PEOPLE OF MI V SHANNON JAVON HOLMES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 22, 2009
Plaintiff-Appellee,
v
No. 288103
Wayne Circuit Court
LC No. 08-003224-FH
SHANNON JAVON HOLMES,
Defendant-Appellant.
Before: Gleicher, P.J., and Fitzgerald and Wilder, JJ.
PER CURIAM.
Following a bench trial, the court convicted defendant of carrying a concealed weapon
(CCW), MCL 750.227, felon in possession of a firearm, MCL 750.224f, and possession of a
firearm during the commission of a felony, MCL 750.227b. The court sentenced defendant to
four years’ probation for the CCW and felon in possession convictions, to be served concurrently
with a two-year term of imprisonment for the felony-firearm conviction. Defendant appeals as
of right. We affirm.
Defendant was convicted primarily on the testimony of the arresting officer, Officer Joel
Tomaszewski, who testified that he and his partner arrested defendant and his companion,
Kenyatta King, after they stopped to investigate a Chevy Malibu that was illegally parked.
Officer Tomaszewski testified that defendant and his companion exited the Malibu as the
officers pulled up in their squad car and he saw defendant “bending down into the passenger
compartment of the vehicle.” While his partner detained defendant and King, Officer
Tomaszewski shined a flashlight into the vehicle and observed a handgun partially protruding
from under the passenger seat. The officer testified that he opened the car door and retrieved the
gun. Police testimony was presented that officers no longer are permitted to carry slim jims in
their cars, and no officer testified that a slim jim was used to unlock the Malibu.
Defendant testified that he was not in the vehicle. He testified that an officer wearing a
mask opened the door of the Malibu with a “slim jim,” grabbed a gun from under the seat, and
said, “That’s your gun, I got you.” Lakeisha Benjamin testified that one of the officers opened
the Malibu with a slim jim. She testified that a police officer asked her about the keys to the
Malibu, and that King had a key to the Malibu in his possession when he was subsequently
released from jail.
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Defendant first argues that he was denied a fair trial due to ineffective 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 establish his claim, defendant “must first show that (1) his
trial counsel’s performance fell below an objective standard of reasonableness under the
prevailing professional norms; and (2) there is a reasonable probability that, but for counsel’s
error, the result of the proceedings would have been different. Counsel is presumed to have
provided effective assistance, and the defendant must overcome a strong presumption that
counsel’s assistance was sound trial strategy.” People v Horn, 279 Mich App 31, 37-38 n 2; 755
NW2d 212 (2008) (citations omitted).
Defendant asserts that trial counsel was ineffective because he did not call certain
witnesses and present other evidence at trial. “Decisions regarding what evidence to present and
whether to call or question witnesses are presumed to be matters of trial strategy. This Court will
not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight.” People v Rockey, 237 Mich App 74, 76-77;
601 NW2d 887 (1999) (citations omitted). “Ineffective assistance of counsel can take the form
of a failure to call witnesses or present other evidence only if the failure deprives the defendant
of a substantial defense.” People v Bass (On Rehearing), 223 Mich App 241, 252-253; 565
NW2d 897 (1997), vacated in part on other grounds 457 Mich 866 (1998). “A substantial
defense is one that might have made a difference in the outcome of the trial.” People v Kelly,
186 Mich App 524, 526; 465 NW2d 569 (1990).
Defendant contends that defense counsel was ineffective for failing to call Christa Sims
and Judy King to testify at trial. According to defendant, these witnesses were available to
testify that the police had asked for keys to the Malibu which, according to defendant, would
have corroborated the testimony that the police used a “slim jim” to enter the car. Defendant
asserts that additional evidence that the police used a “slim jim” to enter the car would have
undermined the credibility of the police officers’ testimony.
A review of the proffered affidavits reveals that they do not undermine confidence in the
verdict that defendant possessed the gun. The proffered affidavits merely have some tendency to
show that the police used a slim jim to enter the car. While this would have contradicted the
testimony of the police officers regarding the means of entry, this revelation regarding the means
of entry does not undermine confidence in the testimony indicating that defendant was in
possession of the gun.
Defendant also contends that defense counsel was ineffective for failing to obtain and
present the videotape from the police car at the scene. The record shows that the patrol car was
equipped with a video camera and that the camera was working, but the microphone was not.
One of the officers testified that he was not sure if the camera “would have got the Malibu from
where we were parked at because we were just offset in front of the vehicle.” Because there is
no evidence that anything relevant was captured on the videotape, defendant has not shown that
counsel’s alleged error deprived him of a substantial defense.
Defendant further argues that counsel was ineffective for failing to obtain and present
various police records. There is nothing in the record to suggest that the documents exist or what
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they would have shown. Thus, defendant has not shown that counsel’s alleged error deprived
him of a substantial defense.
In his second issue, defendant argues that the evidence was insufficient to sustain the
verdicts. In particular, defendant contends that the evidence was insufficient to prove that he
possessed the weapon at issue.
A challenge to the sufficiency of the evidence in a bench trial is reviewed de novo on
appeal. People v Sherman-Huffman, 241 Mich App 264, 265; 615 NW2d 776 (2000), aff’d 466
Mich 39 (2002). This Court reviews the evidence in a light most favorable to the prosecution to
determine whether a rational trier of fact could have found that each element of the crime was
proved beyond a reasonable doubt. People v Harmon, 248 Mich App 522, 524; 640 NW2d 314
(2001). Circumstantial evidence and reasonable inferences drawn therefrom are sufficient to
prove the elements of a crime. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
Felon in possession of a firearm and felony-firearm both require proof that the defendant
possessed a firearm. People v Peals, 476 Mich 636, 640; 720 NW2d 196 (2006). Possession of
a weapon may be actual or constructive and may be proved by circumstantial evidence. People v
Hill, 433 Mich 464, 469-470; 446 NW2d 140 (1989). CCW requires proof that the defendant
carried a pistol. MCL 750.227(2); People v Shelton, 93 Mich App 782, 785; 286 NW2d 922
(1979). “Carrying” is similar to possession and denotes intentional control or dominion over the
weapon. People v Butler, 413 Mich 377, 390 n 11; 319 NW2d 540 (1982). The word “carry”
encompasses actual, as well as constructive, possession of a weapon. People v Adams, 173 Mich
App 60, 62-63; 433 NW2d 333 (1988).
The trial court found that defendant possessed the weapon recovered from his friend’s
car. There was no direct evidence that defendant actually possessed the firearm, because there
was no evidence that someone saw him handling the gun or saw the gun on his person.
However, there was sufficient circumstantial evidence to prove that defendant possessed the
firearm. As defendant got out of the car, he was observed bending down inside the car and
reaching down with his arm. Within a few minutes, the police officer observed and confiscated a
firearm protruding from beneath the front passenger seat, the same area where defendant had
been observed bending down and reaching. From this circumstantial evidence, a rational trier of
fact could find beyond a reasonable doubt that defendant had possession of the weapon and
placed it beneath the seat. Therefore, the evidence was sufficient to sustain the verdicts.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ E. Thomas Fitzgerald
/s/ Kurtis T. Wilder
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