PEOPLE OF MI V MICHAEL A ROBBINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 15, 2002
Plaintiff-Appellee,
V
No. 224943
Wayne Circuit Court
Criminal Division
LC No. 99-005539
MICHAEL A. ROBBINS,
Defendant-Appellant.
Before: Neff, P.J., and Wilder and Cooper, JJ.
PER CURIAM.
Defendant appeals as of right from his bench trial conviction for carrying a concealed
weapon in a motor vehicle, MCL 750.227(2).1 He was sentenced to probation for one year. We
affirm.
I. Facts and Proceedings
On May 23, 1998, Detroit Police Officers David Krupinski and Jeffrey Sklar observed a
blue, 1994 Dodge cargo van traveling northbound on the Southfield Service Drive. The van
matched the description of a van that was involved in a malicious destruction of property
complaint in the area,2 and the officers decided to execute a traffic stop of the van being driven
by defendant.3 The officers activated their overhead lights and the van was pulled over. When
1
MCL 750.227(2) provides:
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
and if licensed, shall not carry the pistol in a place or manner inconsistent with
any restrictions upon such license.
2
Although the complaint described a 1986 rather than a 1994 Dodge van, the record does not
provide evidence that the 1986 and 1994 vans are dissimilar.
3
Defendant has not challenged the traffic stop as invalid.
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officers approached the van, they noticed a gun on the passenger seat of the van4 and asked
defendant to exit the van. Defendant was then arrested and transported him to the police station.
At the police station, defendant was interviewed by Officer Timothy Bar. After being
advised of his Miranda5 rights and signing a release form, defendant was asked whether he had a
hand gun on him or in the car. Defendant stated, “[N]o not on me. It was in the car, it’s
registered.” In response to further questioning, defendant claimed that the gun in the van must
have been left there by the van’s owner, Mary Armstrong, because “my guns are at home.”
These answers were written down by Officer Bar and defendant signed the statement.
Defendant did not testify at trial. Instead, his only witness was Armstrong. Armstrong
testified that on the day in question, she and defendant went to Target Sports in Royal Oak to
shoot guns. She then testified that after being at Target Sports for about fifteen or twenty
minutes, defendant received a call “to go do a plumbing job,” and that she put the guns,
including the one found on the passenger seat, in a canvas tote bag, and placed the bag on the
floorboard of the van between the driver and passenger seats. Defendant then drove her home, at
which point she picked up the canvas bag and got out of the van. Armstrong opined during her
testimony that the gun must have somehow slipped out of the bag during the trip; however, she
admitted that she never heard the gun slide out of the bag nor did she hear it roll around on the
floor. She also admitted that the gun in question was registered to her.
Following testimony and closing arguments, the trial court found defendant guilty as
charged. Specifically, the trial court stated:
[Defendant] is charge [sic] with carrying a concealed weapon in a motor
vehicle. And the court has heard testimony of the two arresting officers and also
the investigator who interviewed the defendant and took a statement from him.
And really, there isn’t must dispute about the fact that there was a gun in the car.
I think the defendants [sic] statement to the investigator was that the gun
was there. There are some inconsistencies in the testimony of the officers in
terms of when they saw the gun, how quick it was seized after or during the time
that the defendant was being taken out of the car.
But, really the elements of the crime are that a pistol was in a vehicle that
the defendant was in, and there was a pistol in the vehicle. Secondly, that the
defendant knew the pistol was there. And in listening to the officers testimony, I
believe that the defendant knew that the pistol was in the car.
And lastly and thirdly that the defendant took part in carrying or keeping
the pistol in the vehicle.
4
There is some discrepancy as to whether both officers observed the gun before defendant was
asked to exit the vehicle; however, both officers testified they observed the gun on the passenger
seat.
5
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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Now, really possession can be actual or constructive. It’s actual if the
defendant has the gun on his person. It’s constructive if the defendant has a right
to exercise some dominion and control over the pistol and has ability to do it.
And really, the defendant doesn’t have to own the gun to be in possession. And
possession can be actual or constructive, it can be joint or sole.
And in this case, I think constructive possession has been established from
the testimony that defendant was in a position to exercise dominion and control
over it and knew that the gun was in the vehicle.
So the court finds that all of the elements of the crime have been
established and would accordingly find the defendant guilty of the charge.
II. Analysis
A. Insufficient/Erroneous Factual Findings Claim
Defendant argues that the trial court’s findings of fact were insufficient because they
failed to address whether he “carried” the weapon and instead focused only on his “possession”
of the weapon. Defendant claims that because “possession” is not an element of the charged
offense and because the trial court made no finding that he “carried” the weapon, reversal is
required. We disagree.
A trial court’s findings of fact are reviewed by this Court for clear error, giving deference
to the trial court’s resolution of factual issues. People v Farrow, 461 Mich 202, 208-209; 600
NW2d 634 (1999); People v Frohriep, 247 Mich App 692, 702; 637 NW2d 562 (2001). See also
People v Peerenboom, 224 Mich App 195, 198; 568 NW2d 153 (1997). “A finding of fact is
clearly erroneous if, after a review of the entire record, an appellate court is left with a definite
and firm conviction that a mistake has been made.” People v Swirles (After Remand), 218 Mich
App 133, 136; 553 NW2d 357 (1996). In addition, this Court should not substitute its judgment
for that of the trial court and make independent findings.” Farrow, supra at 209.
The elements of carrying a concealed weapon in a motor vehicle are (1) the presence of
the weapon in a vehicle operated or occupied by the defendant; (2) the defendant knew or was
aware of its presence in the vehicle; and (3) the defendant took part in carrying or keeping the
weapon in the vehicle. People v Nimeth, 236 Mich App 616, 622; 601 NW2d 393 (1999);
People v Courier, 122 Mich App 88, 90; 332 NW2d 421 (1982). Here, the trial court’s findings
of fact and conclusions of law referred to all of the elements of the charged crime, including the
element of carrying. In fact, the trial court specifically stated that defendant must have taken part
in “carrying or keeping the pistol in the vehicle.” In addition, the trial court referred to the
evidence that supported each of the required elements; namely, that the evidence showed there
was a handgun in the vehicle; that the vehicle was operated by defendant; that defendant knew
the gun was in the vehicle; and that defendant exercised dominion or control over the handgun.
See Nimeth, supra.
Further, while possession is not an element of the crime of carrying a concealed weapon
in a vehicle, People v Butler, 413 Mich 377, 390, n 11; 319 NW2d 540 (1982), makes clear that
possession of a weapon is one of the factors to be considered when determining whether a
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defendant is carrying. Thus, in light of Butler, it is evident that the trial court’s reference to
constructive possession, dominion, and control related to the element of “carrying,” and did not
reflect a belief that possession was an element of the crime. As such, the trial court’s findings of
fact and conclusions of law indicate the trial court was aware of the issues in the case, did not
utilize the wrong standard of proof, was aware of the elements of the crime, and correctly applied
the law to the facts in this case. Hence, the court’s findings of fact were sufficient to find
defendant guilty. See People v Smith, 211 Mich App 233, 235; 535 NW2d 248 (1995) and
People v Legg, 197 Mich App 131, 134; 494 NW2d 797 (1992); see also MCR 2.517(A)(2).
Defendant also contends that, to the extent the trial court found that he “carried” the
weapon, that finding was clearly erroneous. However, the evidence established that defendant
was operating a van at the time the handgun was discovered by the police; that defendant had
been operating the van for several hours; that defendant was the sole occupant of the vehicle
when the vehicle was stopped; and that the handgun was found on the passenger seat in close
proximity to defendant, readily accessible to him and within plain view. Thus, the trial court’s
finding that defendant “carried” the handgun in the vehicle was not clearly erroneous. Butler,
supra; Courier, supra at 90-91; see also Nimeth, supra at 622, citing People v Emery, 150 Mich
App 657, 667; 389 NW2d 472 (1986).
Defendant also claims that the trial court erred in finding that he knew that the weapon
was in the vehicle. However, we note that this finding was supported by defendant’s own
admission that he knew the weapon was in the vehicle. In addition, although there were minor
inconsistencies in the testimony of the officers, no testimony contradicted the testimony of the
officers that the gun was found on the passenger seat within defendant’s reach, and was in plain
view. Consequently, the trial court’s finding that defendant knew the weapon was in the vehicle
was not clearly erroneous. Butler, supra; Courier, supra at 91. See also People v Johnson, 245
Mich App 243, 256, n 5; 631 NW2d 1 (2001), People v Fetterley, 229 Mich App 511, 545; 583
NW2d 199 (1998), and MCR 2.613(C).
B. Insufficiency of the Evidence Claim
Defendant also claims that the evidence presented at trial was insufficient to support his
conviction of carrying a concealed weapon in a motor vehicle. Specifically, defendant contends
that the evidence presented on the third element (i.e., that he carried the gun) was entirely
circumstantial, that the prosecutor did not disprove defendant’s reasonable theories of innocence,
and that the evidence was insufficient to sustain a conviction. We disagree. A challenge to the
sufficiency of the evidence in a bench trial is reviewed de novo and in a light most favorable to
the prosecution to determine whether the trial court could have found that the essential elements
of the crime were proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489
NW2d 748 (1992), amended 441 Mich 1201 (1992); People v Ortiz-Kehoe, 237 Mich App 508,
520; 603 NW2d 802 (1999).
As previously indicated, the evidence showed that defendant was operating the vehicle at
the time the handgun was discovered by police; that he had been operating the vehicle for several
hours; that he was the sole occupant of the vehicle; and that the handgun was found on the
passenger seat within arm’s reach of defendant, readily accessible to him and within plain view.
Viewed in a light most favorable to the prosecution, the evidence was sufficient evidence to
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support a finding that defendant “carried” the handgun. Nimeth, supra at 622; Courier, supra at
91.
In addition, although defendant claims that the evidence against him was entirely
circumstantial, circumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime. People v Nowack, 462 Mich 392, 399400; 614 NW2d 78 (2000). Further, the prosecutor is not required to negate every reasonable
theory consistent with innocence, contrary to defendant’s claim, but is only required to convince
the trier of fact in the face of whatever contradictory evidence the defendant may provide. Id.
Here, as indicated above, the prosecutor presented sufficient evidence to establish the elements
of the crime.
Further, defendant argues that the discrepancies in the officers’ testimony amounted to
conflicting evidence that established reasonable doubt with regard to defendant’s guilt.
However, “the question is not whether there was conflicting evidence, but rather whether there
was evidence that,” if believed by the trier of fact, “would justify convicting defendant.” People
v Smith, 205 Mich App 69, 71; 517 NW2d 255 (1994). To this end, we note that the testimony
of the officers, coupled with defendant’s own statement to the police, enabled the trier of fact to
find defendant guilty beyond a reasonable doubt. Therefore, the existence of any conflicting
evidence was immaterial. See Smith, supra; see also People v McCray, 245 Mich App 631, 638;
630 NW2d 633 (2001), citing People v Lemmon, 456 Mich 625, 647; 576 NW2d 129 (1998).
Similarly, to the extent defendant attacks the police officers’ credibility in support of his claim
that the evidence was insufficient to support his conviction, we note that “[a]s [the] finder of fact,
the trial court was charged with making credibility determinations, and we find nothing in the
record to suggest that the court clearly erred in its findings.” McCray, supra at 640, citing
People v Thenghkam, 240 Mich App 29, 46; 630 NW2d 633 (2000). Accordingly, we decline to
resolve the credibility issue anew. See People v Davis, 241 Mich App 697, 700; 617 NW2d 381
(2000), citing People v Daniels, 172 Mich App 374, 378; 431 NW2d 846 (1988); see also
Fetterley, supra, Eggleston, supra, and MCR 2.613(C).
C. Great Weight of the Evidence Claim
Finally, defendant argues that because Armstrong testified that the gun belonged to her
and must have slipped out of her tote bag, his conviction was against the great weight of the
evidence.6 We disagree. This Court reviews a determination that a verdict is not against the
great weight of the evidence for an abuse of discretion. McCray, supra at 637, citing People v
Stiller, 242 Mich App 38, 49; 617 NW2d 697 (2000). The test is whether the evidence
preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the
6
There is some authority that a “great weight of the evidence” claim is not appropriate in the
context of a bench trial, and that the proper claim would be that the trial court relied on
insufficient evidence or made erroneous factual findings, see Hadfield v Oakland Co Drain
Comm’r, 430 Mich 139, 188, n 26; 422 NW2d 205 (1988); however, the prosecutor has not
challenged the propriety of defendant’s claim and thus, on the facts of this case, we will not
address this issue. See also DiFranco v Pickard, 427 Mich 32, 59; 398 NW2d 896 (1987)
(Findings of fact in a bench trial will be affirmed if not clearly erroneous, but findings of fact in a
jury trial will be affirmed unless against the great weight of the evidence.)
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verdict to stand. McCray, supra, citing People v Gadomski, 232 Mich App 24, 28; 592 NW2d
75 (1998).
The mere fact that Armstrong owned the gun does not indicate that the verdict was
against the great weight of the evidence. Ownership is not an element of carrying a concealed
weapon in a motor vehicle. Nimeth, supra at 622. In addition, the testimony that the gun
accidentally slipped out of Armstrong’s tote bag onto the floor is inconsistent with the evidence
that the gun was on the passenger seat. The trial court’s finding that defendant exercised
dominion and control over the gun was not an abuse of discretion.
Affirmed.
/s/ Janet T. Neff
/s/ Kurtis T. Wilder
/s/ Jessica R. Cooper
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