            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 22, 2019
               Plaintiff-Appellee,

v                                                                    No. 342636
                                                                     Wayne Circuit Court
ALEXANDER RYAN COLEMAN,                                              LC No. 17-006817-01-FH

               Defendant-Appellant.


Before: SHAPIRO, P.J., and GLEICHER and SWARTZLE, JJ.

PER CURIAM.

         Defendant, who has a prior felony record, admitted that he retrieved a handgun from his
sister’s home, took it outside, and placed it in his vehicle. At his criminal trial for possession of
the firearm, defendant requested jury instructions regarding the defenses of duress and self-
defense. Because the trial court correctly declined to instruct the jury regarding those defenses,
and because we find no other grounds for relief, we affirm defendant’s convictions and sentences
but remand for the ministerial correction of the judgment of sentence to reflect that the trial court
sentenced defendant as a fourth-offense habitual offender.

                                       I. BACKGROUND

        This case arises from defendant’s possession of a firearm on July 29, 2017, in front of a
house located in Detroit, Michigan. The prosecutor charged defendant with carrying a concealed
weapon, 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), MCL 750.227b.
The parties stipulated that defendant had previously been convicted of a felony and did not have
the right to possess a firearm on the date in question.

       Defendant testified at trial that he had been standing by his vehicle in front of his sister’s
house, while his girlfriend and children were inside the vehicle. According to defendant, three or
four individuals who had previously shot him drove by and stated, “It ain’t over, b****.”
Defendant testified that he then went into his sister’s house, retrieved a handgun, and came back
outside because, according to defendant, he was worried and scared. Defendant estimated that
he had the handgun for 5 to 10 minutes before the police officers arrived. Defendant admitted


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that he did not retreat inside his sister’s house and that he did not call 911 when threatened by the
individuals who drove by. Although it is unclear on this record where defendant’s girlfriend and
children were located at all relevant times, defendant makes no claim, and presented no
evidence, that his girlfriend and children could not have retreated inside his sister’s house.

       At the close of proofs, defense counsel asked the trial court to instruct the jury on the
defenses of self-defense and duress, but the trial court denied the request. The jury acquitted
defendant of carrying a concealed weapon but convicted him on the felon-in-possession and
felony-firearm charges. The trial court sentenced defendant, as a fourth-offense habitual
offender, MCL 769.12, to one to five years in prison for the felon-in-possession conviction and
two years in prison for the felony-firearm conviction.

        The prosecutor charged defendant as a fourth-offense habitual offender. Although the
judgment of sentence does not refer to defendant’s status as an habitual offender, it is evident
from the record that the trial court sentenced defendant as a fourth-offense habitual offender. At
the sentencing hearing, the following exchange occurred:

               [The Prosecutor]: Yes, Judge. I believe the only correction that I have to
       the presentence report is the guidelines were scored at 9 to 23.

               The Court: Yeah.

              [The Prosecutor]: That’s without the habitual notice. It’s 9 to 46 with the
       habitual four. That’s the only correction that I have.

On the sentencing-information report signed by the trial court on the date of the sentencing
hearing, the sentencing-guidelines range was corrected to state a range of 9 to 46 months instead
of 9 to 23 months. This correction indicates that it was the trial court’s intention to sentence
defendant as a fourth-offense habitual offender. Further, the trial court noted at the sentencing
hearing that defendant had ten prior felony convictions. Therefore, it is clear to this Court that
the trial court sentenced defendant as a fourth-offense habitual offender.

        Defendant appeals as of right from his convictions and sentences, arguing that the trial
court erred in refusing to instruct the jury regarding the defenses of self-defense and duress.

                                          II. ANALYSIS

        We review de novo questions of law pertaining to jury instructions, but review a trial
court’s determination whether a jury instruction applies to the facts of a case for an abuse of
discretion. People v Guajardo, 300 Mich App 26, 34; 832 NW2d 409 (2013). An abuse of
discretion occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes. Id. Furthermore, the defendant “ ’bears the burden of establishing that the
asserted instructional error resulted in a miscarriage of justice.’ ” Id., quoting People v Dupree,
486 Mich 693, 702; 788 NW2d 399 (2010).

       “A defendant in a criminal trial is entitled to have a properly instructed jury consider the
evidence against him or her.” Id. at 34 (cleaned up). A trial court is required to instruct the jury
regarding an affirmative defense only if the defendant produces “some evidence on all elements
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of the defense.” Id. at 34-35 (cleaned up). “An affirmative defense is one that admits the doing
of the act charged, but seeks to justify, excuse, or mitigate it. . . . It does not negate selected
elements or facts of the crime.” Id. at 35 n 1 (cleaned up).

                                            A. DURESS

        “Duress is a common-law affirmative defense. It is applicable in situations where the
crime committed avoids a greater harm.” People v Lemons, 454 Mich 234, 245-246; 562 NW2d
447 (1997) (citations omitted). “In order to properly raise the defense, the defendant has the
burden of producing some evidence from which the jury can conclude that the essential elements
of duress are present.” Id. at 246 (cleaned up). “Unless a defendant submits sufficient evidence
to warrant a finding of duress, the trial court is not required to instruct the jury on that defense.”
Id. at 248 (cleaned up). The elements of duress are as follows:

              A) The threatening conduct was sufficient to create in the mind of a
       reasonable person the fear of death or serious bodily harm;

              B) The conduct in fact caused such fear of death or serious bodily harm in
       the mind of the defendant;

               C) The fear or duress was operating upon the mind of the defendant at the
       time of the alleged act; and

               D) The defendant committed the act to avoid the threatened harm. [Id. at
       247.]

In addition, the threat must have arisen without the defendant’s fault or negligence, and “the
threatening conduct or act of compulsion must be present, imminent, and impending.” Id. A
threat of future injury is insufficient. Id.

        In this case, defendant did not present evidence establishing that he possessed the firearm
because of a threatening act of compulsion that was present, imminent, and impending. At most,
the evidence reflects that there was a threat of a future injury, which is insufficient. Id. There is
no evidence that the individuals who drove by and threatened defendant remained at the scene or
that they were still present when defendant returned outside with the handgun. Defendant could
have taken his girlfriend and children inside his sister’s house, locked the doors, and called the
police. Defendant instead chose to retrieve a handgun from the house and go back outside. This
evidence does not establish that defendant was compelled to possess illegally the firearm to
avoid a greater harm to himself or others. The trial court thus did not err in refusing to instruct
the jury on duress.

                                       B. SELF-DEFENSE

        “Under the common law, the affirmative defense of self-defense justified the killing of
another person if the defendant honestly and reasonably believes his life is in imminent danger or
that there is a threat of serious bodily harm and that it is necessary to exercise deadly force to
prevent such harm to himself.” Guajardo, 300 Mich App at 35 (cleaned up). In 2006, the
Legislature enacted the Self-Defense Act (SDA), MCL 780.971 et seq., which “codified the
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circumstances in which a person may use deadly force in self-defense or in defense of another
person without having the duty to retreat.” Guajardo, 300 Mich App at 35, citing Dupree, 486
Mich at 708. The statute requires “that a person have an honest and reasonable belief that there
is a danger of death, great bodily harm, or a sexual assault in order to justify the use of deadly
force.” Id. at 35-36. A felon possessing a firearm may raise “self-defense under the SDA when
there is evidence that would allow a jury to conclude that criminal possession of a firearm was
justified because the accused had an honest and reasonable belief that the use of deadly force was
necessary to prevent imminent death, great bodily harm, or sexual assault to himself or herself or
to another.” Id. at 40. “The reasonableness of a person’s belief regarding the necessity of deadly
force depends on what an ordinarily prudent and intelligent person would do on the basis of the
perceptions of the actor.” Id. at 42 (cleaned up). Yet, “threats of future harm do not constitute
imminent danger for purposes of self-defense.” Id.

        In this case, there was no evidence that defendant honestly and reasonably believed that
the use of deadly force was necessary to prevent imminent death, great bodily harm, or sexual
assault. As explained earlier, the evidence indicates, at most, a threat of future harm, which does
not establish imminent danger for purposes of self-defense. Id. The trial court did not err in
refusing to instruct the jury on self-defense.

                     C. CORRECTION OF JUDGMENT OF SENTENCE

        As explained above, the judgment of sentence does not refer to defendant’s status as a
fourth-offense habitual offender. Therefore, we remand this case to the trial court for the
ministerial correction of the judgment of sentence to reflect that defendant was sentenced as a
fourth-offense habitual offender. See MCR 6.435(A). We also direct the trial court to ensure
that the corrected judgment of sentence is provided to the Department of Corrections. See
People v Perry, 497 Mich 1023; 863 NW2d 38 (2015).

        Affirmed but remanded for the ministerial correction of the judgment of sentence to
reflect that the trial court sentenced defendant as a fourth-offense habitual offender. We do not
retain jurisdiction.



                                                            /s/ Douglas B. Shapiro
                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Brock A. Swartzle




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