                                                        Michigan Supreme Court 

                                                        Lansing, Michigan 48909 


                               Chief Justice               Justices




Opinion
                               Maura D. Corrigan           Michael F. Cavanagh
                                                           Elizabeth A. Weaver
                                                           Marilyn Kelly
                                                           Clifford W. Taylor
                                                           Robert P. Young, Jr.
                                                           Stephen J. Markman




                                                   FILED MAY 12, 2004



 PEOPLE OF THE STATE OF MICHGIAN,

      Plaintiff-Appellee,

 v                                                         No. 120543

 CLARENCE D. MOORE,

      Defendant-Appellant.

 _______________________________

 PEOPLE OF THE STATE OF MICHGIAN,

      Plaintiff-Appellee,

 v                                                         No. 119862

 ERWIN HARRIS

      Defendant-Appellant.


 _______________________________

 BEFORE THE ENTIRE BENCH

 WEAVER, J.
     In    these       two    cases,     defendants                were    convicted       of

felony-firearm1         under       an   aiding              and     abetting        theory.2

Felony-firearm is the crime of carrying or possessing a

firearm during the commission or attempted commission of a

felony.         The    issue        before        the        Court    is       whether    the

prosecutor      must     establish       that           a    defendant         assisted    in

obtaining or retaining possession of a firearm, the test

that was set forth in People v Johnson, 411 Mich 50, 54;

303 NW2d 442 (1981), in order to convict the defendant of

felony-firearm under an aiding and abetting theory.                                        We

overrule       Johnson       because     the        test       that       it    created    is

narrower than the test set forth in the language of the

aiding and abetting statute.                       We conclude that under the

statute,       the    proper        standard        for        establishing          felony-

firearm under an aiding and abetting theory is whether the

defendant’s          words     or     deeds         “procure[d],               counsel[ed],

aid[ed], or abet[ted]” another to carry or have in his

possession      a     firearm    during           the       commission         or   attempted

commission of a felony-firearm offense.3                                   Applying that

standard, we hold that there was sufficient evidence in

each case to support the felony-firearm convictions, and we

affirm both defendants’ convictions.


     1
         MCL 750.227b. 

     2
         MCL 767.39. 

     3
         Id.
                                             2

                   I.   Facts and Procedural History 


                                      A 


      The charges against defendant Clarence D. Moore stem

from a shooting in Flint on August 8, 1997.                       That night,

Moore and his friend, DeJuan Boylston, argued with Jacky

Hamilton     and    his    brother,        Johnny     Hamilton.         Shortly

thereafter,    Moore      and   Boylston        approached     the     Hamilton

brothers while they were fishing at a lake.                     Boylston was

carrying a gun, and Moore told the two brothers that they

had better start swimming out into the lake.                   Boylston then

recognized    Johnny      Hamilton    from      basketball     games    in   the

neighborhood.           This    recognition         prompted    Boylston      to

retreat, telling Moore that he did not want a problem with

the   Hamiltons.          According        to   Johnny    Hamilton,       after

Boylston declined to shoot the brothers, Moore attempted to

grab the gun from Boylston.            During this time, Moore made

derogatory statements to Boylston to encourage him to shoot

the victims.       He questioned Boylston’s sense of masculinity

and threatened that he would not associate with Boylston if

Boylston did not shoot the Hamiltons.                  After walking about

halfway up the hill, Boylston turned and fired, hitting

Jacky, who later died from the gunshot wounds.




                                      3

       Following a jury trial, defendant Moore was convicted

of    murder    in   the     first    degree,4      assault    with     intent   to

murder,5     and     felony-firearm6          on   an   aiding    and    abetting

theory.7       In an unpublished opinion, the Court of Appeals

affirmed Moore’s convictions on all counts.

                                              B

       The charges against defendant Erwin Harris stem from a

robbery that took place in Washtenaw County on September

28, 1998.       Harris drove Eugene Mays to a gasoline station.

Mays had a sawed-off shotgun in the vehicle.                       Harris first

entered the store on the pretense of asking for directions.

After      leaving     the     store,    he        reentered     moments     later

followed by Mays, who was wielding the shotgun.                       While Mays

pointed the gun at the clerk, Harris approached a customer

from behind and proceeded to remove the customer’s wallet

and other items from his pockets.                       The clerk refused to

give Mays any money and pushed a button that locked the

cash register.        Although Harris repeatedly directed Mays to

“pop,” or shoot, the clerk after he locked the register,

the    two     men   left    the     store     without    physically       harming

either the clerk or the customer.


       4
           MCL 750.316.
       5
           MCL 750.83.
       6
           MCL 750.227b.
       7
           MCL 767.39.
                                         4

       Defendant Harris was convicted by a jury on two counts

of   armed     robbery,8       two   counts       of   felony-firearm9     on    an

aiding and abetting theory,10 and one count of fleeing and

eluding the police.11            Harris appealed his convictions for

the armed robbery of the customer and for the two counts of

felony-firearm.           In an unpublished, divided decision, the

Court of Appeals upheld Harris’s convictions.

                                              C


       Both Moore and Harris sought leave to appeal in this

Court.        Each defendant argued that his conviction(s) for

felony-firearm under an aiding and abetting theory should

be reversed because he did not assist in either obtaining

or retaining possession of the firearm, citing this Court’s

decision in Johnson.            This Court granted leave to appeal in

both       cases    and   ordered    that     the      cases    be    argued    and

submitted to the Court together.                    In each of these cases,

the order granting leave to appeal limited the issues to

“whether       there      is   sufficient         evidence     to    convict    the

defendant          of   violating    MCL      750.227b       and     whether    the

decision in People v Johnson, 411 Mich 50 (1981), should be



       8
            MCL 750.529.
       9
            MCL 750.227b.
       10
            MCL 767.39.
       11
            MCL 750.479a(3).
                                        5
overruled or modified.”              People v Harris,            467 Mich 896

(2002); People v Moore, 467 Mich 897 (2002).

                                       II

       Resolution of these cases requires interpretation of

the    felony-firearm       statute    and       the    aiding   and   abetting

statute.        Statutory interpretation is a question of law

that     this     Court      reviews        de    novo.          Robertson      v

DaimlerChrysler        Corp,   465     Mich      732,    739;    641   NW2d   567

(2002).         If    the    statutory        language     is     certain     and

unambiguous,         that   language    is       given    its    ordinary     and

generally accepted meaning.                 Piper v Pettibone Corp, 450

Mich 565; 542 NW2d 269 (1995).

                                            A

       The felony-firearm statute, MCL 750.227b(1), states:

            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 imprisoned for 2 years.

       The felony-firearm statute applies whenever a person

carries or has a firearm in his possession when committing

or attempting to commit a felony.                  The evident purpose of

the statute is to enhance the penalty for the carrying or

possession of firearms during the commission of a felony

and thus to deter the use of guns.                     Wayne Co Prosecutor v

Recorder’s Court Judge, 406 Mich 374, 391; 280 NW2d 793

(1979), overruled in part on other grounds by                          People v

                                       6

Robideau, 419 Mich 458; 355 NW2d 592 (1984).                        The important

rationale behind the felony-firearm statute is demonstrated

in its unique and severe punishment scheme.                       Conviction for

felony-firearm results in automatic imprisonment, which may

not be suspended.        The guilty person is also ineligible for

probation or parole during the mandatory prison sentence.

The felony-firearm prison term must be served before and

consecutively       to      any    term        of    imprisonment         for     the

underlying felony.           A second conviction of felony-firearm

requires    a    flat    five     year    sentence,         while    a    third   or

subsequent conviction requires a flat ten year sentence.

MCL 750.227b(1)-(3).

     The aiding and abetting statute, MCL 767.39, states:

          Every person concerned in the commission of
     an offense, whether he directly commits the act
     constituting the offense or procures, counsels,
     aids, or abets in its commission may hereafter be
     prosecuted, indicted, tried and on conviction
     shall be punished as if he had directly committed
     such offense.


     The purpose of the aiding and abetting statute is “to

abolish    the     common    law    distinction            between    accessories

before the fact and principals so that one who counsels,

aids or abets in the commission of an offense may be tried

and convicted as if he had directly committed the offense.”

People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974),

citing    People    v    Gould,    384        Mich   71,    77;     179   NW2d    617


                                         7

(1970).           The phrase “aids or abets” is used to describe any

type of assistance given to the perpetrator of a crime by

words or deeds that are intended to encourage, support, or

incite the commission of that crime.                     Palmer, p 378.

             Aiding and abetting means to assist the
        perpetrator of a crime. An aider and abettor is
        one who is present at the crime scene and by word
        or deed gives active encouragement to the
        perpetrator of the crime, or by his conduct makes
        clear that he is ready to assist the perpetrator
        if such assistance is needed.     [21 Am Jur 2d,
        Criminal Law, § 206, p 273.]


        Each       defendant    argues       that       his       conviction(s)    for

felony-firearm on an aiding and abetting theory should be

reversed because he did not assist in either obtaining or

retaining possession of the firearm, citing this Court’s

decision in Johnson.

        In    Johnson,       this    Court   resolved         a    division   in   the

Court        of    Appeals    over    whether       a    person       who   does   not

actually possess a firearm could be convicted under the

felony-firearm statute as an aider and abettor.12                             Johnson



        12
        Contrast People v Tavolacci, 88 Mich App 470, 475;
276 NW2d 919 (1979), rev’d People v Johnson, supra, (“[O]ne
may be convicted as an aider and abettor to the felony-
firearm offense.”), with People v Bridges, 98 Mich App 436,
439; 296 NW2d 275 (1980), rev’d 411 Mich 969 (1981), (A
person who does not actually possess a firearm may not be
convicted under the statute as an aider and abettor.),
People v Powell, 90 Mich App 273, 275; 282 NW2d 803 (1979),
(“[T]he language of the felony-firearm statute clearly
contemplates ‘personal’ possession of a firearm by the
defendant. . . .”), and People v Johnson, 85 Mich App 654,
658; 272 NW2d 605 (1978), rev’d 411 Mich 50 (1981), (“We
                             8
consisted of two separate cases in which each defendant was

convicted      of     felony-firearm      on     a       theory    of     aiding    and

abetting.           In the first case, defendant Johnson and an

accomplice robbed a bar in Detroit.                         The accomplice held

the gun while Johnson took money from the cash register.

They then split the money after leaving the bar.                              In the

second    case,      defendant    Tavolacci          brought      the     victim,   an

undercover       narcotics    officer,      to       a    pool    hall     under    the

pretense       of    making   a   drug    deal.            The    defendant’s       two

accomplices then took the officer to a remote field and

attempted to shoot him.              The defendant stayed at the pool

hall     while      the   attempted      murder          took    place.      Johnson

resolved the division at the Court of Appeals by concluding

that a defendant may be guilty of felony-firearm even if

the defendant did not personally possess a firearm during

the commission of a felony if the defendant is shown to

have aided and abetted another who had such possession.

The    Court     remanded     both    cases      to       the    respective    trial

courts.

       In remanding, the Court added the restriction that to

obtain a conviction for aiding and abetting the crime of



interpret the felony-firearm statute to require that a
defendant personally carry or have in his possession a
firearm in order to be guilty thereunder.  Being an aider
or abetter in an armed robbery is not enough to subject a
defendant to the enhanced sentence of the felony-firearm
statute.” [emphasis in original].).
                              9
carrying or possessing a firearm during the commission of a

felony, it must be shown that the defendant assisted in

obtaining or retaining the possession of the firearm:

          To convict one of aiding and abetting the
     commission    of a separately charged crime of
     carrying or having a firearm in one’s possession
     during the commission of a felony, it must be
     established    that    the   defendant    procured,
     counselled, aided, or abetted and so assisted in
     obtaining   the   proscribed  possession,   or   in
     retaining such possession otherwise obtained.
     See People v Doemer, 35 Mich App 149, 192 NW2d
     330 (1971); People v Francis, 71 Cal 2d 66, 450
     P2d 591, 75 Cal Rptr 199 (1969).
          In neither of the instant cases does the
     record show that the defendant assisted the
     accomplice to obtain or retain possession of the
     firearm which the accomplice possessed during the
     commission of the felony.      [People v Johnson,
     supra, at 54 (emphasis added).]


                                       B


     Under     the    standard    set        forth    in   Johnson,        each

defendant’s conviction would be reversed because neither

defendant specifically aided the principal in “obtaining”

or   “retaining”      the    firearm       for   immediate       or   eventual

possession     by    the    principal       during   the     commission     or

attempted commission of a felony.

     Moore’s    accomplice      was    carrying      the   gun    during    the

offense.     There was no evidence introduced showing that

Moore assisted Boylston in either obtaining or retaining

possession of the gun.         Similarly, Harris’s accomplice was

in possession of the weapon at all times, and there is no
                            10
indication     in     the    record    that       Harris    assisted    Mays   in

obtaining      or     retaining       possession       of    the     gun.      The

reasoning of the dissent in Harris clearly applies to both

defendants:

           There is no proof that Harris carried or
      loaded the firearm for Mays, that he purchased
      the firearm and gave it to Mays, or even that he
      reminded Mays to bring the firearm into the store
      with him.    If Harris did help Mays obtain or
      retain the firearm before he entered the store,
      the record is simply silent on the matter.
      [Unpublished dissenting opinion, issued July 27,
      2001, p 4 (Docket No. 222468).]


      Thus, under Johnson’s holding at 54 that “it must be

established that the defendant procured, counselled, aided,

or   abetted    and    so    assisted     in      obtaining    the    proscribed

possession,      or    in     retaining       such     possession      otherwise

obtained,” both defendants’ convictions of felony-firearm

under an aiding and abetting theory would be reversed.

                                              C

      A close examination of the Court’s decision in Johnson

reveals   that      this     holding    was       overly    narrow   because   it

unnecessarily restricted the scope of the class of persons

who can be convicted of felony-firearm on an aiding and

abetting theory.            The Court relied on two drug possession




                                        11

cases, People v Francis and People v Doemer,13 in reasoning

that to convict one of felony-firearm under an aiding and

abetting theory, “it must be established that the defendant

procured, counselled, aided, or abetted and so assisted in

obtaining the proscribed possession, or in retaining such

possession otherwise obtained.”                 Johnson at 54.

        The Johnson Court’s holding takes the language of the

Francis          opinion   out    of     context.          The    Francis     court

concluded that “[t]he record [did] not show that Francis

aided       or     encouraged     [his    accomplice]        in    obtaining      or

retaining possession of marijuana.”                    Francis at 72.             The

actual test that the Francis court articulated for aiding

and abetting is much broader than the test set forth in the

language quoted in Johnson.                The Francis court stated that

“[i]n order to hold the accused as an aider and abettor the

test    is       whether    the    accused      in   any    way,       directly   or

indirectly, aided the perpetrator by acts or encouraged him

by words or gestures.”                 Francis at 72, quoting People v

Villa,       156    Cal    App    2d   128,     134;   318       P2d   828   (1957)

(emphasis added).            Thus, the language relied on by the

Johnson Court is not the actual test set forth in Francis

for aiding and abetting possessory crimes.

       13
        In deciding Doemer, the Michigan Court of Appeals
simply relied on the same language as in Francis, a
California Supreme Court case.


                                          12

     Nothing in the language of Michigan’s felony-firearm

statute supports Johnson’s narrow application of aiding and

abetting principles to the commission of felony-firearm.

In   fact,   the      plain     language   of    the    statute      suggests

otherwise.14        In People v Mitchell, 456 Mich 693, 698; 575

NW2d 283 (1998), this Court noted that the list of four

exceptions15     to    the    statute   was    exclusive    and    that   the

Legislature intended “to provide for an additional felony

charge and sentence whenever a person possessing a firearm

committed    a      felony     other    than    those   four      explicitly

enumerated     in     the    felony-firearm     statute.”      The   felony-

firearm statute makes no mention of a narrower standard or

an exception for those who aid and abet felony-firearm;

therefore, aiding and abetting felony-firearm should be no

different from aiding and abetting the commission of any

other offense.




     14
        The felony-firearm statute, MCL 750.227b(1), states
in part:

          A person who carries or has in his or her
     possession a firearm when he or she commits or
     attempts to commit a felony, except a violation
     of section 223, section 227, 227a or 230, is
     guilty of a felony, and shall be imprisoned for 2
     years.
     15
         The four enumerated exceptions are for violations
of MCL 750.223 (unlawful sale of a firearm), MCL 750.227
(carrying a concealed weapon), MCL 750.227a (unlawful
possession of a firearm by a licensee), and MCL 750.230
(alteration of identifying marks on a firearm).
                             13
      Similarly, nothing in the aiding and abetting statute

suggests that it should apply differently to a possessory

offense than to any other crime.                 The general rule is that,

to convict a defendant of aiding and abetting a crime, a

prosecutor must establish that “(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 Carines,

460 Mich 750, 768; 597 NW2d 130 (1999).                        The aiding and

abetting statute neither expressly nor impliedly limits the

persons or crimes encompassed by its terms.                       The language

of the statute applies to “every person” who commits “an

offense.”        Johnson’s     holding,          that   to    convict    one    of

felony-firearm under an aiding and abetting theory it must

be    established      that   the     defendant         assisted    in   either

obtaining or retaining possession of the firearm, is not

based on the language of the aiding and abetting statute.

      We   do    not     disagree    with    Johnson’s        holding    that    a

felony-firearm conviction is proper if a defendant aided

the   principal     in    “obtaining”       or    “retaining”      the   firearm

while intending that the principal possess or carry the

firearm during the commission or attempted commission of a

                                      14

felony,    which    possession        or    carrying      by    the    principal

occurs.    But a defendant also can assist in the commission

of a felony-firearm violation in other ways.                         All that is

required    to   prove    aiding      and   abetting        felony-firearm       is

that the defendant aided and abetted another in carrying or

having in his possession a firearm while that other commits

or attempts to commit a felony.

      Adherence     to    the    Johnson     standard        has     resulted    in

numerous    cases   where       the   intent       behind      the    statutes—to

deter the use of firearms during the commission of felonies

and   to   punish   one    who   assists      in    the     commission     of    an

offense as if he had directly committed such offense—has

not only been unrealized, but has been subverted.16                             The




      16
        Various panels of the Court of Appeals have applied
the narrow Johnson test in felony-firearm aiding and
abetting   cases,   often   producing   results   that   are
incompatible with the statutes. In People v Buck, 197 Mich
App 404, 418; 496 NW2d 321 (1992), reversed in part by
People v Holcomb, 444 Mich 853; 508 NW2d 502 (1993), the
Court of Appeals held that there was insufficient evidence
to sustain the felony-firearm conviction of one of the
defendants because the prosecutor failed to show that he
aided or abetted the acquisition or retention of the weapon
at issue.     Following the Johnson standard, the Court
reversed the conviction of a defendant who had dragged a
shooting victim back into reach after being shot so that
one of his codefendants could shoot the victim twice more,
finally killing him. In People v Eloby, 215 Mich App 472,
478; 547 NW2d 48 (1996), the defendant was convicted of
kidnapping, robbery, and sexual assault. Although he aided
and abetted the kidnapping, his conviction for felony-
firearm was reversed because he did not actually hold the
gun until after the victim was transported from the site of
the kidnapping to the house where she was later assaulted.
                             15
language of our statutes, the Johnson Court’s misreading of

Francis,   and   appellate   cases   following    Johnson   that   are

incompatible with the statutes all command that this Court

overrule the narrow Johnson standard.            For these reasons,

we overrule Johnson and hold that aiding and abetting the

commission of felony-firearm is no different from aiding

and abetting the commission of any other felony.17

                                     III

      Having overruled the narrow standard for aiding and

abetting set forth in Johnson, we now apply general aiding

and abetting principles to the facts of the cases before

us.   Under the aiding and abetting statute, MCL 767.39, the


      17
         As we stated in People v Petit, 466 Mich 624, 633;
648 NW2d 193 (2002):

           It is well established that overruling
      precedent must be undertaken with caution.     The
      application of stare decisis is generally “’the
      preferred   course   because  it    promotes   the
      evenhanded,     predictable,    and     consistent
      development of legal principles, fosters reliance
      on judicial decisions, and contributes to the
      actual and perceived integrity of the judicial
      process.’”   Robinson v Detroit, 462 Mich 439,
      463; 613 NW2d 307 (2000), quoting Hohn v United
      States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed
      2d 242 (1998). “However, stare decisis is not to
      be applied mechanically to forever prevent the
      Court from overruling earlier erroneous decisions
      . . . .” [462 Mich] 463.

     Although under the doctrine of stare decisis we
hesitate to overrule a prior decision by the Court, we
may do so when we are certain that the case was
wrongly decided and that “less injury will result from
overruling than from following it.”     McEvoy v Sault
Ste Marie, 136 Mich 172, 178; 98 NW 1006 (1904).
                             16
correct      test   for     aiding      and   abetting      felony-firearm     in

Michigan      is    whether       the   defendant     “procures,     counsels,

aids, or abets in [another carrying or having possession of

a firearm during the commission or attempted commission of

a felony].”

      The     prosecutors        must    do   more   than    demonstrate   that

defendants aided the commission or attempted commission of

the underlying crimes (here murder and robbery).                       Rather,

the        prosecutors          must     demonstrate        that     defendants

specifically        aided       the     commission     of    felony-firearm.18

Establishing        that    a    defendant     has   aided     and   abetted    a

felony-firearm offense requires proof that a violation of

the felony-firearm statute was committed by the defendant

or some other person, that the defendant performed acts or

gave encouragement that assisted in the commission of the

felony-firearm violation, and that the defendant intended




      18
        Despite the concern expressed in Justice Taylor’s
dissent, our opinion does not make “an aider and abettor in
virtually any gun-related crime guilty of felony-firearm.”
Post at 1. As explained above, we specifically require the
prosecutor to do more than demonstrate that the defendants
aided the commission or attempted commission of the
underlying crimes.     Nor are we suggesting that the fact
that   the  defendant    incidentally  benefited  from   the
principal’s possession of the firearm is sufficient to
convict the defendant of aiding and abetting felony-firearm
possession.    Rather, to convict a defendant of felony-
firearm under an aiding and abetting theory, the prosecutor
must   present    evidence   proving  that   the   defendant
intentionally aided or abetted felony-firearm possession by
specific words or deeds.
                              17
the    commission       of      the    felony-firearm             violation    or     had

knowledge that the principal intended its commission at the

time    that     the       defendant       gave        aid     and      encouragement.

Carines, supra, at 768.                In determining whether a defendant

assisted in the commission of the crime, the amount of

advice, aid, or encouragement is not material if it had the

effect of inducing the commission of the crime.                               People v

Smock, 399 Mich 282, 285; 249 NW2d 59 (1976).                               It must be

determined on a case-by-case basis whether the defendant

“'performed      acts      or     gave    encouragement            that    assisted,'”

Carines, supra at 768, quoting People v Turner, 213 Mich

App    558,    568;    540      NW2d     728    (1995),      in    the     carrying   or

possession of a firearm during the commission of a felony.

       In each of the cases now before us, the prosecutor

established that a violation of the felony-firearm statute

was committed and that the defendant intentionally aided or

abetted that violation.                The defendant in each case aided

or    abetted    felony-firearm           by        actively      urging,    inciting,

encouraging, or motivating the principal to use the weapon

that was in the principal’s possession.                              Implicit in the

use of a firearm is the possession of that firearm.                                 Thus,

when a defendant specifically encourages another possessing

a gun during the commission of a felony to use that gun, he

aids and abets the carrying or possessing of that gun just

as    surely    as    if     he   aided        or    abetted      the     principal    in

                                           18

obtaining or retaining the gun.                Moreover, the defendant in

Harris encouraged and assisted the principal’s possession

of the firearm by specifically relying on that possession

to intimidate his own robbery victim and by specifically

ensuring that the principal would be able to successfully

enter and exit the scene of the crime while carrying the

firearm.

                                   People v Moore

     In    this    case,       defendant   Moore    procured,    counseled,

aided, or abetted the possession of a firearm during the

commission    of        a    felony—the    murder   of   Jacky   Hamilton.

Although Moore did not “obtain or retain” the gun that

killed the victim, nor did he pull the trigger, his words

and actions incited Boylston to use the firearm that was in

his possession to do exactly that.                Moore provoked Boylston

to shoot at the victims by attempting to grab the gun away

from him and by telling him to “give me the gun; I’ll do

it.”19    When Boylston first refused to shoot and turned to

walk away from the victims, Moore attacked his sense of

masculinity       and       threatened    to   dissociate   himself   from


     19
        Justice Cavanagh’s dissent argues that Moore’s
actions in attempting to take away the gun that Boylston
possessed “did not encourage his accomplice’s possession;
Moore was actually encouraging just the opposite.” Post at
5.   But Moore’s words and actions, viewed in context, do
not evidence an intent to deprive Boylston of the gun, but
rather an intent to ensure that Boylston use the gun that
was in his possession.
                             19
Boylston if he did not shoot the two men.                      It is clear that

Moore’s words and deeds were intended to encourage Boylston

to     use   the    gun   against      the      two    victims        during    the

commission of a felony.             In so provoking and inciting a

hesitant Boylston to use the gun that he was carrying,

Moore    necessarily      induced    Boylston         to   possess     that    gun.

Thus, applying the general aiding and abetting standard to

the facts of this case, we hold that there was sufficient

evidence      in    the    record    to      establish         that     defendant

performed acts or gave encouragement that assisted in the

commission of the felony-firearm violation.                          Accordingly,

we affirm Moore’s felony-firearm conviction.

                                People v Harris

        Defendant Harris drove his accomplice, Mays, to the

gasoline     station.       Harris     first      entered       the    store    and

“cased”      its    interior   on      the      pretense       of     asking    for

directions.        He left the store and then promptly reentered,

followed by Mays, who was carrying a gun.                           Although Mays

clearly had actual possession of the firearm at all times,

Harris specifically used his confederate’s possession of

that    firearm     to    intimidate      and    rob       a   store    customer.

Harris also encouraged Mays to “pop,” or shoot, the store

clerk when the clerk locked the register and refused to

hand over any money.           When the attempt to rob the store



                                       20

proved     unsuccessful,            defendant         drove        away        with     his

accomplice and the firearm.

        Harris’s words and deeds, viewed in their entirety,

demonstrated his intent to procure, counsel, aid, or abet

the possession of a firearm during the commission of the

armed    robberies.            He   first        “cased”     the    store,       thereby

ensuring       that    Mays    could      succeed      in     entering         it     while

carrying a gun.          He then relied on May’s possession of the

firearm    to    facilitate         his    own     robbery     of    the       customer.

Finally,       Harris    expressly          encouraged        Mays        to    use    the

firearm in his possession to shoot the clerk after the

clerk refused to give the men any money.                              Thus, Harris

specifically aided and abetted the commission of felony-

firearm.        Accordingly, we affirm Harris’s felony-firearm

convictions.

                                           IV

        Because we have overruled Johnson’s narrow test for

aiding and abetting a felony-firearm in Michigan, we must

also note that the pertinent criminal jury instructions for

that crime are now invalid.                  The instructions for felony-

firearm under an aiding and abetting theory directly, CJI2d

11.35(6), and indirectly, CJI2d 11.36(6), currently state

“that    the    defendant       intentionally         helped        the    person      who

possessed       the     firearm       get        or   keep     it.”             The    new

instructions          should    not       include      any     of     the       limiting

                                           21

language of Johnson.           Just as our new test is no longer

limited to obtaining or retaining the firearm, our jury

instructions should likewise not be limited to the language

of getting or keeping that firearm.

                                Conclusion

        There is no foundation in the language of either the

aiding and abetting statute or the felony-firearm statute

to support this Court’s narrow ruling in Johnson.                      To the

extent    that    Johnson     required      a    defendant    to    assist   in

either obtaining or retaining possession in order to be

convicted of felony-firearm under an aiding and abetting

theory, that decision is overruled.                 Following MCL 767.39,

the appropriate test for aiding and abetting felony-firearm

in Michigan is whether the defendant “procures, counsels,

aids,    or    abets   in    [the    commission      of   a   felony-firearm

offense].”       Applying this standard, we hold that there was

sufficient evidence in each case to support the felony-

firearm       convictions,     and     we       affirm    both     defendants’

convictions.

                                       Elizabeth A. Weaver
                                       Maura D. Corrigan
                                       Robert P. Young, Jr.
                                       Stephen J. Markman




                                      22

                S T A T E     O F   M I C H I G A N 


                            SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

     Plaintiff-Appellee,

v                                                       No. 120543

CLARENCE D. MOORE,

     Defendant-Appellant.
________________________________

PEOPLE OF THE STATE OF MICHIGAN,

     Plaintiff-Appellee,

v                                                       No. 119862

ERWIN HARRIS,

     Defendant-Appellant.
________________________________

CAVANAGH, J. (dissenting).

     Today’s majority claims there are more ways to aid or

abet possession of a firearm during the commission of a

felony than those stated in People v Johnson, 411 Mich 50;

303 NW2d 442 (1981).        Therefore, the majority sees fit to

overrule Johnson.    This conclusory claim, however, is not

supported by a reasoned analysis grounded in the statutory
language of MCL 750.227b(1) and 767.39.1                           Therefore, I must

respectfully dissent.

                                      I.    ANALYSIS

        A   fundamental         flaw       in    the       analysis   offered     by   the

majority         is    that     it     does          not    distinguish      between     a

defendant’s           actions   in     aiding         or    abetting   the    predicate

felony and aiding or abetting felony-firearm possession.

The majority correctly states that “the proper standard for

establishing felony-firearm under an aiding and abetting

theory       is       whether        the        defendant’s        words     or    deeds

‘procure[d], counsel[ed], aid[ed], or abet[ted]’ another to

carry       or    have   in     his    possession            a   firearm   during      the


    1
      MCL 750.227b(1) relates to the carrying or possessing
of a firearm when committing or attempting to commit a
felony, and states the following:

          A person who carries or has in his or her
    possession a firearm when he or she commits or
    attempts to commit a felony, except a violation of
    section 223, section 227, 227a or 230, is guilty of
    a felony, and shall be imprisoned for 2 years
    . . . .

    MCL 767.39 relates to the abolition of the distinction
between an accessory and a principal, and states the
following:

          Every person concerned in the commission of
    an offense, whether he directly commits the act
    constituting the offense or procures, counsels,
    aids, or abets in its commission may hereafter be
    prosecuted, indicted, tried and on conviction shall
    be punished as if he had directly committed such
    offense.


                                                2

commission       or    attempted     commission        of   a    felony-firearm

offense.”     Ante at 2.              However, the majority then errs

because it does not use this standard in its analysis.                         The

majority    finds      there   was    sufficient       evidence      to   convict

defendants of felony-firearm possession because they aided

or abetted in the commission of a crime.                        But it does not

matter that the defendant procured, counseled, aided, or

abetted the commission of a crime.                     What matters is that

the     defendant,      procured,      counseled,       aided,      or    abetted

felony-firearm possession.             This analytical error permeates

the opinion and results in convictions that violate the

plain language, as well as the intent, of the statutes.

        There is a difference between aiding or abetting the

use of a firearm and aiding or abetting the carrying or

possession of a firearm, yet the majority’s analysis is

devoid of this distinction.                  The majority admits that it

was not established at trial that defendants Harris and

Moore    aided    or    abetted      their     respective        accomplices    in

obtaining or retaining a firearm.                  The majority explicitly

states,    “Under      the   standard        set   forth    in    Johnson,    each

defendant’s conviction would be reversed because neither

defendant specifically aided the principal in ‘obtaining’

or in ‘retaining’ the firearm for immediate or eventual

possession       by    the   principal        during    the      commission    or


                                        3

attempted commission of a felony.”                  Ante at 10.      However,

the majority’s analysis does not describe what defendants

Harris and Moore did, other than encourage their respective

accomplice to use the firearm, to support convictions of

felony-firearm         possession     under    an    aiding     or   abetting

theory.          The majority admits, “The defendant in each case

aided       or     abetted    felony-firearm        by   actively       urging,

inciting, encouraging, or motivating the principal to use

the weapon that was in the principal’s possession.”                        Ante

at 18 (emphasis added).             Procuring, counseling, aiding, or

abetting the use of a firearm in a predicate felony is not

the same as procuring, counseling, aiding, or abetting the

carrying or possession of a firearm.

        Regarding defendant Moore, the majority states that

Moore incited his accomplice to possess and use the firearm

by attempting to grab the gun away from him and attacking

the accomplice’s masculinity.               “It is clear that Moore’s

words and deeds were intended to encourage Boylston [the

accomplice] to use the gun against the two victims during

the commission of a felony.”           Ante at 20 (emphasis added).

        I   agree     that    defendant       Moore’s    attacks     on    the

accomplice’s masculinity encouraged the accomplice to use

the   firearm.          But   the   majority’s       argument    that     Moore

encouraged possession by unsuccessfully trying to take the


                                       4

firearm     away    is     nonsensical.          The    accomplice     already

possessed the firearm, and Moore tried to take it away.

Moore’s        actions     did     not    encourage      his    accomplice’s

possession;        Moore     was     actually     encouraging        just   the

opposite.        Arguing that Moore’s actions, which sought to

divest     his     accomplice       of   possession      of    the    firearm,

actually encouraged possession defies logic.

        Regarding    defendant        Harris,     the     majority     states,

“Harris expressly encouraged Mays [the accomplice] to use

the firearm in his possession to shoot the clerk after the

clerk refused to give the men any money.”                        Ante at 21

(emphasis added).            The majority also states that Harris

“relied on May’s possession of the firearm to facilitate

his own robbery of the customer.”                  Ante at 21.         As with

defendant       Moore,     the     majority     adequately     explains     how

defendant Harris encouraged the use of the firearm, yet

nowhere in the opinion is it explained how either defendant

aided     or     abetted    the     carrying     or     possession     of   the

firearms.        In both of these cases what is really being

encouraged is the use of the firearm.

        Contrary    to     the     majority’s     assertion,     I     am   not

suggesting we treat a possessory offense differently from

any other crime.           Nor am I suggesting that we treat aiding

or abetting felony-firearm possession differently from any


                                         5

other crime.          I am merely applying basic rules of statutory

construction and, once again, giving effect to the words

used by the Legislature.                See Coleman v Gurwin, 443 Mich

59,    65;   503       NW2d   435     (1993).           The    difference          between

possession and use is not a trivial one, and the fact that

the Legislature chose to state that MCL 750.227b(1) applies

only    to   a    “person       who    carries         or     has    in    his     or   her

possession a firearm when he or she commits or attempts to

commit a felony” should not be ignored.

       While      a    defendant      can        aid    or    abet    felony-firearm

possession        by     physically         assisting          an     accomplice         in

obtaining or retaining a firearm, there are also other ways

to aid or abet an accomplice beyond physical assistance and

Johnson      does      not    preclude       convictions            for        nonphysical

assistance.           A defendant can offer verbal encouragement to

an accomplice before the accomplice has possession of the

firearm      or   while       the   accomplice          has    possession          of   the

firearm.       But to meet the statutory standards, the verbal

encouragement          must     relate       to        obtaining          or    retaining

possession, not just the use.                          And while a person must

indeed possess a firearm in order to use it, it does not

mean that a defendant who encourages the use of a firearm

that is already in the possession of an accomplice also

encourages possession.              Interpreting the statutory language


                                            6

in this manner would essentially make the felony-firearm

possession statute a strict liability statute for anyone

who commits or participates in a crime with an accomplice

who possesses a firearm.                A fair reading of the statutory

language does not support the majority’s position.

                         II.    THE REENACTMENT RULE

       The    majority         also     ignores         the   fact         that    the

Legislature reenacted the felony-firearm possession statute

after the Johnson decision, yet the Legislature did not

address      the    alleged        “error”    in    Johnson.           Under       the

reenactment rule, “[i]f a legislature reenacts a statute

without modifying a high court’s practical construction of

that   statute,       that     construction        is    implicitly        adopted.”

People v Hawkins, 468 Mich 488, 519; 668 NW2d 602 (2003)

(Cavanagh, J., dissenting), citing 28 Singer, Statutes and

Statutory          Construction         (2000       rev),          Contemporaneous

Construction, § 49.09, pp 103-112.                        The Legislature “is

presumed     to     be   aware     of   an    administrative          or    judicial

interpretation           of    a      statute       and       to     adopt        that

interpretation when it [reenacts] a statute without change

. . . .”      Lorillard, a Div of Loew’s Theatres, Inc v Pons,

434 US 575, 580; 98 S Ct 866; 55 L Ed 2d 40 (1978). “The

reenactment rule differs from the legislative-acquiescence

doctrine in that the former canon provides ‘prima facie


                                         7

evidence of legislative intent’ by the adoption, without

modification,       of   a   statutory       provision     that    had   already

received judicial interpretation.”                Hawkins, supra at 488,

quoting Singer at 107.           In overruling Johnson, the majority

reaches    its    desired     result    by    ignoring      the    actions   and

intent of our Legislature, as well as the plain language of

the statutes.

                 III. IMPROPERLY OVERRULING JOHNSON

     Finally,       I    must     address       the       majority’s      stated

hesitancy    to     overrule     Johnson,       which      was     a   unanimous

opinion of this Court.            The majority’s zeal in overruling

Johnson     cannot,      under    any        definition,      be       considered

hesitancy.       Its fervor results in an opinion that admits

that the defendants cannot be convicted without overruling

Johnson.      The    majority     then       offers   a   justification      for

overruling Johnson that does not comport with the statutory

language used in MCL 750.227b(1) and 767.39.                       Further, the

majority provides no sound example of how a person can aid

or abet felony-firearm possession other than assisting in

obtaining or retaining the possession of the firearm.

     While the majority has liberally peppered its opinion

with the word “possession,” merely claiming that defendants

aided or abetted the possession of a firearm does not make

it so.     Besides the copious use of the word “possession,”


                                        8

the majority only supports its decision to overrule Johnson

with   conclusory   statements   that   Johnson’s   test   was   too

“narrow.”    However, the statutory language and the actions

of our Legislature belie this erroneous conclusion.

                        IV.   CONCLUSION

       Accordingly, I respectfully dissent and would reverse

the defendants’ convictions for felony-firearm possession

because the convictions violate the statutory language of

MCL 750.227b(1) and MCL 767.39.

                                 Michael F. Cavanagh
                                 Marilyn Kelly




                                 9

                S T A T E       O F   M I C H I G A N 


                              SUPREME COURT 



PEOPLE OF THE STATE OF MICHIGAN,

     Plaintiff-Appellee,

v                                                               No. 120543

CLARENCE D. MOORE,

     Defendant-Appellant.

_______________________________

PEOPLE OF THE STATE OF MICHIGAN,

     Plaintiff-Appellee,

V                                                              No. 119862

ERWIN HARRIS,

     Defendant-Appellant.
_______________________________

TAYLOR, J. (dissenting).

     I agree with part I of Justice Cavanagh’s dissent.                   I

write   separately      to     emphasize     my    concern      that    the

majority’s opinion makes an aider and abettor in virtually

any gun-related crime guilty of felony-firearm.                  Yet, the

plain   language   of   the    statute     only   makes   an    aider   and

abettor guilty of felony-firearm if his aiding and abetting
is   directed    toward   the   carrying   or   possession   of   the

firearm.1     That is the reading we should give the statute.

         Under the Fourteenth Amendment to the United States

Constitution, it is required that no individual be forced

to speculate, at peril of indictment, whether his conduct

is prohibited.      Dunn v United States, 442 US 100, 112; 99 S

Ct 2190; 60 L Ed 2d 743 (1979).       This is an exercise of the

rule of lenity,2 which should control the resolution of this

case and cause us to conclude that all the felony-firearm

statute criminalizes is aiding and abetting the carrying or

possessing of a firearm, nothing more.3

                                   Clifford W. Taylor

     1
      MCL 750.227b(1), the statute we are interpreting,
relates to the carrying or possessing a firearm when
committing or attempting to commit a felony, and states the
following:

              A person who carries or has in his or her
         possession a firearm when he or she commits or
         attempts to commit a felony, except a violation
         of section 223, section 227, 227a or 230, is
         guilty of a felony, and shall be imprisoned for 2
         years. . . .
         2
        The propriety of the rule of lenity was recently
reaffirmed by the Supreme Court in United States v
Granderson, 511 US 39, 54; 114 S Ct 1259; 127 L Ed 2d 611
(1994).
         3
       I recognize that MCL 750.2 provides that “The rule
that a penal statute is to be strictly construed shall not
apply to this act or any of the provisions thereof. . . .”
It is, of course, a fundamental axiom of American law,
rooted in our history as a people and requiring no
citations to authority, that the requirements of the
Constitution prevail over a statute in the event of a
conflict.
                            2

