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  1. #1
    Join Date
    Feb 2010
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    Default Felony Trespassing

    My question involves criminal law for the state of: Michigan

    My adult son is charged with felony trespassing in a key facility 750.552c. (imprisonment not more than 4 years, fine not more than $2,500)

    He was appointed an attorney by the court. We met with this attorney for a few minutes prior to his first hearing. The appointed attorney recommended my son waive pre-trial hearing (he did). The attorney also indicated that my son was offered a plea agreement--plead guilty to the felony charge, receive probation (of unspecified duration), once he completes probation, he can petition for the charge to be reduced to a misdemeanor with "no opposition from the people." Attorney also said the circumstances (in part, mental health issues stemming from a violent mugging several years previously) leading to the incident (in which he was severely injured) do not matter because it is a "general intent" crime rather than "specific intent."

    My son has another court date next week. I'm not sure exactly what this one is. I'm not familiar with legal proceedings. He has not spoken with his attorney since the original court date last month and was never asked anything about the offered plea bargain (accept? decline?).

    My questions are:

    Does this general intent VS specific intent really mean it doesn't matter that he didn't intend to trespass/cause damage? Even though the first words of the code state, "A person shall not intentionally..." He was there, therefore he is guilty? (this last was the reason the attorney recommended waiving pre-trial--no question he was there)

    In regard to the plea bargain, should he have been asked whether he accepted or declined at the time it was mentioned or will it be brought up again? Is it ever possible to negotiate further? If he pleads guilty to a felony, does he carry that label during the term of probation? If so, he would likely lose his job, which requires him to be bonded. If it is possible/acceptable to negotiate, how is that handled? Does my son just tell his attorney he is willing to plead guilty to a misdemeanor up front for probation (suggested by a friend who is an attorney) before this hearing on Monday?

    Thank you for any information.

  2. #2
    Join Date
    Sep 2005
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    98,846

    Default Re: Felony Trespassing

    How can he be guilty of violating MCL 750.552c "by accident"? It's an element of the offense that the facility was "completely enclosed by a physical barrier" and "posted in a conspicuous manner against entry". How did he manage to overlook all of the signs and get past the fence or barrier "by accident"?

    It's possible to negotiate the terms of a plea bargain right up to the time a plea is entered. But unless there's something new to bring to the prosecutor's attention, the prosecutor will most often stick with his offer. If your son wants to make a counter-proposal through his lawyer, your son should ask your lawyer to make that proposal to the prosecutor.

  3. #3
    Join Date
    Feb 2010
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    10

    Default Re: Felony Trespassing

    I apologize for this being so long, as most things, it's complicated.

    When my son was mugged (attacked from behind, hit in the head with an object--bat/board?--beaten after he was unconscious), he experienced a head injury. Since that incident, he's had problems with headaches and double vision, nightmares, anxiety, fear of being alone, inability to protect himself, etc. The week before the incident resulting in this charge, he was involved in a bicycle accident, hitting his head.

    The night of the incident, some friends took him out to "cheer him up" from his moodiness (I'm over simplifying here, we--those closest to him--should have picked up on the fact that his symptoms had escalated and he needed help). Once he was out, he just wanted to go home...he didn't feel good--headache, vision problems. The friends had driven and didn't want to leave so convinced him to stay for awhile. After a few hours, he finally left on foot (more than 5 miles from home--at that point, friends had been drinking and he didn't want to get into a car with them).

    He started down a dark country road with spaced out houses on the edge of town. His friends were texting him "Where are you? We're coming to get you." but they were still where he left them. He remembers leaving the road and cutting through a cornfield because he was scared. It was dark and someone was coming to get him and they were going to hurt him. He came up on the fenced area, all lit up, and thought he'd be safer in the light behind the fence, he would see them (attackers) coming. He climbed the fence. He never saw the signs, he didn't know what it was. He was severely injured.

    At the scene, he was unable to explain why he was where he was beyond "scared." The police, apparently, took that to mean he was scared from the injuries, not realizing he meant it was panic that drove him to climb the fence in the first place. Nobody knew why we would be in there so police said he was probably trying to steal something...though they couldn't figure out why there were no tools or a vehicle.

    Because he was on life support and unable to speak, we (family and friends) didn't know what he was doing in there either (why would anyone do that??) so wondered if he intended to commit suicide. Once he was extubated, he told us what he remembered and a mental health professional was called in for consult. He was referred to therapy to deal with his symptoms of post traumatic stress disorder (which were exacerbated/triggered by the bike accident), the first time we had an explanation (other than residual effects from the initial head injury) for what he'd suffered since the mugging. He is currently participating in therapy.

    I was initially told (by a detective following up on the incident) there would be no charges. I believe this was because we all expected my son to die. Later, after my son's arrest on the trespassing charge, I was told the detective wouldn't know whether charges would be brought and we should have spoken with the prosecutor (pointless, but how would I know this?).

    Since the police apparently believed he was attempting to steal (completely understandable--though there was no evidence of this--without knowing any of the rest of it, what other explanation could there possibly be?) and we (friends and family) were advised (by an attorney I spoke with the day after the incident) not to speak to anyone (outside of his doctors, hospital personnel) about the details initially...I don't know whether the prosecutor is even aware of the circumstances leading up to all of this. Or whether it even matters, given the charge?

    We explained all of this as best we could in the small amount of time we had before the initial hearing (?...not the video thing from jail but the following court appearance) to the appointed attorney. He focused on the head injury and said we would need medical records for the years beyond the initial dx to prove this was a factor. There are no further medical records because, at the time, he was instructed there could be residual effects from the head injury, no one gave us a time frame as far as whether effects might be temporary or permanent and we all just attributed his (now identified as PTSD) symptoms to that. To us, he was lucky to have survived and it was just what he had to live with.

    I/we don't really know where to go from here. I wish we could afford a private attorney but this is not possible. A friend advised us to try to find an attorney to take on my son "pro bono" as this is a "compelling case." I've tried, with no luck so far.

    Again, I apologize for the length and appreciate any direction.

  4. #4
    Join Date
    Feb 2010
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    10

    Default Thanks

    I've been hanging around here for the past year while I did some research and just wanted to thank those who ask and those who answer for the entertainment and little bit of direction. I don't know that I would have came up with a defense that worked if not for all the reading I did here.

    I'd update my original thread but it's been locked.

  5. #5
    Join Date
    Feb 2010
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    CT & IL
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    5,273

    Default Re: Thanks

    And what was the final outsome. I assume that you took the deal & hope it gets knocked down later..am I correct?

  6. #6
    Join Date
    Feb 2010
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    10

    Default Re: Thanks

    I didn't realize the thread had been unlocked. Yeah, it's long. It's been a long year.

    Initially, I was focused on the word "intentionally." Mr Know's "element of the offense" reply made me look more closely at the very specific wording of the ENTIRE law he was charged with violating. Searching, I found news stories of someone charged with the same thing who's lawyer filed a pretrial motion claiming the facility he entered didn't fit the very specific definition of a key facility because there were gaps in the surrounding fence. The judge agreed and the charge was dropped.

    We were never sure where he entered the facility but it seemed the back, right corner was likely. Studying a picture of the substation that was taken from the front a few days after my son's accident, I told his public defender it looked like the warning signs were more forward on the fence and it was likely he couldn't have seen them from where he went in. He (PD) pushed my son to just take the deal because we had nothing by way of defense. He did say if we found anything to bring him pics, though he didn't think much of the idea. Close to a year later, we went out to take measurements and pictures.

    Anyway, we did discover the signs were further away from the back corner than he possibly could have seen that night. Especially with the lighting, which was even more surprising. The only lights are bright spotlights (one per fence side, four total), which are mounted in boxes on poles INSIDE the fence (just above the height of the fence). These are centered between the fence panels where sets of warning signs are. We noticed that all light falls inside the fence and all signs are back-lit, black rectangles--impossible to read or even see.

    I took the pics, a labeled sketch of the area (with measurements), and print out of pic details to the lawyer (I'd already given him the news stories of the guy who's charges were dropped) more than a month before my son's (supposed to be) jury trial was scheduled. We waited. Nothing. My son was finally able to set up a meeting with the PD the night before his trial. PD still said we had nothing. Son and I told him we had THIS. I told him to bring the pics, to argue that the lighting was not such to "enable a person to observe not less than 1 sign at any point of entry (I researched this--point of entry means anywhere someone could or did enter) upon the property" and his client COULD NOT have seen the signs because they were not "observable." Oh, and might it be better to go with a bench trial than a jury with this since the judge would be more familiar with the rules of the (holy crap, is it all really just a) game that is law? We beat him down.

    The judge was quite surprised at the last minute change from jury to bench trial. PD was actually glad of it since he said we'd have to write jury instructions ourselves since there were none for a case like this. Prosecutor (attorney? still not sure of all terms) was odd. She kept asking witnesses to clarify that my son did NO damage. I still don't understand what that was about. Seemed she was trying to help my son? In any case, someone from the energy co had pics and said his didn't look like ours (I was quite proud that even the prosecuting side used my pics, Google Earth shot and labels), that the signs weren't black rectangles in his. I couldn't see his but PD asked witness whether those were his vehicle headlights reflecting off signs on the gate (d'oh).

    In the end, judge was the one to finally label for me what it was I'd come up with--an affirmative defense. Later research makes me believe it really should have been brought up pretrial? Whatever, it worked. The judge asked if any objected to a site visit so he could see the signs for himself and then write up his decision. No one objected. A little over two months later, son was called into court to hear judge's decision. Judge went out there twice and neither time could he see the signs, much less read/observe what the signs said. He couldn't find him guilty of the felony trespassing of a key facility when the facility signage didn't meet the very specific elements of the law.

    He did, however, find my son guilty of misdemeanor trespassing. Which was totally fair and just and he would have accepted as a plea from the very beginning. Thankfully, the judge asked if my son was willing to go straight to sentencing rather than wait it out some more (all of the waiting with stuff hanging over you is sooo draining). Minor fine and costs, possibly some minor restitution (they had 14 days to get it in) added to the judgment, a length of probation that judge is willing to shorten once fines are paid and a few perfectly reasonable things are met.

    All of this has been a horrifying experience. We (entire family and all our supporters) are so glad that it all worked out. I just wish my son's original PD hadn't been out sick that last day in court so I could gloat just a teeny bit. Instead, I had to practically bite off my tongue at the PD who agreed to stand in's comment that son's lawyer did him good on this one.

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