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PEOPLE v HIGGS

PER CURIAM.

Defendant was convicted by a jury of breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305. Thereafter, defendant pleaded guilty of being a second-felony offender, MCL 769.10; MSA 28.1082, and was sentenced to 2 1/2 to 22 1/2 years' imprisonment.

Defendant appeals from his conviction as of right, claiming reversal of his conviction is mandated because the trial court failed to give certain requested jury instructions and because the trial court reserved ruling on defendant's motion for a directed verdict until after defendant presented proofs. We affirm.

The court properly denied defendant's request to instruct the jury regarding the contested cognate offenses where the offenses were not supported by the evidence. People v Pouncey, 437 Mich. 382; 471 N.W.2d 346 (1991). Moreover, any error in failing to give the instructions would have been harmless because the jury was afforded a choice of convicting defendant of an intermediate charge yet convicted him of the greater offense. People v Mosko, 441 Mich. 496; 495 N.W.2d 534 (1992).

Although the trial court erred in postponing the hearing regarding defendant's motion for a directed verdict until after defendant's presentation of proofs, MCR 6.419(A), we find the error to be harmless. The prosecutor had presented sufficient evidence to convict defendant at the close of his proofs. Application of the harmless error rule under these circumstances comports with federal precedent applying FR Crim P 29(b), the federal corollary to MCR 6.419(A). United States v Thomas, 987 F.2d 697 (CA 11, 1993); United States v Bice-Bey, 701 F.2d 1086 (CA 4, 1983); United States v Conway, 632 F.2d 641 (CA 5, 1980).

Affirmed.

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PEOPLE v. HIGGS
(Mar 7, 1995)