PEOPLE OF MI V EALTON TYRONE WILLIAMSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 13, 2011
Plaintiff-Appellee,
v
No. 295020
Wayne Circuit Court
LC No. 2008-014216-FH
EALTON TYRONE WILLIAMSON,
Defendant-Appellant.
Before: K. F. KELLY, P.J., AND GLEICHER AND STEPHENS, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions following a bench trial of one count of
manufacture of marijuana, MCL 333.7401(2)(d)(iii), and one count of possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was acquitted of
possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii). Defendant was sentenced
to serve a mandatory two-year prison term for the felony-firearm conviction, and a concurrent
thirty days probation for the manufacture of marijuana conviction. We affirm.
Defendant was arrested after he was seen by police running off from a Detroit home at
which the police were executing a search warrant. An officer assigned to secure the rear of the
home testified that when defendant saw him, defendant ran back toward the home and threw a
handgun to the ground. After defendant was detained, the police found six sandwich baggies of
suspected marijuana, additional empty baggies and a digital scale on a coffee table in the living
room of the home. The police also confiscated several marijuana plants growing in the
backyard. Seven other persons found inside the home were arrested, including Vandalyn White.
Defendant first argues that insufficient evidence was adduced to support his felonyfirearm conviction. We review this argument de novo, People v Sherman-Huffman, 241 Mich
App 254, 265; 615 NW2d 776 (2000), considering the evidence in the light most favorable to the
prosecution in order to determine “whether any rational fact-finder could have found that the
essential elements of the crime were proved beyond a reasonable doubt,” People v Shipley, 256
Mich App at 374-375, citing People v Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002).
The focal point of defendant’s argument is when the felony underlying the felony-firearm
conviction was committed. “The felony-firearm statute proscribes the carrying or possession of
a firearm during the commission or attempted commission of any felony.” People v Etchison,
123 Mich App 448, 452; 333 NW2d 309 (1983). Defendant was convicted of aiding and
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abetting the manufacture of marijuana. Defendant maintains this offense was complete as soon
as he gave White permission to grow the marijuana in the backyard of the residence, and
contends plaintiff would have to prove he possessed a firearm at that moment. The prosecution
argues that the permission was never rescinded and continued to operate through the day he was
arrested at the home. In order to convict a person of aiding and abetting the commission of a
crime, the prosecution must establish the following:
“(1) the crime charged was committed by the defendant or some other person; (2)
the defendant performed acts or gave encouragement that assisted the commission
of the crime; and (3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time that [the
defendant] gave aid and encouragement.” [People v Moore, 470 Mich 56, 67-68;
679 NW2d 41 (2004), quoting People v Carines, 460 Mich 750, 768; 597 NW2d
130 (1999), habeas corpus granted on other grounds, Harris v Booker, ___ F Supp
2d ___ (ED Mich, 2010) (alteration by Moore Court).]
The process of “manufacturing” marijuana includes the germinating and growing of
marijuana plants and is a continuing process, thus making it an ongoing crime. See People v
Stumpf, 196 Mich App 218, 226; 492 NW2d 795 (1992). When defendant gave White
permission to grow the plants, defendant was not committing a transitory act. His authorization
was ongoing and thus applied to White’s future actions. Defendant’s continued activity at the
residence after he moved out of it was evidence of his continued participation in the manufacture
and distribution of marijuana.. The felony-firearm conviction was therefore supported.
Defendant also argues that the court erred in denying his motion for new trial, which was
based on newly discovered evidence. The evidence brought to the court’s attention in support of
the motion was a notice to quit which terminated defendant’s tenancy in the residence in issue as
of August 13, 2007. A trial court’s factual findings regarding a motion for new trial based on
newly discovered evidence are reviewed for clear error, and its decision on the merits is
reviewed for an abuse of discretion. People v Lester, 232 Mich App 262, 271; 591 NW2d 267
(1998).
A motion for a new trial based on newly discovered evidence may be granted
upon a showing that (1) the evidence itself, not merely its materiality, is newly
discovered, (2) the evidence is not merely cumulative, (3) the evidence is such as
to render a different result probable on retrial, and (4) the defendant could not
with reasonable diligence have produced it at trial. [Id.]
Although the evidence cited by defendant, the notice to quit, was newly presented to the
court, it was not newly discovered. The notice was addressed to defendant, his father, and all
occupants of the residence. Defendant testified that he did not leave the residence until spring
2008, so it is reasonable to assume he had knowledge of the termination notice. Clearly, he
could have “discovered” this evidence with due diligence. Moreover, to the extent it supports his
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assertion that he was not living at the residence at the time of his arrest, the notice is merely
cumulative. Finally, the evidence is not such as to render a different trial outcome.1
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
1
In order for the document to have the desired impact, the court would have to have presumed
that defendant left in fall 2007, and that that the marijuana could not survive the winter. The first
presumption is contrary to defendant’s trial testimony. Indeed, the notice provides support for
the court’s conclusion that defendant was a holdover tenant. As for the second, assuming it is
true that marijuana does not germinate and cannot survive the winter, there is nothing to prevent
a person from transplanting the plants to the inside of the residence for the winter months.
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