PEOPLE OF MI V PAUL HOWARD EMERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 20, 2007
Plaintiff-Appellant,
v
No. 266047
Wayne Circuit Court
LC No. 05-001079-01
PAUL EMERSON,
Defendant-Appellee.
Before: O’Connell, P.J., and Saad and Talbot, JJ.
PER CURIAM.
Defendant pleaded guilty to carrying a concealed weapon in a vehicle, MCL 750.227, and
the trial court sentenced him to three months in jail, or, in the alternative, an $800 fine.
Thereafter, defendant filed a motion to withdraw his guilty plea and the trial court granted the
motion. The trial court then granted defendant’s motion to dismiss the case. The prosecutor
appeals, and we reverse and remand for further proceedings.
I. Facts
Testimony from defendant’s preliminary examination shows that defendant drove his
vehicle from his home to his place of business with a loaded pistol in the front console. A
Federal Bureau of Investigation agent saw defendant pull into the parking lot of the business
because the agents were waiting to execute a search warrant of defendant’s vehicle and business
regarding another matter. After the agents found the loaded gun, defendant admitted that he had
driven from his home to the business with the loaded pistol in his vehicle. Defendant had
applied for, but was denied a permit to carry a concealed weapon. Accordingly, defendant was
not authorized to carry a concealed weapon in his vehicle.1
1
Had defendant held a license to carry a concealed pistol, he would be authorized to carry it “in
a vehicle, whether concealed or not concealed, anywhere in this state,” subject to various
exceptions. MCL 28.425c(2)(b). Further, the prohibition under MCL 750.227(2) does not apply
“[t]o a person holding a valid license to carry a pistol concealed upon his or her person issued by
his or her state of residence except where the pistol is carried in nonconformance with a
restriction appearing on the license.” MCL 750.231a(1)(a).
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Defendant was charged with carrying a concealed weapon pursuant to MCL 750.227(2),
which states, in relevant part:
(2) A person shall not carry a pistol concealed on or about his or her
person, or, whether concealed or otherwise, in a vehicle operated or occupied by
the person, except in his or her dwelling house, place of business, or on other land
possessed by the person, without a license to carry the pistol as provided by law. .
. . (Emphasis added.)
Defendant filed a motion to dismiss and argued that the statute contains an exemption for those
who carry a pistol in a vehicle at their place of business or on land they possess. Defendant
maintained that the exemption applies because his pistol was in his unoccupied vehicle parked in
the lot of his leased business premises. The trial court ultimately agreed and dismissed the case.
II. Analysis
The prosecution contends that the trial court erred because the magistrate properly bound
over defendant for trial and the trial court erroneously permitted defendant the protection of the
exemption in MCL 750.227(2). We agree.2
The prosecution asserts that the correct inquiry is not whether defendant lawfully
possessed the gun at the time of the search, but whether the prosecution proved that defendant, at
some point, possessed the weapon in a motor vehicle on land not possessed by him. The
prosecutor maintains that he proved this at the preliminary examination when he elicited
testimony from an agent who stated that defendant admitted he drove his vehicle from his home
to his clinic and he was aware that the gun was in the vehicle. Also, testimony established that
the agents saw defendant drive his vehicle into the parking lot, presumably from the road.
To establish the offense of carrying a weapon in a vehicle, the prosecution must show:
(1) the presence of a weapon in a vehicle operated or occupied by the defendant, (2) that the
defendant knew or was aware of the presence of the weapon, and (3) that the defendant was
carrying the weapon. People v Nimeth, 236 Mich App 616, 622; 601 NW2d 393 (1999). A
defendant is deemed to “carry” the pistol if it is readily accessible to him. Nimeth, supra at 619620.
2
A magistrate’s ruling that alleged conduct falls within the scope of a criminal law is a question
of law which is reviewed de novo for error, while a decision to bind over a defendant based on
the factual sufficiency of the evidence is reviewed for an abuse of discretion. People v Schaefer,
473 Mich 418, 427; 703 NW2d 774 (2005), mod on other grounds People v Derror, 475 Mich
316, 320 (2006). This Court reviews a trial court’s ruling regarding a motion to dismiss for an
abuse of discretion. People v Jones, 252 Mich App 1, 4; 650 NW2d 717 (2002). An abuse of
discretion standard acknowledges that there will be circumstances in which there will no single
correct outcome; rather, there will be more than one reasonable and principled outcome. People
v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). When the trial court selects one of these
principled outcomes, it has not abused its discretion. Id.
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The prosecution established the elements of the offense by showing that defendant drove
from his home to his clinic with knowledge that there was a pistol in the console of his vehicle.
The fact that the agents did not witness defendant driving from his home to his place of business
does not mean that no crime was committed. It is more than reasonable to assume that defendant
pulled in to the parking lot from the road, and he essentially admitted as much when he disclosed
that he drove from his house to the business. There is no requirement that a police officer
personally witness the crime in order for there to be probable cause to bind over a defendant.
Defendant’s statement, coupled with the agent’s testimony that he saw defendant pull into the
parking lot, were sufficient to lead the magistrate to conclude that there was probable cause to
believe that defendant violated MCL 750.227. People v Glass (After Remand), 464 Mich 266,
277; 627 NW2d 261 (2001); People v McGee, 258 Mich App 683, 696; 672 NW2d 191 (2003).
Defendant argues, erroneously, that the exemption allowing a business owner to carry a
pistol on his business premises or on other land that he possesses implicitly authorized him to do
what was necessary to bring the gun to the premises. Again, however, defendant violated the
plain language of MCL 750.227(2) by driving on the public roads with a pistol in the console of
his car. MCL 750.231a provides that MCL 750.227(2) does not apply “to a person while
transporting a pistol for a lawful purpose.” And, this may include transporting a pistol to the
person’s place of business. Yet, for the exception to apply, the pistol must be “unloaded in a
closed case designed for the storage of firearms in a vehicle that does not have a trunk and is not
readily accessible to the occupants of the vehicle.”3
MCL 750.231a(2)(b)(ii); MCL
750.231a(1)(e). Here, defendant’s pistol was loaded, not in a closed case, and readily accessible
to him in the front console of his vehicle. In delineating how a weapon may be transported, the
Legislature sought to protect those in and outside the vehicle from the dangers associated with
loaded firearms. People v Quinn, 440 Mich 178, 194; 487 NW2d 194 (1992). Therefore,
defendant’s argument that he had a lawful purpose for driving with a pistol, is unavailing.
Defendant further avers that the corpus delicti rule precludes the prosecution from using
against him his statement that he drove from his home with the gun in his car. The charge
against defendant is not barred by the corpus delicti rule because there is independent evidence
of defendant’s guilt. One of the agents who executed the search warrant observed defendant pull
into the parking lot of the business, presumably from the road. Also, the search of the car
revealed a loaded pistol in the front console. Thus, there was independent evidence tending to
show that defendant committed the offense.
Defendant also argues that the charging documents involved in his case were defective.
Specifically, defendant maintains that, because the complaint, warrant, and information all state
that the place of offense is defendant’s business, the prosecution is precluded from charging
defendant with a crime that allegedly occurred on the road from defendant’s home to his
business. To the extent that this variance constitutes a defect, it is not so meaningful as to
warrant dismissal of the case. The complaint, warrant, and information state, “[defendant] did
carry a dangerous weapon, to wit: handgun, whether concealed or otherwise in a vehicle operated
or occupied by said defendant, to wit: 1999 Chevrolet Tahoe; contrary to MCL 750.227.” Each
3
Defendant’s vehicle, being a 1999 Chevrolet Tahoe, does not have a trunk.
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document further states the date of the offense and the city and county where it occurred. For
these reasons, the factual allegations in the information and complaint were clearly sufficient
because they adequately informed defendant of the substance of the accusations. People v
Higuera, 244 Mich App 429, 447-448; 625 NW2d 444 (2001); MCR 6.101.
Reversed and remanded further proceedings. We do not retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Henry William Saad
/s/ Michael J. Talbot
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