PEOPLE OF MI V ERWIN HARRIS

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED July 27, 2001 Plaintiff-Appellee, v ERWIN HARRIS, a/k/a GERRONE TAYLOR, and a/k/a TERRALD RAY HARRIS, No. 222468 Washtenaw Circuit Court LC No. 98-011081-FC Defendant-Appellant. Before: Hood, P.J., and Whitbeck and Meter, JJ. WHITBECK, J. (concurring in part and dissenting in part). A jury convicted defendant Erwin Harris of two counts of possession of a firearm during the commission of a felony (felony-firearm),1 two counts of armed robbery,2 and fleeing and eluding a police officer,3 all of which stemmed from his participation in a gas station convenience store robbery. I would vacate Harris’ two felony-firearm convictions because I believe that the evidence does not support either conviction. I. Basic Facts And Procedural History On September 28, 1998, at approximately 7:00 p.m., Harris arrived at a gas station in Washtenaw County in a car he was driving with his acquaintance, Eugene Mays, as a passenger. Harris walked into the gas station store, where he approached customer James Morton to ask for directions. Seconds later, Mays entered the store with a sawed-off shotgun.4 Mays pointed the shotgun at clerk Christopher Parson, who was standing behind the counter, and demanded money. While Harris and Morton were standing only a few feet from the counter, Harris reportedly went up to Morton and told him “to stay cool.” Harris then removed Morton’s wallet and other items from his pockets. During this time, Mays was screaming at Parson. According 1 MCL 750.227b. 2 MCL 750.529. 3 MCL 750.479a(3). 4 There is some debate in the record concerning whether this was a different kind of firearm, but its exact identity is not crucial to this appeal. -1- to Morton, when Parson refused to give any money to Mays, Harris screamed at Mays “he’s asking for it, just pop him man, just pop him,” referring to Parson. Parson locked the cash register, preventing Mays from opening it. Before Harris left the store, he ran to the counter, hit the cash register to try to open it, grabbed several items from the counter, and then ran out of the store. Mays and Harris fled in their car, but the police located and pursued them. Mays, who evidently was the passenger during the flight from the convenience store, threw something out the window, which looked like a gun or pipe to the police officers. The men finally stopped their car and fled on foot before the officers caught them. The police found candy bars as well as Morton’s library card in the car. Harris had a somewhat different account of what occurred at the gas station. He said that he and Mays had been using drugs and had not slept for several days before the September 28, 1998. They went to the gas station to get directions to Harris’s cousin’s home in Ann Arbor, but Harris said, he did not know that Mays had a gun with him. According to Harris, he was, in fact, scared of Mays because of Mays’ reputation for violence and because he had been shot on other occasions and was generally afraid of guns. Once inside the store, Harris said, he did not participate in the robbery and did not plan to take anything from Morton until Mays gave him the “evil eye.” Harris said that he warned Morton that Parson was “going to get popped” for resisting Mays but that he never instructed Mays to “pop him.” When Morton saw him approach the cash register, he was only doing so to get a map, not to attempt to open the cash register. He merely followed Mays’ instruction to drive away from the gas station because he was scared and he did not want Mays to take the car. Though Harris noted that Mays threw the gun from the car window, he claimed that he did not run from the officers when he left the car. On appeal, Harris now claims that the jury had insufficient evidence to convict him of robbing Morton while armed and of both felony-firearm charges. I address only the felonyfirearm issue. II. Preservation And Standard Of Review Harris did not need to take any special steps to preserve his challenge to the sufficiency of the evidence of his conviction of felony-firearm.5 His arguments implicate his constitutional rights to due process of law.6 Thus, review is de novo for this constitutional issue.7 Further, de novo review is also appropriate because the nature of our review requires us to examine the evidence itself. 5 See People v Lyles, 148 Mich App 583, 594; 385 NW2d 676 (1986). 6 People v Wolfe, 440 Mich 508, 514; 489 NW2d 748, amended 441 Mich 1201 (1992); see also US Const, Am XIV; Const 1963, art 1, § 17. 7 People v Houstina, 216 Mich App 70, 73; 549 NW2d 11 (1996). -2- III. Legal Standard In order for the jury to convict Harris properly, the prosecutor had to prove beyond a reasonable doubt that he committed every essential element of each offense.8 In supporting this burden of proof, the prosecutor could rely on direct and circumstantial evidence,9 as well as reasonable inferences that could be drawn from that evidence.10 However, the prosecutor did not need to negate every theory of innocence Harris raised.11 And, despite this relatively high burden at trial, on appeal, this Court must review the evidence on the record in the light most favorable to the prosecutor to determine whether the prosecutor submitted sufficient proofs to the jury to sustain each guilty verdict it rendered.12 IV. Felony Firearm In my view, the evidence introduced at trial created no factual basis for the jury to conclude that Harris was guilty of felony-firearm on a theory of aiding and abetting. Mays clearly possessed a firearm while robbing Parson and there really is no doubt from the circumstances of the offense and from Morton’s testimony that Harris was involved with Mays. However, even if Mays did rob Morton while possessing a firearm, “[p]roof that defendant knowingly assisted in a felony involving a firearm is not sufficient evidence upon which to convict [him] of aiding and abetting possession of a firearm during the commission of a felony.”13 Nor would the evidence be sufficient if it merely showed that Harris “was aware that a firearm would be used, intended that it be used, and actively participated in the crime involving” the firearm.14 Rather, as People v Johnson15 explains, [t]o convict one of aiding and abetting the commission of a separately charged crime of carrying or having a firearm in one’s possession during the commission of a felony, it must be established that the defendant procured, counselled, [sic] aided, or abetted and so assisted in obtaining the proscribed possession, or in retaining such possession otherwise obtained.[16] 8 See People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). 9 See People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999); People v Turner, 213 Mich App 558, 570-571; 540 NW2d 748 (1995); see also People v Cutchall, 200 Mich App 396, 401; 504 NW2d 666 (1992), criticized on other grounds by People v Edgett, 220 Mich App 686, 691; 560 NW2d 360 (1996). 10 Turner, supra at 570-571. 11 See Nowack, supra at 400. 12 Wolfe, supra at 515. 13 People v Morneweck, 115 Mich App 156, 158; 320 NW2d 327 (1982). 14 People v Bruno, 115 Mich App 656, 661; 322 NW2d 176 (1982). 15 People v Johnson, 411 Mich 50; 303 NW2d 442 (1981). 16 Id. at 54 (emphasis added). -3- Yet, the evidence in this case does not indicate that Harris helped Mays obtain or retain the firearm. Harris’ accomplice, Mays, evidently walked into the store with the firearm without any help from Harris. Mays then retained possession of the firearm during the robbery as well as during the ensuing flight from the scene. There is no proof that Harris carried or loaded the firearm for Mays,17 that he purchased the firearm and gave it to Mays,18 or even that he reminded Mays to bring the firearm into the store with him. If Harris did help Mays obtain or retain the firearm before he entered the store, the record is simply silent on the matter. Thus, the evidence was insufficient to sustain his convictions of felony-firearm. The majority uses an interesting approach to reach its conclusion to affirm these two felony-firearm convictions. In essence, the majority concludes that to be convicted of felonyfirearm under an aiding or abetting theory only requires proof of two elements: (1) that the defendant aided or abetted a felony, and (2) a weapon was used in that felony. Where, in the majority’s analysis of the evidence on the record, is the proof of the possessory aspect of this crime? “Felony-firearm” is commonly used to refer to this crime, omitting any reference to possession. Nevertheless, this is, at its core, a possessory offense.19 Quite clearly, to prove that a defendant aided or abetted an accomplice in possessing a firearm used during the commission of a felony, the prosecutor must prove beyond a reasonable doubt that the defendant aided or abetted the accomplice in obtaining or retaining the firearm as Johnson requires. The logic of the conclusion that driving someone who has a firearm is assisting that person in obtaining or retaining the firearm eludes me. If this reasoning had any persuasive value, this Court would have affirmed the felony-firearm conviction associated with the kidnapping in People v Eloby (After Remand).20 In Eloby, from the beginning of the kidnapping until the time when the defendants and their female victim arrived at the house where the two men committed other felonies, the defendant did not have physical possession of the firearm.21 This Court reasoned that the evidence was insufficient to sustain a felony-firearm conviction for this kidnapping aspect of the whole criminal transaction because there was no evidence that the defendant took any action with respect to the firearm at all during this drive.22 Eloby makes plain 17 See People v Buck, 197 Mich App 404, 412-413; 496 NW2d 321 (1992), mod in part on other grounds sub nom People v Holcomb, 444 Mich 853; 508 NW2d 502 (1993). 18 See, generally, People v Usher, 121 Mich App 345, 352; 328 NW2d 628 (1982). 19 See People v Sturgis, 427 Mich 392, 409; 397 NW2d 783 (1986) (“The conduct made punishable under the felony-firearm statute, is not the mere possession of a firearm. Rather, it is possession of the firearm during the commission of or attempt to commit a felony that triggers a felony-firearm conviction.”); People v Beard, 171 Mich App 538, 546; 431 NW2d 232 (1988) (“The elements of the felony-firearm offense are clear and unambiguous. It is possession, not use, of a firearm during the commission of a felony that satisfies the requirements of the statute.”). 20 People v Eloby (After Remand), 215 Mich App 472, 477-478; 547 NW2d 48 (1996). 21 Id. at 477-478. 22 Id. at 478. -4- that, “standing alone,” driving an accomplice who possesses a firearm is not enough to sustain a felony-firearm conviction. While the majority correctly comments that the Eloby opinion does not explicitly state that “‘driving an armed accomplice before or during a crime cannot, in itself, support a felonyfirearm conviction,’” I cannot join in the conclusion that Eloby is irrelevant to this case. In Eloby, with no other evidence of aiding and abetting the possession of the firearm, this Court implicitly concluded that driving the accomplice to the scene of the crime was insufficient evidence to support a conviction. As judges of this Court, our duty is to read and interpret case law to the extent that it applies to the given facts of a case. Though it would be helpful, it is the rare occasion when case law relevant to an appeal under consideration directly states the holding the Court prefers to apply. Rather, the interrelationship between facts and law from case to case allows us to perform this duty of determining and applying precedent. The element of driving an accomplice to the scene of the crime was significant to the outcome in Eloby. It is, therefore, binding on this Court because of the relatively similar facts of this case involving the same crime. Notably, I have been unable to find a published case that contradicts Eloby and holds that driving another person who possesses a firearm is enough to support a felony-firearm conviction for the aider or abettor. This Court reversed the defendant’s felony-firearm conviction in People v Morneweck23 in part because driving the “getaway” car was insufficient to demonstrate the sort of assistance or encouragement in possessing the firearm that Johnson requires. In People v Beard,24 this Court affirmed the defendant’s felony-firearm conviction because he helped conceal the accomplice’s firearm following the felony, not just because the defendant drove the accomplice away from the scene of the crime. Similarly, in People v Baker,25 the defendants’ acts of handling the firearm and giving it to the accomplice supported a conviction of felonyfirearm, not the fact that he drove his accomplice to the victim’s apartment. The majority, however, does not address these other similar cases. The majority also contends that Harris’ act of encouraging Mays to “pop” Parsons constituted “counseling.” Though evidence of counseling can support a conviction of felonyfirearm on an aiding and abetting theory,26 Harris evidently counseled Mays to use the firearm. None of his statements reflected in the record permit any inference that he was counseling Mays on how to retain or obtain the firearm. Had, for instance, Harris told Mays where to go to purchase a firearm, had Harris warned Mays that he was about to drop the firearm, or had Harris told Mays that someone was about to take the firearm away from him, then I would be quick to affirm on this issue because each of these examples would involve Harris counseling Mays on how to obtain or retain the firearm used to commit the robbery. However, as I pointed out earlier, case law unambiguously holds that evidence of the defendant’s knowledge that a firearm 23 Morneweck, supra at 158-159. 24 Beard, supra at 545-546. 25 People v Baker, 115 Mich App 720, 721-725; 321 NW2d 385 (1982). 26 Johnson, supra at 54. -5- would be used in a felony, intent that it be used, and participation in the felony itself is insufficient evidence to convict.27 The evidence in this case amounted to no more than that. Further, the majority contends that “[i]t might even be said that” Harris’ actions following the robbery were enough to support a conviction of aiding and abetting felony-firearm, but then retracts the suggestion by saying that those facts are unnecessary to affirm in this case. Accessory after the fact can be used as an underlying felony for the purpose of a felony-firearm charge.28 However, the prosecutor did not charge Harris as an accessory after the fact. Even if he had been charged with this crime, the evidence of Harris’ conduct following the robbery is insufficient to support a conviction for felony-firearm for the same reason that the evidence he drove Mays to the gas station is insufficient. The record shows that Harris did nothing more than drive Mays away from the gas station. The evidence did not demonstrate that Harris had any effect whatsoever on Mays’ possession of the firearm during this period, much less that he aided and abetted in this possession. More importantly, the underlying felony for the felony-firearm charges in this case was the robbery of two victims, which had ended by the time Harris and Mays fled in the car Harris was driving. Whatever role Harris played in helping Mays escape and dispose of the firearm after the robbery cannot be used as evidence that he aided and abetted Mays’ possession during the commission of the robbery itself.29 Thus, the majority’s subtle suggestion that this evidence in the record would provide alternative grounds for affirming is not, in my view, persuasive. V. Conclusion The net effect of the majority’s reasoning is to extinguish the possessory nature of this crime and to wipe out its fundamental identity, which is distinct from the underlying felony.30 I simply cannot see how, on the basis of the record, the circumstances of this case can be tortured into a conclusion that, by driving Mays to the crime scene while Mays was armed, Harris aided or abetted Mays in obtaining or retaining a firearm, the primary ground on which the majority rests its decision. Nor do I find the majority’s other reasoning, that Harris counseled Mays on obtaining or retaining the firearm, persuasive. Thus, while reluctant to overturn a jury’s verdict, I would nevertheless vacate both of Harris’ felony-firearm convictions. /s/ William C. Whitbeck 27 Bruno, supra at 661; see also Beard, supra at 546. 28 See Beard, supra at 546-548. 29 See People v Williams, 117 Mich App 505, 515-516; 324 NW2d 70 (1982). 30 See Sturgis, supra at 410; Wayne County Prosecutor v Recorder's Court Judge, 406 Mich 374, 391; 280 NW2d 793 (1979); see also People v Nix, 165 Mich App 501, 505; 419 NW2d 7 (1987). -6-

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