Motion to quash; First-degree home invasion; MCL 750.110a(2)(b); Whether defendant/co-owner was entitled to enter the home without permission; Effect of a joint tenancy with a right to survivorship; Albro v Allen; “Without permission”; MCL 750.110a(1)(c); Principle that it is possible to “break & enter” one’s own home if he or she has lost the legal right to be present in that home by operation of a court order; People v Dunigan; Abandonment of a home; Scoby, Trustee of Lanny L Scoby Trust v Mitchell

The court held that because defendant-Berry’s right to enter the home as co-owner had not been altered, he could not be charged with first-degree home invasion on the basis he entered the home without his co-owner’s (M) permission. Defendant-Buchholz likewise could not be charged because Berry gave her permission to enter the home on the night in question. Thus, it affirmed as to the trial court’s quashing of charges of the first-degree home invasion charge, but remanded as to the other charges. Defendants were bound over for trial on multiple criminal charges stemming from their entry of a home co-owned by Berry and M. The trial court granted their joint motion to quash the bindover on the first-degree home invasion charge, but denied it as to the lesser charges. On appeal, the court rejected the prosecution’s argument that “Berry’s behavior after he moved out of the home established that he abandoned the home, and in so doing altered his interest in the home to one akin to that of a landlord.” However, the prosecution did “not support with legal authority, binding or not, its assertion that a joint tenancy with full rights of survivorship can be transformed to something that has the characteristics of a landlord-tenant relationship.” And its theory was inconsistent with M's preliminary exam "testimony that she and Berry never had a landlord-tenant relationship.” There was also no court order that impeded Berry’s ability to enter the home, and he did not abandon the home.