                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 January 17, 2017
              Plaintiff-Appellee,

v                                                                No. 327083
                                                                 Ingham Circuit Court
KELLEN MATHEW WOODS,                                             LC No. 14-000639-FH

              Defendant-Appellant.


Before: O’CONNELL, P.J., and MARKEY and MURRAY, JJ.

PER CURIAM.

         Defendant, Kellen Mathew Woods, appeals as of right his convictions, following a jury
trial, of felon in possession of a firearm, MCL 750.224f, carrying a concealed weapon, MCL
750.227, and second-offense possession of a firearm during the commission of a felony (felony-
firearm) MCL 750.227b.1 The trial court sentenced Woods as a fourth-offense habitual offender,
MCL 769.12, to serve concurrent terms of 4 to 10 years’ imprisonment each for his felon in
possession and carrying a concealed weapon convictions, and a consecutive term of five years’
imprisonment for his felony-firearm conviction. We affirm.

                               I. FACTUAL BACKGROUND

        The complainant testified that she was defendant’s ex-girlfriend and they shared an
apartment until May 2014. In late May 2014, after the complainant intended to move out,
Defendant sent her a picture in which her belongings had been damaged and threatened to kill
her or someone she loved if she did not allow him to retain the phone that he was using.

        On May 22, 2014, the complainant returned to the apartment with her mother and father.
The complainant’s mother testified that she drove and the complainant’s father went with the
complainant to the apartment. The complainant’s father testified that when he placed some bins
of the complainant’s belongings on the landing outside the apartment, defendant followed him
outside, pushed him, and attempted to choke him. The father pushed defendant back into the


1
 Woods does not appeal his convictions of malicious use of a communications device, MCL
750.540e, or assault and battery, MCL 750.81.


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apartment. Defendant then emerged from the apartment with his hand behind his back and said
that he had a gun. The complainant’s father did not see a gun.

       The complainant testified that she screamed and ran because she thought defendant had a
gun, though she did not see it. However, the complainant’s mother testified that while she was in
her vehicle, defendant approached her quickly with a gun in his hand and yelled at her to get out
of the driveway or he would kill her. The complainant’s mother testified that the gun was a
black nine-millimeter handgun and that defendant pointed it at her from about twenty feet away.
She drove away.

         East Lansing Police Officer Barb Hulliberger testified that she found defendant in a
neighbor’s apartment when she arrived on the scene and he agreed to meet her at the police
station. However, defendant never arrived at the police station. Sergeant Andrew Bouck
testified that officers apprehended defendant a few days later, after defendant’s ex-wife called
police because she knew that officers were looking for defendant. Defendant’s ex-wife gave the
officers permission to read a text-message in her phone in which defendant stated he had thrown
the gun from his vehicle.

       The jury found defendant guilty of the crimes previously described.

                            II. SUFFICIENCY OF THE EVIDENCE

       Defendant contends that the evidence was insufficient to support his firearm-related
convictions because there was no physical evidence that he ever possessed a gun, and the only
witness who claimed to see defendant with a gun was biased against him. We disagree.

        We review de novo a challenge to the sufficiency of the evidence because such a claim
invokes the defendant’s constitutional right to due process of law. People v Hampton, 407 Mich
354, 366; 285 NW2d 284 (1979). We review the evidence in a light most favorable to the
prosecution to determine whether a rational trier of fact could find that the prosecution proved
the crime’s elements beyond a reasonable doubt. People v Henderson, 306 Mich App 1, 9; 854
NW2d 234 (2014).

       Defendant contends that the testimony of the complainant’s mother that he approached
her with a nine-millimeter handgun was insufficient to support his firearms-related convictions
because she was biased against him. This Court will not interfere with the trier of fact’s role to
determine the weight of the evidence or the credibility of the witnesses. People v Kanaan, 278
Mich App 594, 619; 751 NW2d 57 (2008). Viewing the mother’s testimony in a light most
favorable to the prosecution, her statements that defendant approached her with a handgun in his
hand and threatened to shoot her were sufficient to establish that defendant possessed a firearm.

         We also reject defendant’s assertion that the prosecution failed to establish that he had an
operable firearm. That the firearm was operable is not an element of felon in possession,
carrying a concealed weapon, or felony firearm. People v Humphrey, 312 Mich App 309, 318;
877 NW2d 770 (2015). The prosecution was not required to establish that the firearm was
operable. Additionally, a rational jury could find that the complainant’s mother—who was
familiar with handguns and owned a handgun—would be able to tell the difference between a
real firearm and a toy firearm at a distance of 20 feet.
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       We conclude that sufficient evidence supported defendant’s convictions.

                                       III. SENTENCING

       Defendant also argues that the trial court imposed unreasonable sentences for felon in
possession and carrying a concealed weapon because the trial court sentenced him to serve 4 to
10 years’ imprisonment, when his guidelines recommended a sentencing range of 46 months’
imprisonment. We disagree.

       While the trial court must score and consider the sentencing guidelines, it is not
compelled to impose a minimum sentence within the calculated range. People v Lockridge, 498
Mich 358, 365; 870 NW2d 502 (2015). We review for reasonableness a sentence that departs
from the guidelines range. Id. at 365. A sentence is unreasonable if it is not proportionate to the
offender and the seriousness of the offense. People v Steanhouse, 313 Mich App 1, 45; 880
NW2d 297 (2015). As well as the nature of the offense and background of the offender, the trial
court may consider additional factors including:

       (1) the seriousness of the offense, (2) factors not considered by the guidelines,
       such as the relationship between the victim and the aggressor, the defendant’s
       misconduct while in custody, the defendant’s expressions of remorse, and the
       defendant’s potential for rehabilitation, and (3) factors that were inadequately
       considered by the guidelines in a particular case. [Steanhouse, 313 Mich App at
       45-46 (citations omitted).]

        In this case, the trial court departed upward from the guidelines recommendation of 46
months’ imprisonment and sentenced defendant to a minimum of 48 months’ imprisonment.
This is a departure of two months. When doing so, the trial court discussed the fear and pain that
defendant’s threats had caused the complainant’s family, the seriousness of the offense, and that
the guidelines did not consider defendant’s death-threats, aggression, and failure to take
responsibility for his actions. It also considered that defendant had behaved poorly in prison,
receiving five misconduct tickets and twice violating the no-contact order against the victims’
family. The trial court considered defendant’s conduct during and after the offense and found
that a sentence of 48 to 120 months’ imprisonment was more appropriate. After review, we
conclude that the trial court’s sentence was reasonable.

       We affirm.

                                                            /s/ Peter D. O’Connell
                                                            /s/ Jane E. Markey
                                                            /s/ Christopher M. Murray




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