PEOPLE OF MI V ANTHONY DESHAUN SHIELDS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 21, 2004
Plaintiff-Appellee,
v
No. 247141
Wayne Circuit Court
LC No. 02-002096
ANTHONY DESHAUN SHIELDS,
Defendant-Appellant.
Before: Schuette, P.J., and Bandstra and Meter, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions by a jury of carrying a concealed
weapon (CCW), MCL 750.227, felon in possession of a firearm, MCL 750.224f(1), and
possession of a firearm during the commission of a felony, MCL 750.227b. The trial court
sentenced him to one to five years in prison for the CCW and felon in possession of a firearm
convictions and to two years in prison for the felony-firearm conviction. We affirm.
Defendant challenges the sufficiency of the evidence with regard to his convictions for
CCW and felony-firearm. In particular, defendant argues that there was insufficient evidence
that defendant was “carrying” or in possession of the handgun found in the car that he was
driving. We disagree.
When reviewing a claim that insufficient evidence was presented to support a conviction,
we view the evidence de novo and 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 proven
beyond a reasonable doubt. People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001).
We will not “interfere with the jury's role of determining the weight of the evidence or deciding
the credibility of the witnesses.” People v Fletcher, 260 Mich App 531, 561; 679 NW2d 127
(2004).
The prosecution must prove the following elements to support a conviction for carrying a
concealed weapon in a vehicle: “(1) the presence of a weapon in a vehicle operated or occupied
by the defendant, (2) that the defendant knew or was aware of its presence, and (3) that he was
'carrying' it.” People v Nimeth, 236 Mich App 616, 622; 601 NW2d 393 (1999). The element of
“carrying” is essential for a conviction of carrying a concealed weapon in a vehicle and may not
be inferred solely from evidence that the defendant knew the weapon was present in the vehicle.
People v Emery, 150 Mich App 657, 667; 389 NW2d 472 (1986).
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Defendant claims there was insufficient evidence to sustain his convictions of CCW and
felony-firearm because there was no credible evidence, beyond the fact that the gun was found in
the car that defendant was driving, that defendant was “carrying” the weapon. Defendant
emphasizes that no fingerprints were taken off the gun to link him to its possession and that no
officer or occupant of the car saw him with the gun.
However, the arresting police officers both testified that they could clearly see into the
car when they pulled up in front of it and that they saw defendant reach back as though stuffing
something behind the passenger seat. Both officers testified that they found the gun behind the
passenger seat on the floor of the car. While neither officer saw defendant with the gun, one
officer testified that, in his experience, gestures and movements like those defendant made
indicate an attempt to conceal or hide something. Also, defendant was driving the car on the
night in question, and defendant told the officer who questioned him after his arrest that the gun
found in the car belonged to him. Defendant’s admission of ownership of the gun, his control
over the car in which the weapon was found, the movements he made that were consistent with
an attempt to hide the weapon, and the weapon’s discovery in close proximity to defendant
formed a sufficient basis from which a jury could infer that defendant was carrying the weapon.
In Nimeth, supra at 618-619, the defendant was convicted of CCW when the police found
a gun wedged next to the engine of the motorcycle on which the defendant was riding. This
Court found the facts that the gun was readily accessible to the defendant and that the defendant
owned and was driving the motorcycle at the time the weapon was found to be sufficient
evidence to establish that the defendant was “carrying” the gun for the purposes of a CCW
conviction. Id. at 622. Here, while defendant did not own the car, he was driving it with his
girlfriend’s permission, he admitted that he owned the gun, and the gun was found in a location
that was readily accessible to him. Therefore, Nimeth supports our decision today.
Defendant also challenges his felony-firearm conviction on the basis of sufficiency of the
evidence, alleging that there was no evidence of possession of the gun by defendant. The
elements the prosecutor was required to prove in this case were that defendant possessed a
firearm during the commission of, or the attempt to commit, possession of a firearm by a felon.
See MCL 750.227b(1) and People v Akins, 259 Mich App 545, 554; 675 NW2d 863 (2003).
“Possession may be actual or constructive and may be proved by circumstantial evidence.”
People v Burgenmeyer, 461 Mich 431, 437; 606 NW2d 645 (2000). Constructive possession
exists if there is proximity to the weapon together with indicia of control. Id. at 438. “[A]
defendant has constructive possession of a firearm if the location of the weapon is known and it
is reasonably accessible to the defendant.” Id.
The evidence set forth above, that the gun belonged to defendant, that the officers
witnessed his suspicious movements, and that, subsequently, the gun was found under the
passenger seat in close proximity to defendant and where it was readily accessible to him,
constituted sufficient evidence of possession by defendant of the gun found in the car. Also,
because it was stipulated at trial that defendant was convicted of attempted possession of a
controlled substance less than twenty-five grams, MCL 333.7403(2)(a)(5), in September 2000,
was sentenced to probation for one year, and had not regained eligibility to carry a weapon on
the date of the instant offense, the prosecution established the elements of felon in possession of
a firearm. See MCL 750.224f and People v Perkins, 262 Mich App 267; ___ NW2d ___ (2004).
There was sufficient evidence that defendant was in possession of the gun during the commission
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of a felony, i.e., the offense of felon in possession of a firearm, thereby establishing the elements
of felony-firearm.
Defendant next asserts that his convictions and sentences for CCW and felony-firearm
violate the state and federal proscriptions against double jeopardy. Again, we disagree.
“A challenge under the double jeopardy clauses of the federal and state constitutions
presents a question of law that this Court reviews de novo.” People v Calloway, 469 Mich 448,
450; 671 NW2d 733 (2003). The constitutional prohibition against double jeopardy provides
three related protections: “(1) it protects against a second prosecution for the same offense after
acquittal; (2) it protects against a second prosecution for the same offense after conviction; and
(3) it protects against multiple punishments for the same offense.” People v Nutt, 469 Mich 565,
574; 677 NW2d 1 (2004); see also US Const, Am V, and Const 1963, art 1, § 15. It is well
settled in Michigan that convictions for CCW and felony-firearm, arising from the same
occurrence, do not violate double jeopardy as long as the felony-firearm conviction is not
predicated on the CCW offense. People v Sturgis, 427 Mich 392, 409-410; 397 NW2d 783. In
Sturgis, the Court stated:
Each statute is directed at a distinct object which the Legislature seeks to achieve
through the imposition of criminal penalties. Where the act giving rise to the
predicate felony is distinct from the act giving rise to the concealed weapon
felony, both convictions are authorized by the Legislature.
To hold that a defendant could not be convicted of felony-firearm under
these circumstances would be in clear contradiction of legislative intent. It would
amount to saying that a defendant could avoid the clear intent of the Legislature
that a person be subjected to a separate and distinct minimum penalty, if that
person simply took the precaution of concealing the weapon sometime during the
criminal transaction. [Id.]
Defendant’s conviction of felony-firearm is predicated on the crime of felon in possession of a
firearm, and not on the CCW crime. Therefore, defendant’s convictions and sentences for
felony-firearm and CCW do not violate proscriptions against double jeopardy. Id.
Affirmed.
/s/ Bill Schuette
/s/ Richard A. Bandstra
/s/ Patrick M. Meter
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