            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 28, 2019
               Plaintiff-Appellee,

v                                                                   No. 341719
                                                                    Wayne Circuit Court
LISKO JONES,                                                        LC No. 17-004983-01-FH

               Defendant-Appellant.


Before: SHAPIRO, P.J., and BECKERING and M. J. KELLY, JJ.

PER CURIAM.

       Defendant appeals his jury trial convictions of carrying a concealed weapon (CCW),
MCL 750.227, 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), second offense,
MCL 750.227b. Defendant was sentenced to three years’ probation for the CCW and felon-in-
possession convictions, to run concurrent with a sentence of five years’ imprisonment for the
felony-firearm, conviction. We affirm.

                                       I. BACKGROUND

       As testified to at trial, three Detroit police officers were on patrol around 10:30 p.m.
when they observed a parked vehicle with two occupants inside. As the officers approached the
vehicle in their squad car, they observed an open wine bottle in defendant’s hand. Defendant
appeared to be drinking from the wine bottle, as it was close to his face. After briefly conversing
with defendant, the officers exited their squad car. As they approached, two of the officers
observed defendant reaching toward the vehicle’s backseat, leading them to believe that
defendant was attempting to hide or conceal something. One officer specifically observed
“something black” in defendant’s hand that resembled a gun. At that point, the officer ordered
defendant to keep his hands up, stop reaching towards the vehicle’s backseat, set the wine bottle
down, and exit the vehicle. Defendant complied and the officers escorted him to the front of the
squad car. One of the officers then looked into the area where defendant had been reaching and
found a black handgun. Defendant testified and denied any knowledge of the gun; he said that
he was reaching for his wallet, which he kept under the vehicle’s center console.



                                                -1-
                           II. UNSIGNED FELONY INFORMATION

         Defendant first argues that the prosecution’s failure to file a signed felony information
requires this Court to vacate his convictions. He also argues that his counsel was ineffective for
failing to object to the information. We disagree.1

        By statute and court rule, the prosecution is required to file a signed information
following an preliminary examination. MCL 767.40; MCL 767.42(1); MCR 6.112(B) and (D).
In this case, while the prosecution did not separately file a signed information, a “bind-over
certification packet” was filed following the preliminary examination which purportedly
contained an information sheet signed by the prosecutor. The signed information does not
appear in the record, but that does not mean that the prosecution did not file that document as
required by law. Indeed, defendant does not address the assertion in the bind-over packet that a
signed information was filed. However, even assuming that there was a defect in the
information, it would not have deprived the circuit court of jurisdiction, as defendant asserts.
Instead, a defect in the information simply presents a ministerial error that could be “easily
corrected” by raising the issue before trial. People v Thomas, 1 Mich App 118, 128-129; 134
NW2d 352 (1965). Accord People v Goecke, 457 Mich 442, 458-459; 579 NW2d 868 (1998).
Defendant failed to raise this issue before the trial court and he fails to demonstrate any prejudice
from the alleged defect. See MCR 6.112(G). Thus, he is not entitled to reversal of his
convictions. For the same reasons, defendant fails to establish that his counsel erred in not
objecting to the information or that he suffered prejudice as a result. See People v Grant, 470
Mich 477, 485-486; 684 NW2d 686 (2004).

                                 III. WARRANTLESS SEARCH

       Next, defendant argues that the handgun recovered from the vehicle was the result of a
warrantless, unconstitutional search, and that evidence of the handgun should not have been
admitted at his trial. He also contends that his counsel was ineffective for failing to file a motion
to suppress on that basis. We disagree.

       The United States and the Michigan Constitutions grant individuals the right to be secure
against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11.
“Generally, a search conducted without a warrant is unreasonable unless there exist both
probable cause and a circumstance establishing an exception to the warrant requirement.”


1
  Defendant did not raise this issue below and therefore our review is for plain error affecting
substantial rights. People v Lechleitner, 291 Mich App 56, 59; 804 NW2d 345 (2010). “To
avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “The third requirement
generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower
court proceedings.” Id. Because the trial court did not conduct an evidentiary hearing on
defendant’s claims of ineffective assistance of counsel, our review is limited to mistakes
apparent on the record. People v Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014).



                                                -2-
People v Mayes, 202 Mich App 181, 184; 508 NW2d 161 (1993). “One of the well-established
exceptions to the warrant requirement is known as the automobile or motor vehicle exception.”
People v Kazmierczak, 461 Mich 411, 418; 605 NW2d 667 (2000). “[T]he automobile exception
is premised on an automobile’s ready mobility and pervasive regulation, and if a car is readily
mobile and probable cause exists to believe it contains contraband, the Fourth Amendment
permits police to search the vehicle without more.” Id. at 418-419. “The determination whether
probable cause exists to support a search, including a search of an automobile without a warrant,
should be made in a commonsense manner in light of the totality of the circumstances.” People
v Garvin, 235 Mich App 90, 102; 597 NW2d 194 (1999).

         Defendant does not dispute the officers’ initial decision to detain him by ordering him out
of the vehicle but rather challenges the subsequent search of the vehicle. We conclude that the
totality of the circumstances provided the officers probable cause to conduct that search. As the
officers approached the vehicle they observed defendant reach toward the backseat. One officer
testified that defendant made a “drawing motion” from his hip toward the backseat. Based on
the officer’s experience, he believed that defendant was attempting to conceal a weapon or
contraband. Another officer specifically observed that there was “something black” in
defendant’s hand resembling a handgun, which caused the officer to order defendant to cease his
activity and exit the vehicle. Furtive behavior, by itself, does not establish probable cause.
People v Howell, 394 Mich 445, 447; 231 NW2d 650 (1975). Here, however, the totality of the
circumstances gave the officers probable cause to believe that defendant was concealing a
firearm. Therefore, the admission of the firearm into evidence was not plainly erroneous, and
defendant fails to establish that he was denied the effective assistance of counsel by defense
counsel’s decision to not move the trial court to suppress that evidence.

                           IV. SUFFICIENCY OF THE EVIDENCE

       Finally, defendant argues that the evidence at trial was insufficient to support his
convictions because the prosecution failed to prove that he possessed the handgun recovered
from the backseat of the vehicle. We disagree.2

       The prosecution carried its burden    of showing that defendant possessed the handgun.3
Possession may be actual or constructive.    People v Flick, 487 Mich 295, 303; 790 NW2d 295
(2010). Here, the prosecution provided       sufficient evidence for the jury to conclude that
defendant actually possessed the firearm.     Again, one officer testified that he observed what


2
  We review de novo challenges to the sufficiency of the evidence. People v Gaines, 306 Mich
App 289, 296; 856 NW2d 222 (2014). We view the evidence “in the light most favorable to the
prosecution, to determine whether the trier of fact could have found that the essential elements of
the crime were proved beyond a reasonable doubt.” Id.
3
  Felony-firearm and felon-in-possession require a showing that the defendant possessed firearm.
People v Bass, 317 Mich App 241, 267-269; 893 NW2d 140 (2016). The “carrying” element of
CCW has been equated to possession. People v Butler, 413 Mich 377, 390 n 11; 319 NW2d 540
(1982).



                                                -3-
appeared to be a black handgun in defendant’s hand as he reached toward the backseat. The
officer then searched the area where defendant was reaching and found a black handgun. The
jury could infer from this circumstantial evidence that defendant actually, i.e., physically,
possessed the firearm. Alternatively, the evidence also supported a conclusion that defendant
was in constructive possession of the weapon. A defendant has constructive possession of a
firearm “if the location of the weapon is known and it is reasonably accessible to the defendant.”
People v Hill, 433 Mich 464, 47-471; 446 NW2d 140. Given the officers’ testimony, there was
enough evidence from which the jury could infer that defendant knew that the gun was in the
backseat. And the firearm was reasonably accessible to defendant given the testimony that he
was reaching in that area.

       Affirmed.



                                                            /s/ Douglas B. Shapiro
                                                            /s/ Jane M. Beckering
                                                            /s/ Michael J. Kelly




                                               -4-
