Opinion
Docket No. 47529.
Decided July 30, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and William T. Morris, Assistant Prosecuting Attorney, for the people.
Gerald S. Surowiec, for defendant on appeal.
The defendant appeals as of right from his plea-based conviction on August 2, 1979, for attempted carrying a pistol in a motor vehicle, in violation of MCL 750.92; MSA 28.287 and MCL 750.227; MSA 28.424. He was sentenced on August 13, 1979, to 6 months to 2-1/2 years imprisonment, with credit for 33 days served.
The single issue raised in this appeal is whether a sufficient factual basis was elicited at the plea-taking proceeding, pursuant to GCR 1963, 785.7(3)(a).
In support of his plea, defendant stated:
"I was walking down Cass and between Canfield and Willis, and one co-defendant [ sic] in the matter rode by and picked me up and asked if I would ride with him to pick up his sister. I told him yes. While I am in the motor vehicle he goes and tells me about the conflict his sister had with this guy, you know. So I rode, and when we got to the place where you just named this guy come up, and I let his sister in the car, and then the co-defendant [ sic] comes out from under the seat with a pistol and pulls it on the guy, and he ran and told the police. When we saw him talking to the police we made a U-turn and started fleeing from him, and consequently we were arrested.
"Q Did you have a gun?
"A No.
"Q Did you know the pistol was in the motor vehicle?
"A Yes."
The concealed weapons statute provides, in pertinent part:
"A person who shall carry a pistol * * * in a vehicle operated by or occupied by him, * * * without a license to carry the pistol as provided by law * * * shall be guilty of a felony."
In People v Jerome I Smith, 21 Mich. App. 717, 722; 176 N.W.2d 430 (1970), this Court defined "carrying" as it applies to the offense of carrying a weapon in an automobile:
"The concealed weapons statute does not punish presence in a car where a pistol is found. The statute's thrust is `carrying concealed weapons without a license'. In other words, the point of the statute is to punish `carrying'. Thus, to convict one who is merely present in a car necessarily rests upon two inferences: (a) an inference that he knows a pistol is present; and (b) an inference that he is carrying the pistol. Therefore, even by showing that someone knew a pistol was present should not lead automatically to a conclusion that he was `carrying' the pistol."
The Court later explained:
"In its ordinary meaning, there must be evidence of participation in the act of carrying in order to convict under the statute." People v Jerome I Smith, supra, 723.
The Jerome Smith case was cited for the proposition that "carrying" is a separate element in People v Threlkeld, 47 Mich. App. 691, 697; 209 N.W.2d 852 (1973), and in People v Meadows, 26 Mich. App. 675, 678; 182 N.W.2d 721 (1970). Similarly, "carrying" was recognized as a distinct element of the crime in People v Blalock, 44 Mich. App. 336, 337; 205 N.W.2d 185 (1973).
Participation in the act of carrying may be inferred from the fact that a defendant was found to be carrying ammunition usable in the gun in question, People v Meadows, supra, People v Hood, 37 Mich. App. 195, 197; 194 N.W.2d 472 (1971); from the defendant's close proximity to the weapon, People v Sims, 23 Mich. App. 194; 178 N.W.2d 667 (1970); or from the fact that the defendant and others were engaged in a common, unlawful enterprise and the gun was being carried in furtherance thereof. People v Little, 58 Mich. App. 12, 15; 226 N.W.2d 735 (1975), People v Pearce, 20 Mich. App. 289, 292; 174 N.W.2d 19 (1969).
Other panels of this Court have found sufficient evidence to sustain a conviction without discussing any facts that would tend to establish the element of "carrying". In People v Kremko, 52 Mich. App. 565, 574-575; 218 N.W.2d 112 (1974), one panel of this Court indicated that where testimony showed a shotgun and pistol were found in a car occupied by the defendant, which was parked at the side of a street with its motor running, sufficient proof of "carrying" was established. In that case, however, additional proof was presented that the defendants were engaged in a common, unlawful enterprise.
The standard criminal jury instructions reflect the requirement that "carrying" must be established. CJI 11:1:01 states, in part, that in order to convict, a jury "must find beyond a reasonable doubt that the defendant knew of the presence of the pistol and that he participating in the act of carrying the pistol".
In examining whether the trial court abused its discretion in finding sufficient evidence to bind over a defendant on a concealed weapons charge, one panel of this Court was divided on what evidence was necessary to support the element of carrying. In People v Robert Smith, 49 Mich. App. 630; 212 N.W.2d 768 (1973), rev'd on other grounds 393 Mich. 432; 225 N.W.2d 165 (1975), the majority noted that the standard for sufficiency of evidence to bind over is lower than that for sufficiency of evidence to convict, then found no abuse of discretion when a passenger in the third seat of a van was bound over for trial on a showing that an M1 rifle was found under the second seat and ammunition was found in the front seat. Judge, now Justice, LEVIN dissented, finding insufficient evidence of carrying. Judge LEVIN noted that "[t]he majority apparently agree that the evidence is insufficient to convict * * * but hold that it is adequate to support the binding-over decision". People v Robert Smith, supra, 639. He reasoned that mere presence is insufficient to support an inference of participation in a crime, noting that the inference of guilty participation cannot be drawn from mere association among persons. People v Robert Smith, supra, 638.
The Robert Smith decision on sufficiency of evidence to bind over was cited to support the sufficiency of evidence necessary to convict in People v Little, supra. In the Little case, however, there was evidence of a common, unlawful enterprise, so an inference of carrying was permissible.
In the instant case, the defendant offered no indication that he was participating or had agreed to participate in an unlawful enterprise. There was no testimony that defendant was found to be in close proximity to the gun, nor was there any evidence that ammunition for the gun was found on the defendant. Defendant merely showed that he was in a car with knowledge of the presence of a gun. Whether he gained this knowledge before or after the codefendant pulled out the gun is not clear. The record is inadequate to support his guilty plea.
Failure to establish the element of carrying requires remand. On remand, the prosecutor shall be given an opportunity to establish the missing element. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish the missing element, the judgment of conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion. GCR 1963, 785.7, Guilty Plea Cases, 395 Mich. 96, 129; 235 N.W.2d 132 (1975).
Reversed and remanded.