People v. Williams

• Decision Date: 11 August 1995
• Docket Number: Docket No. 159802
• Citation: 212 Mich.App. 607,538 N.W.2d 89
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ben Ray WILLIAMS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 89

538 N.W.2d 89

212 Mich.App. 607

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ben Ray WILLIAMS, Defendant-Appellant.

Docket No. 159802.

Court of Appeals of Michigan.

Submitted Feb. 15, 1995, at Lansing.

Decided Aug. 11, 1995, at 9:25 a.m.

Released for Publication Oct. 10, 1995.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and J. Thomas Horiszny, Assistant Prosecuting Attorney, for the People.

Professional Law Offices of Frank and Forster by Stuart W. Hyvonen, Saginaw, for defendant.

Before: MICHAEL J. KELLY, P.J., and McDONALD and RICHARD ALLEN GRIFFIN, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of possessing between 225 and 649 grams of cocaine, M.C.L. § 333.7403(2)(a)(ii); M.S.A. § 14.15(7403)(2)(a)(ii), and of possessing a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). The trial court sentenced defendant to consecutive prison terms of twenty to thirty years for the cocaine conviction and two years for the felony-firearm conviction. Defendant appeals as of right. We affirm in part and reverse in part.

During a search of defendant's house pursuant to a warrant, police found cocaine locked in a file cabinet in defendant's bedroom closet and a .32 caliber revolver in a dresser next to the closet. At the time of the search, defendant was not at home.

Defendant first argues that there was insufficient evidence to support his felony-firearm conviction. In reviewing the sufficiency of the evidence in a criminal case, this Court views all evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could find that the essential elements of the crime have been established. People v. Petrella, 424 Mich. 221, 268-270, 380 N.W.2d 11 (1985). A conviction of felony-firearm requires proof that the defendant carried or possessed a firearm during the commission or attempted commission of a felony. M.C.L. § 750.227b; M.S.A. § 28.424(2); People v. Williams (After Remand), 198 Mich.App. 537, 540-541, 499 N.W.2d 404 (1993). Thus, defendant may attack the sufficiency of the evidence with respect to two elements: possession and time.

With respect to the element of possession, defendant argues that, for the purposes of the felony-firearm statute, a person away from home cannot be deemed in possession of a firearm found in his house. We agree. Possession may be actual or constructive and may be proved by circumstantial evidence. People v. Hill, 433 Mich. 464, 469-471, 446 N.W.2d 140 (1989). A defendant may have constructive possession of a firearm if its location is known to the defendant and if it is reasonably accessible to him. Id. at 470-471, 446 N.W.2d 140. However, constructive possession of a firearm for use in connection with a felony is not analogous to constructive possession of drugs. The difference lies in the distinctive purpose of the felony-firearm statute.

By punishing the "possession", as opposed to the "use," of a firearm during the commission of a felony, the Legislature was attempting to reduce the possibility of injury to victims, passersby and police officers. Had defendant's criminal enterprise gone awry, he may well have been tempted to use his firearm to effect an escape. The mere fact that a felon has a firearm at his disposal, should he need it, creates a sufficient enough risk to others that it is within the state's power to punish its possession. Moreover, the statute as written may act to deter the felony itself. [People v. Elowe, 85 Mich.App. 744, 748-749, 272 N.W.2d 596 (1978). Emphasis added.]

Punishing a defendant for possession of a firearm that is not accessible or at his disposal, as opposed to being under less immediate dominion or control, does not fulfill the purpose of the felony-firearm statute. Accordingly, the possession requirement of the felony-firearm statute has been described in terms of ready accessibility. See, e.g., People v. Becoats, 181 Mich.App. 722, 726, 449 N.W.2d 687 (1989); People v. Terry, 124 Mich.App. 656, 661, 335 N.W.2d 116 (1983), citing People v. Davis, 101 Mich.App. 198, 203, n. 2, 300 N.W.2d 497 (1980). ¹ Such accessibility does not exist where, as here, a defendant is far away from the location of the firearm. ²

Because there was no possession, a necessary element, we need not address the time element.

Defendant next argues that the trial court erred in denying his motion to quash the search warrant. Specifically, defendant argues that the affidavit in support of the warrant contained false and misleading information. To prevail on this claim, defendant must show by a preponderance of the evidence that the affiant knowingly and intentionally, or with reckless disregard for the truth, inserted false material into the affidavit and that the false material was necessary to a finding of probable cause....