PEOPLE OF MI V HENRY EARL BUTLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 30, 2004
Plaintiff-Appellee,
v
No. 244234
Wayne Circuit Court
LC No. 01-011267
HENRY EARL BUTLER,
Defendant-Appellant.
Before: Zahra, P.J., and Saad and Schuette, JJ.
PER CURIAM.
Defendant was charged with possession of less than fifty grams of cocaine with intent to
deliver, MCL 333.7401(2)(a)(iv), and possession of a firearm during the commission of a felony,
MCL 750.227b. Following a bench trial, he was convicted of possession of less than twenty-five
grams of cocaine, MCL 333.7403(2)(a)(v), and felony-firearm. He was given a suspended
sentence of nine months to four years on the controlled substance conviction and sentenced to
the mandatory two-year term for felony-firearm. Defendant appeals as of right. We affirm.
I. FACTS
This case arose from the discovery, by police, of firearms and cocaine in defendant’s
home. On September 18, 2001, Detroit police officers executed a search warrant1 at a house
located at 2914 Pingree. The officers knocked and announced. When they got no response, entry
was forced.
Upon entry, the officers found defendant sitting at table in the dining room with a
ceramic plate containing loose cocaine in front of him. Although the officers ordered defendant
to “freeze,” he jumped up and ran into the kitchen. Following, an officer saw defendant throw a
plastic bag behind the refrigerator. The bag appeared to contain cocaine. Defendant was taken
into custody.
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The warrant was issued after police conducted a “controlled buy” involving the residence.
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During the subsequent search, officers found a shotgun and a loaded handgun, with serial
numbers filed off. Elsewhere, the officers found a pill bottle containing ninety-eight Tylenol #4
tablets, items verifying that defendant resided in the house, a digital scale, plastic baggies, and a
large amount of cash. In the defendant’s bedroom, officers also found a shoe box containing
“chunk cocaine.”
II. STANDARD OF REVIEW
Defendant’s sole claim on appeal is that he was denied effective assistance of counsel.
Because defendant failed to raise this claim below in a motion for a new trial or an evidentiary
hearing, review is limited to the existing record. People v Snider, 239 Mich App 393, 423; 608
NW2d 502 (2000).
To prevail on a claim of ineffective assistance of counsel, defendant must show
that his counsel’s performance was objectively unreasonable and the
representation was so prejudicial that he was deprived of a fair trial. To
demonstrate prejudice, the defendant must show that, but for counsel’s error, there
was a reasonable probability that the result of the proceedings would have been
different. This Court presumes that counsel’s conduct fell within a wide range of
reasonable professional assistance, and the defendant bears a heavy burden to
overcome this presumption. [People v Watkins, 247 Mich App 14, 30; 634 NW2d
370 (2001), aff’d 468 Mich 233 (2003) (citations omitted).]
III. ANALYSIS
The felony-firearm charge was predicated on a handgun that officers testified was found
on the floor of the dining room within arm’s reach of defendant. While defendant was testifying,
he admitted that he had the handgun, but said it was simply collateral for a loan to a friend and it
was upstairs in his bedroom, not downstairs in the dining room. Defendant contends that counsel
was ineffective for eliciting testimony from him that he was in possession of the handgun.
Absent such testimony, an argument could have been made that it belonged to someone else in
the house.
Even if we assume that counsel erred by eliciting testimony for the purpose of showing
that there was not a nexus between the weapon and the controlled substance offense, we
nonetheless find no merit in defendant’s claim of ineffective assistance of counsel because
defendant has not shown that the verdict likely would have been different had he not admitted to
having the weapon. Whether defendant or someone else owned the gun was irrelevant because
the felony-firearm statute does not proscribe ownership of a weapon, only carrying or possessing
the weapon. People v Burgenmeyer, 461 Mich 431, 436-438; 606 NW2d 645 (2000). The
officers’ testimony, which the trial court expressly accepted as true, was sufficient to prove that
defendant was in constructive possession of the weapon. People v Hill, 433 Mich 464, 470-471;
446 NW2d 140 (1989).
Affirmed.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Bill Schuette
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