People v. Burgenmeyer

606 N.W.2d 645 (2000) 461 Mich. 431

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Albert Lee BURGENMEYER, Defendant-Appellant.

Docket No. 112173.

Supreme Court of Michigan.

March 7, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Andrea Krause, Prosecuting Attorney, and J. Ronald Kaplansky, Assistant Attorney General, Lansing, MI, for the people.

Albert L. Burgenmeyer, Marquette, MI, in pro per.

Opinion

PER CURIAM.

The defendant stands convicted of drug charges and of possessing a firearm during the commission of a felony. The Court of Appeals affirmed his conviction, which we likewise affirm today. However, we write to clarify the analysis to be employed in similar felony-firearm prosecutions.

I

In August 1990, defendant Albert L. Burgenmeyer was sharing a house with a man named Allen L. Foster, whom he had met when Mr. Foster began dating the defendant's sister. The defendant operated a tow-truck service, and Mr. Foster worked for him. Mr. Foster also sold cocaine from the home.

Raiding the home in August 1990, the police confiscated drugs, drug paraphernalia, and firearms. The firearms included two handguns that were on top of a dresser, within three feet of the dresser drawer in which the cocaine was located. At the time of the raid, neither the defendant nor Mr. Foster was present—earlier in the evening, they had been arrested a short distance from the home.

In its 1993 opinion of affirmance,^[1] the Court of Appeals gave this factual summary:

This case arises from the undercover buy of cocaine from one Allen Foster. An undercover officer purchased two ounces of cocaine from Foster for $2,300 in marked bills. After the officer asked him for an additional half-ounce of cocaine, Foster walked toward a residence on Cass Street in Greenville and returned five minutes later with the additional cocaine. The undercover officer then left to obtain a search warrant for the residence.

One-half hour after the undercover purchase of cocaine, a surveillance team observed Foster and the defendant leaving the residence in a car. The police stopped the car, arrested Foster, and detained the defendant for investigative questioning. The police recovered from the defendant's person $700 of the marked bills used to purchase cocaine from Foster. After returning to the residence, the police performed a search without a warrant of the house. No other persons were in the house. The police did not attempt to search for or seize contraband.

Defendant was then transported to and questioned at the police station. Defendant waived his Miranda[^[2]] rights. He indicated there were approximately two additional ounces of cocaine in his bedroom at his house on Cass Street. He also stated that he knew Foster was selling cocaine out of his house and that he had previously given money to Foster to invest in cocaine. Later that same night, the police executed a search pursuant to a warrant of the defendant's residence. The police found the rest of the marked bills, cocaine, drug paraphernalia, and four firearms.

The defendant was charged with possessing between 50 and 225 grams of cocaine,^[3] possessing a firearm during the commission of that felony,^[4] and maintaining a house from which drugs were sold.^[5]

The defendant was tried in January 1991. During trial, he moved unsuccessfully for a directed verdict on each of the counts against him. He then testified that he was innocent of the drug charges, and that he was a hunter who owned firearms for legitimate purposes. However, the jury convicted him, as charged, on all three counts.^[6]

In January 1993, the Court of Appeals affirmed the defendant's convictions. In its opinion, the Court of Appeals said that the circuit court had not erred in denying the motion for directed verdict on the felony-firearm charge:

Next, the defendant claims that the trial court erred in denying his motion for a directed verdict on the felony-firearm charge. Citing People v. Myers, 153 Mich.App. 124, 395 N.W.2d 256 (1986), he argues that no evidence was proffered showing his possession of the firearm during the commission of a felony. He avers that the firearms were found in his house near the cocaine and he was arrested two blocks from his house.

In reviewing a claim from the denial of a directed verdict motion, this Court must review the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Jolly, 193 Mich.App. 192, 196, 483 N.W.2d 679 (1992) [rev'd on other grounds 442 Mich. 458, 502 N.W.2d 177 (1993)]. In this case, the defendant admitted that there were two ounces of cocaine in his bedroom. The police found in the defendant's bedroom both the cocaine and the firearms. The defendant's access to the weapon should not be determined solely by reference to his arrest, but should also rely upon his access to it when the crime was committed. People v. Becoats, 181 Mich.App. 722, 726, 449 N.W.2d 687 (1989). Accordingly, the trial court did not err in denying the defendant's motion for a directed verdict where the defendant could be found to have possessed the firearm during the commission of the felony.

The defendant applied to this Court for leave to appeal, but the application was denied. 444 Mich. 902, 512 N.W.2d 315 (1993).^[7]

In 1996, the defendant filed a motion for relief from judgment. Perhaps responding to the title of the motion,^[8] the circuit court treated it as a motion for reconsideration of the judgment. Employing the standards set forth in MCR 2.119(F), the circuit court denied the motion in a brief written decision. Later, the circuit court denied reconsideration of that decision.

In March 1997, the defendant filed a delayed application for leave to appeal, which the Court of Appeals denied "for failure of the defendant to meet the burden of establishing entitlement to relief under MCR 6.508(D)."^[9]

The defendant filed in this Court a delayed application for leave to appeal. We ordered the prosecuting attorney to answer the application and to address the "issue whether there was sufficient evidence to support the felony-firearm conviction, M.C.L. § 750.227b; MSA 28.424(2).... See also People v. Williams, 212 Mich.App. 607 [538 N.W.2d 89] (1995), lv. den. 451 Mich. 860, 546 N.W.2d 262 (1996)."

The prosecutor has filed an answer, and the case is again before us for a decision on the defendant's delayed application for leave to appeal.

II

The felony-firearm prohibition is set forth in M.C.L. § 750.227b(1); MSA 28.424(2)(1), and applies to "[a] person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony...."^[10] On its face, the statute concerns a defendant who carries or possesses a firearm—it does not prohibit ownership of a firearm. Further, the prohibition pertains only to the time when a crime is being committed or attempted.

In Williams, the Court of Appeals began with a short statement of the facts:

During a search of defendant's house pursuant to a warrant, police found cocaine locked in a file cabinet in defendant's bedroom closet and a .32 caliber revolver in a dresser next to the closet. At the time of the search, defendant was not at home. [212 Mich.App. at 608, 538 N.W.2d 89.]

The defendant in Williams was convicted of possessing 225 to 650 grams of cocaine and of felony-firearm.

Reversing Mr. Williams' conviction for felony-firearm, the Court of Appeals said that the offense of felony-firearm cannot be committed unless the firearm is "reasonably accessible" to the offender:

With respect to the element of possession, defendant argues that, for the purposes of the felony-firearm statute, a person away from home cannot be deemed in possession of a firearm found in his house. We agree. Possession may be actual or constructive and may be proved by circumstantial evidence. People v. Hill, 433 Mich. 464, 469-471, 446 N.W.2d 140 (1989). A defendant may have constructive possession of a firearm if its location is known to the defendant and if it is reasonably accessible to him. Id. at 470-471, 446 N.W.2d 140.... Punishing a defendant for possession of a firearm that is not accessible or at his disposal, as opposed to being under less immediate dominion or control, does not fulfill the purpose of the felony-firearm statute. Accordingly, the possession requirement of the felony-firearm statute has been described in terms of ready accessibility. See, e.g., People v. Becoats, 181 Mich.App. 722, 726, 449 N.W.2d 687 (1989); People v. Terry, 124 Mich.App. 656, 661, 335 N.W.2d 116 (1983), citing People v. Davis, 101 Mich.App. 198, 203, n. 2, 300 N.W.2d 497 (1980). Such accessibility does not exist where, as here, a defendant is far away from the location of the firearm. [212 Mich.App. at 609-610, 538 N.W.2d 89.]

The basis for this discussion was People v. Hill, supra at 470-471, 446 N.W.2d 140, where the issue was whether two defendants could be charged with possession of one short-barreled shotgun^[11] when each possessed one of the two component parts that composed the shotgun. In that setting, we said that possession—both "actual" and "constructive"—requires proximity and reasonable accessibility:

A general discussion of "possession" is found in 72 CJS, Possession, p. 233 (1951), which provides, "[the term possession] is interchangeably used to describe actual possession and constructive possession, which often so shade into one another that it is difficult to say where one ends and the other begins."

* * *

Michigan courts also have recognized that the term "possession" includes both actual and constructive possession. As with the federal rule, a person has constructive possession if there is proximity to the article together with indicia of control. People v. Davis, 101 Mich.App. 198, 300 N.W.2d 497 (1980). 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. Physical possession is not necessary as long as the defendant has constructive possession. People v. Terry, 124 Mich.App. 656, 335 N.W.2d 116 (1983). [433 Mich. at 470-471, 446 N.W.2d 140.]

The quoted passages from Williams and Hill are sound insofar as they remind us that possession of a weapon is not the same thing as ownership of a weapon. Thus, a person does not violate M.C.L. § 750.227b; MSA 28.424(2) by committing a felony while merely owning a firearm. To be guilty of felony-firearm, one must carry or possess the firearm, and must do so when committing or attempting to commit a felony.

The Williams Court concluded that, because Mr. Williams was not home when the police found drugs and a firearm, he could not be convicted of possessing the firearm. The panel's error lay in its focus on the time of the raid. In Williams, the Court of Appeals treated the statute as though it prohibits possession of a firearm when a person is arrested for a felony, or when the police locate proof that a person has committed a felony. That is not what the statute says. The proper question in Williams—and in the case before us today—is whether the defendant possessed a firearm at the time he committed a felony. The fact that the defendant did not possess a firearm at the time of arrest, or at the time of the police raid, is not relevant in the circumstances of this case.

Many criminal offenses occur within a short interval of time, and witnesses often see the use or display of a weapon, if one is present. Thus, the inquiry about the element of possession is simplified. In a prosecution for delivery of a controlled substance and for felony-firearm, the question would be whether the offender possessed a firearm at the time of the delivery. When a defendant is prosecuted for possession of a controlled substance, however, the inquiry is potentially more complex. A drug-possession offense can take place over an extended period, during which an offender is variously in proximity to the firearm and at a distance from it.^[12] In a case of that sort, the focus would be on the offense dates specified in the information.

III

In the present case, the defendant was taken into police custody late in the evening of August 7, 1990. Questioned by the police about twenty-five minutes later, he acknowledged that there was cocaine in his bedroom. When the police executed the search warrant shortly after midnight, on August 8, 1990, they found cocaine in a dresser drawer in his bedroom, and firearms atop the dresser.

In pertinent part, the charge in this case is that the defendant possessed a firearm on or about August 8, 1990, "when" committing the felony of possession of cocaine. The evidence submitted to the jurors, concerning events that occurred in the late evening and after midnight on August 7-8, was sufficient to allow them to infer that the defendant committed the offense of felony-firearm. The drugs and the weapons were close enough that a jury reasonably could conclude that the defendant possessed both at the same time, as the prosecutor had charged.

For these reasons, we affirm the judgments of the Court of Appeals and the circuit court.^[13] Further, we overrule People v. Williams, supra, to the extent that it is inconsistent with the analysis offered in this opinion. MCR 7.302(F)(1).

WEAVER, C.J., and MICHAEL F. CAVANAGH, MARILYN J. KELLY, TAYLOR, CORRIGAN, YOUNG, and MARKMAN, JJ., concurred.

NOTES

[1] Unpublished opinion per curiam, issued January 27, 1993, reh den April 30, 1993 (Docket No. 139899).

[2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

[3] MCL 333.7403(2)(a)(iii); MSA 14.15(7403)(2)(a)(iii).

[4] The information charged that "[o]n or about 8-8-90" the defendant "did carry or have in his possession a firearm, to-wit: a handgun, at the time he committed or attempted to commit a felony, to-wit, Possession of Cocaine; contrary to M.C.L. § 750.227b; MSA 28.424(2)."

[5] MCL 333.7405(1)(d), 333.7406; MSA 14.15(7405)(1)(d), 14.15(7406).

[6] In March 1991, the defendant was sentenced to a ten- to twenty-year term in prison for possession of cocaine. He also was sentenced to serve a concurrent term of sixteen to twenty-four months for maintaining a drug house, and a consecutive two-year term for felony-firearm.

[7] Cert den. 511 U.S. 1045, 114 S.Ct. 1575, 128 L.Ed.2d 218 (1994).

[8] The defendant labeled his submission a "Motion to Set Aside or Modify Judgment and/or for Re-sentencing," but he correctly indicated that it was being filed pursuant to MCR 6.502, which governs motions for relief from judgment.

[9] Unpublished order, issued April 13, 1998 (Docket No. 202236).

[10] As we stated in People v. Philabaun, 461 Mich. 255, 262, n. 16, 602 N.W.2d 371 (1999), "the meaning of a statute is a question of law, which we decide de novo. People v. Law, 459 Mich. 419, 423, 591 N.W.2d 20 (1999)."

[11] MCL 750.224b; MSA 28.421(2).

[12] Possession of drugs occurs when the defendant has dominion and control over them. See People v. Konrad, 449 Mich. 263, 536 N.W.2d 517 (1995). It occurs when the defendant knowingly has the power and intention to exercise dominion or control over the drugs either directly or through another person. See People v. Sammons, 191 Mich.App. 351, 371, 478 N.W.2d 901 (1991). Or, it occurs when the defendant is in proximity to the drugs and has control over them.

[13] We have considered the other arguments raised by the defendant, but are not persuaded that relief should be granted on those claims.