PEOPLE OF MI V GERARD DARAN-LOUIS DAVIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 16, 2009
Plaintiff-Appellee,
v
No. 284626
Washtenaw Circuit Court
LC No. 07-001678-FC
GERARD DARAN-LOUIS DAVIS,
Defendant-Appellant.
Before: Jansen, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
Defendant appeals as of right following his jury-trial convictions of armed robbery, MCL
750.529, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. Defendant was sentenced as a fourth habitual offender, MCL 769.12, to two years’
imprisonment for the felony-firearm conviction, to be followed by 15 to 30 years’ imprisonment
for the armed robbery conviction. We affirm. This appeal has been decided without oral
argument. MCR 7.214(E).
On September 2, 2007, the Circle K store was robbed by two men wearing homemade ski
masks. The clerk working at the time testified that one of the two men was carrying a “big gun.”
When the victim called 911, he identified the gun as an AK-47. On September 5, 2007, a police
officer attempted to stop a maroon-colored Grand Marquis for failure to display a license plate.
Instead of pulling over, the driver attempted to elude police and eventually crashed the vehicle
into a house. The two occupants of the car fled on foot. Police officers did not catch the men,
but they impounded the Grand Marquis. They discovered two ski masks and a 30-30 rifle inside
the car, along with defendant’s identification. The car was registered in the name of defendant’s
mother. On September 17, 2007, police received a call regarding two suspicious individuals who
appeared to be attempting to break into a vehicle. Officers arrived and chased the two men, one
of whom was defendant. As defendant was attempting to elude police, he discarded a ski mask.
Defendant eventually confessed to the Circle K robbery. He admitted that he and his accomplice
wore ski masks and used his father’s 30-30 rifle to commit the robbery. In addition to
defendant’s taped confession, jurors were able to view surveillance footage of the robbery itself.
Before jury selection, defense counsel objected to the admission into evidence of the 3030 rifle seized from the Grand Marquis on the ground that the victim had originally described the
firearm used in the robbery as an AK-47. Defense counsel contended that admission of the 30-
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30 rifle would be greatly prejudicial. The trial court denied the motion, finding that defense
counsel’s objections went to the weight, not the admissibility, of the evidence.
The decision whether to admit evidence is within the discretion of the trial court and will
not be disturbed on appeal absent an abuse of discretion. People v Yost, 278 Mich App 341, 353;
749 NW2d 753 (2008). Evidence of a defendant’s possession of a weapon similar to that used in
the charged offense is relevant. People v Hall, 433 Mich 573, 580-581; 447 NW2d 580 (1989);
People v Howard, 391 Mich 597, 604-605; 218 NW2d 20 (1974). It is not necessary that a
weapon be ballistically tied to the crime in order for it to be admitted into evidence. People v
Prast (On Rehearing), 114 Mich App 469, 490-491; 319 NW2d 627 (1982). It is sufficient that
the weapon is similar to the one used in the crime and might be the actual weapon. People v
Kramer, 103 Mich App 747, 758-759; 303 NW2d 880 (1981).
To justify the admission, a proper foundation must be laid, and such
articles must be identified as the articles they are purported to be, and shown to be
connected with the crime or with the accused; however, such identification is not
required to be positive, absolute, certain, or wholly unqualified, and where there is
some evidence for this purpose, objections to its sufficiency go to the weight
rather than the admissibility of the articles in question. [People v Burrell, 21
Mich App 451, 456-457; 175 NW2d 513 (1970) (citation omitted).]
There was sufficient evidence presented at trial to allow for the admission of the 30-30
rifle as evidence. The victim originally identified the gun used in the crime as an AK-47.
However, he admitted that he did not know much about guns and that he was so upset during the
robbery that he had not paid much attention to the gun’s identifying characteristics. The victim
could not positively identify the 30-30 rifle as the gun used in the robbery, but he certainly
testified that the gun was similar to the one used. Along with the victim’s testimony, the jury
was given an opportunity to view the surveillance footage taken during the robbery. Members of
the jury could assess for themselves whether the gun that was admitted into evidence was similar
to the one on the tape. The 30-30 rifle was seized from a Grand Marquis that was registered to
defendant’s mother. Defendant’s identifying information was also found in the car. In addition
to all this evidence, the jury was able to hear defendant’s taped admission, in which he admitted
to participating in the robbery with another individual. Defendant admitted that they had used
homemade ski masks and his father’s 30-30 rifle. Defendant essentially argues that the victim’s
original misidentification should result in excluding the evidence; however, the misidentification
would go only to the weight of the evidence, not its admissibility. We perceive no error in this
regard.
Affirmed.
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
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