People v. Perkins

686 N.W.2d 237, 262 Mich. App. 267
Michigan Court of Appeals·Decided June 8, 2004·No. Docket No. 243412·Published·Cited by 39 cases

Opinion

PER CURIAM.

The prosecutor charged defendant with assault with a dangerous weapon, MCL 750.82; being a felon in possession of a firearm, MCL 750.224f; and possession of a firearm during the commission of a felony, MCL 750.227b. After a bench trial, the trial court convicted defendant of the latter two offenses. Defendant appeals by right, arguing insufficient evidence supported his convictions. We affirm, deciding this appeal without oral argument. MCR 7.214(E).

When reviewing a challenge to the sufficiency of the evidence in a bench trial, we view the evidence presented in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. The trier of fact may make reasonable inferences from direct or circumstantial [269] evidence in the record. People v Petrella, 424 Mich 221, 268-270, 275; 380 NW2d 11 (1985); People v Vaughn, 186 Mich App 376, 379-380; 465 NW2d 365 (1990).

Generally, MCL 750.224f prohibits a person convicted of a felony1 from possessing a firearm if fewer than three years have passed since the person paid all fines, served all terms of imprisonment, and successfully completed all terms of probation or parole imposed for the violation. MCL 750.224f(1). But a longer, and potentially indefinite, prohibition applies when a person has been convicted of a “specified felony.” MCL 750.224f(2); People v Parker, 230 Mich App 677, 686; 584 NW2d 753 (1998). Here, the prosecutor charged defendant with having been convicted of a specified felony: larceny from a person, MCL 750.357. At trial, defendant admitted that he possessed a firearm and that he was convicted in 1977 of larceny from a person. Defendant argues on appeal that this evidence was insufficient to prove a violation of subsection 1 because more than three years must have expired since defendant completed all terms of his sentence for a ten-year felony. As for subsection 2, defendant argues that larceny from a person does not meet the statute’s definition of a “specified felony.” Thus, defendant argues he could not be found guilty of violating MCL 750.224f, nor could he be convicted of felony-firearm, MCL 750.227b. We disagree.

“We review questions of statutory construction de novo. In doing so, our purpose is to discern and give effect to the Legislature’s intent. We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the mean[270] ing clearly expressed — no farther judicial construction is required or permitted, and the statute must be enforced as written. We must give the words of a statute their plain and ordinary meaning, and only where the statutory language is ambiguous may we look outside the statute to ascertain the Legislature’s intent.” [People v Brown, 249 Mich App 382, 385; 642 NW2d 382 (2002), quoting People v Morey, 461 Mich 325, 329-330; 603 NW2d 250 (1999) (citations omitted).]

MCL 750.224f(2) provides:

A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of the following circumstances exist:
(a) The expiration of 5 years after all of the following circumstances exist:
(i) The person has paid all fines imposed for the violation.
(ii) The person has served all terms of imprisonment imposed for the violation.
(iii) The person has successfully completed all conditions of probation or parole imposed for the violation.
(b) The person’s right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored pursuant to .. . [MCL] 28.424[2]....

By the clear and unambiguous terms of the statute, a person convicted of a specified felony is prohibited from possessing a firearm until five years after he has paid all fines, served all terms of imprisonment, and completed all terms of probation or parole imposed for the offense. MCL 750.224f(2)(a). Moreover, after the five-year period has passed, the convicted felon is prohibited from [271] possessing a firearm until his right to do so has been formally restored under MCL 28.424. MCL 750.224f(2)(b). The prosecutor must prove that the defendant’s right to possess a firearm has not been restored only if the defendant produces some evidence that his right has been restored. MCL 776.20,3 see also People v Pegenau, 447 Mich 278, 290-292; 523 NW2d 325 (1994), and People v Henderson, 391 Mich 612, 616; 218 NW2d 2 (1974) (the prosecution is not required to prove that the defendant has no license to carry a concealed weapon until the accused puts on some evidence to the contrary). Here, defendant produced no evidence that his right to possess a firearm had been restored; therefore, the prosecution was not required to prove the contrary beyond a reasonable doubt. Accordingly, if larceny from a person is a “specified felony,” the prosecutor produced sufficient evidence to prove all the elements of the offense beyond a reasonable doubt.

MCL 750.224f(6), as pertinent to the case at bar, provides:

As used in subsection (2), “specified felony” means a felony in which 1 or more of the following circumstances exist:
(i) An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or 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. [Emphasis added.]

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People v. Perkins, 686 N.W.2d 237, 262 Mich. App. 267 (Mich. Ct. App. 2004).

686 N.W.2d 237 (People v. Perkins) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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