                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 25, 2015
               Plaintiff-Appellee,

v                                                                   No. 318863
                                                                    Wayne Circuit Court
TYRONE WESLEY POWELL,                                               LC No. 13-003116-FH

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of two counts of possession of a
firearm by a person convicted of a felony (felon-in-possession), MCL 750.224f(1), and one count
of possession of a firearm at the time of the commission of a felony (felony-firearm), MCL
750.227b(1). Defendant was sentenced to two years to 90 months in prison for one count of
felon-in-possession, five years’ probation for the second count, and two years in prison for
felony-firearm. Because the trial court erred in denying defendant’s motion for a new trial on the
grounds of the ineffective assistance of his trial counsel, we reverse.

        The basis of the charges was the police discovery of a pistol and a rifle in defendant’s
home. The police, for reasons discussed later, had obtained a search warrant for the house.
When shown the warrant, defendant allowed the officers to enter the home. The officers secured
the area and found defendant, his elderly father, the mother of defendant’s child, and a few small
children present.

        Several police officers gave testimony at trial. Officer Matthew Fulgenzi testified that he
spoke with defendant, who told him that he lived in the second-floor southeast bedroom and
identified a second bedroom as his father’s, a third bedroom (which was never searched by the
police), and a fourth bedroom that had been converted into a storage room. Another officer,
Bradley Clark, testified that he asked defendant if he had any guns in the house, to which
defendant replied that there was a rifle in the upstairs bedroom, leaned against the wall behind
the door.

       Officer Travis Kostanko testified that he was the first officer to enter what he identified
as defendant’s bedroom. He stated that the door had a lock on it, but that it was not locked.
Fulgenzi stated that the bedroom appeared to be actively used and contained clothes, some of
which appeared to be defendant’s size. Fulgenzi also found a letter addressed to defendant


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postmarked October 22, 2012 and a traffic ticket in defendant’s name dated September 17, 2012.
Fulgenzi testified that he also found a nickel-plated revolver and a magazine for an assault rifle
on top of a dresser in the bedroom. The magazine was for a .232 rifle that Kostanko found
leaning against the wall behind the bedroom door. The two officers discovered a second
handgun, a .40 caliber “Springfield XP,” underneath the bed. According to the officers, when
confronted with the firearms, defendant admitted that the items belonged to him. Clark also
stated that, when he had difficulty unloading the nickel-plated revolver, defendant demonstrated
the process necessary to accomplish the task.

       The prosecution also presented testimony from Jacqueline Barnes, who lived eight houses
north of defendant. According to the police, the search warrant had been obtained based upon
Barnes’s allegations regarding defendant’s use of a firearm several weeks prior to the search.
However, defendant was not charged with any crimes arising out of incidents with Barnes. It
appears that the relevancy of Barnes’s testimony was that the gun she described having seen him
brandish was of the same appearance as the pistol found in the house during the search. In other
words, the purpose of the testimony was to link defendant to the gun in question.

        Barnes testified that, in late January 2013, she was walking her leashed pit bull down the
street she shared with defendant. She stated that she slipped and the dog ran free, eventually
toward defendant’s house. Barnes testified that defendant, his daughter, and “some other guy”
were on defendant’s porch at the time. According to Barnes, as she attempted to catch her dog
near the porch, defendant said something to her regarding not having a loose pit bull in the
neighborhood around his daughter. Barnes stated that, as she bent down to try to grab the leash,
she heard a gunshot, and when she looked up, saw defendant holding a silver gun with a black
handle. She claimed that defendant then threatened to shoot the dog if it came near his house
again. Barnes did not report this incident to the police.

        Barnes further testified that on the evening of February 7, 2013, she was taking her
garbage cans to the curb when her dog escaped her yard and ran down the street. Barnes stated
that the dog ran toward defendant’s home. Defendant happened to be pulling into his driveway
at the same time. Barnes testified that, as she was chasing after the dog, defendant got out of his
truck and said, “Didn’t I tell you if I saw that dog down here again I was going to shoot her?”
The following morning, Barnes went to a Detroit police station and filed a report against
defendant. Approximately one week later, the police contacted Barnes. She described
defendant’s physical features, gave his address, and identified him in a photographic lineup. On
this basis, police obtained the search warrant for defendant’s home.

        Following the close of the prosecution’s case in chief, defense counsel informed the trial
court that he was going to call three witnesses in addition to defendant. The prosecution
objected on the grounds that defendant had not filed a witness list which, by the terms of the
scheduling order, had been due almost five months earlier. Defense counsel responded that he
had “texted” the names to the prosecutor a week before trial and was under the impression that
the prosecution would not object to their testimony. He also stated that the witnesses were all
present in the hallway outside the courtroom and prepared to offer exculpatory testimony. The
prosecutor reiterated his objection, stated that he had never agreed to waive the objection and
that the text from defense counsel was not only grossly late, but also contained only the names of
the witnesses, not their addresses or phone numbers as required by the scheduling order.


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        The trial court sustained the objection and so the only witness to testify for the defense
was defendant himself. He testified that he owned the subject home and lived there with his
daughter, father, and sister, Betty Nance. He stated that Nance had moved in approximately two
years earlier to escape an abusive boyfriend and that he helped Nance move many of her
belongings into the home, but as far as he knew, she did not bring any weapons. At
approximately the same time, defendant’s father moved into the home, as he was suffering from
Alzheimer’s disease and needed additional care. Defendant testified that because of his
dementia, his father began roaming the house at night and frequently took items belonging to
Nance and defendant, including keys, money, and cellular phones. Because of this behavior,
defendant installed locks on most of the rooms of the house as well as on the interior entry doors
in order to keep his father from roaming the streets at night. Defendant stated that the southeast
bedroom, where the guns were found, had one of these locks and that only Nance possessed a
key, because she had used to room to store items she had brought from her ex-boyfriend’s home.
Defendant testified that he had not had access to the room for at least a year prior to the
execution of the search warrant. He testified that the several-month-old letter and traffic ticket
must have been left in the room by one of the other residents. Defendant further testified that he
always slept in the living room to make sure his father did not leave the house and denied telling
the officers that he lived in the southeast bedroom, possessed a rifle, or demonstrated how to
unload one of the recovered guns. In sum, defendant testified that he did not live in the room
where the guns were found, did not know guns were in the room, and that the room was
generally kept locked by his sister.

       In rebuttal, the prosecution recalled Fulgenzi, who testified that he had been to
defendant’s home four years prior, i.e., in 2009, and that at that time defendant was living in the
southeast bedroom.

         Defendant was convicted on all counts. Defendant appealed, in part arguing that he had
been deprived of the effective assistance of counsel due to his trial attorney’s failure to timely
file a witness list. In support of this argument, defendant attached affidavits from the three
individuals whose names he claimed to have provided to his trial attorney prior to the deadline
for filing proposed witness lists and whose names were those provided in defense counsel’s tardy
text to the prosecutor. In conjunction with his appeal, defendant filed a motion to remand for a
Ginther1 hearing on his claim of ineffective assistance of counsel. We granted the motion and
retained jurisdiction.2

       At the Ginther hearing, the three witnesses in question, Nance, Angel Wood, and Eric
Ligon, testified.

        Ligon’s testimony concerned the January incident with Barnes and the dog. He testified
that he was the third person present on the porch during the incident. He agreed that defendant


1
    People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
2
  People v Powell, unpublished order of the Court of Appeals, entered September 24, 2014
(Docket No. 318863).



                                                -3-
had argued with Barnes, but testified that defendant did not display or fire a weapon and did not
threaten violence toward Barnes’s dog.

         Nance testified that she had lived in defendant’s home for approximately two years and
corroborated defendant’s descriptions of his father’s medical conditions. She stated that she was
visiting family in Georgia and so was not present when the search warrant was executed. She
testified that during the two years since she moved in, defendant slept on the living room couch
and not in the southeast bedroom. She further testified that all of the guns and ammunition found
in the home belonged to her ex-boyfriend and had been locked in the southeast bedroom. She
stated that she had the only key to this lock and that she kept it at the top of the hallway closet.
She stated that she had never seen defendant remove any of the weapons from the bedroom. In
her affidavit she stated that “if [defendant] ever needed anything out of there he would just get
the key from me which wasn’t very often at all, lock the door back and give me the key back.”
On cross-examination, she was asked “how would Mr. Powell, get in there, if he was to get in
there?” and she answered “He asked me where it was and I’d tell him.”

        Wood also testified that defendant did not live in an upstairs bedroom but slept on the
living room couch. She stated that she was in the home when the search warrant was executed
and police spoke with defendant. She testified that she was “[t]wo feet away” from the
discussion between police and defendant and, when asked whether she remembered a discussion
about “[a]ny gun[,]” she replied, “I don’t recall anything.”

        At the Ginther hearing, defendant testified that he had informed his trial counsel well in
advance of trial that the guns belonged to Nance’s ex-boyfriend and gave him the relevant
information regarding Ligon, Nance, and Wood in order to have them serve as potential
witnesses. Defendant’s trial counsel also testified and admitted that defendant had given him the
names and relevant information regarding Ligon, Nance and Wood well in advance of trial, but
that he had failed to file a witness list.

        At the conclusion of the Ginther hearing, defendant moved for a new trial on the basis of
the ineffective assistance of counsel. The court ruled (and the prosecution agreed) that trial
counsel’s performance was deficient, but denied the motion based on its conclusion that the
failure to call the three witnesses did not affect the outcome of the trial. In its opinion, the court
wrote:

                The main issue, therefore, is had those witnesses been permitted to be
       called by the defense, would the outcome have been any different? This Court
       finds that in that regard, the outcome would not necessarily have been any
       different than what it ultimately was. Why? Because the police officers testified
       that upon their search of the defendant’s residence, they found a handgun, as well
       as a rifle, and the defendant had admitted that the rifle upstairs was his and that it
       was in his bedroom.

              The main test is whether or not the brandishing of a handgun was
       exercised by the defendant, as was contended by the prosecution’s main
       complaining witness, Ms. Barns [sic]. It was only that complainant which was
       used to establish the probable cause for the searching of defendant’s residence.


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       The defendant’s previous convictions precluded him from possessing a firearm.
       Therefore, the finding by the jury that the defendant was guilty of two counts of
       Felon in Possession of a Firearm, as well as Felony Firearm, were clearly
       established during the course of the trial, and the testimony of Betty Nance, Angel
       Wood and Eric Ligon would not have made any difference. [Emphasis added.]

        The right to the effective assistance of counsel is guaranteed by the United States and
Michigan constitutions.3 “To prove a claim of ineffective assistance of counsel, a defendant
must establish that counsel’s performance fell below objective standards of reasonableness and
that, but for counsel’s error, there is a reasonable probability that the result of the proceedings
would have been different.” Swain, 288 Mich App at 643. “Whether a person has been denied
effective assistance of counsel is a mixed question of fact and constitutional law.” People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The trial court’s findings of fact are
reviewed for clear error and the questions of constitutional law are reviewed de novo. Id.

        The parties agree that trial counsel’s conduct in failing to file a witness list before trial in
accordance with the trial court’s scheduling order fell below an objective standard of
reasonableness. Further, at the Ginther hearing, counsel admitted that he was aware of the
witnesses defendant wished to call well before trial and did not timely file a witness list because
he thought he could wait until seven days before the beginning of trial, despite the trial court’s
order establishing a deadline for witness lists. Because trial counsel was aware of defendant’s
possibly exculpatory witnesses well before trial and failed to properly file a witness list with the
trial court or timely provide the names of potential witnesses to the prosecution, his conduct was
inexcusable neglect that fell below the professional norm. See People v Pickens, 446 Mich 298,
327; 521 NW2d 797 (1994) (holding that trial counsel’s conduct in failing to file notice of an
alibi defense despite knowing of the possible testimony well before trial was conduct that fell
below an objective standard of reasonableness).

        Defendant therefore satisfied the first prong of the test for ineffective assistance of
counsel. The second prong that must be shown is that “but for counsel’s error, there is a
reasonable probability that the result of the proceedings would have been different.” Swain, 288
Mich App at 643 (emphasis added). The trial court’s opinion makes clear that it misunderstood
this prong. In articulating the test, the trial court stated that reversal is only proper if the defense
shows that the outcome would necessarily have been different. The question is not, however,
whether defendant can show that the outcome would certainly have been different, as the court
seemed to believe, but whether defendant had shown a reasonable probability that the outcome
would have been different.4



3
 US Const Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 654; 104 S Ct
2039, 80 L Ed 2d 657 (1984); People v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010).
4
  Apparently foreseeing its post-trial ruling, when, at trial, defendant’s attorney conceded that
failing to file the witness list was his, not defendant’s, error, the court responded that, “Falling on
your sword will do no one any good” and “It doesn’t do any good to have a Ginther hearing
either.”



                                                  -5-
       Viewing the test in its proper light, we conclude that but for trial counsel’s error, there is
a reasonable probability that the outcome of defendant’s trial would have been different.

       The police did not find defendant in the actual possession of a firearm and defendant was
not charged with a crime in relation to his interactions with Barnes. Thus, the prosecution was
required to prove that defendant constructively possessed the firearms found in his home.5 See
People v Minch, 493 Mich 87, 91; 825 NW2d 560 (2012).

       The test for constructive possession is whether the totality of the circumstances
       indicates a sufficient nexus between defendant and the contraband. Although not
       in actual possession, a person has constructive possession if he knowingly has the
       power and the intention at a given time to exercise dominion or control over a
       thing, either directly or through another person or persons. [Id. at 91-92
       (quotation marks omitted).]

“[A] person has constructive possession if there is proximity to the article together with indicia
of control. Put another way, 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 Johnson, 293
Mich App 79, 83; 808 NW2d 815 (2011), quoting People v Hill, 433 Mich 464; 446 NW2d 140
(1989).

         In this case, the determination of constructive possession largely rested on the weight and
credibility of witness testimony. Nance’s testimony fully supported defendant’s contention the
guns were not his and that he did not know that the guns were there. Nance stated that only she
had access to that bedroom and had hidden the only key to the lock. This was consistent with
defendant’s assertion that he did not live in the southeast bedroom and did not have access to it.
While Nance admitted that she would have given defendant the key had he asked, she also
testified that she had no knowledge of him ever asking for the key or entering the room since she
lived there, or at least since she had stored the guns there. Nance also testified that she moved
into the home and stored her belongings there only two years previous to the execution of the
search warrant, undercutting the significance of Fulgenzi’s testimony that defendant had resided


5
  Defendant was also convicted of felony-firearm, MCL 750.227b(1), which provides in
pertinent part:

              A person who carries or has in his or her possession a firearm when he or
       she commits or attempts to commit a felony . . . is guilty of a felony, and shall be
       imprisoned for 2 years.

In People v Calloway, 469 Mich 448, 452; 671 NW2d 733 (2003), our Supreme Court held that
felon-in-possession may serve as the predicate felony for felony-firearm. Thus, if the jury found
that defendant constructively possessed the firearms recovered in his home, it was required to
convict him of felony-firearm. Therefore, defendant’s felony-firearm conviction rests of the
jury’s finding that he constructively possessed the firearms and, accordingly, we need not
separately address that conviction.



                                                -6-
in the bedroom in 2009. Moreover, both Wood and Nance testified that defendant slept in the
living room and did not live in the southeast bedroom.

       Ligon’s testimony, if believed, refuted Barnes’s testimony that she saw defendant
brandish and fire a pistol similar in appearance to the pistol found in the home by the police.
Contrary to the trial court’s rationale, it is irrelevant that defendant was not charged with
brandishing a firearm, or any other crime, arising from the alleged encounter with Barnes.
Ligon’s testimony would have contradicted the only testimony actually placing a firearm in
defendant’s physical possession. Such testimony is unquestionably relevant to a jury’s
determination of whether a defendant constructively possessed a firearm found in his home.

       The proffered testimony raises significant questions about whether a reasonable jury
could have found that defendant exercised dominion and control over the recovered firearms.
Indeed, it is possible that a rational jury could conclude that defendant did not even know the
firearms were in the home. To be sure, a jury could certainly have rejected the proffered
testimony and, based on the testimony of the officers and Barnes, convicted defendant of the
charges. However, as noted, the question is not whether, but for counsel’s error, the outcome of
defendant’s trial would necessarily have been different, but whether there is a reasonable
probability of a different outcome. In this case, defense counsel’s error prevented the jury from
hearing the testimony of three witnesses who each directly contradicted the testimony of the key
prosecution witnesses. Instead, they only heard defendant’s testimony, which the prosecution
reasonably argued was merely a self-serving denial that could not outweigh the testimony of
three police officers. The trial court dismissed the possible impact of the three exculpatory
witnesses because the police officers gave inculpatory testimony. However, determinations of
witness credibility and the weight given to the evidence are reserved for the jury. See People v
Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008).

        The trial court erred in denying defendant’s motion for a new trial on the basis of
ineffective assistance of counsel. Reversed and remanded for new trial. We do not retain
jurisdiction.


                                                           /s/ Amy Ronayne Krause
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Douglas B. Shapiro




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