily included offense of possession with intent to deliver a controlled substance under MCL 333.7402 where the offenses involve the same amount of the controlled substance; however, “if the offenses involve differently categorized statutory amounts, possession will be treated as a cognate lesser offense.” People v Robar , 321 Mich App 106, 130 (2017) (noting that having a valid prescription, the absence of which is not an element of the crime, only exempts a defendant from prosecution for simple possession and does not constitute an exemption to possession with intent to deliver).
Voluntary/involuntary manslaughter and murder . “[B]ecause both voluntary and involuntary manslaughter are necessarily included lesser offenses and inferior to murder under MCL 768.32 , when a defendant is charged with murder, an instruction for voluntary and involuntary manslaughter must be given if supported by a rational view of the evidence.” People v Yeager , ___ Mich ___, ___ (2023) (quotation marks and citation omitted).
The Yeager Court opined that the Court of Appeals “erred to the extent that it concluded that [ People v Raper , 222 Mich App 475 (1997)] created a bright-line rule under which the absence of a voluntary manslaughter instruction is automatically considered harmless if the jury was instructed on both first- and second-degree murder and convicted the defendant of first-degree murder.” Yeager , ___ Mich at ___. “[W]hen considering whether a jury should have been instructed on a lesser included offense, appellate courts must consider whether, in light of the proposed defense theory and the factual elements of the relevant offense, the intermediate charge rejected by the jury would necessarily have to indicate a lack of likelihood that the jury would have adopted the lesser requested charge.” Id . at ___ (quotation marks and citation omitted). “Because the instructions given [by the trial court] did not present to the jury the differing states of mind required for murder and voluntary manslaughter” and “a reasonable jury could have found that defendant acted in the state of mind required for voluntary manslaughter,” the Yeager Court concluded the “gap in information provided to the jury [was] sufficient to undermine confidence in the outcome of defendant’s trial.” Id . at ___ (quotation marks and citation omitted).
Involuntary manslaughter and second-degree murder. Statutory involuntary manslaughter is not an inferior offense of second-degree murder because it is possible to commit second-degree murder without first committing involuntary manslaughter. People v Smith , 478 Mich 64, 71 (2007). Because statutory involuntary manslaughter requires elements not required to commit second-degree murder (that the death resulted from the discharge of a firearm intentionally pointed at the victim), statutory involuntary manslaughter is not a necessarily included offense of second-degree murder, and denial of a defendant’s request for such a jury instruction is proper. Id. at 71.
Attempted offenses. It is not error to refuse to instruct the jury on a lesser offense or attempted offense that is unsupported by the evidence. People v Davis , 277 Mich App 676, 688-689 (2008), vacated in part on other grounds 482 Mich 978 (2008) 6 (noting that attempted robbery is a necessarily included offense of assault with intent to rob while armed, but holding that the trial court’s refusal to instruct the jury on attempted assault with intent to rob was not error because the facts did not support the instruction).
Reckless driving causing death and moving violation causing death. Where a defendant is charged with the greater offense of reckless driving causing death, MCL 257.626(5) precludes an instruction on the misdemeanor lesser offense of moving violation causing death. People v Jones , 497 Mich 155, 172 (2014), rev’g 302 Mich App 434 (2013). “ MCL 257.626(5) is not a matter of practice and procedure, and, consequently, there [is] no violation of separation of powers simply because a necessarily included lesser offense exists and the Legislature has acted within its constitutional authority by creating a substantive exception that prohibits or otherwise limits the [factfinder’s] consideration of that lesser offense.” Jones , 497 Mich at 169.
2. Cognate Offenses
Cognate offenses are those that share some common elements, and are of the same class or category as the greater offense, but have some additional elements not found in the greater offense. People v Hendricks , 446 Mich 435, 443 (1994). The jury should not be instructed on cognate offenses. People v Cornell , 466 Mich 335, 357 (2002).
Criminal sexual conduct. Second-degree criminal sexual conduct (CSC-II) is a cognate offense of CSC-I. People v Nyx , 479 Mich 112, 121, 136 (2007) (plurality opinion).
Third-degree criminal sexual conduct (CSC-III) is not a necessarily included offense of CSC-I because it is possible to commit CSC-I without first committing CSC-III. People v Apgar , 264 Mich App 321, 326-327 (2004), overruled in part on other grounds by People v White , 501 Mich 160 (2017). 7 In Apgar , the defendant was charged with two counts of CSC-I. After jury selection, the prosecution moved to amend the information to include a charge of CSC-III. Apgar , 264 Mich App at 324-325. The trial court denied the motion, but instructed the jury on CSC-III. Id . at 325. The jury ultimately convicted the defendant of CSC-III. Id . While the trial court improperly instructed the jury on CSC-III because the defendant was not charged with CSC-III and CSC-III is a cognate offense of CSC-I, the error did not require reversal because the defendant was provided adequate notice of the uncharged offense (CSC-III) when all elements of the offense were proved, without objection, at the defendant’s preliminary examination and trial. Id . at 327-329.
Felonious assault, assault with intent to commit murder, and other assault offenses. It was error for the trial court to instruct the jury on the cognate offense of felonious assault where, although the defendant was originally charged with felonious assault, the information was amended to instead charge assault with intent to commit murder. People v Wheeler , 480 Mich 965, 965 (2007). Thus, where the defendant was no longer charged with felonious assault, instruction on that offense constituted plain error because felonious assault is a cognate offense of assault with intent to commit murder. Id .
Felonious assault ( MCL 750.82) is a cognate offense of assault with intent to rob while armed ( MCL 750.89) , and not a necessarily included offense. People v Walls , 265 Mich App 642, 646 (2005). While a conviction for felonious assault requires that the offender possess a dangerous weapon , a conviction for assault with intent to rob while armed may be based on the offender’s possession of “any article used or fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous weapon.” MCL 750.89 . Because conviction of felonious assault (lesser offense) requires possession of a dangerous weapon, and conviction of assault with intent to rob while armed (greater offense) does not require possession of a dangerous weapon, it is possible to commit the greater offense without first committing the lesser offense. Walls , 265 Mich App at 646.
I. “ Objections to the Instructions and Preservation of Error
Failure to give an instruction is not grounds for setting aside the verdict unless it was requested by the defendant. MCL 768.29 . A party may object to the giving or the failure to give a jury instruction, “only if the party objects on the record before the jury retires to consider the verdict (or, in the case of instructions given after deliberations have begun, before the jury resumes deliberations)[.]” MCR 2.512(C) . The “only if” language in MCR 2.512(C) “does not act as a bar to proceedings in the trial court, but rather as a restriction on appeal.” People v Craft , 325 Mich App 598, 605 (2018). Accordingly, “a party can alter its position on the appropriateness of jury instructions [during trial court proceedings] when a question is subsequently raised,” and “is not barred from asking for supplemental instructions even if the party . . . earlier acquiesced to the original . . . instructions.” Id . at 600, 605 (finding the prosecutor did not waive, and was not estopped, from arguing in favor of supplemental instructions after approving the original instructions). 8
The party must state “specifically the matter to which the party objects and the grounds for the objection.” MCR 2.512(C) . The court must give the objecting party the opportunity to make the objection outside the hearing of the jury. Id.
To preserve an instructional error for appellate review, a defendant must object to the instruction before the jury deliberates. People v Gonzalez , 256 Mich App 212, 225 (2003). Failure to make a timely objection to a jury instruction constitutes forfeiture and relief is only warranted if the error was plain and it affected the defendant’s substantial rights. People v Kowalski , 489 Mich 488, 505-506 (2011); see also People v Carines , 460 Mich 750, 763 (1999).
If a party expresses satisfaction with the trial court’s instructions, it constitutes a waiver that extinguishes appellate review regarding the instructions. People v Carter , 462 Mich 206, 215 (2000). See also Craft, 325 Mich App at 605 (“[i]f a party fails to object to the trial court’s instructions, then the party has failed to preserve the objection for appellate review). Furthermore, where a defendant’s attorney “clearly expresses satisfaction with a trial court’s decision [regarding a jury instruction], counsel’s action will be deemed to constitute a waiver[]” of the defendant’s claim on appeal that a jury instruction was improper. Kowalski , 489 Mich at 503-504 (“by expressly and repeatedly approving the jury instructions on the record, [the] defendant waived any objection to the erroneous instructions”). However, where “the only reason defense counsel agreed to submission of the felony-murder charge was his mistaken view of the law that false pretenses could serve as an underlying felony for a felony murder conviction[,]” the defendant did not waive his right to plead guilty; “[t]he nature of the instructional error . . . [rose] to the level of a due process violation,” because “[t]he error was not merely one in which the jury received an imprecise definition or in which the trial court omitted an element of the offense for which the evidence was overwhelming[;]” rather, “the instruction directed the jury to convict [the] defendant on the basis of affirmative findings that, by statute, are not grounds on which to convict” and “[the] defendant’s trial counsel could not unilaterally waive this issue without [the] defendant’s full knowledge and understanding about exactly what he was waiving.” People v Oros , 320 Mich App 146, 160-161 (2017), overruled in part on other grounds 502 Mich 229 (2018). 9
J. Instructional Error and Standard of Review
Claims of instructional error are generally reviewed de novo on appeal, but a trial court’s determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion. People v Dobek , 274 Mich App 58, 82 (2007). The trial court’s role is to clearly present the case to the jury and to instruct the jury on the applicable law. Id. at 82.
Jury instructions are to be read as a whole rather than extracted piecemeal to establish error. McGhee , 268 Mich App at 603. Even if somewhat imperfect, jury instructions are not erroneous if they fairly presented the issues to be tried and sufficiently protected the defendant’s rights. People v McLaughlin , 258 Mich App 635, 668 (2003).
“The verdict form is treated as, essentially, part of the package of jury instructions.” People v Eisen , 296 Mich App 326, 330, 329-331 (2012) (holding that, although the trial court’s oral jury instructions were plainly erroneous in omitting an element of a charged offense, no reversible error occurred because the verdict form reflected the missing element).
Under MCL 769.26 , the failure to give a requested jury instruction constitutes error that requires reversal only where “‘it is more probable than not that the error was outcome determinative.’” People v Lyles , 501 Mich 107, 117-118 (2017), quoting People v Lukity , 460 Mich 484, 496 (1999). See also People v Mitchell , 301 Mich App 282, 288-289 (2013) (citing People v Cornell , 466 Mich 335, 365 (2002), and holding that the trial court’s abuse of discretion in failing to give a requested instruction on a lesser included offense constituted error requiring reversal where an inquiry sent by the jury during deliberations “strongly suggest[ed] that it wanted to consider, and likely would have convicted [the] defendant of, a lesser charge”); People v Hawthorne , 474 Mich 174, 176, 181 (2006) (when a trial judge refuses a defendant’s request to deliver an instruction on the defense of accident, a verdict is reversible if the defendant “establishe[s] that the alleged error undermined the reliability of the verdict[]”). In determining whether an error was outcome determinative, “the reviewing court should focus on the nature of the error in light of the weight and strength of the untainted evidence.” Lyles , 501 Mich at 118 (quotation marks and citation omitted).
Elements of offense. The omission of an essential element of a criminal jury instruction is an error of constitutional magnitude. Carines , 460 Mich at 761. If the defendant preserves the issue at trial, and the error is not a structural defect that defies harmless error analysis, the reviewing court must determine whether the beneficiary of the error has established that it was harmless beyond a reasonable doubt. Id . at 774. See also Neder v United States , 527 US 1, 10 (1999) (indicating that failure to instruct a jury on one of several elements may be subject to a harmless-error analysis). If the defendant fails to preserve the issue at trial, review on appeal is for plain error. Carines , 460 Mich at 764.
Where an instruction omitted an element of an offense, and “the evidence related to the missing element was overwhelming and uncontested, it cannot be said that the error affected the defendant’s substantial rights or otherwise undermined the outcome of the proceedings.” Kowalski , 489 Mich at 506.
However, where a jury instruction “directed the jury to convict defendant on the basis of affirmative findings that, by statute, are not grounds on which to convict,” defense counsel’s approval of the instruction did not waive the defendant’s right to raise the instructional error on appeal; “defendant’s trial counsel could not unilaterally waive this issue without defendant’s full knowledge and understanding about exactly what he was waiving.” People v Oros , 320 Mich App 146, 160-161 (2017), overruled in part on other grounds 502 Mich 229 (2018). 10 In Oros , 320 Mich App at 159, the defendant was convicted of first degree murder on a felony-murder theory; “[t]he prosecution presented evidence that the murder occurred during either of two crimes: larceny from a person . . . or use of false pretenses to defraud.” The jury was instructed that it could convict on either basis, and the jury verdict form did not require the jury to specify on which theory it relied in convicting the defendant of felony murder Id. Defense counsel “expressed his [mistaken] belief that false pretenses could serve as an underlying felony to support a first-degree felony murder conviction, and he affirmatively stated that he had no issue with the jury being [so] instructed.” Id . at 160. The Court concluded that because “the instruction directed the jury to convict defendant on the basis of affirmative findings that, by statute, are not grounds on which to convict . . . defendant’s trial counsel could not unilaterally waive this issue without defendant’s full knowledge and understanding about exactly what he was waiving.” Id. at 160-161 (holding that the evidence to support larceny from a person as the underlying felony for the felony murder charge “falls well short” of the “overwhelming and uncontested” standard applied by the Court in Kowalski , 489 Mich at 506).
In the defendant’s trial for murder, the trial court’s failure to give the defendant’s requested instruction regarding evidence of his character for peacefulness did not constitute reversible error where his good-character evidence was “minimal and strongly contradicted by the prosecution’s witnesses[; g]iven this and the other evidence implicating [the] defendant in the murder,” he “failed to show that the instructional error more likely than not affected the outcome of his trial[.]” L yles , 501 Mich at 112, 126. The Court of Appeals erred by “focusing on the importance of the good-character instruction to [the] defendant’s defense strategy instead of evaluating the likelihood of [the] defendant’s prevailing on that strategy[;]” “[w]hen considering whether the error was harmless, the question is whether the instruction would have made a difference in the outcome [,]” which “requires a court to consider not only the relationship between the instruction and [the] defendant’s defense strategy, but also the strength of that strategy relative to the proofs as a whole.” Id. at 118, citing Lu kity , 460 Mich at 495-496.
“It is structural error requiring automatic reversal to allow a jury to deliberate a criminal charge where there is a complete failure to instruct the jury regarding any of the elements necessary to determine if the prosecution has proven the charge beyond a reasonable doubt.” People v Duncan , 462 Mich 47, 48 (2000) (the defendant’s two felony-firearm convictions were reversed because the jury was not instructed on any elements of that offense).
“[I]f time is not an element of the charged offense, the prosecution need not prove the date and time of the offense beyond a reasonable doubt even though the felony information must identify the date and time of the offense.” People v Miller , 326 Mich App 719, 727 (2019). In Miller , the trial court did not commit error when, during the defendant’s trial for identity theft, it instructed the jury that it could find “that the offense occurred within a specific time period” because “the prosecution was not actually required to prove the timing of the offense as an element of the crime of identity theft.” Id . at 728.
“[T]he trial court did not commit a structural constitutional error, but rather averted one” by providing timely supplemental instructions after it received a request for clarification from the jury regarding the unintentional omission of any instruction on two entire counts. People v Craft , 325 Mich App 598, 607 (2018) (“[b]efore the jury returns its verdict, the trial court may supplement its instructions in any manner consistent with the accurate determination of the charges”). In Craft , “[t]he trial court’s decision to reinstruct the jury . . . was reasonably calculated to protect defendant’s right to a properly instructed jury while avoiding the time and costs of a new trial.” Id . at 609.
“[W]hen a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element,” a challenge to the sufficiency of the evidence “should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.” Musacchio v United States , 577 US 237, 243 (2016). “If a jury instruction requires the jury to find guilt on the elements of the charged crime, a defendant will have had a ‘meaningful opportunity to defend’ against the charge[, a]nd if the jury instruction requires the jury to find those elements ‘beyond a reasonable doubt,’ the defendant has been accorded the procedure that [is] required to protect the presumption of innocence.” Id . at 243-244 (citations omitted).
Impermissible Theory. “It is improper for a court to give instructions regarding a theory that is not supported by the evidence.” People v Urbanski , ___ Mich App ___, ___ (2023). A trial court’s instructions were clearly improper where “they provided in no uncertain terms that it was permissible to find defendant guilty based on a conclusion that his [blood alcohol content (BAC)] reached 0.08” despite having insufficient evidence “to support this theory.” Id . at ___. In Urbanski , the Court of Appeals concluded “there [was] a reasonable probability that the jury based its verdict on the premise that defendant’s BAC decreased after he stopped driving but before the test[.]” Id . at ___. “If there is no way to know if the jury chose the impermissible theory then it follows that there is a reasonable probability that the jury did choose the impermissible theory.” Id . at ___. Accordingly, the Urbanski Court held that “there likewise is a reasonable probability that the outcome of the trial would have been different had the jury not been presented with the impermissible theory.” Id . at ___.
Reasonable doubt. Jury instructions, when read as a whole, must convey the correct concept of reasonable doubt. Victor v Nebraska , 511 US 1, 5, 7, 18, 22 (1994) (approving of instructions defining reasonable doubt as, among other things, “not a mere possible doubt,” but one “depending on moral evidence,” such that the jurors could not say they felt an abiding conviction, “to a moral certainty,” of the truth of the charge; and as a doubt that will not permit an abiding conviction, “to a moral certainty,” of the accused ’s guilt, and an “actual and substantial doubt” that is not excluded by the “strong probabilities of the case”).
Affirmative Defense. “[A]n affirmative-defense instruction is not automatic upon request. In order to properly raise the defense, the defendant has the burden of producing some evidence from which the jury can conclude that the essential elements of the defense are present.” People v Leffew , 508 Mich 625, 644 (2022) (cleaned up). If a defendant puts forward evidence to be entitled to an instruction on an affirmative-defense theory, then it is the prosecution’s burden to prove beyond a reasonable doubt that the defense is not valid. Id . at 644. In Leffew , the defendants testified that they broke into the victim’s home in an attempt to rescue the long-term-partner of one defendant’s mother, whom they believed was being held against her will. Id . at 644-645. The defendants were charged with first-degree and third-degree home invasion, respectively, and one defendant was charged with felonious assault. The Michigan Supreme Court held that the defendants were entitled to a new trial because their defense attorneys failed to request a jury instruction on defense of others. The Court found that the instruction would have provided jurors a framework for acquitting the defendants of the charges because the evidence supported the defense, and the failure to request the instruction was unreasonable, prejudiced the defendants, and constituted ineffective assistance of counsel. Id . at 626, 629.
“The sufficiency of the evidence of a defendant’s self-defense theory is for the jury to decide under proper instructions.” People v Rajput , 505 Mich 7, 11 (2020) (quotation marks and citation omitted). “If supported by the evidence, defendant’s theory of the case must be given.” Id . at 10 (quotation marks and citation omitted). “[I]nstructions cannot exclude the theory of self-defense if there is evidence to support it.” Id . at 11 (quotation marks, alteration, and citation omitted).
Because the act of “pointing—without shooting—a loaded gun” is a threat to use deadly force— “not the use of deadly force,” the trial court erred when it “instructed [the jury] regarding the use of deadly force in self-defense or in defense of others” rather than “the use of nondeadly force.” People v Ogilvie , 341 Mich App 28, 37, 39 (2022). “Had the jury been properly instructed, it would have been asked to resolve . . . whether defendant reasonably believed that pointing his gun at [his neighbor] was necessary to protect himself or his son from the imminent unlawful use of nondeadly force by [his neighbor].” Id . at 45. The Court concluded that defendant’s trial “was fundamentally tainted by applying the wrong legal principles regarding self-defense and by giving the wrong jury instructions.” Id . at 45.
The trial court did not err when it “distinguished its willingness to give two standard instructions on self-defense, i.e., M Crim JI 7.15 and [ M Crim JI] 7.16 , from its unwillingness to give the rebuttable-presumption instruction on self-defense, M Crim JI 7.16a .” People v Thigpen , ___ Mich App ___, ___ (2023). Because a defendant in a motor vehicle “can rely on the rebuttable presumption only when the individual against whom deadly force is used is unlawfully attempting to remove the defendant from an occupied vehicle against his or her will,” the trial court properly deemed M Crim JI 7.16a “inapplicable because the only evidence that the victim was unlawfully attempting to remove defendant from his vehicle consisted of defendant’s statement to the police that the victim grabbed at or jiggled the door handle of defendant’s vehicle.” Thigpen , ___ Mich App at ___ (cleaned up).
Omission of Charge. No error results from the omission of a charge in the preliminary-jury instructions where “that error was timely corrected by the trial court in its subsequent instructions and verdict form.” People v Flores , ___ Mich App ___, ___ (2023) (noting that “the trial court included this charge in the final-jury instructions” and the “verdict form . . . made it clear that the jury was to reach a decision on each charge.”)
1 “The provisions of the rules of civil procedure apply to [criminal] cases[,] . . . except (1) as otherwise provided by rule or statute, (2) when it clearly appears that they apply to civil actions only, (3) when a statute or court rule provides a like or different procedure, or (4) with regard to limited appearances and notices of limited appearance.” MCR 6.001(D) .
2 See Section 12.12(I) for additional discussion of supplemental instructions.
3 MCL 768.32(2) addresses indictments for certain controlled substance offenses. See the Michigan Judicial Institute’s Controlled Substances Benchbook , Chapter 1, for more information.
4 Cognate offenses “are only ‘related’ or of the same ‘class or category’ as the greater offense and may contain some elements not found in the greater offense.” Cornell , 466 Mich at 355. See Section 12.12(H)(2) for discussion of cognate offenses.
5 “In rare cases, a taking outside the victim’s immediate presence may satisfy the from-the-person element only if a defendant or the defendant’s accomplices use force or threats to create distance between a victim and the victim’s property.” People v Smith-Anthony ,494 Mich 669, 672-673 (2013). These circumstances were not present in the Smith-Anthony case. Id. at 673.
6 For more information on the precedential value of an opinion with negative subsequent history, see our note .
7 For more information on the precedential value of an opinion with negative subsequent history, see our note .
8 See Section 12.12(J) for discussion of when supplemental instructions are appropriate.
9 For more information on the precedential value of an opinion with negative subsequent history, see our note .
10 For more information on the precedential value of an opinion with negative subsequent history, see our note .