People of Michigan v. Khalil El-Rashad Bey ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 19, 2015
Plaintiff-Appellee,
v No. 322609
Wayne Circuit Court
KHALIL EL-RASHAD BEY, LC No. 13-010797-FH
Defendant-Appellant.
Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of felon in possession of a firearm,
MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm),
second offense, MCL 750.227b. The trial court sentenced defendant as a fourth habitual
offender, MCL 769.12, to 2 ½ to 5 years’ imprisonment for the felon-in-possession conviction
and 5 years’ imprisonment for the felony-firearm conviction. We affirm.
This case arises out of the execution of an arrest warrant for defendant, as well as a
search warrant pertaining to a residence in which defendant was found by police. Defendant was
the only person in the house and the police discovered a handgun and a long gun in a room on
the top floor of the three-story residence. On appeal, defendant first argues that the evidence was
insufficient to prove that he possessed a firearm for purposes of both firearm convictions. We
disagree. We review de novo the issue regarding whether there was sufficient evidence to
sustain a conviction. People v Lueth, 253 Mich. App. 670, 680; 660 NW2d 322 (2002). In
reviewing the sufficiency of the evidence, this Court must view the evidence – whether direct or
circumstantial – in a light most favorable to the prosecutor and determine whether a rational trier
of fact could find that the essential elements of the crime were proved beyond a reasonable
doubt. People v Reese, 491 Mich. 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466
Mich. 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the
witnesses and listens to their testimony; therefore, an appellate court generally cannot interfere
with the jury’s role in assessing the weight of the evidence and the credibility of the witnesses.
People v Wolfe, 440 Mich. 508, 514-515; 489 NW2d 748 (1992). Circumstantial evidence and
the reasonable inferences that arise from such evidence can constitute satisfactory proof of the
elements of the crime. People v Carines, 460 Mich. 750, 757; 597 NW2d 130 (1999). The
prosecution need not negate every reasonable theory of innocence, but need only prove the
-1-
elements of the crime in the face of whatever contradictory evidence is provided by the
defendant. People v Nowack, 462 Mich. 392, 400; 614 NW2d 78 (2000). We resolve all
conflicts in the evidence in favor of the prosecution. People v Kanaan, 278 Mich. App. 594, 619;
751 NW2d 57 (2008).
Defendant challenges the sufficiency of the evidence solely with respect to the
“possession” element of the two firearm offenses. MCL 750.224f; MCL 750.227b; M Crim JI
11.38a; M Crim JI 11.34; People v Perkins, 473 Mich. 626, 630-632; 703 NW2d 448 (2005);
People v Avant, 235 Mich. App. 499, 505; 597 NW2d 864 (1999). Defendant contends that there
were no indicia of defendant’s dominion and control over the guns, where there were no
fingerprints linking defendant to the firearms, there was no firearm paraphernalia, such as
ammunition, found on defendant’s person, defendant did not admit to using or having the right to
use the guns, and where defendant had explained that the firearms had been left by the previous
owner.
In People v Johnson, 293 Mich. App. 79, 83; 808 NW2d 815 (2011), this Court explained
the nature of “possession” relative to firearms in our criminal jurisprudence:
Possession of a firearm can be actual or constructive, joint or exclusive. A
person has constructive possession if there is proximity to the article together with
indicia of control. Put another way, a defendant has constructive possession of a
firearm if the location of the weapon is known and it is reasonably accessible to
the defendant. Possession can be proved by circumstantial or direct evidence and
is a factual question for the trier of fact. [Citations, quotation marks, and
alteration brackets omitted.]
The prosecution is required to establish possession of a firearm, not ownership, People v
Burgenmeyer, 461 Mich. 431, 438-439; 606 NW2d 645 (2000), and “[p]hysical possession is not
necessary as long as the defendant has constructive possession,” People v Hill, 433 Mich. 464,
471; 446 NW2d 140 (1989). These principles regarding possession of a firearm are embodied in
M Crim JI 11.34a, upon which the jury was instructed in this case.
Here, the two firearms were found loaded inside a home that defendant had recently
acquired, and the address on defendant’s driver’s license matched the home’s address.
Defendant conceded these points at trial. As mentioned above, defendant was the only person
inside the home during the search that produced the two firearms, and there was no evidence of
any other occupants or residents of the home. According to a police officer who spoke to
defendant at the scene, defendant indicated that the firearms were present in the home when
defendant had moved in. Of the entire house, only the third floor room where the guns were
discovered was livable, and the room contained a mattress, clothing, and other items indicating
recent use as a bedroom. Additionally, the eye-level shelf on which the firearms were located
was directly above the mattress on the floor of the bedroom. According to the officer that
discovered the firearms, defendant would have been able to see the firearms and reach them with
minimal effort from anywhere in the third floor living area. On the basis of this evidence, the
jury could have rationally determined that defendant used the third floor area as his bedroom,
that he knew the firearms were present in the room, and that the firearms were reasonably and
-2-
readily accessible by defendant. In other words, there was sufficient evidence to show that
defendant constructively possessed the firearms. Defendant’s arguments to the contrary are all
unavailing, given that the prosecution was not required to establish a fingerprint match, was not
required to show that defendant was carrying firearm paraphernalia on his person, and was not
required to prove that defendant owned the firearms. Indeed, assuming that the home’s previous
owner or a prior occupant was the owner of the guns, it did not mean that defendant was legally
permitted to keep and possess them after defendant took over ownership of the home. Reversal
is unwarranted.
Next, in an extremely cursory and undeveloped argument, defendant maintains that the
trial court erred by not permitting defense counsel to call a last-minute witness who was not
identified on defendant’s witness list. At the start of the second day of trial and outside the
presence of the jury, the prosecutor mentioned that a person asserting to be defendant’s cousin
had shown up and indicated a desire to testify on defendant’s behalf. Defense counsel responded
that she had never met the individual prior to that day, that she knew nothing about him, and that
he could not produce a driver’s license. For these reasons, especially the lack of identification,
defense counsel chose not to pursue the matter. The trial court then acknowledged that
defendant was not seeking to call the witness to testify and that, regardless, assuming a motion to
add the witness had been made, the court would have ruled against it because the request would
have been untimely, unfair to the prosecution, and because there was no way of “verifying [the
individual’s] identity.” Defendant’s argument on appeal fails, given that defendant never
requested to have the person added as a witness and called to testify, defendant does not claim
ineffective assistance of counsel, the trial court’s observations were in the form of a hypothetical
ruling, which was completely sound under the circumstances, and given that any assumed error
has to be viewed as entirely harmless, MCL 769.26; MCR 2.613(A); Carines, 460 Mich. at 763-
764, in that there is no indication in the record regarding the nature of the testimony that would
have been given by the witness.
Finally, defendant argues in a Standard 4 brief that the district court lacked subject-matter
jurisdiction because the felony complaint and arrest warrant were not properly filed and lacked
sufficient information, or were not supported by sufficient information, as necessary to make a
finding of probable cause. With respect to these unpreserved arguments, defendant has failed to
establish errors, plain or otherwise, he has not shown the requisite prejudice, and, assuming plain
errors affecting substantial rights, defendant cannot establish that the presumed errors resulted in
the conviction of an actually innocent person, or that, independent of defendant’s innocence, the
presumed errors seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. Carines, 460 Mich. at 763. Defendant was an acknowledged felon who told police
that he was aware of and knew about the firearms present in defendant’s house. Moreover, even
were there some merit to defendant’s arguments in regard to probable cause and the complaint
and warrant, they have absolutely nothing to do with the district court’s subject-matter
jurisdiction. People v Goecke, 457 Mich. 442, 458 n 16; 579 NW2d 868 (1998) (“subject matter
jurisdiction is the right of the court to exercise judicial power over a class of cases, not the
particular case before it, but rather the abstract power to try a case of the kind and character of
the one pending”) (citations omitted). The district court properly exercised subject-matter
jurisdiction over this case by adjudicating the issue of probable cause at the preliminary
-3-
examination in regard to the two felony charges. MCL 600.8311(e); MCR 6.110. Reversal is
unwarranted.
Affirmed.
/s/ Kathleen Jansen
/s/ William B. Murphy
/s/ Michael J. Riordan
-4-