People of Michigan v. Gerry McCoy ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 12, 2017
Plaintiff-Appellee,
v No. 333840
Wayne Circuit Court
GERRY MCCOY, LC No. 16-000158-01-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and FORT HOOD and SWARTZLE, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of felon in possession of a
firearm (felon-in-possession), MCL 750.224f(1), felon in possession of ammunition, MCL
750.224f(3), and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b(1). Defendant was sentenced to concurrent sentences of one to five years’
imprisonment each for the felon in possession of a firearm and felon in possession of
ammunition convictions, to run consecutively to the sentence of two years’ imprisonment for the
felony-firearm conviction. We affirm.
Defendant argues that there was insufficient evidence to support his felon in possession
of a firearm, felon in possession of ammunition, and felony-firearm convictions. Specifically,
defendant contends that the prosecution failed to present sufficient evidence to support the trial
court’s conclusion that he constructively possessed the firearm and ammunition. We disagree.
We review de novo defendant’s claim that there was insufficient evidence put forth
during his bench trial to support his conviction. People v Ventura, 316 Mich. App. 671, 678; 894
NW2d 108 (2016). This Court views the evidence in a light most favorable to the prosecution to
determine whether a rational trier of fact could have found that each element of the charged
crime was proven beyond a reasonable doubt. Id. “All conflicts in the evidence are resolved in
favor of the prosecution.” People v Stevens, 306 Mich. App. 620, 628; 858 NW2d 98 (2014)
(citation omitted). It is the role of the trier of fact to determine the weight of the evidence and
the credibility of the witnesses. Id.
The elements of felon-in-possession are: “(1) the defendant is a felon who possessed a
firearm (2) before his right to do so was formally restored under MCL 28.424.” People v Bass,
317 Mich. App. 241, 267-268; 893 NW2d 140 (2016). The elements of felon in possession of
ammunition are identical to those of felon in possession of a firearm, other than a defendant
-1-
possessed ammunition rather than a firearm. MCL 750.224f(1), (3). Pursuant to MCL
750.227b(1), a defendant is guilty of felony-firearm where that “defendant possessed a firearm
during the commission of, or the attempt to commit, a felony.” Bass, 317 Mich. App. at 268-269.
At issue in this appeal with respect to all three offenses with which defendant was convicted is
the element of possession. To be convicted of a possessory crime in Michigan, a defendant need
not actually possess a firearm; “constructive possession is sufficient.” People v Minch, 493 Mich.
87, 91; 825 NW2d 560 (2012). To determine whether a defendant had constructive possession,
this Court must ask whether “ ‘the totality of the circumstances indicates a sufficient nexus
between [the] defendant and the contraband.’ ” Id. at 91-92, quoting People v Johnson, 466
Mich. 491, 500; 647 NW2d 480 (2002). “Although not in actual possession, a person has
constructive possession if he knowingly has the power and the intention at a given time to
exercise dominion or control over a thing, either directly or through another person or persons. . .
.” Minch, 493 Mich. at 92 (citation and quotation marks omitted). Put another way, “ ‘[a] person
has constructive possession if there is proximity to the article together with indicia of control.’ ”
People v Johnson, 293 Mich. App. 79, 83; 808 NW2d 815 (2011), quoting People v Hill, 433
Mich. 464, 470-471; 446 NW2d 140 (1989). That is, “ ‘a defendant has constructive possession
of a firearm if the location of the weapon is known and it is reasonably accessible to the
defendant.’ ” Johnson, 293 Mich. App. at 83, quoting Hill, 433 Mich. at 470-471. Direct or
circumstantial evidence can establish possession, which is a question of fact left to the trier of
fact. Id.
The trial court found that the prosecution proved beyond a reasonable doubt that
defendant constructively possessed the ammunition recovered in defendant’s bedroom, as well as
a Taurus 709 handgun found in an attic accessible only from defendant’s bedroom. In reaching
this conclusion, the trial court noted that the record evidence confirmed that defendant resided at
the home in question, he received mail there, and police officers observed him entering the home
the day the home was searched after the police received a call regarding gunshots fired from that
location. Moreover, a duffle bag holding the assault rifle ammunition also contained mail
addressed to defendant.
Specifically, the prosecution presented the testimony of Detroit Police Officer Stephen
Heid, who stated that he recovered a black Taurus pistol from the attic attached to the upstairs
bedroom. Defendant’s girlfriend, Athie Murrell, testified that together she and defendant
occupied the upstairs bedroom where the firearm and ammunition were found. Michigan
Department of Corrections Officer Marcus Robinson confirmed that in order to access the attic,
one must be inside the upstairs bedroom. Officer Robinson saw the pistol sitting on the floor of
the attic in plain sight, observing that it did not appear to have any heavy dust collected on it.
Detroit Police Sergeant Kenneth Steil searched defendant’s upstairs bedroom and found the
duffle bag that contained rifle ammunition and mail addressed to defendant. Near the duffle bag,
on the floor, Sergeant Steil also found a manila folder that contained paperwork belonging to
defendant. Officer Robinson stated that paperwork he found in the upstairs bedroom was a
supervision summary report or some other parole-related documentation belonging to defendant.
Thus, the totality of the record evidence, viewed in the light most favorable to the prosecution,
Ventura, 316 Mich. App. at 378, confirmed a sufficient nexus between defendant and the firearm
-2-
found in the upstairs attic and the ammunition found in the upstairs bedroom. Minch, 493 Mich.
at 91-92. Accordingly, the trial court correctly determined that defendant constructively
possessed the firearm and ammunition. Johnson, 293 Mich. App. at 83.1
On appeal, defendant contends that the record evidence does not support a finding that he
had the intention to exercise dominion and control over the firearm found in the upstairs attic and
the ammunition found in the duffel bag in the upstairs bedroom. Minch, 493 Mich. at 92.
However, we disagree with this contention where the record evidence, viewed in the light most
favorable to the prosecution, established that the ammunition was found in a duffel bag
containing defendant’s mail, in a room where other documentation belonging to defendant was
also found. Likewise, with respect to the firearm, we agree with the trial court that there was
ample evidence of defendant’s intention to exercise dominion and control over it where it was
found in an attic only accessible by the bedroom he shared with Murrell, and where Murrell
testified that she did not have any knowledge with respect to what was in the attic.
Defendant argues that the presence of multiple individuals in the home and the discovery
of contraband in an area not within the exclusive control of defendant militates against a finding
of constructive possession. Defendant cites People v Simpson, 104 Mich. App. 731; 305 NW2d
249 (1980), to support this argument. Simpson involved a police raid on a house occupied by
two men that resulted in the discovery of a large amount of heroin in a backroom and on the
person of one of the men. Id. at 733. The defendant arrived after the police conducted their
search. Id. There was evidence that the defendant paid rent and lived in the house, and her
fingerprints were found on items seized from the backroom where the heroin was found, as was
her hat. Id. The Simpson Court found that the evidence was not strong enough to withstand a
motion for directed verdict. Id. at 733-734. This case is distinguishable from Simpson. In this
case, the firearm was found in the attic accessible only through defendant’s bedroom and the
ammunition was found inside of a duffle bag that contained mail addressed to defendant and
which was located near additional paperwork belonging to defendant in his bedroom. As
opposed to what appears to be a common area in the Simpson case, defendant’s bedroom was a
private space that only he and Murrell shared. Accordingly, we agree with the trial court’s
conclusion that the prosecution presented ample evidence to support defendant’s convictions.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle
1
We acknowledge that the trial court concluded there was insufficient evidence of defendant’s
constructive possession with regard to additional weapons found in the downstairs bedroom of
the home.
-3-