PEOPLE OF MI V TIMOTHY C SIMMONS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 7, 1997
Plaintiff-Appellee,
v
No. 193658
Oakland Circuit Court
LC No. 95-141239-FH
TIMOTHY C. SIMMONS,
Defendant-Appellant.
Before: Sawyer, P.J., and Hood and Hoekstra, JJ.
PER CURIAM.
Defendant was convicted by a jury of conspiracy to deliver less than 50 grams of cocaine,
MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and MCL 750.157a; MSA 28.354(1),
delivery of less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and
possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403) (2)(a)(v).
Defendant was also convicted, following a separate trial, of being a felon in possession of a firearm,
MCL 750.224f; MSA 28.421(6). He was sentenced to two to twenty years’ imprisonment for the
conspiracy conviction, two to twenty years’ imprisonment for the delivery conviction, one to four years’
imprisonment for the possession conviction, and one to five years’ imprisonment for the felon-in
possession conviction. The trial court subsequently found that defendant was a habitual offender,
second offense, MCL 769.10; MSA 28.1082. As a result, his initial sentences were vacated and he
was sentenced to two to thirty years’ imprisonment, two to thirty years’ imprisonment, one to six years’
imprisonment, and one to seven years’ imprisonment, respectively, to run consecutively. Defendant
appeals as of right. We affirm defendant's convictions, but vacate his sentences and remand for
resentencing.
This case arises from defendant selling slightly less than two grams of cocaine to a member of
the Oakland County Narcotics Enforcement Team (NET). Two days prior to the sale, an undercover
police officer approached codefendant Cheryl Quibell,1 a bartender at Boney Maroney’s in Keego
Harbor, about purchasing three grams of cocaine. Quibell and the officer agreed on a price of $50 per
gram. She told the officer to come back later in the week. When the officer returned, Quibell told him
that her boyfriend would be there shortly with the drugs. When defendant arrived, he told the officer
-1
that he would go get the three grams of cocaine and return to the bar. After waiting for some time, the
officer gave Quibell $150 and said that he would return for the cocaine. When the officer returned,
Quibell gave him directions to a house in Pontiac. She returned the $150 to the officer and asked him
to deliver a small amount of marijuana to defendant.
When the officer arrived at the Pontiac address, he gave defendant the marijuana and the
money. In return, defendant gave the officer a package containing approximately 1.7 grams of cocaine,
claiming that he was only able to get two grams with the money. The officer left with the cocaine. NET
officers ultimately arrested defendant and found the $150 and the marijuana in defendant's pocket. A
subsequent search of the home disclosed a rock of crack cocaine, 1.3 grams of powder cocaine, and a
loaded shotgun. Defendant claimed that the cocaine and the shotgun found in the house belonged to
Quibell. Quibell testified that she kept the shotgun for protection, and asserted her rights under the Fifth
Amendment when asked if the cocaine was hers.
Defendant first argues on appeal that he is entitled to resentencing because the trial court
incorrectly imposed consecutive sentences for his convictions for conspiracy and possession of less than
25 grams of cocaine. We review this issue de novo as a question of law. People v Cannon, 206 Mich
App 653, 655; 522 NW2d 716 (1994).
A consecutive sentence may not be imposed unless specifically authorized by statute. People v
Hunter, 202 Mich App 23, 25; 507 NW2d 768 (1993). MCL 333.7401(3); MSA 14.15(3)
provides:
A term of imprisonment imposed pursuant to subsection (2)(a) or section
7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed to run consecutively with any term of
imprisonment imposed for the commission of another felony. An individual subject to a
mandatory term of imprisonment under subsection (2)(a) or section 7403(2)(a)(i), (ii),
(iii), or (iv) shall not be eligible for probation, suspension of that sentence, or parole
during that mandatory term, except and only to the extent that those provisions permit
probation for life, and shall not receive a reduction in that mandatory term of
imprisonment by disciplinary credits or any other type of sentence credit reduction.
[footnote omitted.]
The Michigan Supreme Court has specifically held that conspiracy offenses are included in this
consecutive sentencing provision. People v Denio, 454 Mich 691, 694-695, 700-705; 564 NW2d 13
(1997).
In this case, defendant’s conspiracy and delivery convictions clearly were subject to consecutive
sentencing. The trial court, however, erred in concluding that defendant’s possession conviction was
also subject to consecutive sentencing. MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v) simply is
not one of the enumerated offenses subject to consecutive sentencing. Hunter, supra. In addition,
there is no mandate that the felon-in-possession sentence be consecutive to the drug-related sentences.
We therefore vacate the judgment of sentence and remand for resentencing. People v Thomas, 223
Mich App 9; 566 NW2d 13 (1997).
-2
Defendant next raises several challenges to the validity of his felon-in-possession conviction. He
first claims that this conviction was improper because his prior conviction was for an attempted felonious
assault, which is a misdemeanor. The felon-in-possession statute does apply only to “a person
convicted of a felony.” MCL 750.224f(1); MSA 28.421(6)(1). Defendant, however, fails to recognize
that the term “felony” is specifically defined in the statute:
As used in this section, “felony” means 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. [MCL 750.224f(5); MSA 28.421(6)(5).
Emphasis added.]
Defendant was convicted of attempted felonious assault, MCL 750.82; MSA 28.277, which is
punishable by imprisonment for up to 4 years. Accordingly, he was guilty of “an attempt to violate” a
law “punishable by imprisonment for 4 years or more.” We find no error.
Defendant further claims that there was insufficient evidence that he possessed the weapon.
When reviewing a sufficiency of the evidence claim, this Court views the evidence in the light most
favorable to the prosecutor to determine whether a rational trier of fact could find that the essential
elements of the crime were proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515;
489 NW2d 748, amended 441 Mich 1201 (1992). Circumstantial evidence and reasonable inferences
drawn from the evidence may be sufficient to prove the elements of a crime. People v Jolly, 442 Mich
458, 466, 502 NW2d 177 (1993).
We agree with defendant that MCL 750.224f; MSA 28.421(6) does not define the term
"possession." However, when a statute fails to define an operative term, the term is defined in
accordance with the Legislature's intent. Jennings v Southwood, 446 Mich 125, 136; 521 NW2d
230 (1994). The felon-in-possession statute “is aimed at protecting the public from guns in the hands of
convicted felons.” People v Mayfield, 221 Mich App 656, 662; 562 NW2d 272 (1997). Based on
the aim of the statute, we conclude that the word “possession” necessarily includes constructive
possession. See People v Hill, 433 Mich 464, 469-471; 446 NW2d 140 (1989). A defendant may
have constructive possession of a firearm if the location of the weapon is known to the defendant, it is
reasonably accessible to the defendant, and there is an element of control. Id., 470-471.
In this case, the trial court instructed the jury that "[d]efendant possessed the gun only if he had
control of it or the right to control it either alone or together with someone else regarding control."
Here, defendant essentially admitted that he knew where the gun was located. He also admitted that he
had access to the gun. These admissions, combined with the evidence that defendant lived in the house
and had access to the gun over an extended period of time, when viewed in the light most favorable to
the prosecution, constitute sufficient evidence from which a rational juror could infer both knowledge
and control beyond a reasonable doubt.
Defendant further claims that the felon-in-possession statute violates his constitutional right to
bear arms, contrary to the Michigan Constitution, Const 1963, art l, § 6.2 This Court recently
addressed this issue in People v Swint, ___ Mich App ___; ___ NW2d ___ (Docket Nos. 191572;
-3
192493, issued 9/12/97), slip op pp 2-10. After a lengthy discussion, this Court concluded that there is
no absolute constitutional right of an individual to possess a firearm. Id., slip op p 9. Rather, the Swint
Court found that MCL 750.224f; MSA 28.421(6), which has for its purpose protecting the public from
guns in the hands of convicted felons, is a reasonable exercise of the state's police power to protect the
health, safety and welfare of its citizens. Id. We therefore conclude that the felon-in-possession statute,
MCL 750.224f; MSA 28.421(6), is constitutional as a reasonable exercise of the police power of the
state. Id., slip op p 10.
Defendant also claims that because the felon-in-possession statute, MCL 750.224f; MSA
28.421(6), which became effective October 13, 1992, was not in effect at the time of his original March
1992, conviction, the law violates the Ex Post Facto Clauses of the United States and Michigan
Constitutions. We disagree.
“A statute that affects the prosecution or disposition of criminal cases involving crimes
committed before the effective date of the statute violates the Ex Post Facto Clauses if it increases the
punishment for the crime.” People v Tice, 220 Mich App 47, 50; 558 NW2d 245 (1996). The Tice
Court recently ruled that the application of MCL 750.224f; MSA 28.421(6) to a person who is a
convicted felon as a result of a conviction of a felony committed before the date that statute took effect
does not violate the Ex Post Facto Clauses of the United States and Michigan Constitutions. Id., 51.
The Court explained that the felon-in-possession statute does not punish the initial felony, but the
subsequent possession of a firearm. Id. Because defendant was being punished for conduct which
occurred after the effective date of the felon-in-possession statute, it is not an ex post facto law as
applied to defendant. Defendant's conviction for being a felon-in-possession is valid.
Defendant also argues that the prosecutor injected improper, prejudicial non-record evidence
into the proceedings when he questioned defendant about the habits of drug dealers. The test of
prosecutorial misconduct is whether defendant was denied a fair and impartial trial. People v LeGrone,
205 Mich App 77, 82-83; 517 NW2d 270 (1994). We have reviewed defendant's claims of
misconduct and conclude that the prosecutor’s allegedly improper questions did not deny defendant a
fair and improper trial.
Defendant also argues that the trial court abused its discretion by permitting the prosecutor to
introduce an officer's testimony as impeachment on a collateral matter. The prosecutor called an officer
as a rebuttal witness, who testified that after he read defendant his Miranda3 rights, defendant said that
he was involved in the transport and sale of multiple kilos of cocaine. This statement conflicted with
defendant’s testimony at trial.
We will not disturb an admission of rebuttal evidence is absent a clear abuse of discretion.
People v Figgures, 451 Mich 390, 398; 547 NW2d 673 (1996). Generally, a witness may not be
contradicted regarding collateral matters. People v Vasher, 449 Mich 494, 504; 537 NW2d 168
(1995). However, after a matter has been placed at issue by the defense, it is no longer collateral.
People v Sutherland, 149 Mich App 161, 166; 385 NW2d 637 (1985).
-4
The record reveals that defendant admitted during direct examination that he sold cocaine to the
undercover officer. During further questioning regarding the sale, defendant volunteered that “it’s not
normal practice for me to, you know, do something like that.” On cross-examination, defendant again
indicated that selling cocaine was not his “normal practice.” Under these circumstances, this issue was
no longer collateral. The prosecutor was properly allowed to introduce rebuttal testimony on this point.
Id.
We also reject defendant's related claim that the prosecutor baited defendant into denying that
he ever sold cocaine so that the prosecutor could introduce the rebuttal testimony. We are convinced
that the prosecutor's questions did not raise a new issue, but simply “served as the basis for a thorough
and proper exploration regarding the veracity of defendant’s prior testimony.” Figgures, supra at 401.
We find no error.
We affirm defendant's convictions, but vacate his sentences and remand for resentencing. We
do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Harold Hood
/s/ Joel P. Hoekstra
1
Quibell pleaded guilty to charges stemming from this incident, and was not tried with defendant.
2
“Every person has a right to keep and bear arms for the defense of himself and the state.” Const
1963, art 1, § 6.
3
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
-5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
