People v. Little

• Decision Date: 27 January 1975
• Docket Number: No. 2,Docket No. 18562,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lloyd L. LITTLE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 735

226 N.W.2d 735

58 Mich.App. 12

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lloyd L. LITTLE, Defendant-Appellant.

Docket No. 18562.

Court of Appeals of Michigan, Division No. 2.

Jan. 27, 1975.

Released for Publication March 19, 1975.

William Waterman, Hatchett, Waterman & Spinks, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and BEBEAU, ^* JJ.

BEBEAU, Judge.

The defendant, Lloyd L. Little, was found guilty in a bench trial of the felony of carrying a dangerous weapon, to wit, a 20-gauge shotgun, in a vehicle. M.C.L.A. § 750.227; M.S.A. § 28.424.

At approximately 8:10 p.m. on August 3, 1972, two plainclothes officers of the Pontiac police department responded to an anonymous tip that a group of armed men had gathered near the corner of Douglas and Mechanic streets, in front of an apartment in the City of Pontiac. As the officers approached the corner on Mechanic Street from the east, they saw a Ford Mustang parked on the south side of the street facing them. As they drove by, three or four men exited the car. The officers continued past the car and turned around some distance away. As they turned, an Oldsmobile pulled up behind the Mustang and then four or five men got out of it. At this point two uniformed officers arrived. None of the four officers could positively state that he saw defendant Little exit either car, but the officers testified that, except for one woman, no one entered or left the area around the two cars.

One of the officers recognized one of the men, Charles Cummings, as being wanted on an outstanding felony warrant. As Cummings was being arrested, the other eight men were told to line up and put their hands on the cars where they were standing. Defendant Little was standing next to the Oldsmobile, and he was searched. An officer testified he saw five people exit the Oldsmobile when he approached the vehicle and he took down their names.

After Cummings was arrested, the officers observed a loaded sawed-off shotgun lying on the rear seat of the Mustang. Later another loaded sawed-off shotgun was also found in the Mustang. One of the officers then saw through the Oldsmobile window a 20-gauge shotgun which had its stock on the floor board and its barrel pointed toward the ceiling. The gun was not loaded, but slugs and shells were found lying next to it in the seat and on the dashboard. All three guns were removed and the remaining eight men were arrested for carrying a dangerous weapon in an automobile.

Eight of the nine codefendants waived a jury trial and were tried and convicted. Defendant appeals as of right.

The statute under which the defendant was charged and convicted reads in pertinent part: 'Any person who shall carry a * * * dangerous weapon * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony.' M.C.L.A. § 750.227; M.S.A. § 28.424. Defendant argues on appeal that insufficient evidence was produced at trial to establish the element of carrying beyond a reasonable doubt.

After hearing the evidence, the trial court found that the defendant had occupied one of the automobiles and that he knew of the presence of the weapon in that vehicle. The testimony of the police that the defendant was among the group of men who got out of the cars and that no outsider had entered that group does establish that the defendant must have occupied one of the cars. Furthermore, the open display of weapons in the cars gives rise to an almost compelling inference that the defendant knew of their presence. The defendant argues, however, that no direct evidence was presented to show that he actually carried any of the weapons, and that if the finding of carrying was based on his knowledge of the existence of the weapons, that it was impermissible as an inference built on an inference.

In order to convict under this statute, the prosecution must show that the defendant occupied a vehicle and that he knew of the presence of a weapon in that vehicle. People v. Smith, 49 Mich.App. 630, 212 N.W.2d 768 (1973), People v. Meadows, 26 Mich.App. 675, 182 N.W.2d 721 (1970).

Because of the absence of direct evidence of the actual and sole physical custody in the defendant, he says his conviction should be reversed. He may have some support in a dissenting opinion of this Court in Smith, supra, for that claim. This theory would permit the carrying in a vehicle of five guns on the floor of a vehicle occupied by four passengers and a driver, none of whom had the weapons strapped to their bodies or in their hands.

The prosecution need not show physical possession of the weapons in order to convict. It is sufficient to show that carrying the weapon in the vehicle was within the scope of a common unlawful enterprise participated in by all defendants. People v. Pearce, 20 Mich.App. 289, 174 N.W.2d 19 (1...