People v. Stone

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: People v. Stone, 298 N.W.2d 607, 100 Mich.App. 24 (Mich. App. 1980)
• Decision Date: 30 July 1980
• Docket Number: Docket No. 47529
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald STONE, Defendant-Appellant. 100 Mich.App. 24, 298 N.W.2d 607

Page 607

298 N.W.2d 607

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald STONE, Defendant-Appellant.

Docket No. 47529.

100 Mich.App. 24, 298 N.W.2d 607

Court of Appeals of Michigan.

July 30, 1980.

Released for Publication Dec. 9, 1980.

Gerald S. Surowiec, Detroit, for defendant-appellant.

[100 MICHAPP 25] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, App. Chief Asst. Pros. Atty., William T. Morris, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and CAVANAGH and PORTER ^*, JJ.

PER CURIAM.

The defendant appeals as of right from his plea-based conviction on August 2, 1979, [100 MICHAPP 26] for attempted carrying a pistol in a motor vehicle, in violation of M.C.L. 750.92; M.S.A. 28.287 and M.C.L. 750.227; M.S.A. 28.424. He was sentenced on August 13, 1979, to six months' to two and one-half 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 [100 MICHAPP 27] "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, 176 N.W.2d 430.

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[100 MICHAPP 28] 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 participated 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[100 MICHAPP 29] was found in the front seat. Judge, now Justice, Levin dissented, finding insufficient...