Opinion
No. 345187
07-23-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL ENRIQUE STEPHENS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kalamazoo Circuit Court
LC No. 2016-000615-FH Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ. PER CURIAM.
Defendant appeals his jury trial convictions of felon in possession of a firearm (felon-in-possession), MCL 750.224f, and carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 18 months to 5 years' imprisonment for the felon-in-possession conviction, to be served consecutive to a two-year term of imprisonment for the felony-firearm conviction. We affirm.
I. BACKGROUND
A Kalamazoo police officer was conducting a routine patrol of a local apartment complex when he overheard a loud argument inside an apartment and became concerned. The argument was between defendant and Claudia Nathan; the two were romantically involved. The officer knocked on the door to conduct a welfare check. Nathan answered the door, and the officer noticed the odor of marijuana. Additional police officers arrived at the scene and conducted a "protective sweep" of the apartment. An officer testified that he saw the butt of a firearm sticking out of a closet during the sweep; a search warrant was then obtained. Defendant was eventually identified and arrested on an outstanding warrant for an unrelated charge. In executing the search warrant, the officers found a shotgun and an assault rifle in the apartment. The officers also found credit cards with defendant's name, a bill to defendant addressed to the apartment, and defendant's license listing the apartment as his address. Nathan testified that the apartment was leased to her only. Both she and defendant testified that defendant did not live there, although Nathan admitted that defendant kept clothes in the apartment and that he occasionally stayed overnight. They both denied any knowledge of the firearms.
II. ANALYSIS
Defendant first argues that the trial court erred in scoring prior record variable (PRV) 1 at 75 points on the basis of defendant having three or more prior high severity felony convictions. See MCL 777.51(1)(a). Defendant contends that his burglary convictions in Georgia constitute low severity felonies and therefore should not have been counted under PRV 1. We disagree.
We review for clear error factual findings made by the trial court in scoring the sentencing guidelines. See People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Id.
PRV 1 assesses a defendant's "prior high severity felony convictions." MCL 777.51(1). For purposes of PRV 1, a high severity felony conviction includes a conviction for "[a] felony under a law of the United States or another state corresponding to a crime listed in offense class M2, A, B, C, or D." MCL 777.51(2)(b). "[C]orresponding" as used in MCL 777.51(2)(b) means "similar or analogous." People v Crews, 299 Mich App 381, 391; 829 NW2d 898 (2013) (quotation marks omitted). Thus, the question before us is whether Georgia's burglary statute "defines a crime that is similar or analogous to a Michigan crime in a high-severity crime class." Id. at 392.
Defendant cites the current criminal code for burglary in Georgia, which divides burglary into two degrees. See OCGA § 16-7-1, as amended by Ga L 2017 (Act 182), § 1-2. However, defendant was sentenced as a fourth-habitual offender based, in part, on two Georgia burglary convictions in 2004. Therefore, the current Georgia burglary statute is irrelevant to this appeal. The statute in effect at the time of defendant's crimes provided:
(a) A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof. [OCGA § 16-7-1(a), as amended by Ga L 1980, p 770, § 1 (emphasis added).]This statute is comparable to the Michigan crime of second-degree home invasion, which is a class C felony:
(3) A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without
permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the second degree. [MCL 750.110a(3) (emphasis added).]
The two crimes have substantially similar elements. Georgia's former burglary statute required a showing that (1) the offender entered the building of another, (2) without authority and (3) with intent to commit a theft or felony therein. See Freelove v State, 229 Ga App 310; 494 SE2d 72, 73 (1997). Likewise, second-degree home invasion in Michigan occurs when (1) the defendant entered a dwelling, (2) without permission and (3) with the intent to commit a felony, larceny, or assault. See People v Dunigan, 299 Mich App 579, 582; 831 NW2d 243 (2013); MCL 750.110a(3). The statutes are not completely identical, but PRV 1 "requires only that statutes be analogous or similar, meaning they have qualities in common." Crews, 299 Mich App at 396 (quotation marks and citation omitted). Accordingly, these two statutes are sufficiently similar to correspond within the meaning of MCL 777.51, and so the trial court did not err in assessing these convictions as high severity crimes under PRV 1.
Even if the two statutes did not correspond to one another for purposes of PRV 1, a prior high severity felony also includes a felony committed in another state "that is punishable by a maximum term of imprisonment of 10 years or more." MCL 777.51(2)(d). At the time of defendant's offenses, burglary in Georgia was punishable by imprisonment for up to 20 years. OCGA 16-7-1(a) (1980). So defendant's prior Georgia convictions are also high severity felonies under MCL 777.51(2)(d). Defendant is not entitled to resentencing.
Next, defendant argues in his Standard 4 brief that his conviction of felony-firearm was invalid because it was predicated on his conviction of felon-in-possession. Defendant relies on People v Walker, 167 Mich App 366, 385; 422 NW2d 9 (1988), in which this Court concluded that "the Legislature's intent was to preclude a possession offense from serving as the underlying felony for felony-firearm." However, the Legislature subsequently amended the felony-firearm statute to provide a list of excepted felonies. On the basis of that amendment, the Supreme Court overruled our conclusion in Walker, holding that "the Legislature's intent in drafting the felony-firearm statute was to provide for an additional felony charge and sentence whenever a person possessing a firearm committed a felony other than those four explicitly enumerated in the felony-firearm statute." People v Mitchell, 456 Mich 693, 698; 575 NW2d 283 (1998). In other words, so long as a felony is not expressly excepted by MCL 750.227b(1), it may serve as the predicate offense. Here, felon-in-possession is not one of the four excepted felonies and therefore properly served as the underlying felony to the felony-firearm conviction.
Defendant also argues in his Standard 4 brief that there was insufficient evidence to support his felon-in-possession conviction under a theory of constructive possession. We conclude that sufficient evidence was presented to support the verdict.
In reviewing challenges to the sufficiency of the evidence, we view the evidence "in the light most favorable to the prosecution, to determine whether the trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014). --------
Possession of a firearm "may be actual or constructive and may be proved by circumstantial evidence." People v Burgenmeyer, 461 Mich 431, 437; 606 NW2d 645 (2000) (citation omitted). A defendant has constructive possession of a firearm "if the location of the weapon is known and it is reasonably accessible to the defendant." People v Hill, 433 Mich 464, 470-471; 446 NW2d 140 (1989).
Viewed in a light most favorable to the prosecution, the evidence supported a conclusion that defendant constructively possessed the firearms. An officer testified that he observed one of the guns sticking out from the closet in the initial search of the apartment. This was circumstantial evidence that defendant—who was present at the apartment—knew of that weapon and had ready access to it. More significantly, there was substantial circumstantial evidence presented to the jury that defendant was living in the apartment and had constructive control over the firearms there. Defendant listed the apartment address as his residence on his driver's license, and there was also a bill addressed to defendant at the apartment. In addition, the officers found defendant's credit cards at the apartment along with male clothing. The Supreme Court upheld a finding of constructive possession of contraband under similar circumstances. See People v Hardiman, 466 Mich 417, 421-422; 646 NW2d 158 (2002). While defendant provided explanations for the documentation showing the apartment as his address, the jury was free to disbelieve his testimony. Further, "the prosecution need not negate every reasonable theory consistent with defendant's innocence, but need merely introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory evidence the defendant may provide." Id. at 423-424.
Defendant's final argument in his Standard 4 brief is that his due-process rights were violated when the lead officer went "prosecutor shopping." According to defendant, the police officer in charge of his case originally sought charges that were denied by an assistant prosecuting attorney (APA). But the officer later presented the same evidence to a different APA who decided to prosecute charges. Defendant's argument effectively asserts that, absent additional evidence, the prosecutor's officer was bound by its original decision to not charge him. But defendant does not cite any legal authority supporting this proposition. We find nothing inherently improper about two prosecutors reaching different conclusions on a case considering that prosecutors are given "broad charging discretion." See People v Conat, 238 Mich App 134, 149; 605 NW2d 49 (1999). Accordingly, defendant fails to demonstrate plain error on this unpreserved issue. See People v Jackson, 313 Mich App 409, 421; 884 NW2d 297 (2015).
Defendant also makes a cursory argument that the prosecutor destroyed evidence in violation of Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). It appears that evidence related to this case, e.g., DNA swabs, firearms and ammunition, was destroyed after the prosecutor's office initially declined to prosecute charges. But there was no forensic evidence presented that tied defendant to the firearms, and defendant fails to explain how production of the firearms, rather than the photographs taken at the scene, would have aided his defense. Accordingly, his Brady claim fails because he has not shown that the physical evidence was material, i.e., likely to lead to a different outcome at trial. See People v Dimambro, 318 Mich App 204, 213, 219; 897 NW2d 233 (2016).
Affirmed.
/s/ David H. Sawyer
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro