                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 20, 2017
               Plaintiff-Appellee,

v                                                                    No. 331828
                                                                     Wayne Circuit Court
NICHOLAS ASHFORD,                                                    LC No. 15-001958-01-FH

               Defendant-Appellant.


Before: MURPHY, P.J., TALBOT, C.J., and O’CONNELL, J.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of felon in possession of a firearm,
MCL 750.224f, carrying a concealed weapon (CCW), MCL 750.227, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to two
years’ imprisonment for the felony-firearm conviction and four years’ probation for the felon-in-
possession and CCW convictions, with the probation term to run concurrently to the felony-
firearm sentence. We affirm.

        The firearm-related charges arose from a traffic stop during which the police observed
and recovered a firearm that was protruding from underneath the driver’s seat of the pickup truck
that defendant was driving. Defendant had rented the truck, and the vehicle had six other
occupants. Defendant ran a red light in front of two partnered officers in their police cruiser,
forcing the officer operating the cruiser to brake and swerve to avoid a collision with defendant’s
truck. The officers activated their red and blue lights and pulled over defendant’s rental truck.
As the officers approached the truck on foot, they observed the occupants wildly moving around,
and there was testimony by a female backseat passenger of the truck that the occupants were
attempting to conceal bottles of alcohol. She also indicated that there was marijuana in the truck.
One officer testified that he saw the driver, defendant, “reaching forward,” “leaning down with
his whole body extended forward,” “reaching down,” and “leaning forward with his hands
down.” The other officer testified that the driver was “bending” and “leaning” forward.
Defendant’s movements suggested to the officers that he was attempting to conceal something.
Defendant initially did not comply with the officers’ commands for the occupants of the truck to
stop moving around and to put their hands up. After repeating the commands two or three times,
defendant finally showed his hands to officers.




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        Because of the frantic movements in the truck, and for purposes of safety, the officers
directed all of the occupants to exit the truck, including defendant. Once defendant stood up and
got out of the truck, the officer standing by the driver’s side door observed and recovered a
loaded 9 mm Glock that was lying partially underneath the driver’s seat, with a portion of the
gun’s handle openly exposed to the officer’s view. There was testimony that defendant had been
the only person driving the truck that evening, that the gun was not registered to defendant, and
that the police were unable to identify any latent fingerprints on the Glock. The female
passenger mentioned above testified that she had not seen defendant with a gun in his possession
that night, that she was unaware of any firearm in the truck, that she did not see defendant lean
forward as if he was placing something under his seat, and that she did not observe any of the
truck’s occupants placing a gun or anything else under the driver’s seat.

        On appeal, defendant first argues that the prosecution failed to present evidence sufficient
to show that he “possessed” the firearm found in the vehicle, as necessary to sustain his firearm-
related convictions. We disagree. Viewing the direct and circumstantial evidence in a light most
favorable to the prosecution, People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v
Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002), adhering to the principle that we must
not interfere with the jury’s role in assessing the weight of the evidence and the credibility of the
witnesses, People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), appreciating that
circumstantial evidence and reasonable inferences arising from such evidence can constitute
satisfactory proof of an element of a crime, People v Carines, 460 Mich 750, 757; 597 NW2d
130 (1999), including firearm possession, People v Johnson, 293 Mich App 79, 83; 808 NW2d
815 (2011), and resolving all conflicts in the evidence in favor of the prosecution, People v
Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008), we hold that there was sufficient
evidence for a rational juror to find that defendant possessed the gun beyond a reasonable doubt.1

        Despite the absence of any direct evidence that defendant physically possessed the
firearm, we conclude that there existed sufficient circumstantial evidence from which it could be
reasonably inferred that defendant had actually possessed the gun shortly before it was
discovered by the police. See People v Minch, 493 Mich 87, 91; 825 NW2d 560 (2012)
(possession of a firearm can be either actual or constructive). The officers’ testimony concerning
defendant’s failure to immediately comply with their commands and his movements in leaning
forward and reaching down as the officers approached the vehicle, which had been rented by
defendant and solely driven by him, along with the discovery of the gun partially hidden under
the driver’s seat moments after defendant’s incriminating movements, gave rise to a reasonable
inference that defendant physically handled and possessed the firearm in a frantic effort to
conceal it from the police. Moreover, this same evidence was sufficient to show that defendant
had control over the vehicle and the firearm in it, knowledge of the firearm’s location under his


1
  “Possession” is an element of felon-in-possession, MCL 750.224f; People v Bass, 317 Mich
App 241, 268; 893 NW2d 140 (2016), and felony-firearm, MCL 750.227b; People v Peals, 476
Mich 636, 640; 720 NW2d 196 (2006); Johnson, 293 Mich App at 82-83, and the “carrying”
element of CCW has been equated to possession, People v Butler, 413 Mich 377, 390 n 11; 319
NW2d 540 (1982).


                                                -2-
seat, and reasonable access to the firearm, thereby also establishing constructive possession of
the gun by defendant. Minch, 493 Mich at 92; People v Flick, 487 Mich 1, 14; 790 NW2d 295
(2010); People v Hill, 433 Mich 464, 470-471; 446 NW2d 140 (1989).

        To the extent that others in the truck were also moving about frantically, defendant’s
specific movements directly correlated to the presence of something under the driver’s seat, with
no evidence of anyone else placing the gun under the seat, and it was for the jury to assess the
weight and relevance to be given to the evidence regarding the movements of others. Wolfe, 440
Mich at 514-515. And although the female passenger testified that she did not see defendant
moving or leaning forward as claimed by the officers, nor did she see any gun that night, these
assertions entailed matters of credibility for the jury to assess, not us. Id. The federal cases
defendant relies on to support his argument that the evidence was insufficient to establish his
possession of the firearm are factually distinguishable from this case. Accordingly, we do not
find them to be persuasive. In sum, on de novo review, People v Lueth, 253 Mich App 670, 680;
660 NW2d 322 (2002), the evidence was sufficient to establish possession and the carrying of
the firearm by defendant; reversal is unwarranted.

        Defendant next argues that the jury’s verdicts were against the great weight of the
evidence, warranting a new trial. In support, defendant renews the “possession” argument, but
couched in terms of great-weight principles. Defendant has failed to demonstrate that the
evidence showing possession, either actual or constructive, contradicted indisputable physical
facts or law, was patently incredible, defied physical realities, was so inherently implausible that
a reasonable juror could not believe the evidence, or was so seriously impeached that it was
deprived of all probative value. People v Lemmon, 456 Mich 625, 643; 576 NW2d 129 (1998);
People v Bosca, 310 Mich App 1, 13; 871 NW2d 307 (2015). Because there were no exceptional
circumstances, the issue concerning the credibility of the testimony by the officers and the
female passenger was for the jury to assess. Lemmon, 456 Mich at 642. In sum, the evidence
did not preponderate so heavily against the verdicts that it would be a miscarriage of justice to
allow the verdicts to stand. People v Musser, 259 Mich App 215, 218-219; 673 NW2d 800
(2003).

       Defendant next argues that the trial court erred in declining to instruct the jury as he
requested on the knowledge element of constructive possession with regard to the felon-in-
possession charge, thereby depriving him of his constitutional right to present a defense. In
People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002), this Court observed:

               This Court reviews claims of instructional error de novo. This Court also
       reviews de novo the constitutional question whether a defendant was denied her
       constitutional right to present a defense. Jury instructions are to be read as a
       whole rather than extracted piecemeal to establish error. Even if somewhat
       imperfect, instructions do not warrant reversal if they fairly presented the issues to
       be tried and sufficiently protected the defendant's rights. The instructions must
       include all elements of the crime charged and must not exclude consideration of
       material issues, defenses, and theories for which there is supporting evidence. No
       error results from the absence of an instruction as long as the instructions as a
       whole cover the substance of the missing instruction. [Citations omitted.]


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        With respect to the felon-in-possession charge, the trial court properly instructed the jury
that in order to convict defendant, it had to find beyond a reasonable doubt “that the defendant
possessed and or transported a firearm in this state” and “that the defendant was previously
convicted of a specified felony.” See People v Bass, 317 Mich App 241, 268; 893 NW2d 140
(2016); MCL 750.224f; M Crim JI 11.38a. Specifically, regarding possession, the court further
instructed:
                Possession, possession does not necessarily mean ownership. Possession
        means that either the person has actual physical control of the thing as I do with
        the pen I’m now holding, or the person knows the location of the firearm and has
        reasonable access to it. Possession may be sole where one person alone possesses
        the firearm. Possession may be joint where two or more people share possession.

        This instruction adequately presented the element of possession, namely that possession
can be actual or constructive and that constructive possession requires knowledge of the
firearm’s location and reasonable access to it. See Hill, 433 Mich at 470-471; Johnson, 293
Mich App at 83. Accordingly, the jury instructions, when read as a whole, properly included the
required elements of felon-in-possession, including defendant’s knowledge of the firearm in the
vehicle; he was not deprived of his constitutional right to present a defense. Moreover, as
discussed earlier, the evidence supported a conclusion that defendant had “actual” possession of
the gun; therefore, assuming an instructional error, defendant cannot avoid a harmless-error
finding, MCL 769.26, because we cannot ascertain whether the jury even contemplated
“constructive” possession of the gun. Reversal is unwarranted.

        Finally, defendant argues that the trial court erred in denying his motion to suppress the
firearm evidence as the fruit of an illegal seizure during the traffic stop in violation of his Fourth
Amendment right to be free from unreasonable searches and seizures.2 “A police officer who
witnesses a person violating . . . [the Motor Vehicle Code] . . ., which violation is a civil
infraction, may stop the person, detain the person temporarily for purposes of making a record of
vehicle check, and prepare and subscribe, as soon as possible and as completely as possible, . . . a


2
  A trial court's factual findings at a suppression hearing are reviewed for clear error. People v
Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). “Clear error exists when the reviewing
court is left with a definite and firm conviction that a mistake was made.” People v Hornsby,
251 Mich App 462, 466; 650 NW2d 700 (2002). “But the application of constitutional standards
regarding searches and seizures to essentially uncontested facts is entitled to less deference; for
this reason, we review de novo the trial court's ultimate ruling on the motion to suppress.”
Williams, 472 Mich at 313. The Fourth Amendment of the United States Constitution and Const
1963, art 1, § 11, secure the right of the people to be free from unreasonable searches and
seizures. People v Brown, 279 Mich App 116, 130; 755 NW2d 664 (2008). The touchtone of
any Fourth Amendment analysis is reasonableness, and reasonableness is measured by
examination of the totality of the circumstances. Williams, 472 Mich at 314. “One of the well-
established exceptions to the warrant requirement is known as the automobile or motor vehicle
exception,” which “is premised on an automobile's ready mobility and pervasive
regulation[.]” People v Kazmierczak, 461 Mich 411, 418; 605 NW2d 667 (2000).



                                                 -4-
written citation[.]” MCL 257.742(1). A traffic stop is generally not unlawful and does not
violate the Fourth Amendment if the officer conducting the stop has probable cause or a
reasonable and articulable suspicion to believe that a violation of the Motor Vehicle Code had
been committed or was occurring. People v Davis, 250 Mich App 357, 363; 649 NW2d 94
(2002); People v Williams, 236 Mich App 610, 612; 601 NW2d 138 (1999).

        Given that defendant ran a red light in front of the officers, the police had a lawful basis
to pull over defendant’s truck. Defendant does not contest the constitutionality of the initial
traffic stop. Instead, defendant challenges the authority of the police officers to additionally
order him to get out of the vehicle during the stop. However, once a vehicle has been lawfully
stopped for a traffic violation, an officer can order the driver to exit the vehicle without violating
the Fourth Amendment. Arizona v Johnson, 555 US 323, 331; 129 S Ct 781; 172 L Ed 2d 694
(2009). The additional intrusion of requiring a driver, already lawfully stopped, to step out of the
vehicle for the duration of an investigatory stop, is warranted by the interest in officer safety,
which outweighs the de minimis extra intrusion. Id. Likewise, this Court in People v Chapo,
283 Mich App 360, 368; 770 NW2d 68 (2009), ruled that “[a] police officer may order occupants
to get out of a vehicle, pending the completion of a traffic stop, without violating the Fourth
Amendment’s proscription against unreasonable searches and seizures.” Accordingly, the police
officers did not subject defendant to a constitutionally unreasonable seizure by ordering him to
get out of the vehicle incident to the legitimate traffic stop, without further justification.

        As defendant exited the truck pursuant to the lawful commands by the police, the one
officer observed the partial handle of the gun sticking out from underneath the driver’s seat.
Because the firearm was in the officer’s plain view, while he was lawfully in a position from
where he could see the gun, and because the gun’s incriminating character was immediately
apparent, the officer was entitled to immediately seize the firearm. See People v Champion, 452
Mich 92, 101; 549 NW2d 849 (1996); People v Wilkens, 267 Mich App 728, 733; 705 NW2d
728 (2005).3 Therefore, the seizure of the firearm was not unconstitutional and the trial court
properly denied defendant’s motion to suppress.

       Affirmed.

                                                              /s/ William B. Murphy
                                                              /s/ Michael J. Talbot
                                                              /s/ Peter D. O'Connell




3
 Additionally, observation of the gun in open view also established probable cause to search
under the driver’s seat and retrieve the firearm. See Texas v Brown, 460 US 730, 739-740; 103 S
Ct 1535; 75 L Ed 2d 502 (1983).


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