PEOPLE OF MI V ROBERT WALLACE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 197705
Muskegon Circuit Court
LC No. 96-139288
ROBERT WALLACE,
Defendant-Appellant.
Before: Neff, P.J., and Sawyer and Murphy, JJ.
NEFF, P.J., (concurring in part and dissenting in part).
I concur in the majority opinion to the extent that it affirms defendant’s conviction of possession
with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA
14.15(7401)(2)(a)(iv). However, I respectfully dissent from the affirmance of defendant’s conviction of
possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), because I
find the facts of this case strikingly similar to those of People v Wolfe, 440 Mich 508, 511-512; 489
NW2d 89 (1992).
In reversing the felony-firearm conviction in Wolfe, our Supreme Court cited these facts:
The police officers found a shotgun on the living room floor of the apartment.
Except for the presence of defendant Wolfe in the apartment, there was no evidence
that he had any role in obtaining the gun or making it available during the commission of
the underlying felony. . . . Likewise, there was no evidence that Wolfe attempted to use
the gun, or even to reach for it, when the police entered the apartment. We conclude
that Wolfe’s presence in the apartment alone is insufficient proof of possession of a
firearm during the commission of a felony. [Id. at 527.]
Because the facts of Wolfe are indistinguishable from those in this case, I would reverse
defendant’s felony-firearm conviction.
/s/ Janet T. Neff
-1
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