People v. Moore ( 1989 )

Per Curiam.

On May 13, 1987, a jury found defendant, Claxton Moore, guilty of two counts of felonious assault and one count of possession of a firearm during the commission of a felony, in violation of MCL 750.82; MSA 28.277 and MCL 750.227b; MSA 28.424(2) respectively. Defendant was sentenced to serve two years in prison on the felony-firearm conviction and placed on probation for two years for the felonious assault convictions, the sentences to run consecutively. Defendant appeals as of right.

Defendant contends that the trial court erred in denying his request for a full jury instruction on mixed direct and circumstantial evidence, CJI 4:2:02. While the trial court did give most of that instruction, it refused to give subparagraph (7) of the instruction, which reads as follows:

(7) If the direct and circumstantial evidence, taken together, is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence.

Use of the Michigan Criminal Jury Instructions is not mandatory.¹ Cautionary instructions need only be given when the circumstantial evidence against the defendant is weak² and, further, need not be given where there is direct evidence supporting conviction.³

At trial, the two complainants testified that, during an argument with defendant, defendant pulled out a handgun and pointed it at one of them threatening to "blow [her] so and so head off.”⁴ They further testified that defendant, soon thereafter, fired the gun in the direction of the second complainant. The bullet struck the floor approximately one foot away from the' second complainant’s feet. A police officer testified that, upon arrival at the scene, examination of defendant’s right hand revealed an odor of gunpowder/ nitrate — strong circumstantial evidence that defendant had recently fired a gun.

Given the nature of the direct evidence and the strength of the circumstantial evidence, we find no error in this case in the trial court’s refusal to give subparagraph (7) of CJI 4:2:02.

Affirmed.

1 People v Petrella, 424 Mich 221, 227; 380 NW2d 11 (1985); People v Anderson, 166 Mich App 455, 467; 421 NW2d 200 (1988).

2 People v Gravedoni, 172 Mich App 195, 197; 431 NW2d 221 (1988); People v Armentero, 148 Mich App 120, 132; 384 NW2d 98 (1986), lv den 425 Mich 883 (1986).

3 People v Dellabonda, 265 Mich 486, 513; 251 NW 594 (1933); People v Peete, 113 Mich App 510, 515-516; 317 NW2d 666 (1982).

4 One of the complainants testified that "so and so” were her own words used in place of the actual phrase used by defendant.