            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 PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                     April 30, 2020
                Plaintiff-Appellee,

 v                                                                   No. 345560
                                                                     Saginaw Circuit Court
 LOUIS BARRY CURRIN,                                                 LC No. 17-043732-FH

                Defendant-Appellant.


Before: BORRELLO, P.J., and O’BRIEN and CAMERON, JJ.

PER CURIAM.

       Defendant was convicted by a jury of possession of a firearm by a felon, MCL 750.224f(2),
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and
possession of ammunition by a felon, MCL 750.224f(4). We affirm.

                                       I. BACKGROUND

        At approximately 7:30 p.m. on February 21, 2017, Troopers Travis Pohl and Antonio
Taylor saw defendant drive by with his plate lights out. Trooper Pohl pulled behind defendant,
and defendant accelerated, ran through a stop sign, and eventually turned into his driveway.
Defendant stepped out of his car and told the troopers that he did not have a license. The troopers
handcuffed defendant and discovered that there was a warrant his arrest. The troopers informed
defendant that he could post bond “rather than go to jail,” and he told them that he had the money
to do so, but would need to go inside his house to get it.

         Defendant was the sole renter of the home, but he testified that his relatives frequently
visited. Trooper Pohl removed defendant’s handcuffs and told him that he could only go inside if
Trooper Pohl went with him. Defendant opened the door with his key, held the door open for
Trooper Pohl, and the trooper accompanied him inside. According to Trooper Pohl, as he was
escorting defendant through the kitchen, defendant “proceeded to dive onto the stove,” and
Trooper Pohl “grabbed onto him and pulled him off the stove,” at which time the trooper “heard a
loud thud on the floor.” Defendant testified that he did not jump on the stove, but instead reached
on top of the refrigerator for his wallet and must have knocked over a pepper shaker. Trooper Pohl
testified that defendant’s diving onto the stove made it “crooked” and created a “gap between the


                                               -1-
stove and the countertop[.]” In that gap, the trooper “could see the barrel of a pistol[.]” The
troopers removed defendant from the home, and Trooper Taylor recovered the gun—an
unregistered .22 caliber long-barrel pistol with a loaded magazine and a round in the chamber.

        The troopers asked defendant if they could search the home, which defendant agreed to.1
The troopers recovered a black bag wedged behind the counter, filled with ammunition of various
calibers, and two .357 magnum rounds from on top of the refrigerator.

        Defendant stated in an interview that he did not know the pistol was there, but he did know
about the ammunition. While in jail, defendant made a call to an unknown female and stated that
“they found the gun” and the ammunition and that he would “just tell them I didn’t know it was
there.”

       A jury convicted defendant as stated above, and defendant now appeals as of right.

                           II. SEARCH OF DEFENDANT’S HOME

       Defendant first argues that the trial court should have granted his motion to suppress the
gun and ammunition because they were seized in an illegal warrantless search of his home. We
disagree.

       We review “for clear error a trial court’s findings of fact regarding a motion to suppress
evidence,” and review de novo the trial court’s ultimate decision to grant or deny the motion.
People v Echavarria, 233 Mich App 356, 366; 592 NW2d 737 (1999).

       The United States and Michigan Constitutions protect citizens against unreasonable
searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. A search conducted without a
warrant is per se unreasonable unless an exception to the warrant requirement applies. People v
Borchard-Ruhland, 460 Mich 278, 293; 597 NW2d 1 (1999).

        Defendant argues that the initial search of his home was unreasonable because the troopers
entered his home without a warrant. The prosecution argues that defendant consented to the initial
search.

        “Consent searches, when voluntary, are an exception to the warrant requirement.” People
v Frederick, 500 Mich 228, 242; 895 NW2d 541 (2017). “The voluntariness question turns on
whether a reasonable person would, under the totality of the circumstances, feel able to choose
whether to consent.” Id. “Conduct itself can, under proper circumstances, be sufficient to
constitute consent.” People v Roberts, 292 Mich App 492, 503; 808 NW2d 290 (2011) (quotation
marks and citation omitted).

       Under the totality of the circumstances, a reasonable person in defendant’s position would
have felt able to choose whether to consent to the troopers accompanying him into his home.


1
  After initially signing a consent form, defendant rescinded that consent, but later signed the
consent form a second time after Trooper Pohl tried to contact a prosecutor.

                                                -2-
Defendant wanted to go into his house to retrieve money to post bond. There is nothing in the
record suggesting that the troopers encouraged defendant to make that decision. Indeed, defendant
testified that he was the one that suggested that he go into his house to get the money. The troopers
told defendant, however, that if he went into his home, a trooper had to accompany him for safety
reasons. According to Trooper Pohl, defendant agreed. In fact, Trooper Pohl testified that
defendant not only agreed to have Trooper Pohl accompany him into his home, but he held the
door open for the trooper. This conduct by defendant manifested an intent to consent to Trooper
Pohl’s entering the home. See People v Brown, 127 Mich App 436, 442; 339 NW2d 38 (1983)
(holding that unlatching and opening a door after police ask to come inside manifests consent for
police to enter the home). Though defendant denied agreeing to allow the troopers to accompany
him inside or to holding the door for Trooper Pohl, the trial court was tasked with judging the
respective witnesses’ credibility. It chose to credit Trooper Pohl’s testimony. We defer to the trial
court’s superior ability to judge the credibility of witnesses that appear before it. Roberts, 292
Mich App at 503-504. We therefore conclude that defendant consented to Trooper Pohl’s initial
entry into his home, and thus the initial entry did not violate defendant’s constitutional rights. See
Frederick, 500 Mich at 242.2

        The next question is whether the troopers properly seized the pistol in defendant’s kitchen.
“A seizure without a warrant may be valid under the plain-view exception to the warrant
requirement where it is shown that (1) the incriminating character of the evidence was immediately
apparent and (2) the police had a lawful right of access to the object.” People v Cooke, 194 Mich
App 534, 536; 487 NW2d 497 (1992). However, “[t]he police cannot manipulate an object in
order to determine whether it is contraband; it must be immediately apparent from plain view . . .
that the object is contraband.” People v Custer, 465 Mich 319, 336; 630 NW2d 870 (2001).

        Defendant argues that Trooper Pohl could not have clearly seen the pistol between the
countertop and stove unless he manipulated the stove by pulling it away from the counter and
looking behind it. However, Trooper Pohl testified that the pistol was clearly visible between the
countertop and stove because defendant’s diving onto the stove made it “crooked” and created a
“gap between the stove and the countertop[.]” While defendant denied diving onto the stove, that
was a factual dispute that came down to the respective witnesses’ credibility. The trial court found
Trooper Pohl to be more credible, and we defer to that finding. See Roberts, 292 Mich App at
503-504. Therefore, the pistol was in Trooper Pohl’s plain view, and the troopers were able to
lawfully seize the pistol under the plain-view exception to the warrant requirement.

       Defendant lastly argues that he did not consent to the second search of his home. However,
defendant signed a consent form giving the troopers permission to search his home the second
time. Defendant argues that even if his signed consent form was valid, the evidence of the


2
  Defendant argues that he only allowed the troopers into his home because he did not realize he
could refuse. However, “knowledge of the right to refuse consent is not a prerequisite to effective
consent,” and is, instead, only one factor to determine whether consent was voluntary. Borchard-
Ruhland, 460 Mich at 294. For the reasons explained above, we conclude that under the totality
of the circumstances, defendant voluntarily consented to Trooper Pohl’s accompanying defendant
into his home.

                                                 -3-
ammunition seized by the troopers should be excluded because the initial entry was unlawful. For
the reasons already explained, the initial entry into defendant’s home and subsequent seizure of
the pistol were lawful, so defendant’s argument does not warrant relief.

                                        III. POSSESSION

       Defendant next argues that the prosecution presented insufficient evidence to support his
convictions. We disagree.

        We review de novo a defendant’s challenge to the sufficiency of evidence. People v Kosik,
303 Mich App 146, 150; 841 NW2d 906 (2013). We “must view the evidence in the 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.” Id. Any conflicts in
evidence must be resolved in favor of the prosecution. People v Terry, 224 Mich App 447, 452;
569 NW2d 641 (1997).

       Defendant only argues that the prosecution’s evidence was insufficient to establish that he
was in possession of the gun and ammunition found in his home. Possession is an element of
possession of a firearm by a felon, felony-firearm, and possession of ammunition by a felon. See
MCL 750.224f(2); MCL 750.227b; MCL 750.224f(4).

        “Possession” includes both actual and constructive possession. People v Johnson, 293
Mich App 79, 83; 808 NW2d 815 (2011). “[A] defendant has constructive possession of a firearm
if the location of the weapon is known and it is reasonably accessible to the defendant.” Id.
(quotation marks and citations omitted).

         Defendant argues that the prosecution did not establish possession because it did not show
that defendant had the gun or ammunition on his person or that he had handled them. Defendant
testified that multiple people visited the home, and he argues that it is reasonable to conclude that
the firearm and ammunition belonged to someone else. However, defendant was the sole renter
of the home, he had access to the gun in the kitchen, the gun visibly stuck out of the gap between
the stove and the counter, and he conceded that he knew about the ammunition. Further,
defendant’s call from jail where he stated that “they found the gun” and that he would “just tell
[the police] I didn’t know it was there,” indicated that he knew about the gun. There was also
Trooper Pohl’s testimony that defendant dove onto the stove when he was walking by it, after
which Trooper Pohl “heard a loud thud on the floor,” and looked down to see the gun on the floor
by the stove. Based on this evidence, a rational trier of fact could have found beyond a reasonable
doubt that defendant knew about the gun and ammunition, and that defendant had reasonable
access to them. Thus, the prosecution presented sufficient evidence for the jury to conclude that
defendant constructively possessed the gun and ammunition. Because possession is the only
element that defendant contends was not sufficiently supported, defendant is not entitled to relief
on his insufficiency claim.




                                                -4-
Affirmed.



                  /s/ Stephen L. Borrello
                  /s/ Colleen A. O’Brien
                  /s/ Thomas C. Cameron




            -5-
