People of Michigan v. Kingyaun Deshaun Nelson ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 10, 2018
Plaintiff-Appellee,
v No. 336497
Wayne Circuit Court
KINGYAUN DESHAUN NELSON, LC No. 15-009200-01-FH
Defendant-Appellant.
Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.
PER CURIAM.
Defendant, Kingyuan Nelson, appeals as of right his bench trial convictions of carrying a
concealed weapon, MCL 750.227, felon in possession of a firearm, MCL 750.224f, and
possession of a firearm during the commission of a felony, MCL 750.227b. Nelson was
sentenced to two years’ probation for the convictions of carrying a concealed weapon and felon-
in-possession and two years’ imprisonment for the felony-firearm conviction. We affirm.
I. BACKGROUND
One afternoon in October 2015, Detroit Police Officer Adam Kline was driving a patrol
car with three other police officers, including Officer George Alam, who was seated in the
backseat on the driver’s side. Officer Alam saw Nelson, who was standing on the sidewalk,
reach into his waistband, pull out an object Officer Alam believed to be a gun, and throw it on
the ground. Officer Alam told Officer Kline to stop the car because he saw a gun. Officer Alam
approached Nelson and detained him, while Officer Kline found the gun. Two other people were
in the immediate vicinity, one of whom was charged as a co-defendant who later pleaded guilty
to carrying a concealed weapon.
At the close of the first day of the bench trial, on October 20, 2016, the trial court granted
defense counsel a continuance to locate a witness. The trial reconvened on October 31, 2016,
and the trial court again gave defense counsel additional time to locate the witness. On
November 3, 2016, the trial court signed an order providing Nelson with an investigator. On
November 11, 2016, defense counsel returned to court without a witness, stating that the
investigator had not been able to personally serve the witness, who was dodging service. The
trial court denied defense counsel’s request for more time, noting that Nelson was out on bond
and could have helped find the witness and that the investigator had time to look for the witness.
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II. ANALYSIS
Nelson now challenges the trial court’s decision not to grant him a third continuance,
arguing that he was deprived of his constitutional right to present a witness who may have been
critical to his defense. We disagree.
“We review constitutional questions de novo.” People v Garay, 320 Mich. App. 29, 38;
903 NW2d 883 (2017). We review a trial court’s decision not to grant a continuance for an
abuse of discretion. People v Steele, 283 Mich. App. 472, 484; 769 NW2d 256 (2009). “A trial
court abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes.” People v Waterstone, 296 Mich. App. 121, 131-132; 818 NW2d 432 (2012).
Whether the trial court abused its discretion by denying a continuance turns on four
factors: (1) the defendant asserted a constitutional right, (2) the defendant “had a legitimate
reason for asserting that right,” (3) the defendant was not negligent, and (4) the defendant had
not requested previous adjournments. People v Wilson, 397 Mich. 76, 81; 243 NW2d 257 (1976).
In addition, the defendant “must demonstrate prejudice resulting from the trial court’s abuse of
discretion.” Id. In People v Snider, 239 Mich. App. 393, 421-422; 608 NW2d 502 (2000), this
Court concluded that the trial court did not abuse its discretion by declining to adjourn the trial
for the production of a witness because the defendant did not show how the requested witness’s
testimony would have been helpful.
Likewise, in this case, Nelson has not demonstrated that the production of the witness
would have been helpful because Nelson has not identified the witness or shown how the witness
would have vindicated his innocence. When counsel requested the second continuance, he
agreed that he wanted to use the witness for his defense, contingent on talking to the witness.
When he requested the third continuance, counsel stated that the witness was dodging the
investigator’s attempt to serve the witness (presumably, with a subpoena to testify). Likewise,
on appeal, Nelson makes assumptions about the identity of the missing witness and speculates
that the witness may have had critical information.1 Thus, it appears that Nelson does not know
what the witness would have said or whether the witness would have been helpful to his defense.
By contrast, Officer Alam testified that he saw Nelson throw a gun on the ground, and
Officer Kline found a gun where Officer Alam signaled it would be. Both police officers
commented on how quickly and seamlessly the entire incident unfolded. Nelson has not
described what the unidentified witness would testify to that would so undermine this testimony
as to call into question Nelson’s immediate proximity to the discarded gun. Accordingly, Nelson
has not demonstrated prejudice.
1
We note that Nelson’s brief on appeal acknowledges that he still has not found the witness.
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We affirm.
/s/ Deborah A. Servitto
/s/ Jane E. Markey
/s/ Peter D. O’Connell
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