PEOPLE OF MI V DAVID PERKINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
June 8, 2004
9:00 a.m.
Plaintiff-Appellee,
v
No. 243412
Wayne Circuit Court
LC No. 02-000371
DAVID MICHAEL PERKINS,
Defendant-Appellant.
Official Reported Version
Before: Markey, P.J., and Wilder and Meter, JJ.
PER CURIAM.
The prosecutor charged defendant with assault with a dangerous weapon, MCL 750.82;
being a felon in possession of a firearm, MCL 750.224f; and possession of a firearm during the
commission of a felony, MCL 750.227b. After a bench trial, the trial court convicted defendant
of the latter two offenses. Defendant appeals by right, arguing insufficient evidence supported
his convictions. We affirm, deciding this appeal without oral argument. MCR 7.214(E).
When reviewing a challenge to the sufficiency of the evidence in a bench trial, we view
the evidence presented 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 proven beyond a
reasonable doubt. The trier of fact may make reasonable inferences from direct or circumstantial
evidence in the record. People v Petrella, 424 Mich 221, 268-270, 275; 380 NW2d 11 (1985);
People v Vaughn, 186 Mich App 376, 379-380; 465 NW2d 365 (1990).
Generally, MCL 750.224f prohibits a person convicted of a felony1 from possessing a
firearm if fewer than three years have passed since the person paid all fines, served all terms of
imprisonment, and successfully completed all terms of probation or parole imposed for the
violation. MCL 750.224f(1). But a longer, and potentially indefinite, prohibition applies when a
person has been convicted of a "specified felony." MCL 750.224f(2); People v Parker, 230
Mich App 677, 686; 584 NW2d 753 (1998). Here, the prosecutor charged defendant with having
1
MCL 750.224f(5) defines "felony" as "a violation of a law of this state, or of another state, or
of the United States that is punishable by imprisonment for 4 years or more, or an attempt to
violate such a law."
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been convicted of a specified felony: larceny from a person, MCL 750.357. At trial, defendant
admitted that he possessed a firearm and that he was convicted in 1977 of larceny from a person.
Defendant argues on appeal that this evidence was insufficient to prove a violation of subsection
1 because more than three years must have expired since defendant completed all terms of his
sentence for a ten-year felony. As for subsection 2, defendant argues that larceny from a person
does not meet the statute's definition of a "specified felony." Thus, defendant argues he could
not be found guilty of violating MCL 750.224f, nor could he be convicted of felony-firearm,
MCL 750.227b. We disagree.
"We review questions of statutory construction de novo. In doing so, our
purpose is to discern and give effect to the Legislature's intent. We begin by
examining the plain language of the statute; where that language is unambiguous,
we presume that the Legislature intended the meaning clearly expressed—no
further judicial construction is required or permitted, and the statute must be
enforced as written. We must give the words of a statute their plain and ordinary
meaning, and only where the statutory language is ambiguous may we look
outside the statute to ascertain the Legislature's intent." [People v Brown, 249
Mich App 382, 385; 642 NW2d 382 (2002), quoting People v Morey, 461 Mich
325, 329-330; 603 NW2d 250 (1999) (citations omitted).]
MCL 750.224f(2) provides:
A person convicted of a specified felony shall not possess, use, transport,
sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of
the following circumstances exist:
(a) The expiration of 5 years after all of the following circumstances exist:
(i) The person has paid all fines imposed for the violation.
(ii) The person has served all terms of imprisonment imposed for the
violation.
(iii) The person has successfully completed all conditions of probation or
parole imposed for the violation.
(b) The person's right to possess, use, transport, sell, purchase, carry, ship,
receive, or distribute a firearm has been restored pursuant to . . . [MCL] 28.424[2] .
...
2
This statute provides the procedure by which a convicted felon may apply for restoration of
firearms rights by the concealed weapons board in the county in which the convicted felon
resides and the criteria that must be satisfied.
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By the clear and unambiguous terms of the statute, a person convicted of a specified
felony is prohibited from possessing a firearm until five years after he has paid all fines, served
all terms of imprisonment, and completed all terms of probation or parole imposed for the
offense. MCL 750.224f(2)(a). Moreover, after the five-year period has passed, the convicted
felon is prohibited from possessing a firearm until his right to do so has been formally restored
under MCL 28.424. MCL 750.224f(2)(b). The prosecutor must prove that the defendant's right
to possess a firearm has not been restored only if the defendant produces some evidence that his
right has been restored. MCL 776.20,3 see also People v Pegenau, 447 Mich 278, 290-292; 523
NW2d 325 (1994), and People v Henderson, 391 Mich 612, 616; 218 NW2d 2 (1974) (the
prosecution is not required to prove that the defendant has no license to carry a concealed
weapon until the accused puts on some evidence to the contrary). Here, defendant produced no
evidence that his right to possess a firearm had been restored; therefore, the prosecution was not
required to prove the contrary beyond a reasonable doubt. Accordingly, if larceny from a person
is a "specified felony," the prosecutor produced sufficient evidence to prove all of the elements
of the offense beyond a reasonable doubt.
MCL 750.224f(6), as pertinent to the case at bar, provides:
As used in subsection (2), "specified felony" means a felony in which 1 or
more of the following circumstances exist:
(i) An element of that felony is the use, attempted use, or threatened use of
physical force against the person or property of another, or that by its nature,
involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense. [Emphasis added.]
The elements of larceny from a person are (1) the taking of someone else's property
without consent, (2) movement of the property, (3) with the intent to steal or permanently deprive
the owner of the property, and (4) the property was taken from the person or from the person's
immediate area of control or immediate presence. CJI2d 23.3; People v Wallace, 173 Mich App
420, 426; 434 NW 422 (1988). Clearly, the offense of larceny from a person does not involve an
element of "the use, attempted use, or threatened use of physical force against the person or
property of another." Indeed, the lack of force or violence distinguishes larceny from a person
from the offense of robbery. See People v Lee, 243 Mich App 163, 168; 622 NW2d 71 (2000),
People v Adams, 128 Mich App 25, 30; 339 NW2d 687 (1983), and cases cited in those opinions.
Nevertheless, the offense of larceny from a person is separated from other larceny offenses
because it is committed in the immediate presence of another person. Adams, supra at 32. The
"Legislature decided that larceny from a person presents a social problem separate and apart
from simple larceny." Id. Specifically, "the invasion of the person or immediate presence of the
3
MCL 776.20 provides: "In any prosecution for the violation of any acts of the state relative to
use, licensing and possession of pistols or firearms, the burden of establishing any exception,
excuse, proviso or exemption contained in any such act shall be upon the defendant but this does
not shift the burden of proof for the violation."
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victim." Id. Because a person whose property is stolen from his presence may take steps to
retain possession, and the offender may react violently, we conclude that the offense of larceny
from a person, "by its nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense." MCL 750.224f(6)(i)
(emphasis added). We therefore hold that larceny from a person is a specified felony within the
meaning of MCL 750.224f.
In sum, the prosecution proved that defendant possessed a firearm and that he had a prior
conviction of larceny from a person, a specified felony as defined by MCL 750.224f(6). In the
absence of any evidence defendant's firearm rights had been restored, this evidence was
sufficient to support defendant's convictions of felon in possession of a firearm and felonyfirearm. MCL 750.224f(2); MCL 750.227b; Petrella, supra.
We affirm.
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
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