PEOPLE OF MI V KEVIN RAYMOND BIBBS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 30, 1999
Plaintiff-Appellee,
v
No. 203822
Macomb Circuit Court
LC No. 96-000771 FH
KEVIN RAYMOND BIBBS,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and O’Connell and Whitbeck, JJ.
HOLBROOK, JR., P.J. (concurring in part and dissenting in part).
While I agree with the majority’s resolution of defendant’s challenges to his convictions for
possession of marijuana, MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d), and possession with intent
to deliver less than fifty grams of cocaine, MCL 333.7401(2)(iv); MSA 14.15(7401)(2)(a)(iv), I
respectfully dissent from the majority’s conclusion that there was sufficient evidence adduced at trial to
support defendant’s convictions for felony-firearm, MCL 750.227b; MSA 28.424(2), and felon in
possession, MCL 750.224f; MSA 28.421(6).
In order to be convicted of felony-firearm and felon in possession, it must be proved that a
defendant had possession of a firearm. MCL 750.227b; MSA 28.424(2); MCL 750.224f; MSA
28.421(6). While it is well established that possession may be actual or constructive for purposes of the
felony-firearm statute, People v Williams, 212 Mich App 607, 609; 538 NW2d 89 (1995), there is no
case law that states that constructive possession also suffices for purposes of the felon in possession
statute. I conclude that given the purpose of the statute, constructive possession is also sufficient with
respect to the crime of felon in possession. See Oregon v Wells, 935 P2d 447, 449 (Or App, 1997).
“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.” Williams, supra, 212 Mich App at 609. The
majority concludes that defendant’s constructive possession of the firearm “may be inferred from its
discovery in an unlocked night stand in the bedroom that defendant used.” Ante at ___. I believe that
this conclusion violates the principle that an element of a crime may not be established by piling inference
upon inference. See People v Blume, 443 Mich 476, 491-492; 505 NW2d 843 (1993); People v
Atley, 392 Mich 298, 315; 220 NW2d 465 (1974); People v Petro, 342 Mich 299, 307-308; 70
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NW2d 69 (1955); People v McWilson, 104 Mich App 550, 555; 305 NW2d 536 (1981). The chain
of inferences followed by the majority includes the inference that “defendant was aware of, and had
ready access to” the gun, which in turn is built upon the inference that the gun was “in the bedroom that
defendant used.” Thus, the majority’s belief in the conclusion that defendant possessed the gun is
impermissibly based on a belief in the truth of a series of mere presumptions.
Further, the principle that a “defendant’s access to the weapon should not be determined solely
by reference to his arrest,” People v Williams (After Remand), 198 Mich App, 537, 541; 499 NW2d
404 (1993) (emphasis added), does not mean that proximity at the time of arrest is irrelevant. In fact,
consideration of a defendant’s ability to readily access a firearm at the time of his arrest has often been
the central factor examined by this Court when evaluating the sufficiency of the evidence underlying that
defendant’s felony-firearm conviction. See, e.g., Williams, supra, 212 Mich App at 610 (concluding
that ready “accessibility does not exist where . . . a defendant is far away from the location of the
firearm”).
In the case at hand, when the five police officers from the County of Macomb Enforcement
Team (COMET) executing the search warrant entered the residence, they found defendant lying prone
on the floor in a room located on the first floor of the residence. Defendant was immediately handcuffed
and confined to the living room. The gun was then located at some distance inside a night stand in an
upstairs bedroom by a Clinton Township Police officer who had been assigned to help the COMET
team (the sixth police officer on the scene). I conclude that under these circumstances, there was
insufficient evidence to support a finding that defendant was in constructive possession of the firearm.
See People v Myers, 153 Mich App 124, 126; 395 NW2d 256 (1986).
Accordingly, while I would affirm defendant’s convictions for possession of marijuana and
possession with intent to deliver less than fifty grams of cocaine, I would reverse defendant’s felony
firearm and felon in possession convictions.
/s/ Donald E. Holbrook, Jr.
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