PEOPLE OF MI V EDGAR RUSH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 13, 2002
Plaintiff-Appellee,
v
No. 235987
Wayne Circuit Court
LC No. 00-011758-01
EDGAR RUSH,
Defendant-Appellant.
Before: Griffin, P.J., and White and Murray, JJ.
PER CURIAM.
Defendant appeals as of right his convictions following a jury trial of two counts of
assault with a dangerous weapon, MCL 750.82, and possession of a firearm during the
commission of a felony, MCL 750.227b. The trial court sentenced defendant to three years’
probation for the felonious assault convictions and a two-year term for the felony-firearm
conviction. We affirm.
I
Defendant asserts that the guilty verdicts on the felonious assault charges were against
the great weight of the evidence and that his right to due process was violated where the trial
court stated at sentencing that it “would not have come to the same conclusion” as the jury.
The elements of felonious assault are (1) an assault, (2) with a dangerous weapon,
and (3) with the intent to injure or place the victim in reasonable apprehension of
an immediate battery. People v Davis, 216 Mich App 47, 53; 549 NW2d 1
(1996). [People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).]
In a case tried to a jury, an objection going to the weight of the evidence can be raised
only by a motion for new trial before the trial court. People v Bradshaw, 165 Mich App 562,
565; 419 NW2d 33 (1988). Failure to move for a new trial waives the issue. People v Winters,
225 Mich App 718, 729; 571 NW2d 764 (1997). However, the issue may be considered if
failure to do so would result in a miscarriage of justice. People v Noble, 238 Mich App 647,
658; 608 NW2d 123 (1999).
Both complainants testified similarly regarding the events in question. Both testified
regarding two encounters with defendant, and that defendant wielded a gun the second time he
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approached them and fired several shots. Roland Walker, the father of one of the complainants,
testified that he observed defendant in his car during the first incident, alone, and identified him.
The evidence did not preponderate heavily against the verdict. People v Gadomski, 232 Mich
App 24, 28; 592 NW2d 75 (1998).
II
Defendant also maintains that there was insufficient evidence to support his felonyfirearm conviction. Defendant asserts that no evidence was presented that he obtained
possession of a gun, and that a felony-firearm conviction requires at least that a defendant carry
or possess a firearm. Defendant argues that there was no physical evidence to support that he
had a weapon; no weapon was found, no shell casings were found, and there is no mention of a
weapon in the police report. Defendant further maintains that had the jury been instructed on the
special aiding and abetting rule applied in felony-firearm cases, it is highly likely that defendant
would have been acquitted of the charge.
This Court reviews de novo a claim of insufficient evidence. People v Hammons, 210
Mich App 554, 556; 534 NW2d 183 (1995).
When ascertaining whether sufficient evidence was presented at trial to support a
conviction, this Court must view the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could find that the
essential elements of the crime were proved beyond a reasonable doubt. People v
Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992). Circumstantial evidence and
reasonable inferences arising therefrom may be sufficient to prove the elements of
a crime. People v Nelson, 234 Mich App 454, 459; 594 NW2d 114 (1999).
[Avant, supra at 505.]
“The elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or the attempt to commit, a felony.” Avant, supra at 505.
Defendant’s challenge fails. Although the complainants’ descriptions of defendant and
his car differed slightly, both testified that the second time defendant confronted them, on
Leicester Street, he stuck his hand out of the driver’s window of his car and shot a gun at them
three or four times. Roland Walker testified that living in the corner house, he observed
defendant in front of his house, and saw him drive around the block after the first encounter,
come back, go two blocks down to Leicester Street, and that he heard gunfire. A gun and spent
bullet casings were found near where defendant was arrested. Defendant’s sufficiency claim
fails.
Defendant made no request for an aiding and abetting instruction, nor was there any
evidence to support such an instruction. The only testimony before the jury was that defendant
was alone in his car at all pertinent times.
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Affirmed.
/s/ Richard Allen Griffin
/s/ Helene N. White
/s/ Christopher M. Murray
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