PEOPLE OF MI V TIMOTHY ORLANDO MIDDS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 9, 2010
Plaintiff-Appellee,
v
No. 292895
Wayne Circuit Court
LC No. 09-001455
TIMOTHY ORLANDO MIDDS,
Defendant-Appellant.
Before: ZAHRA, P.J., and TALBOT and METER, JJ.
PER CURIAM.
A jury convicted defendant of possession of a firearm during the commission of a felony,
MCL 750.227b, and acquitted him of felon in possession of a firearm, MCL 750.224f, and
carrying a concealed weapon, MCL 750.227. Because defendant had two prior felony-firearm
convictions, he was sentenced to a mandatory term of ten years in prison. He now appeals as of
right. We affirm.
I. BASIC FACTS
In the early morning hours of November 23, 2008, defendant was pulled over while
speeding in a SUV, failing to signal a turn, and driving a car with tinted front driver-and
passenger-side windows. Although the car windows were tinted, with the police car’s spotlight
and the individual officers’ flashlights, two of the officers testified they were able to see the
driver hand an object to the front seat passenger and toss an unknown object into the rear of the
vehicle. A gun holster was later observed in the backseat of the vehicle. A loaded handgun was
found in the passenger’s left waistband when she searched after exiting the vehicle. A third
police officer, who approached the SUV first from the passenger’s side, did not see any hand
movements by defendant. Due to a police department mix-up in requests, the fingerprint
analysis of the gun had not been completed prior to trial.
II. SUFFICIENCY OF THE EVIDENCE
On appeal, defendant argues there is insufficient evidence to support his felony-firearm
conviction. We disagree.
This Court reviews a sufficiency of the evidence challenge de novo on appeal. People v
Wolfe, 440 Mich 508, 513-515; 489 NW2d 748, amended on other grounds 441 Mich 1201
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(1992); People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007). When reviewing
thesufficiency of the evidence, this Court views the evidence in a light most favorable to the
prosecution to determine whether any rational trier of fact could have found that the elements of
the charged offense were proven beyond a reasonable doubt. People v Lundy, 467 Mich 254,
257; 650 NW2d 332 (2002); Wolfe, 440 Mich at 515.
A person is guilty of felony-firearm when he possesses a firearm while committing or
attempting to commit a felony. MCL 750.227b(1); People v Taylor, 275 Mich App 177, 179;
737 NW2d 790 (2007); People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999).
Herein, the underlying felony is felon in possession of a firearm, MCL 750. 224f, which provides
that a person convicted of a specified felony may not possess, use, transport, sell, purchase,
carry, ship, receive or distribute a firearm. Being a convicted felon is an element of the offense
of felon in possession of a firearm. People v Tice, 220 Mich App 47, 54; 558 NW2d 245 (1996).
Possession may be actual or constructive and may be proved by circumstantial evidence. People
v Hill, 433 Mich 464, 469-471; 446 NW2d 140 (1989). A defendant may have constructive
possession of a firearm if its location is known to the defendant and if it is reasonably accessible
to him. Hill, 433 Mich at 470-471.
A jury may reach inconsistent verdicts in a criminal case. People v Vaughn, 409 Mich
463, 465-466; 295 NW2d 354 (1980). “The ability to convict or acquit another individual of a
crime is a grave responsibility and an awesome power. An element of this power is the jury’s
capacity for leniency. Since we are unable to know just how the jury reached its conclusion,
whether the result of compassion or compromise, it is unrealistic to believe that a jury would
intend that an acquittal on one count and conviction on another would serve as the reason for
defendant’s release.” Id. at 466.
There is sufficient evidence to support defendant’s conviction for felony-firearm. Lundy,
467 Mich at 257; Wolfe, 440 Mich at 515. A police officer testified that, as he approached the
car on the driver’s side, he saw defendant pass an object to the front seat passenger. He also saw
defendant toss an unidentified object into the back seat of the car. A second officer testified that,
as he approached the vehicle from the passenger area, he saw the driver with his arm extended
towards the passenger. The passenger then leaned towards the driver’s side door. The officer
also saw the driver’s right arm extend to the back and an object come towards the back of the
vehicle. The officer used his flashlight to check the seat behind defendant and saw a gun holster.
Both officers stated the patrol car’s spotlight and their own respective flashlights illuminated the
vehicle. This allowed them to see silhouettes of body movements through the vehicle’s tinted
windows.
While the gun was physically found tucked into the passenger’s waistband, the officer’s
testimony was sufficient to conclude that defendant had knowledge of the location of the gun and
that he had constructive possession of it. Hill, 433 Mich at 470-471. The passenger was seen
leaning towards the passenger side door after defendant handed her something. It is reasonable
to conclude this occurred when she placed the gun in her waistband. Defendant correctly points
out that a third officer did not see the hand movement or the passing of an object between
defendant and the passenger and that he was the first officer to the car. However, the jury is the
finder of the facts and decides all issues of credibility. People v Lacalamita, 286 Mich App 467,
469-470; 780 NW2d 311 (2010). The jury may have reasonably believed the third officer was
unable to see the movements from the angle at which he approached. Accordingly, there is
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sufficient evidence to support defendant’s felony-firearm conviction.1 Lundy, 476 Mich at 257;
Wolfe, 440 Mich at 515.
Defendant argues in the alternative that the felony-firearm conviction is against the great
of the evidence. We disagree.
To determine whether an outcome is against the great weight of the evidence, this Court
must decide whether the evidence preponderates so heavily against the verdict that it would be a
miscarriage of justice to allow the verdict to stand. Lacalamita, 286 Mich App at 469; People v
McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001). Generally, when the evidence does
not reasonably support a verdict and it was more likely the result of causes outside the record,
such as passion, prejudice, sympathy, or some other extraneous influence, a verdict may be
vacated. Lacalamita, 286 Mich App at 469. “Conflicting testimony, even when impeached to
some extent, is an insufficient ground for granting a new trial.” People v Lemmon, 456 Mich
625, 647; 576 NW2d 129 (1998). Issues of credibility are within the exclusive province of the
jury. Lacalamita, 286 Mich App at 469-470. “[U]nless it can be said that directly contradictory
testimony was so far impeached that it ‘was deprived of all probative value or that the jury could
not believe it,’ . . . or contradicted indisputable physical facts or defied physical realities, the trial
court must defer to the jury's determination.” Lemmon, 456 Mich App at 645-646 (citation
omitted).
As previously discussed, two police officers testified that they saw defendant throw
something into the back seat, which could plausibly be the gun holster. There was also
testimony that he handed a dark object to the front seat passenger. A gun was found in the
passenger’s waistband on her left hip, which was next to defendant and within his reach, and the
passenger was seen leaning towards the door, which is consistent with her hiding the gun in her
waistband. The officers were impeached and there was conflicting testimony. However,
deciding witness credibility questions is for the trier of fact. Lacalamita, 286 Mich App at 469470. Moreover, conflicting testimony, even when impeached, is not a ground for granting a new
trial. Lemmon, 456 Mich at 647. Accordingly, the evidence does not preponderate so heavily
against the verdict that it would be a miscarriage of justice to allow the verdict to stand.
Lacalamita, 286 Mich App at 637; McCray, 245 Mich App at 637.
III. SUPPLEMENTAL JURY INSTRUCTION
Defendant’s final argument is that he was denied a fair trial when the trial court refused
defense counsel’s request for a supplemental instruction during jury deliberations. We disagree.
1
Defendant’s reliance on Parker v Renico, 506 F3d 444 (CA 6, 2007), is misplaced. Unlike the
defendant in that case, there was evidence in the instant action linking defendant to the gun
found on the passenger. Two police officers testified that they saw defendant hand an object to
the passenger, the passenger lean toward the driver’s door, and defendant toss an object into the
backseat where a gun holster was later found. Defendant correctly points out there were
inconsistencies between the officers’ preliminary exam testimony and their trial testimony. In
addition, the third officer did not see the arm movements. However, the resolution of issues of
credibility is within the exclusive province of the jury. Lacalamita, 286 Mich App 469-470.
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Questions of law, including questions of the applicability of jury instructions, are
reviewed de novo on appeal. People v Perez, 469 Mich 415, 418; 670 NW2d 655 (2003); People
v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003). If preserved, this Court “review[s] jury
instructions in their entirety to determine if error requiring reversal occurred.” People v Aldrich,
246 Mich App 101, 124; 631 NW2d 67 (2001). Even if instructions are imperfect, reversal is not
required if they fairly present the issues to be tried, and sufficiently protect the defendant’s
rights. People v Chapo, 283 Mich App 360, 373; 770 NW2d 68 (2009); Aldrich, 246 Mich App
at 124.
We find no error in the jury instructions, or the trial court’s refusal to give an amended
instruction following the jury’s questions during deliberations. A criminal defendant has a right
to a properly instructed jury. People v Rodriguez, 463 Mich 466, 472; 620 NW2d 13 (2000).
“When a word is not defined by statute, this Court presumes that the word is subject to ordinary
comprehension and there will be no error warranting reversal as a result of a trial court’s failure
to define a term that is generally familiar to lay persons and is susceptible of ordinary
comprehension.” People v Martin, 271 Mich App 280, 352-353; 721 NW2d 815 (2006).
Here, the trial court paraphrased the felon in possession statute, MCL 750.224f, and gave
the jury the Standard Jury Instruction for the offense. The words “transport” and “possess” are
not defined in the felon in possession of a firearm statute, MCL 750.224f, but their definitions
are susceptible to ordinary comprehension. The trial court did not err by refusing to impose an
additional mens rea definition for the specified words not set forth in the statute. Martin, 271
Mich App at 352-352; People v Knapp, 244 Mich App 361, 376-377; 624 NW2d 227 (2001).
Affirmed.
/s/ Brian K. Zahra
/s/ Michael J. Talbot
/s/ Patrick M. Meter
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