People v. Ware

296 N.W.2d 164, 97 Mich. App. 728, 1980 Mich. App. LEXIS 2707

• Court: Michigan Court of Appeals
• Decided: June 2, 1980
• Docket: Docket No. 78-4692
• Status: Published

Opinions

D. F. Walsh, J.

Defendant, Ronald Ware, was charged with assault with intent to rob, MCL 750.89; MSA 28.284, and felony-firearm, MCL 750.227b; MSA 28.424(2). He was convicted by a jury of the lesser offense of felonious assault, MCL 750.82; MSA 28.277. The jury found him not guilty of felony-firearm. On August 22, 1978, defendant was sentenced to a prison term of 2-1/2 to 4 years. The court ordered the sentence to be served consecutively to a 1 to 2-1/2 year term being served on an unrelated charge.

Defendant’s first assignment of error concerns the alleged inconsistency of the jury’s verdicts. Jury verdicts will be held reversibly inconsistent only if they cannot be explained on any rational basis. People v Widgren, 53 Mich App 375, 384-385; 220 NW2d 130 (1974), lv den 396 Mich 849 (1976), People v Goodchild, 68 Mich App 226, 237; 242 NW2d 465 (1976), lv den 397 Mich 830 (1976). In determining whether verdicts are reversibly inconsistent, we must examine the jury instructions and the evidence. See People v Fields, 66 Mich App 347, 352; 239 NW2d 372 (1976), lv den 396 Mich 847 (1976).

In this case, the jury was instructed, in connection with the felony-firearm charge, that a firearm is defined as "any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion”. See MCL 8.3t; MSA 2.212(20). Based on the evidence presented at trial, the jury could have found that the gun carried by defendant had not been capable of propelling a dangerous projectile. There was evidence that defendant pulled the trigger but that the gun had not fired. The jury, therefore, could have determined that the weapon was not a "firearm” for felony-firearm purposes and could have based its determination of not guilty of felony-firearm on that finding. The verdict was fully consistent with the evidence and instructions.¹

Instructing the jury on the offense of felonious assault, the trial court did not include the statutory definition of "firearm” when explaining the element of use of a "dangerous weapon”.² Based on the felonious assault instruction, the jury could have concluded that a weapon need not be operable to qualify as a "dangerous weapon” for felonious assault purposes.

Because the verdicts can be thus reasonably explained, they are not reversibly inconsistent. People v Goodchild, supra.

Defendant also argues that, to support a conviction of felonious assault, the prosecution must prove, when the "dangerous weapon” is a gun, that the gun was operable at the time of the offense. On the authority of People v Stevens, 92 Mich App 427; 285 NW2d 316 (1979), we reject defendant’s argument.

With respect to the prosecutor’s closing argument, defendant has failed to persuade this Court of the existence of prejudicial error. People v Jacoboni, 34 Mich App 84, 86; 190 NW2d 720 (1971), lv den 385 Mich 789 (1971).

Finally, defendant’s challenge to the consecutive nature of his sentence is without merit. MCL 768.7b(a); MSA 28.1030(2)(a). At sentencing, defense counsel recognized that the court had discretion to impose a consecutive sentence. Defendant does not deny that he committed the instant offense pending disposition of a prior felony charge. MCL 768.7b(a). We are not persuaded that the sentencing court abused its discretion in this regard.

Affirmed.

Beasley, J., concurred._

1 Because defendant was acquitted of felony-firearm, he could not have been prejudiced by the jury instructions on felony-firearm. We, therefore, need not decide whether operability of the weapon must be proven to support a felony-firearm conviction.

Among the cases where this issue has been discussed is People v Gibson, 94 Mich App 172; 288 NW2d 366 (1979).

2 The judge instructed as follows regarding this element:

"Second, that the defendants committed such assault by the use of a dangerous weapon, that is as alleged in this case, a gun, revolver, or pistol.

"A dangerous weapon is any instrument which is used in a manner likely to produce serious physical injury or death.

"Some instruments such as firearms, knives or bombs are dangerous because they are specifically so-designed.

"It is immaterial whether the gun, revolver or pistol was loaded or unloaded at the time of the assault since guns are easy to load and easy to unload and because mistakes are easy to make as to whether a gun is loaded or not.”