People v. Terry

• Decision Date: 08 June 1983
• Docket Number: Docket No. 60759
• Citation: 124 Mich.App. 656,335 N.W.2d 116
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lebaron Raft TERRY, Defendant-Appellee. 124 Mich.App. 656, 335 N.W.2d 116
• Court: Court of Appeal of Michigan — District of US

Page 116

335 N.W.2d 116

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lebaron Raft TERRY, Defendant-Appellee.

Docket No. 60759.

124 Mich.App. 656, 335 N.W.2d 116

Court of Appeals of Michigan.

Submitted Nov. 3, 1982.

Decided April 6, 1983.

Released for Publication June 8, 1983.

[124 MICHAPP 657] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Deputy Chief, Asst. Pros. Atty., and Don W. Atkins, Asst. Pros. Atty., for the People.

Vicky Buckfire, Detroit, for defendant-appellee.

Before BRONSON, P.J., and V.J. BRENNAN and J.H. GILLIS, JJ.

PER CURIAM.

Defendant was charged with possession with intent to deliver pentazocine, M.C.L. Sec. 333.7401(2)(b); M.S.A. Sec. 14.15(7401)(2)(b), and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). At the preliminary examination, a police officer testified that while he was investigating a complaint regarding narcotics transactions in the area of Linwood[124 MICHAPP 658] and Virginia Park, he was sitting in his parked car and observed the defendant run from the east side of Linwood to the west side of Linwood where he conversed with an unidentified man. The defendant received an undetermined amount of paper money from the man and placed the money in his left jacket pocket. He then ran back across the street to the east side of Linwood, went over to a concrete parking lot bumper, removed a piece of wood that was lying up against it, retrieved a brown paper bag and then removed a plastic bag which was inside the brown paper bag. The defendant poured out some peach colored tablets from the plastic bag into his hand, replaced the bag, ran back across the street and handed the tablets to the man who had previously given him the money.

The defendant then returned to the concrete bumper and sat down. The police officer and his partner approached the defendant and identified themselves as police officers. The defendant ran away from the officers but returned to their location when they instructed him to stop. The officers retrieved the brown bag which the defendant had concealed beside the concrete bumper. Inside the brown bag the officers found a plastic bag, containing five peach colored tablets, and a .22-caliber blue steel revolver. The tablets contained in the plastic bag were later analyzed and found to be pentazocine.

After the defendant was bound over on the possession with intent to deliver charge and the felony-firearm charge, he moved to quash the felony-firearm charge. The trial court granted the motion on the ground that the defendant did not have actual possession of the firearm at the time that the underlying felony was committed.

[124 MICHAPP 659] The defendant subsequently pled guilty to a reduced charge of possession of pentazocine and was sentenced to a two-year term of probation and ordered to pay $200 in costs.

The people appeal and claim that the trial court erred by dismissing the felony-firearm charge. The people argue that actual physical possession of the weapon at the time the underlying felony is committed is not necessary as long as the defendant has "constructive" possession of the firearm; that is, the defendant knows where the weapon is located and the weapon is reasonably accessible to him. We agree.

We find that the felony-firearm statute prohibits the defendant from having a firearm on his person during the commission of a felony and also prohibits the defendant from having a firearm available and accessible to him during the felony so that it is obtainable by him if he should need it.

M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2) states in part:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony * * *."

It is well established that criminal statutes are to be strictly construed. People v. Saxton, 118 Mich.App. 681, 690, 325 N.W.2d 795 (1982). The general rule for statutory construction in Michigan is that words in a statute must be interpreted according to their ordinary usage in the sense in which they are understood when employed in common language, without exclusion of other words unless necessary to give intelligible meaning to prevent absurdity and without regard to the court's own estimate of the wisdom of the statute. People v. Boscaglia, 120 Mich.App. 15, 327 N.W.2d 383 (1982).

[124 MICHAPP 660] By using the phrase "carries or has in his possession" the Legislature was clearly prohibiting two separate courses of conduct. One who carries a firearm as well as one who possesses a firearm can be found guilty of violating the statute. The term "carry" ordinarily means to hold, transport or to take from one place to another. The ordinary meaning of the term "possess" is to exert influence or control over. As used in the felony-firearm statute, we find that the terms "carry" and "possess" were meant to describe the actual physical possession of a firearm during a felony as well as a person's having a firearm available and accessible to him during the felony. We find this construction of the statute to be consistent with this Court's previous decisions construing the terms "possession" and "carry" as they are used in other statutes.

In People v. Davis, 101 Mich.App. 198, 201-203, 300 N.W.2d 497 (1980), the Court addressed the issue of whether an actor is "armed with a weapon" as the term is used in the statute defining first-degree criminal sexual conduct if, at the time of sexual penetration, the actor is not physically holding the weapon but the weapon lies some six feet away. The Court found:

"While there are no Michigan cases directly on point, tangential Michigan case law suggests that the answer is 'yes'. Thus, the term 'possession' has been held to include both actual and constructive possession. People v. Mumford, 60 Mich App 279, 282-283; 230 NW2d 395 (1975). One has constructive possession if one has proximity to the article together with indicia of control. Mumford, supra, People v. Harper, 365 Mich 494, 506-507; 113 NW2d 808 (1962). In People v. Little, 58 Mich App 12; 226 NW2d 735 (1975), our Court held the prosecution need not prove physical possession of weapons in order to convict under a statute reading in [124 MICHAPP 661] pertinent part: 'Any person who shall carry a * * * dangerous weapon * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony * * *.' MCL 750.227; MSA 28.424. * * *

* * *

"Our decision that the actor need not have the weapon in his hands while committing the offense charged, so long as he has knowledge of the weapon's location and the weapon is reasonably accessible to the actor, is supported by two decisions from another jurisdiction. In Mack v State, 312 A2d 319 (Del, 1973), defendant's conviction of possession of a deadly firearm during commission of a felony (possession of narcotics with intent to sell) was...