People of Michigan v. Cortez Lamon Mack ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 3, 2017
Plaintiff-Appellee,
v No. 332079
Wayne Circuit Court
CORTEZ LAMON MACK, LC No. 15-009127-01-FH
Defendant-Appellant.
Before: SHAPIRO, P.J., and GLEICHER and O’BRIEN, JJ.
PER CURIAM.
Following a bench trial, the court convicted defendant of carrying a concealed weapon
(CCW), MCL 750.227. Defendant challenges the sufficiency of the evidence supporting his
conviction as part of his handgun was visible, and contends that the CCW statute is
unconstitutionally vague as applied to his behavior. We affirm.
I. BACKGROUND
Defendant was walking down a residential street in Detroit on the afternoon of October
19, 2015, with a handgun in a holster that was fixed inside the waistband of his pants. A police
officer on routine patrol observed the handgun, but noted that only the handle and a portion of
the weapon’s slide were visible. Although the weapon was registered, defendant had allowed his
concealed pistol license (CPL) to expire more than four months earlier. He had sought to renew
the CPL three days before he was stopped, but had yet to receive the renewed license by mail.
Nonetheless defendant chose to carry his sidearm. Defendant claimed that he was legally openly
carrying the weapon, not concealing it. The trial court expressed sympathy with defendant’s
plight and imposed only fines and costs, but convicted him as charged.
II. SUFFICIENCY OF THE EVIDENCE
Defendant insists that there was insufficient evidence to support his CCW conviction
because the weapon was not concealed. When faced with such challenges, we must review the
evidence in a light most favorable to the prosecution and determine whether a rational trier of
fact could find the defendant guilty beyond a reasonable doubt. People v Smith-Anthony, 494
Mich. 669, 676; 837 NW2d 415 (2013).
The concealed weapon statute, MCL 750.227, provides, in relevant part:
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(2) A person shall not carry a pistol concealed on or about his or her
person, or, whether concealed or otherwise, in a vehicle operated or occupied by
the person, except in his or her dwelling house, place of business, or on other land
possessed by the person, without a license to carry the pistol as provided by law
and if licensed, shall not carry the pistol in a place or manner inconsistent with
any restrictions upon such license.
This Court has consistently held that concealment within the CCW statute does not
require complete invisibility. In People v Jones, 12 Mich. App. 293, 296-297; 162 NW2d 847
(1968), a police officer placing the defendant under arrest noticed what appeared to be the butt of
a pistol poking out of the defendant’s pocket. On appeal, the defendant challenged his CCW
conviction because part of the pistol was visible and therefore not “concealed.” This Court
concluded:
“The purpose of all concealment statutes is clear. At the time they were
enacted, the open carrying of weapons upon the person[] was not prohibited. The
purpose of the concealed weapons statutes was to prevent men in sudden
quarrel[s] or in the commission of crime from drawing concealed weapons and
using them without prior notice to their victims that they were armed. The person
assailed or attacked would behave one way if he knew his assailant was armed
and perhaps another way if he could safely presume that he was unarmed.”
People v Raso, 9 Misc. 2d 739; 170 NYS2d 245, 251 (1958).
The evident statutory purpose is reflected in the general rule applied in
other jurisdictions that absolute invisibility is not indispensable to concealment of
a weapon on or about the person of a defendant, and that a weapon is concealed
when it is not discernible by the ordinary observation of persons coming in
contact with the person carrying it, casually observing him, as people do in the
ordinary and usual associations of life.
* * *
The issue of concealment depends upon the particular circumstances
present in each case and whether the weapon was concealed from ordinary
observation is a question for the trier of fact to determine. The arresting officer’s
testimony was competent evidence to support a finding by the trier of fact that the
defendant carried a concealed weapon on his person. [Id. at 295-297 (citations
omitted; emphasis in original).]
Following Jones, this Court considered the definition of “conceal” in the CCW statute
quite frequently. In People v Stirewalt, 16 Mich. App. 343, 345; 167 NW2d 779 (1969), this
Court affirmed that the defendant’s gun was concealed where it was in his pocket and could not
be seen by anyone until ordered to turn around by a police officer. Similarly, in People v Clark,
21 Mich. App. 712, 714-715; 176 NW2d 427 (1970), this Court held that a pistol was concealed
where it was in the defendant’s pocket and the police officer could only see it when the pocket
opened and the officer looked inside. And in People v Iacopelli, 30 Mich. App. 105, 106-107;
186 NW2d 38 (1971), the police saw the defendant with a gun in plain sight before he placed it
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in his coat pocket. The defendant maintained that the gun could not be “concealed” but it was
initially visible to the officers. This Court disagreed. Id. See also People v Johnson, 30 Mich
App 262, 263; 186 NW2d 24 (1971) (affirming a CCW conviction based on testimony that “the
defendant put the weapon in his pocket”).
In People v Jackson, 43 Mich. App. 569, 570-571; 204 NW2d 367 (1972), the defendant
claimed that a revolver placed in the belt of his pants was not concealed, but was open to view.
This Court observed that “[a] weapon is not . . . required to be absolutely hidden to be
‘concealed’, but rather merely not readily observable by persons in the ordinary and usual
associations of life.” In affirming defendant’s conviction, this Court recounted the testimony of
a police officer that he “couldn’t see [the revolver] plain” at some point. Id. at 571. Similarly, in
People v Charron, 54 Mich. App. 26, 30; 220 NW2d 216 (1974), this Court reasoned:
The fact that the weapon is in plain view at one point in time does not negate, as a
matter of law, the finding that under any particular set of circumstances there was
the necessary concealment. Even though the blade of the knife was visible to the
officers when defendant was in the act of sitting down or standing up, there was a
question of fact whether there was concealment within the meaning of the statute.
In People v Kincade, 61 Mich. App. 498, 502-503; 233 NW2d 54 (1975), the police
encountered the defendant running out of a building and observed a dark object clenched in his
hand, which proved to be a .38 revolver. This Court quoted approvingly from the above cases
and observed, “In all of these cases, a weapon has been found at least partially covered by the
defendant’s clothing.” Id. at 503. This Court did not discount the possibility that a case could be
presented where a defendant using only his hands could conceal a firearm. However, we
reversed the defendant’s conviction, holding that the poor lighting that obscured the object was
not a factor that could establish defendant’s concealment. Id. at 504-505.
In People v Espinosa, 142 Mich. App. 99, 106; 369 NW2d 265 (1985), this Court affirmed
the defendant’s CCW conviction based on testimony that during a fight an object fell out of the
defendant’s pants, the defendant’s sister-in-law picked the object up and ran into a bedroom, and
the defendant followed her, emerging shortly thereafter with a gun. Id. at 102-103.
More recently, in People v Hernandez-Garcia, 266 Mich. App. 416, 421-422; 701 NW2d
191 (2005), aff’d in part and vacated in part on other grounds 477 Mich. 1039 (2007), this Court
adhered to its earlier formulation in Jones:
Concealment, under MCL 750.227(2), “occurs when the pistol is not discernible
by the ordinary observation of persons casually observing the person carrying it.”
“Absolute invisibility of a weapon is not indispensable to concealment; the
weapon need not be totally concealed.” Evidence that a defendant placed a
revolver in his belt or waistband so that the weapon could not be readily seen has
been found sufficient to uphold a CCW conviction. [Citations omitted.]
Defendant acknowledges the Kincade and Jackson decisions but fails to cite or discuss
the other decisions discussed above. He contends that Kincade and Jackson arose before 1990
and therefore are not binding on this Court. MCR 7.215(J)(1). The court rule does not require
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this Court to automatically reject its well-developed and heretofore universally accepted
interpretation of statutory language. We are free to follow the reasoning of pre-1990 cases if we
agree with the reasoning. See, e.g., People v Parish, 282 Mich. App. 106, 108; 761 NW2d 441
(2009). And defendant has presented no post-1990 case standing for the proposition that a
partially visible handgun cannot be “concealed” within the meaning of the CCW statute.
In support of his argument, defendant also cites dictionary definitions of the word
“concealed” found in other, unrelated decisions of this Court. See People v Owen, 251 Mich
App 76, 80-81; 649 NW2d 777 (2002) (defining “concealed” under a statute forbidding
concealment or storage of a stolen weapon for purposes of determining whether the crime was a
“continuing offense”); People v Crippen, 242 Mich. App. 278, 282-284; 617 NW2d 760 (2000)
(defining “concealment” under the theory of third-degree criminal sexual conduct established by
using “concealment or surprise to overcome the victim”); People v Crousore, 159 Mich. App.
304, 309, 312; 406 NW2d 280 (1987) (defining “conceal” under a statute forbidding the
harboring and concealing of a fugitive). None of these decisions involved a charge under the
CCW statute and none referenced the definition of “conceal” under the CCW statute or relied
upon jurisprudence interpreting the term in the CCW context. They are therefore not relevant to
our analysis.
Ultimately, longstanding and well-developed caselaw defining concealment under the
CCW statute supports defendant’s conviction. Defendant placed the pistol in a holster and
placed the holster inside the waistband of his pants. Only a portion of the pistol was visible
above defendant’s waistband. “ ‘Absolute invisibility of a weapon is not indispensable to
concealment; the weapon need not be totally concealed.’ ” Hernandez-Garcia, 266 Mich. App. at
422, quoting Kincade, 61 Mich. App. at 502. Having the butt of a gun sticking out of a pocket, or
inserting a gun into a belt or waistband so that it is partially obscured, is sufficient concealment
to support a CCW conviction. Jones, 12 Mich. App. at 296-297; Jackson, 43 Mich. App. at 570-
571; Hernandez-Garcia, 266 Mich. App. at 421-422. While “[c]oncealment, under MCL
750.227(2), ‘occurs when the pistol is not readily discernible by the ordinary observation of
persons casually observing the person carrying it,’” Kincade, 61 Mich. App. at 504, the person
who observed and immediately recognized that defendant was carrying a weapon was not a
casual observer, but a police officer trained with respect to firearms. The officer was not
“casually observing” defendant, but was patrolling the streets for criminal activity and critically
observing all persons he encountered. Viewing the evidence in the light most favorable to the
prosecution, we discern no error in the trial court’s judgment.
II. CONSTITUTIONALITY OF THE CCW STATUTE
Defendant further asserts that the CCW statute is unconstitutionally vague as applied
because it was impossible for defendant to know that his weapon was concealed. “This Court
reviews de novo a trial court’s determination regarding the constitutionality of a statute.” People
v Rogers, 249 Mich. App. 77, 94; 641 NW2d 595 (2001). “A criminal statute must provide fair
warning of the conduct it prohibits, and may not vest law enforcement officials and juries with
unbridled discretion to determine the conduct that is prohibited.” People v Lino, 447 Mich. 567,
591; 527 NW2d 434 (1994). To be deemed unconstitutionally vague, the statute’s coverage also
must be “overbroad and impinge[] on First Amendment Freedoms.” People v Newton, 257 Mich
App 61, 66; 665 NW2d 504 (2003).
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Defendant does not claim that the CCW statute implicates First Amendment freedoms;
instead, he argues that the statute fails to provide fair notice of the proscribed conduct and
confers unlimited and unstructured discretion on law enforcement. As such, we must examine
the statute’s constitutionality “in light of the particular facts at hand without concern for the
hypothetical rights of others. The proper inquiry is not whether the statute may be susceptible to
impermissible interpretations, but whether the statue is vague as applied to the conduct allegedly
proscribed in this case.” People v Vronko, 228 Mich. App. 649, 652; 579 NW2d 138 (1998)
(citations omitted). “The Constitution requires no more” than language that “conveys
sufficiently definite warning as to the prescribed conduct when measured by common
understanding and practices.” United States v Petrillo, 332 U.S. 1, 7-8; 67 S. Ct. 1538; 91 L. Ed. 2d
1877 (1947).
Statues are presumed constitutional, “and this Court must construe a statute as
constitutional unless its unconstitutionality is clearly apparent.” People v Harris, 495 Mich. 120,
133; 845 NW2d 477 (2014). A statute’s apparent vagueness can be “cured” by reference to prior
judicial interpretations. See People v Sands, 261 Mich. App. 158, 161; 680 NW2d 500 (2004)
(emphasis added) (“For a statute to be sufficiently definite, its meaning must be fairly
ascertainable by reference to judicial interpretations, the common law, dictionaries, treatises, or
the commonly accepted meanings of words.”). See also People v Vandenberg, 307 Mich. App.
57, 62; 859 NW2d 229 (2014) (emphasis added) (“To ascertain whether a statute is
unconstitutionally vague or overbroad, we consider the entire text of the statute and any related
judicial constructions.”); Kolender v Lawson, 461 U.S. 352, 355; 103 S. Ct. 1855; 75 L. Ed. 2d 903
(1983) (“In evaluating a facial challenge to a state law, a federal court must, of course, consider
any limiting construction that a state court or enforcement agency has proffered.”). “Generally, a
criminal defendant may not defend on the basis that the charging statute is unconstitutionally
vague or overbroad where the defendant’s conduct is fairly within the constitutional scope of the
statute.” Rogers, 249 Mich. App. at 95.
As explained above, there is an extensive history of judicial interpretation of the term
“concealed” in the CCW statute. These interpretations all conclude that “concealment” does not
require complete invisibility and that a firearm can be partially exposed and still qualify as
“concealed.” Defendants are presumed to know the law. Adams Outdoor Advertising v East
Lansing (After Remand), 463 Mich. 17, 27 n 7; 770 NW2d 421 (2009). Defendants have been
convicted of CCW for carrying weapons partially exposed and tucked in their waistbands, belts,
or pockets. Consideration of the CCW statute in light of this caselaw demonstrates that as
applied to defendant’s conduct, the CCW statute is not unconstitutionally vague.
Defendant does not explain how the police exercised “unlimited or unstructured
discretion” in this case. Instead, the police appear to have behaved in a measured and
appropriate manner. When they observed a man carrying a partially concealed handgun, they
stopped to investigate. Defendant was briefly detained while the police determined whether he
was authorized to carry the handgun. Only when the police learned that defendant did not have a
current CPL did they place him under arrest. This behavior does not suggest the exercise of
“unlimited or unstructured discretion.”
Ultimately, defendant has not established that the CCW statute was unconstitutionally
vague as applied to him as the caselaw more than adequately informed him that his conduct was
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illegal. Moreover, defendant essentially admitted that he tried to conceal the weapon because he
did not wish to frighten any children he might encounter. A defendant’s misguided, but
nonetheless “good” intentions do not protect him from criminal liability.
We affirm.
/s/ Douglas B. Shapiro
/s/ Elizabeth L. Gleicher
/s/ Colleen A. O'Brien
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