                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 17, 2015
               Plaintiff-Appellee,

v                                                                  No. 322749
                                                                   Wayne Circuit Court
CHARLES TERRELL ESTES,                                             LC No. 14-000403-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of felon in possession
of a firearm (felon in possession), MCL 750.224f, and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b1. The trial court sentenced defendant
to five years’ probation for the felon in possession of a firearm conviction, consecutive to two
years’ imprisonment for the felony-firearm conviction. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        On October 2, 2013, the Narcotics Enforcement Unit of the Detroit Police Department
executed a search warrant at 17345 Heyden Street in Detroit. An officer in the unit, Lavar
Green, had received a tip from a confidential informant that there were 30 to 40 marijuana plants
in the home as part of a marijuana grow operation. Green observed the home on September 29,
2013 and, within a 30 minute period of time, saw two individuals separately enter the home, stay
for five minutes, and leave. Green prepared the affidavit that accompanied the request for a
search warrant.

      Officer Prentis Mercer conducted pre-raid surveillance on the home on October 2, 2013.
Mercer observed defendant and two other men approach the front door of the home. Defendant


1
  Defendant was also charged with, and acquitted of, delivery and manufacture of 5 to 45
kilograms, or 20 to 200 plants, of marijuana, MCL 333.7401(2)(d)(ii), and delivery and
manufacture of less than 5 kilograms, or fewer than 20 plants, of marijuana,
MCL 333.7401(2)(d)(iii).


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removed a key from his pocket and used it to unlock the home’s security grate and front door.
Approximately 35 minutes later, the narcotics unit raided the home. Inside the home, Officer
Shawn Reed observed defendant and two men sitting on a couch in the front living area of the
home. Reed observed a large plastic bag of marijuana on a coffee table in front of the couch.
Defendant was placed under arrest and was patted down by Officer Alanna Mitchell. Mitchell
discovered a key on defendant and was able to lock and unlock the security grate and front door
using the key. Reed continued a sweep of the home and discovered 123 marijuana plants and
equipment used to grow marijuana in the basement of the home.
         Officer Arthur Leavells observed that a rifle was located approximately ten feet from
defendant when Leavells entered the home. Leavells testified that the rifle was readily
accessible to defendant. However, Dewitt Jackson, one of the men with defendant, testified that
the rifle was found by the police in a back bedroom of the home. The other man in the home
during the raid, Howard Clark, testified that the gun belonged to him and was defective. Clark
testified that he stored the gun in the back bedroom with some of his belongings.
       Before trial, defendant moved the trial court to quash the search warrant and suppress the
evidence found as a result of the search, on the ground that the issuance of the warrant was not
supported by probable cause. The trial court denied the motion.
       Defendant was convicted as described above. This appeal followed.
       II. MOTION TO QUASH SEARCH WARRANT AND SUPPRESS EVIDENCE

       Defendant argues that the trial court erred when it failed to quash the search warrant and
suppress the evidence discovered as a result of the search. We disagree.

      “This Court reviews a trial court's ruling regarding a motion to suppress for clear error.
However, questions of law relevant to the suppression issue are reviewed de novo.” People v
Sobczak-Obetts, 463 Mich 687, 694; 625 NW2d 764 (2001) (citations omitted).

        Both the United States and Michigan Constitutions protect against unreasonable searches
and seizures by state actors. US Const, Am IV; Const 1963, art 1, § 11. In cases where the
application for a search warrant includes a tip from an anonymous informant, the magistrate
issuing the warrant must determine “whether, given all the circumstances set forth in the
affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime will be
found in a particular place.” See Illinois v Gates, 462 US 213, 238; 103 S Ct 2317; 76 L Ed 2d
527 (1983). When reviewing a magistrate’s decision to issue a search warrant, this Court must
“ensure that the magistrate had a substantial basis for concluding that probable cause existed.”
See id. (citation and quotation marks omitted). Even if probable cause did not exist for the
issuance of a search warrant, evidence discovered as a result of the defective warrant need only
be suppressed “if the officers were dishonest or reckless in preparing their affidavit or could not
have harbored an objectively reasonable belief in the existence of probable cause.” United States
v Leon, 468 US 897, 926; 104 S Ct 3405; 82 L Ed 2d 677 (1984). This “good-faith exception” to
the probable cause requirement is meant to curb the effects of the exclusionary rule, because the
rule is “designed to deter police misconduct rather than to punish the errors of judges and
magistrates.” Id. at 916.

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        MCL 780.653 codifies the requirements that must be fulfilled before a warrant based on
tips from informants will be issued. MCL 780.653(b) states that if the informant is anonymous,
the affidavit must contain “affirmative allegations from which the judge . . . may conclude that
the person spoke with personal knowledge of the information and either that the unnamed person
is credible or that the information is reliable.”

       The information set forth in the affidavit by Green established the requisite probable
cause for the search warrant to issue. In the affidavit, Green stated that he was relying on a
confidential informant that he had used successfully several times in the past. The information
from this particular informant had been accurate in the past and had led to multiple successful
searches and convictions. In addition, the informant described the existence of a large number of
marijuana plants within the home as well as sales that had occurred in the front and rear of the
home.

       Apart from the tip, the affidavit contained the statement that Green had observed two
individuals separately leave the home within the half-hour period of his surveillance. While this
conduct was not in itself illegal, such short-stay traffic also supports the inference that drug sales
were being made at the home. See People v Perry, 463 Mich 927, 927; 620 NW2d 308 (2000).
Viewed in conjunction with the tip from an informant who had been proven reliable in the past,
we conclude that the magistrate did not err in determining that there was a “fair probability that
contraband or evidence of a crime” would have been found at the home. See Gates, 462 US at
238; see also People v Keller, 479 Mich 467; 739 NW2d 505 (2007). Additionally, nothing in
the record supports the conclusion that Green prepared the affidavit dishonestly or recklessly or
could not have harbored an objectively reasonable belief in the existence of probable cause.
Leon, 468 US at 926. Thus, even if the magistrate had erred in the issuance of the warrant,
exclusion of the evidence found in the home would not be the appropriate remedy. See People v
Hawkins, 468 Mich 488, 502; 668 NW2d 602 (2003).

      III. SUFFICIENCY OF THE EVIDENCE/GREAT WEIGHT OF THE EVIDENCE

         Defendant further argues that the prosecution failed to present sufficient evidence to
support his convictions or, in the alternative, that the convictions should be reversed and a new
trial ordered because the verdict was against the great weight of the evidence. We disagree.

        When reviewing a claim of insufficient evidence, this Court reviews the record de novo.
People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999). We review the evidence in
the light most favorable to the prosecution 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
Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999).

        MCL 750.224f(1) states that a person convicted of a felony “shall not possess, use,
transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state” until 3 years
after the person has paid all fines imposed, served all terms of imprisonment, and completed all
conditions of probation or parole imposed for the violation. MCL 750.224f(1)(a)-(c). The
elements of felon in possession are: (1) that the defendant possessed a firearm, (2) that the
defendant was previously convicted of a felony, and (3) that less than five years have elapsed
since the defendant completed probation or parole, completed a term of imprisonment, and

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satisfied certain other requirements. People v Perkins, 262 Mich App 267, 270-271; 686 NW2d
237 (2004). To be convicted under MCL 750.224f, actual possession of a firearm by a felon is
not required. Our Supreme Court has held that constructive possession is sufficient for a
conviction pursuant to MCL 750.224f. People v Minch, 493 Mich 87, 91-92; 825 NW2d 560
(2012). In determining whether a person is in constructive possession of a firearm, the court
must determine whether “the totality of the circumstances indicates a sufficient nexus between
defendant and the contraband. . . . [A] person has constructive possession if he knowingly has
the power and the intention at a given time to exercise dominion or control over a thing, either
directly or through another person.” Id. Constructive possession of a firearm may exist “if there
is proximity to the article together with indicia of control.” See People v Hill, 433 Mich 464,
470; 446 NW2d 140 (1989).

        Here, the parties stipulated that defendant had previously been convicted of a felony and
his right to possess a firearm had not been restored as of the time of his arrest. Therefore,
defendant’s culpability turns on whether he was in possession of the rifle located within 17345
Heyden. The prosecution did not introduce any evidence to suggest that defendant actually
possessed the weapon. Leavells testified that the rifle was approximately 10 feet away from
defendant when the officers entered the home. Therefore, in order to sustain defendant’s
conviction under MCL 750.224f, a rational trier of fact must be able to find beyond a reasonable
doubt that defendant constructively possessed the rifle found in the home.

       Viewed in a light most favorable to the prosecution, there was sufficient evidence from
which a rational jury could conclude beyond a reasonable doubt that defendant constructively
possessed the rifle. Mercer testified that as defendant and the two other men approached the
home, defendant removed a key from his pocket and used it to unlock the security grate and front
door of the home. When Leavells and the officers entered the home to execute the search
warrant, they observed that the rifle was 10 feet away from defendant. The key to the security
grate and front door was found on defendant’s person. Given that defendant possessed the
means to access the home and to allow others access, and testimony that the rifle was located in
close proximity to him, a rational jury could find beyond a reasonable doubt that defendant had
the power to exercise control over the weapon.

        With regard to defendant’s felony-firearm conviction, the same rationale applies.
MCL 750.227b states that “[a] person who carries or has in his or her possession a firearm when
he or she commits or attempts to commit a felony . . . is guilty of a felony and shall be punished
by imprisonment for 2 years.” “The elements of felony-firearm are that the defendant possessed
a firearm during the commission of, or the attempt to commit, a felony.” People v Avant, 235
Mich App 499, 505; 597 NW2d 864 (1999). “[A] defendant has constructive possession of a
firearm if the location of the weapon is known and it is reasonably accessible to the defendant.
Physical possession is not necessary as long as the defendant has constructive possession.”
People v Burgenmeyer, 461 Mich 431, 438; 606 NW2d 645 (2000). Because defendant had a
previous felony conviction, his constructive possession of the rifle (in violation of
MCL 750.224f(1), as a felon in possession) served to establish the requisite felony for a felony-
firearm conviction. Given that defendant had already been convicted of a previous felony, he
possessed and used a key to enter the home, and the testimony that the rifle was readily
accessible to him, there was sufficient evidence to support his convictions of violations of
MCL 750.224f and MCL 750.227b.
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         Although defendant argues that testimony by Clark established that the rifle was
inoperable, and that defendant’s convictions therefore should be reversed, this Court has already
addressed the issue of operability of weapons in the context of MCL 750.224f and
MCL 750.227b. In People v Brown, 249 Mich App 382, 387; 642 NW2d 382, 385 (2002), this
Court found “the operability of a gun to be irrelevant for a conviction.” Therefore, the fact that
the rifle may have been defective is not grounds for reversal of defendant’s convictions.

        Defendant’s claim that the jury verdict was against the great weight of the evidence also
lacks merit. In order to preserve the issue of a verdict being against the great weight of the
evidence, the losing party must file a motion for a new trial. People v Lopez, 305 Mich App 686,
695; 854 NW2d 205 (2014). Defendant did not file such a motion with the trial court. “[W]hen
a party fails to preserve a great-weight issue for appeal, an appellate court will look for ‘plain
error affecting the defendant’s substantial rights.’ ” Id. (citation omitted). Therefore, we review
defendant’s claim that the verdict was against the great weight of the evidence for plain error
affecting his substantial rights.

       To succeed on a claim under the plain error standard, defendant “bears the burden to
show that (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain
error prejudiced substantial rights, i.e., the error affected the outcome of the lower court
proceedings.” Cameron, 291 Mich App at 618. Defendant has failed to demonstrate the
existence of a clear or obvious error that affected the outcome of his trial. The prosecution
introduced testimony from Mercer and Mitchell that defendant was in possession of the key to
the home in which the rifle was found. Defendant used the key to enter the home and was found
approximately 10 feet from the rifle when the police entered the home. While defendant
introduced testimony from Jackson that defendant never had a key to the home and that the rifle
was found in a back bedroom of the home, it was up to the jury to assess the veracity of each
witness’s testimony, and the jury found Mercer and Mitchell to be the more credible witnesses.
People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998) (“It is the province of the jury to
determine questions of fact and assess the credibility of witnesses.”).

       In sum, sufficient evidence existed for a rational trier of fact to find beyond a reasonable
doubt that defendant was a felon in possession of a firearm and was in possession of a firearm
while committing a felony. In addition, defendant has failed to demonstrate that the jury verdict
was against the great weight of the evidence.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Jane M. Beckering
                                                            /s/ Mark T. Boonstra




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