People v. Perkins
| Citation | 473 Mich. 626,703 N.W.2d 448 |
| Decision Date | 29 July 2005 |
| Docket Number | Docket No. 126727. COA No. 7. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAVID MICHAEL PERKINS, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Frank J. Bernacki, Assistant Prosecuting Attorney, Detroit, MI, for the people.
State Appellate Defender (by Peter Jon Van Hoek and Dawn Van Hoek), Detroit, MI, for the defendant.
We granted leave in this case to consider two issues involving MCL 750.224f, which sets forth restrictions concerning the possession1 of firearms by persons having been convicted of a felony. The first is whether larceny from the person is a "specified felony" for the purposes of MCL 750.224f(6)(i), thus subjecting defendant to more stringent requirements in order to regain his right to possess a firearm. We conclude that larceny from the person involves a substantial risk that force will be used during its commission and, therefore, hold that it is a specified felony.
The second issue is whether the prosecution is always required to show that a person convicted of a specified felony has not had his or her right to possess a firearm restored pursuant to MCL 750.224(2)(b), or whether the prosecution's burden to disprove restoration only arises if the defendant first introduces evidence that the defendant's right to possess a firearm has been restored. We conclude, on the basis of MCL 776.20 and People v. Henderson, 391 Mich. 612, 616, 218 N.W.2d 2 (1974), that the defendant has the burden of producing evidence to establish that his or her right to possess a firearm has been restored. Once the defendant meets this burden of production, the prosecution bears the burden of persuasion beyond a reasonable doubt. In this case, defendant failed to produce evidence that his firearm rights were restored, and the prosecution thus was not required to prove the lack of restoration. Accordingly, we affirm the judgment of the Court of Appeals.
In 1977, defendant David M. Perkins was convicted of the felony offense of larceny from the person in violation of MCL 750.357. In 2001, Perkins was involved in an altercation where he pointed a gun at another person, and, in the subsequent struggle, the gun discharged. As a result, Perkins was charged with, among other things,2 being a felon in possession of a firearm (felon in possession) in violation of MCL 750.224f(2). This statute makes it a crime for a person who has been convicted of a "specified felony"-one that either involves a substantial risk of, or contains as an element the threatened, attempted, or actual use of, physical force against a person or property-to possess a firearm until that person has had the right to possess a firearm restored pursuant to MCL 28.424 and fulfilled certain other requirements.
The trial court, after a bench trial, concluded that the 1977 conviction for larceny from the person was a specified felony and, thus, MCL 750.224f(2) could apply to Perkins. Moreover, the court construed the statute as requiring the prosecution to prove that Perkins's right to possess a firearm had not been restored only if Perkins first affirmatively produced evidence that his right to possess had been restored by a proper concealed weapons licensing board. Therefore, the trial court convicted Perkins of the offense because he had not produced any such evidence, thus relieving the prosecution of the burden of proving that Perkins's right to possession had not been restored.
The Court of Appeals affirmed.3 It concluded that larceny from the person constitutes a specified felony within the meaning of MCL 750.224f, and that a defendant must present evidence of a claimed restoration of the right to possess a firearm before the prosecution's burden of proving a lack of restoration arises.
We granted defendant's application for leave to appeal.4
This case involves issues of statutory construction. These are issues of law that we review de novo. People v. Koonce, 466 Mich. 515, 518, 648 N.W.2d 153 (2002). When interpreting statutes, our goal is to give effect to the intent of the Legislature by reviewing the plain language of the statute. Id.
MCL 750.224f5 places felons in two different categories. The first category consists of persons convicted of a "felony." These persons regain their right to possess a firearm three years after paying all fines imposed for their violations, serving all jail time imposed, and successfully completing all conditions of parole or probation. MCL 750.224f(1). The second category consists of persons convicted of a "specified felony." These persons must wait five years after completing the same requirements and, moreover, must have their right to possess a firearm restored. MCL 750.224f(2).
The term "specified felony" is defined in MCL 750.224f(6), which provides:
The prosecution in this case has neither alleged that an element of larceny from the person is "the use, attempted use, or threatened use of physical force against the person or property of another," MCL 750.224f(6)(i), nor that any of the criteria in subsections ii through v apply in this case. Therefore, the inquiry is whether larceny from the person is a crime that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." We hold that it does.
The crime of larceny from the person consists of a larceny effectuated by "stealing from the person of another."6 The defendant acknowledges that there is a risk of force inherent in the crime of larceny from the person because of the potential for the victim to notice the taking of his or her personal property and use force to prevent it.7 However, he claims that such a risk is not substantial. We disagree.
"Substantial" is defined as "of ample or considerable amount, quantity, size, etc." Random House Webster's College Dictionary (1995). Therefore, the issue is whether larceny from the person by its nature involves a substantial or considerable risk that physical force will be used. We believe that it does. In order to commit a larceny from the person, the defendant must steal something from a person in that person's presence. That is, the victim must be present when the defendant steals something from the victim. Unless the victim submits to the theft or does not notice the theft, physical force will almost certainly be used in response.8 As the Court of Appeals explained:
[T]he offense of larceny from a person is separated from other larceny offenses because it is committed in the immediate presence of another person. The "Legislature decided that larceny from a person presents a social problem separate and apart from simple larceny." Specifically, "the invasion of the person or immediate presence of the victim." Because a person whose property is stolen from his presence may take steps to retain possession, and the offender may react violently, we conclude that the offense of larceny from a person, "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." We therefore hold that larceny from a person is a specified felony within the meaning of MCL 750.224f. [Perkins, supra at 272, 686 N.W.2d 237 (citations omitted; emphasis in the original).]
That the Legislature has recognized that larceny from the person involves a substantial risk of physical force is demonstrated by the different punishments that it has chosen to impose for larceny9 and larceny from the person. If a defendant10 steals property from another outside the person's presence and the property is worth less than $1,000, the defendant is only guilty of a misdemeanor. MCL 750.356(4)(a).11 If the property is worth less than $200, the defendant cannot be imprisoned for more than ninety-three days. MCL 750.356(5).12 On the other hand, if the same defendant steals the same property directly from the person, the defendant can be imprisoned for ten years. A defendant who steals property from a person outside the person's presence can only face a ten-year sentence if the property is worth $20,000 or more. MCL 750.356(2)(a). That the Legislature has chosen to subject a defendant who steals property from a person in that person's presence to a ten-year sentence, regardless of the value of the property, and has chosen to subject a defendant who steals property worth less than $200 from a person outside that person's presence to a ninety-three-day sentence demonstrates that the Legislature recognized the substantial risk of force that is involved when one steals something from somebody's person, a risk that is absent when one steals something outside the person's presence.13
Therefore, we hold that larceny from the person is a ...
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