People v. Brown

• Decision Date: 15 October 2019
• Docket Number: No. 348079,348079
• Citation: 330 Mich.App. 223,946 N.W.2d 852
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Cleophas Andrew BROWN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

330 Mich.App. 223

946 N.W.2d 852

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Cleophas Andrew BROWN, Defendant-Appellee.

No. 348079

Court of Appeals of Michigan.

Submitted October 8, 2019, at Detroit.

Decided October 15, 2019, 9:10 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Louis F. Meizlish, Assistant Prosecuting Attorney, for the people.

Grabel & Associates, Lansing (by Zachary R. Glaza, Timothy A. Doman, and Scott A. Grabel ) for defendant.

Before: Meter, P.J., and O'Brien and Swartzle, JJ.

Per Curiam.

The prosecution appeals by leave granted¹ the trial court's opinion and order granting defendant's motion to dismiss his carrying a concealed weapon (CCW) charge, MCL 750.227(2). We reverse.

I. FACTS

The Oakland County Gun Board (the Board) issued defendant a concealed pistol license (CPL) on August 6, 2013. On August 30, 2013, defendant was arrested and charged with operating while intoxicated (OWI). On September 12, 2013, the Board issued a written notice to defendant informing him that his CPL was "SUSPENDED" because of the OWI charge. The letter requested that defendant attend a November 19, 2013 meeting of the Board when they would discuss the suspension. On October 29, 2014, defendant's OWI charge was dismissed without prejudice, but it was later reinstated on November 5, 2014. Defendant chose not to appear at the November 19, 2013 meeting at which the Board unanimously voted to uphold the suspension of defendant's CPL. Defendant was eventually convicted of OWI on May 20, 2015. Because of this conviction, the Board revoked defendant's CPL on June 6, 2015.

On November 24, 2017, at approximately 6:00 p.m., Oakland County Sheriff's Office Deputies Robert Elinski and Eric Rymarz were dispatched to a motor vehicle crash and OWI investigation. After identifying defendant as the individual involved in the crash, Deputies Elinski and Rymarz were informed by other deputies that defendant had a pistol in his possession and that he did not possess a valid CPL. Deputy Elinski also ran a Law Enforcement Information Network (LEIN) search on defendant's CPL status, which confirmed that his CPL had been revoked. Defendant was arrested at the scene. A few days later, Deputy Rymarz contacted the Oakland County Clerk's Office about defendant's CPL; Rymarz received a fax of a LEIN entry dated November 24, 2017, and time-stamped 6:02 p.m., which provided, in relevant part:

< 0>11/24/17 | 18:02:37.72 | LGWCCW | NOTICE OF REVOKED CPL LICENSE BY PEACE OFFICER.

* * *

REVOKED LICENSE TO CARRY A CONCEALED PISTOL (CPL)

THIS INDIVIDUAL IS NOT ELIGIBLE TO CARRY A CONCEALED PISTOL.

LICENSE REVOCATION DATE: 06/06/2015

***SERVED VERBAL NOTICE OF REVOKED CPL LICENSE BY PEACE OFFICER.

Defendant was eventually charged with three crimes stemming from the November 24, 2017 arrest: (1) CCW, MCL 750.227 ; (2) OWI, second offense, MCL 257.625 ; and (3) possession of a firearm while under the influence, MCL 750.237(2). Defendant moved to dismiss the CCW charge, arguing that he could not be held criminally liable for CCW because he did not receive written notice that his CPL had been revoked as required by the concealed pistol licensing act (CPLA), MCL 28.421 et seq. Defendant also contended that the LEIN entry was inconclusive in establishing whether defendant actually received verbal notice of the revocation of his CPL before November 24, 2017. The prosecution argued in response that the LEIN entry demonstrated that defendant was served with verbal notice of the revocation before his November 24, 2017 arrest and that verbal notice was sufficient under the CPLA. The trial court granted defendant's motion to dismiss the CCW charge, holding that defendant could not be "criminally liable for CCW" because the prosecution "failed to produce evidence that conclusively demonstrates that Defendant received notice ... that his CPL was suspended or revoked." The trial court explained that verbal notice that defendant's CPL was revoked was insufficient under the CPLA and that the LEIN entry was also inadequate.

II. INTERPLAY BETWEEN THE CCW STATUTE AND THE CPLA

A. PRESERVATION OF THE ISSUE AND STANDARD OF REVIEW

On appeal, the prosecution argues that the trial court erred by dismissing the CCW charge because defendant was not required to have notice that his CPL was revoked in order for the prosecution to prove CCW. The prosecution failed to raise this issue in the trial court but did raise the issue in its application for leave to appeal, and this Court granted leave to address "the issues raised in the application ...." People v. Brown , unpublished order of the Court of Appeals, entered June 14, 2019 (Docket No. 348079). At any rate, "[a]lthough this issue is unpreserved because [the prosecution] failed to raise it below, we may still consider it because it involves a question of law and the facts necessary for its resolution have been presented."

Poch v. Anderson , 229 Mich. App. 40, 52, 580 N.W.2d 456 (1998). See also People v. Houston , 237 Mich. App. 707, 712, 604 N.W.2d 706 (1999).

This Court reviews "a trial court's decision on a motion to dismiss charges against a defendant for an abuse of discretion." People v. Nicholson , 297 Mich. App. 191, 196, 822 N.W.2d 284 (2012). "A trial court necessarily abuses its discretion when it makes an error of law." People v. Waterstone , 296 Mich. App. 121, 132, 818 N.W.2d 432 (2012). Questions of law, which include questions of statutory interpretation, are reviewed de novo. People v. Pinkney , 501 Mich. 259, 267, 912 N.W.2d 535 (2018).

B. ANALYSIS

Defendant was charged with CCW under Michigan's CCW statute, MCL 750.227. To rule on the question before us, we must decide whether MCL 750.227 requires the prosecution to prove that the defendant had notice that he was not allowed to carry a concealed pistol. MCL 750.227(2) provides:

A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.

In People v. Combs , 160 Mich. App. 666, 673, 408 N.W.2d 420 (1987), this Court explained the prosecution's burden for proving CCW:

Carrying a concealed weapon is a general intent crime. The only intent necessary is an intent to do the act prohibited, to knowingly carry the weapon on one's person or in an automobile. While a person may be exempted from criminal liability for carrying a concealed weapon if he is licensed to do so, the language in the statute "without a license so to carry said pistol as provided by law" does not add an element to the crime. Here, the evidence established that defendant knowingly carried the revolver in his automobile. Since defendant did not sustain his burden of showing that he was in fact properly licensed to carry the weapon, no further proofs were required of the prosecution to sustain defendant's conviction. [Some quotation marks and citations omitted.]

Combs suggests that the prosecution is not required to prove as an element of CCW that defendant had notice that his CPL had been revoked. To support a charge of CCW, the prosecution need only show that the defendant knowingly carried a pistol in an automobile or on his or her person; if a defendant then wishes to avoid the CCW charge based on a CPL, the burden shifts to the defendant to prove that he or she was "properly licensed to carry the weapon[.]" Id. at 673, 408 N.W.2d 420. That the prosecution need not prove as an element of CCW that defendant had notice that his CPL was revoked is buttressed by our Supreme Court's discussion in People v. Quinn , 440 Mich. 178, 189, 487 N.W.2d 194 (1992), wherein the Court recognized "that the prosecution need not prove as an element of the offense of carrying a concealed weapon that the defendant knew his [CPL] was expired...."² (Citation omitted.) Given the foregoing, it is clear that to prove CCW, the prosecution was not required to show that defendant had notice that his CPL was revoked. The trial court therefore erred as a matter of law when it held that defendant was "not criminally liable for CCW" because the prosecution "failed to produce evidence that conclusively demonstrates that Defendant received notice ... that his CPL was suspended or revoked." Because this error of law was the basis for the trial court's dismissal of the CCW charge, the dismissal was necessarily an abuse of discretion. Waterstone , 296 Mich. App. at 132, 818 N.W.2d 432.

Defendant argues that he should not be held criminally liable for the CCW charge because, under the doctrine of in pari materia , the notice provisions in the CPLA should be construed together with the CCW statute. We disagree.

Under the doctrine of in pari materia , "statutes that relate to the same subject or that share a common purpose should, if possible, be read together to create a harmonious body of law." People v. Mazur , 497 Mich. 302, 313, 872 N.W.2d 201 (2015). But when "the Legislature has chosen to specifically limit the applicability of a statutory definition, the doctrine of in pari materia is inapplicable." People v. Feeley , 499 Mich. 429, 444, 885 N.W.2d 223 (2016).

The relevant provisions of the CPLA deal with the rules and procedures governing the issuance, suspension, revocation, and reinstatement of CPLs and the penalty for violating an order that suspends or revokes an individual's CPL. See MCL 28.428(7) and (8).³ They provide, in pertinent part, that an individual cannot be criminally liable for violating the CPLA if the individual did not receive notice that his or her CPL had been suspended or revoked. Id. The CCW statute, on the other hand,...