                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   February 19, 2015
               Plaintiff-Appellee,                                 9:10 a.m.

V                                                                  No. 318051
                                                                   Allegan Circuit Court
JASON ERIC TRIPLETT,                                               LC No. 12-018016-FH

               Defendant-Appellant.


Before: BECKERING, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

       During a late-night altercation with two men who intervened after witnessing defendant’s
apparent assault of his wife, defendant pulled out a knife. Although defendant was acquitted of
felonious assault against these Good Samaritans on self-defense grounds, a jury convicted him of
domestic assault, MCL 750.81(2), and carrying a concealed weapon (CCW), MCL 750.227.
Defendant contends that his CCW conviction must be reversed because the trial court
affirmatively instructed the jury that the defense did not apply. Self-defense is not an available
defense to a CCW charge. We therefore affirm.

                                       I. BACKGROUND

        On the evening of the offense, defendant and his wife had attended at a party. They agree
that the wife was irate when defendant forced her to return home. The wife was extremely
intoxicated and left the couple’s home on foot to return to the party. Shortly thereafter,
defendant followed her in a vehicle. Defendant and his wife admitted that they engaged in a
shoving match in the roadway when the wife refused to enter defendant’s vehicle. Two men
driving down the road witnessed this scuffle and, believing defendant was the aggressor, stopped
to assist the wife. They offered the wife a ride and she entered their vehicle. Defendant
attempted to explain the situation and remove his wife from the car, but one of the men stopped
him. Defendant and the man then began to struggle. Defendant asserted that the man tried to
choke him and so he pulled out a knife to protect himself. He described the weapon as a utility
knife with a two-inch blade. Defendant’s wife corroborated his version of events. The jury
apparently accepted defendant’s claim that he wielded the knife to protect himself from the man
who believed he was intervening to protect a woman from assault. But the jury did not accept
defendant’s explanation for the domestic assault and CCW charges.



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                                          II. ANALYSIS

        Defendant contends that the trial court erroneously instructed the jury that self-defense is
not a defense against a CCW charge. Specifically, after instructing the jury on the elements of
the CCW offense, the court described, “It does not matter if the defendant was carrying a weapon
for his own protection. Self defense is not a defense to the charge of carrying a concealed
weapon.” This instruction was consistent with M Crim JI 11.8. The court immediately informed
the jury that it could consider self-defense and defense of others in relation to the felonious
assault charges.

         Self-defense is an affirmative defense that admits but excuses the commission of a
criminal offense. People v Dupree, 486 Mich 693, 704 n 11; 788 NW2d 399 (2010). Defendant
invites us to extend the holdings in two recent Michigan Supreme Court cases regarding the use
of self-defense. In Dupree, the Supreme Court held that common-law self-defense may be relied
upon to justify a felon-in-possession-of-a-firearm offense. Id. at 696. In People v Moreno, 491
Mich 38; 814 NW2d 624 (2012), the Court concluded that a person may lawfully resist an illegal
arrest, i.e. use self-defense against law enforcement.

        However, this Court previously has ruled that self-defense is not a defense to CCW.
People v Townsel, 13 Mich App 600, 601; 164 NW2d 776 (1968). And in People v Hernandez-
Garcia, 477 Mich 1039, 1039-1040; 728 NW2d 406 (2007), the Supreme Court similarly ruled
that “momentary innocent possession of a concealed weapon is not a defense” to a CCW charge.
The Court reasoned that because the mens rea requirement of MCL 750.227 does “not extend to
the defendant’s purpose for carrying the concealed weapon,” a defendant’s purpose for
concealing a weapon is irrelevant and cannot be a defense against CCW. Id. at 1040 n 1. This
rationale extends to the application of self-defense to a CCW charge. Because a defendant’s
purpose for concealing a weapon cannot be a defense against CCW, then it would be no defense
if a defendant concealed a weapon for the purpose of self-defense.

       Given this Court’s decision in Townsel and the Supreme Court’s analysis in Hernandez-
Garcia, we decline defendant’s invitation to extend Dupree and Moreno in the current case.
Therefore, we cannot fault the trial court for its instruction.

        Defendant also contends that defense counsel was ineffective for failing to object to the
trial court’s instruction. Counsel cannot be deemed ineffective for failing to raise a novel legal
argument, People v Reed, 453 Mich 685, 695; 556 NW2d 858 (1996), or failing to make a futile
objection. People v Chambers, 277 Mich App 1, 11; 742 NW2d 610 (2007).

       We affirm.



                                                             /s/ Jane M. Beckering
                                                             /s/ Stephen L. Borrello
                                                             /s/ Elizabeth L. Gleicher




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