                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 18, 2015
               Plaintiff-Appellee,

v                                                                    No. 320999
                                                                     Wayne Circuit Court
MICHAEL MCCARTHY,                                                    LC No. 13-009924-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and OWENS and GLEICHER, JJ.

PER CURIAM.

        Defendant appeals by right his bench trial convictions of possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b, felonious assault, MCL 750.82,
and carrying a concealed weapon, MCL 750.227. Defendant was sentenced to two years’
imprisonment for the felony-firearm conviction, and three years’ probation for the felonious
assault and carrying a concealed weapon convictions. We affirm.

        This case arises from an altercation between defendant and a work crew for DTE Energy
(DTE), a local utility company. The DTE crew was responsible for cutting off electric service to
the homes of nonpaying customers, including defendant. After quarreling with DTE theft
investigator John Battles at defendant’s home, defendant followed the DTE crew down the
block, pulled out a gun, and threatened to shoot Battles. DTE theft investigator Pierrie Pickens
and Harlan Electric contractors Timothy Fish and David Espitia all saw the confrontation and the
gun, but the police never recovered the weapon.

        Defendant contends that there was insufficient evidence to sustain his felony-firearm
conviction because the prosecution never entered a weapon into evidence at trial, because there
was conflicting testimony regarding the existence of a gun, and because the prosecution failed to
establish that defendant possessed a real firearm, not simply a toy or an imitation. We disagree.

        This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence
supporting his or her conviction. People v Henderson, 306 Mich App 1, 8; 854 NW2d 234
(2014). “When ascertaining whether sufficient evidence was presented in a bench trial to
support a conviction, this Court must view the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could find that the essential elements of
the crime were proven beyond a reasonable doubt.” People v Kanaan, 278 Mich App 594, 618;


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751 NW2d 57 (2008). Moreover, this Court will not interfere with the fact-finder’s role of
determining the weight of evidence or the credibility of witnesses. Id. at 619.

       The elements of felony-firearm require proof 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). Circumstantial evidence and reasonable inferences arising
from that evidence can constitute satisfactory proof of the elements of a crime. Kanaan, 278
Mich App at 619. The prosecution need not actually introduce the weapon into evidence to
prove beyond a reasonable doubt the elements of felony-firearm. People v Hayden, 132 Mich
App 273, 296; 348 NW2d 672 (1984).

        There is sufficient evidence in the record for a rational trier of fact to conclude that the
prosecution proved all the elements of felony-firearm. Whether defendant actually had a firearm
is the only element at issue here. As to that element, all four members of the DTE work crew
saw the gun, and the three crew members who clearly saw it described it as a “small, black gun,”
a “black gun,” and a black gun smaller than a .44-caliber pistol. Pickens called 911 during the
confrontation and told the operator that defendant was threatening Battles with a gun. Defendant
himself, upon learning that Pickens had called the authorities, said “[L]et me go put my pistol up
since you gon’ call the police.” He then left the area shortly after, vowing to return and “whup”
Battles rather than shoot him. This evidence, coupled with the testimony of four prosecution
witnesses that the trial court deemed “exquisitely credible,” was sufficient to convince the trial
court beyond a reasonable doubt that defendant possessed a real gun while committing a
felonious assault and was guilty of felony firearm. Kanaan, 278 Mich App at 618-619.

        While defendant’s brother, Brandon Beavers, and live-in girlfriend, Corvette Sandusky,
both testified that defendant never had a gun, it was for the trial court to weigh witness
credibility, and any conflict in the evidence must be resolved in the prosecution’s favor. Id. at
619. Furthermore, defendant does not challenge the felonious assault and carrying a concealed
weapon convictions on appeal. Therefore, the prosecution provided sufficient evidence to
establish beyond a reasonable doubt that defendant possessed a firearm during the commission of
a felony. Kanaan, 278 Mich App at 618-619.

       We affirm.

                                                             /s/ Jane E. Markey
                                                             /s/ Donald S. Owens
                                                             /s/ Elizabeth L. Gleicher




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