People of Michigan v. Nasser Maher Abdel-Salem ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 9, 2018
Plaintiff-Appellee,
v No. 334395
Wayne Circuit Court
NASSER MAHER ABDEL-SALEM, LC No. 15-008520-01-FH
Defendant-Appellant.
Before: METER, P.J., and SAWYER and SHAPIRO, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial conviction of carrying a concealed weapon
(CCW), MCL 750.227. Defendant was sentenced to three days’ jail time, with credit for three
days served, and $798 in fees and costs. Defendant challenges the sufficiency of the evidence
used to support his conviction, and specifically claims that the prosecution did not demonstrate
the element of concealment by proof beyond a reasonable doubt. We affirm.
I. FACTUAL BACKGROUND
Early in the morning on September 28, 2015, police were dispatched to defendant’s home
in Detroit upon receiving information that there was a person with a weapon and an individual
heard screaming. Detroit Police Officer Tony Jackson arrived at the scene and witnessed three
people outside defendant’s home yelling and screaming. After illuminating the scene with a
spotlight, Officer Jackson saw defendant standing on the berm, or the grassy area between the
sidewalk and roadway, in front of defendant’s home. Defendant began to bend down and fidget
with his right ankle, and shortly thereafter, Officer Jackson saw a handgun fall from defendant’s
pant leg. Defendant was ordered to the ground and placed in handcuffs. The handgun was
retrieved and found to have been legally obtained and owned by defendant, although defendant
admitted at trial that he did not have a concealed pistol license.
Defendant contended during trial that he was legally and openly carrying his handgun.
He testified that his handgun had been tucked into the waistband of his sweatpants when a
woman threw an “air ratchet” at him. Defendant claims the “air ratchet” hit him just as the
officers arrived at the scene and caused his handgun to be dislodged and, perhaps, momentarily
obscured. Nevertheless, the trial court found that the prosecution had proven the essential
elements of the crime.
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II. ANALYSIS
Defendant argues that the evidence produced at trial was insufficient to justify his
conviction. Particularly, defendant challenges the trial court’s finding that the handgun at issue
was “concealed” pursuant to MCL 750.227(2).
Challenges to the sufficiency of the evidence in a bench trial are reviewed de novo.
People v Lanzo Const Co, 272 Mich. App. 470, 473; 726 NW2d 746 (2006), citing People v
Wilkens, 267 Mich. App. 728, 738; 705 NW2d 728 (2005). “When ascertaining whether
sufficient evidence was presented in a bench trial, to support a conviction, this Court must view
the evidence 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.”
People v Kanaan, 278 Mich. App. 594, 618; 751 NW2d 57 (2008), citing Wilkens, 267 Mich. App.
at 728. “Concealment is an essential element of the crime of carrying concealed weapons.”
People v Reynolds, 38 Mich. App. 159, 161; 195 NW2d 870, 871 (1972) (citation omitted).
Finally, “[t]his Court will not interfere with the trier of fact’s role of determining the weight of
the evidence or the credibility of witnesses.” Kanaan, 278 Mich. App. at 619, citing People v
Wolfe, 440 Mich. 508, 514-515; 489 NW2d 748 (1992), MCR 6.001(D), and MCR 2.613(C).
We disagree with defendant’s contention that no precedent exists subsequent to
November 1, 1990, that interprets “concealment” as it applies to the CCW statute. A
longstanding interpretation of the term was affirmed by this Court in 2005. People v Hernandez-
Garcia, 266 Mich. App. 416, 421-422; 701 NW2d 191 (2005), aff’d in part, vacated in part on
other grounds 477 Mich. 1039 (2007). One issue before the Court of Appeals in Hernandez had
to do with a trial judge’s answer to a juror’s question regarding the definition of “concealment.”
Id. at 421. The defendant contended that the trial court’s answer constituted an impermissible
finding of fact and “effectively order[ed] the jury to find defendant guilty.” Id.
This Court held that the trial judge’s answer did not constitute an impermissible finding
of fact, but rather, a correct statement of law. Id. at 421-422. To show that the trial judge’s
answer constituted a correct statement of the law, the appellate court summarized the definition
of concealment as it applies to the CCW statute. Id.
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. [Id. (quotation marks and citations
omitted).]
The Michigan Supreme Court affirmed the decision as it related to the trial judge’s answer, and
by extension, affirmed the Court of Appeals’ interpretation of concealment. People v
Hernandez-Garcia, 477 Mich. 1039, 1038-1040; 728 NW2d 406 (2007). Applying the standard
articulated in Hernandez to the case at hand, we hold that sufficient evidence existed to support
the trial court’s finding that defendant’s handgun was concealed.
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Officer Jackson testified that upon first viewing defendant, he did not see a gun. In fact,
Officer Jackson did not see a gun until it had fallen from defendant’s pant leg to the ground. Far
from the “ordinary,” “casual” observer, Officer Jackson was dispatched to the scene specifically
on a report that a person had a weapon. For the purposes of establishing concealment, Officer
Jackson was necessarily a more vigilant observer than the ordinary, casual observer spoken of in
Hernandez. Moreover, in addition to the testimony of Officer Jackson, the trial court considered
a videorecording that the prosecution contended corroborated Officer Jackson’s testimony by
depicting defendant fidgeting with the handgun. Thus, the evidence, viewed in a light most
favorable to the prosecution, was sufficient for a rational trier of fact to find that defendant’s
handgun was not discernible by the ordinary observation of persons casually observing
defendant, i.e., that the handgun was concealed.
Defendant also contends that his concealment of the handgun was necessarily caused by a
woman throwing an “air ratchet” at him, and that even where said concealment occurred, it was
only momentary. Defendant’s contention is without merit. “Carrying a concealed weapon is a
general intent crime.” People v Combs, 160 Mich. App. 666, 673; 408 NW2d 420 (1987), citing
People v Lane, 102 Mich. App. 11; 300 NW2d 717 (1980). “The only intent necessary is an intent
to do the act prohibited, to knowingly carry the weapon on one’s person or in an automobile.”
Combs, 160 Mich. App. at 673, citing People v Iacopelli, 30 Mich. App. 105; 186 NW2d 38
(1971). The only relevant fact in terms of the intent element of the crime is that defendant
admitted to knowingly carrying his handgun. Combs, 160 Mich. App. at 673; see also Hernandez,
477 Mich. at 1043 n 1 (“[T]he CCW statute, MCL 750.227(2), requires only that a defendant
knowingly possess a concealed weapon.”), citing People v Tombs, 472 Mich. 446; 697 NW2d
494 (2005).
It was not necessary for the trial court to consider whether defendant intended to conceal
the gun, or even whether he knew the gun was concealed, but rather, only that defendant
intended to knowingly carry a gun and the gun was, in fact, concealed. See People v Jackson, 43
Mich. App. 569, 571; 204 NW2d 367 (1972) (affirming a CCW conviction even where the
defendant claimed his revolver was visible when tucked into his belt). Nevertheless, there was
more than enough evidence for the trial court to reasonably infer that defendant knowingly
carried the handgun concealed on his person.
Based on Officer Jackson’s testimony and the videorecording produced at trial, we hold
that the evidence was sufficient. A rational trier of fact could find the element of concealment
beyond a reasonable doubt. Further, defendant’s alternative argument on appeal is without merit
in light of the fact that carrying a concealed weapon is a general intent crime.
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Douglas B. Shapiro
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