PEOPLE v. HUMPHREY, 312 Mich. App. 309

WILDER, P.J. The prosecution appeals as of right a circuit court order granting defendant’s motion to dismiss the charge against him of carrying a concealed weapon (CCW), MCL 750.227(2). On appeal, the prosecution argues that under the Michigan Supreme Court’s

interpretation of “firearm” under MCL 750.222(d) (providing the legal definition of “firearm” for offenses in

Chapter XXXVII of the Michigan Penal Code), the inoperability of a pistol is not a valid affirmative defense to a CCW charge, and therefore, the trial court erroneously dismissed defendant’s CCW charge. We agree and reverse. I. FACTS AND PROCEDURAL HISTORY At approximately midnight on January 7, 2012, Detroit Police Officer Johnny Strickland and another officer were patrolling the area of St. Marys Street and McNichols Road in Detroit, Michigan, in a fully marked police car.

Strickland observed defendant and another individual walking along the street despite the availability of a pedestrian sidewalk, an offense for which Strickland was authorized to issue a ticket. Strickland and the other officer approached defendant, and defendant looked in their direction. When the officers stopped and got out of the car, defendant “immediately reached . . . toward his right pocket as if he was trying to reach into his pants.” Strickland instructed defendant to place his hands in the air, but defendant fled when Strickland approached him.

Strickland told defendant to stop, identified himself as a police officer, and ran after defendant. After chasing defendant for less than a block, Strickland caught up with him and immediately detained him, at which time defendant again attempted to reach into his right pants pocket. After Strickland handcuffed defendant, he frisked the area where defendant had reached and felt a handgun through defendant’s pants.

Defendant did not produce a valid concealed pistol license, and the weapon had not been visible before it was removed from defendant’s pants because “he had on two pair of pants, [and] it was in the pants that [were] underneath the first pair.” Strickland could not recall if he ever inspected the weapon to determine if it had been loaded or operable.

On November 11, 2013, the trial court entered an order requiring the Detroit Police Department to perform ballistics testing on the weapon seized from defendant in order “to determine whether the weapon is currently operable (i.e., capable of propelling a dangerous projective [sic: projectile]).” According to the laboratory report prepared by the Forensic Science Division of the Michigan State Police, dated February 5, 2012, well before the court’s order for ballistics testing, “[t]he submitted firearm did not function in the condition it was received [sic], due to a missing firing pin.” On January 6, 2014, defendant filed a motion to dismiss the CCW charge against him.

Defendant argued that the trial court should dismiss the CCW charge because the Michigan State Police ballistics report indicated that the weapon seized from defendant “was missing a firing pin and, as a result, could not be easily made operable at the time.” According to defendant, this demonstrated that there was insufficient evidence to support one of the critical elements of the CCW charge.

In support of his position, defendant asserted that there previously was a split of authority regarding whether an inoperable weapon could give rise to a CCW charge, but that subsequent cases resolved the issue and indicated that “an affirmative defense to the charge of carrying a concealed pistol can be made by the presentation of proof that the pistol in question would not fire and could not readily be made to fire a projectile.” Accordingly, defendant argued that no reasonable trier of fact could find that the weapon recovered from defendant was operable, and therefore, the trial court should dismiss the CCW charge because the pistol did not constitute a firearm under MCL 750.222, which provides the definition relevant to MCL 750.227(2).

After a hearing on defendant’s motion, the trial court ruled as follows: Okay. I took an opportunity, I read [People v Peals, 476 Mich 636, 638; 720 NW2d 196 (2006)] as well as the other cases that are cited in the Criminal Jury Instruction 11.6 because I thought that they would be helpful. My main issue with [Peals] is that it makes it clear time and time again that it applies to felon in possession and felony firearm. I tend to agree . . . that if there was a CCW charge within that particular case it probably would have applied it.

However, throughout it’s [sic] holding it distinguishes between the CCW charges and felon in possession and felony firearm. So I think this is a call that, for another court. I’m going to dismiss this case. I think that ultimately the Court of Appeals or the Michigan Supreme Court has to clarify whether or not there [sic] new found opinion with respect to operability under firearms further extends to CCW. ’Cause I haven’t seen anything in the case law saying that it doesn’t. Other than the [Peals] case, which is very clearly applies [sic] to felony firearm and felon in possession. So you’re probably right.

And the Court’s going to get there eventually. I just don’t think that they’ve done it yet. And this might be the case to do it. So, I’m going to dismiss it. Accordingly, on January 28, 2014, the trial court entered an order dismissing the CCW charge for the reasons stated on the record. II.

STANDARDS OF REVIEW This Court “review [s] for an abuse of discretion a trial court’s decision on a motion to dismiss,” People v Stone, 269 Mich App 240, 242; 712 NW2d 165 (2005), which occurs “when [the trial court’s] decision falls outside the range of principled outcomes,” People v Nicholson, 297 Mich App 191, 196; 822 NW2d 284 (2012). However, this Court reviews de novo questions of law on which a dismissal is based. People v Owen, 251 Mich App 76, 78; 649 NW2d 777 (2002). Additionally, “ [questions of statutory construction are reviewed de novo." People v Campbell, 289 Mich App 533, 535; 798 NW2d 514 (2010).

III. THE OPERABILITY OF A PISTOL IS NOT RELEVANT TO CHARGES BROUGHT UNDER

CHAPTER XXXVII OF THE MICHIGAN PENAL CODE The prosecution charged defendant with violating MCL 750.227(2), which provides: A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license. At the time of the instant offense, MCL 750.222(

e) defined the term “pistol” as “a loaded or unloaded firearm that is 30 inches or less in length, or a loaded or unloaded firearm that by its construction and appearance conceals itself as a firearm.” Additionally, at the time of the instant offense, the term “firearm,” which applied to all offenses in

Chapter XXXVII of the Michigan Penal Code, meant “a weapon from which a dangerous projectile may be propelled by an explosive, or by gas or air. Firearm does not include a smooth bore rifle or handgun designed and manufactured exclusively for propelling by a spring, or by gas or air, BB’s [sic] not exceeding .177 caliber.” MCL 750.222(d).

As recognized in People v Brown, 249 Mich App 382, 384; 642 NW2d 382 (2002), “this Court has accorded various meanings to the statutory term ‘firearm,’ depending on the specific offense with which the defendant has been charged.” Thus, while this Court found that an inoperable weapon qualified as a firearm for purposes of MCL 750.227b (possession of a firearm during the commission of a felony (felony-firearm)), and MCL 750.224f (felon in possession of a firearm (felon-in-possession)), Brown, 249 Mich App at 384-385, this Court has also held that the fact that a pistol was inoperable afforded a defendant an affirmative defense to a CCW charge: This Court has . .. held that a pistol, as defined under the concealed weapons statute, must be operable.

People v Gardner, 194 Mich App 652; 487 NW2d 515 (1992). That is, the pistol must be capable of propelling the requisite-sized dangerous projectile or of being altered to do so within a reasonably short time. Id., p 654; People v Huizenga, 176 Mich App 800, 806; 439 NW2d 922 (1989). An affirmative defense to a charge of carrying a concealed pistol can be made by the presentation of proof that the pistol would not fire and could not readily be made to fire.

Gardner, supra. [People v Parr, 197 Mich App 41, 45; 494 NW2d 768 (1992).] Consistent with this caselaw, subsequent opinions issued by this Court, and both the former and current versions of the model criminal jury instructions, recognize that an inoperable handgun does not constitute a firearm for purposes of the CCW statute, and that a defendant is not guilty of CCW when the gun is completely unusable and cannot be easily made operable. See, e.g., Brown, 249 Mich App at 384; M Crim JI 11.6; CJI2d 11.6.

However, in People v Peals, 476 Mich 636, 638; 720 NW2d 196 (2006), the Michigan Supreme Court considered whether the defendant possessed a firearm, as defined in MCL 750.222(d), and was therefore properly convicted of felon-in-possession, MCL 750.224f(l), and felony-firearm, MCL 750.227b. The Supreme Court held: [T]he text of the statutory definition indicates that a weapon is a firearm if it is the type of weapon that was designed or intended to propel a dangerous projectile by an explosive, gas, or air.

The definition describes the category of weapons that constitute a “firearm,” but it does not prescribe a requirement that the weapon be “operable” or “reasonably or readily repairable.” In other words, the design and construction of the weapon, rather than its state of operability, are relevant in determining whether it is a “firearm.” [Peals, 476 Mich at 638.] Thus, the Supreme Court concluded, “the statute requires only that the weapon be of a type that is designed or intended to propel a dangerous projectile.” Id. at 642.

The Supreme Court noted in its analysis that this Court has attributed different meanings to the term “firearm,” depending on the charged offense: [T]he Court of Appeals has held, after [People v] Hill [433 Mich 464; 446 NW2d 140 (1989)], that proof of operability is not required to establish the offense of felon in possession of a firearm. In [Brown, 249 Mich App 382], the Court of Appeals noted that various meanings had been accorded to the term “firearm,” depending on the offense with which the defendant had been charged.

In the context of the concealed weapons statute, MCL 750.227, the Court of Appeals had held that an inoperable handgun was not a “firearm.” See [Parr, 197 Mich App at 45], [Gardner, 194 Mich App at 654], and [Huizenga, 176 Mich App at 804-805], But in the context of the felony-firearm statute, the Brown Court noted that Court of Appeals case law does not require proof of operability. See [People v Thompson, 189 Mich App 85; 472 NW2d 11 (1991)]; [People v Garrett, 161 Mich App 649; 411 NW2d 812 (1987)]; and [People v Poindexter, 138 Mich App 322; 361 NW2d 346 (1984)].

The Brown Court concluded “that the Thompson analysis, first applied to felony-firearm cases, should also be applied to felon[-]in[-]possession cases.” Brown, 249 Mich App at 384-385. [Peals, 476 Mich at 647-648 (emphasis added).] Additionally, although an apparent secondary consideration, the Supreme Court also noted that its

interpretation of the statutory definition was consistent with this Court’s existing caselaw regarding the specific offenses at issue in Peals: As discussed, we believe the statutory definition of “firearm” is clear. MCL 750.222(

d) plainly provides that a weapon is a firearm if it is the type of weapon that propels dangerous projectiles by an explosive or by gas or air. Moreover, as noted earlier, the existing Court of Appeals case law provides that inoperability is not a defense to either felony-firearm or felon in possession of a firearm. [Id. at 655.] The Supreme Court made no specific pronouncement that its

interpretation of the term “firearm” under MCL 750.222(

d) was applicable to all firearms cases. Nevertheless, the clear implication is that, given the plain language of the statute, the Supreme Court’s construction of the term “firearm” is the only viable

interpretation of the term as it concerns all the crimes defined in MCL 750.222 through MCL 750.239a. Peals, 476 Mich at 655-656; see People v Lewis, 302 Mich App 338, 341; 839 NW2d 37 (2013) (“When the statutory language is plain and unambiguous, the Legislature’s intent is clearly expressed, and judicial construction is neither permitted nor required.”). Thus, in the instant case, the trial court was bound by the Michigan Supreme Court’s pronouncement in Peals, 476 Mich at 655, that the definition of “firearm” in MCL 750.222(

d) was “clear” and “plain [],’’and that “the design and construction of the weapon, rather than its state of operability, are relevant in determining whether [the weapon] is a ‘firearm,’ ” id. at 638. This Court is also bound by Peals, and we hold that Peals overruled the holding in Gardner that the inoperability of a pistol is an affirmative defense to a CCW charge. Gardner, 194 Mich App at 654-655. IV.

CONCLUSION “[A] trial court’s misapplication or misunderstanding of the law in reaching its decision . . . may constitute an abuse of discretion.” People v Cress, 250 Mich App 110, 149; 645 NW2d 669 (2002), rev’d on other grounds 468 Mich 678 (2003). In this case, the trial court abused its discretion by granting defendant’s motion to dismiss the CCW charge because, under Peals, the operability of a firearm is not relevant to firearms offenses under

Chapter XXXVII of the Michigan Penal Code, and the inoperability of a pistol is no longer a valid affirmative defense to a CCW charge. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. OWENS and M. J. Kelly, JJ., concurred with WILDER, P.J. MCL 750.222 was amended by 2015 PA 26, effective July 1, 2015, to add several

definitions. Consequently, the definition of “firearm” is now found in MCL 750.222(e). 2012 PA 242 amended MCL 750.222, effective January 1, 2013. Although the definition of “pistol” changed slightly — the maximum length of a pistol was changed from 30 inches to 26 inches — the definition of “firearm” remained the same. However, MCL 750.222, including the definition of “firearm,” was later amended by 2015 PA 26, effective July 1, 2015, and 2015 PA 28, effective August 10, 2015.

The relevance of these amendments is discussed later in this opinion. “[A] statute is presumed to operate prospectively unless [a] contrary intent is clearly manifested,” but “an exception to this general rule is recognized if a statute is remedial or procedural in nature.” People v Conyer, 281 Mich App 526, 529; 762 NW2d 198 (2008) (quotation marks and citations omitted; second alteration in original). The definition of pistol found in MCL 750.222(

e) applies to all the crimes included in

Chapter XXXVII of the Michigan Penal Code, MCL 750.222 through MCL 750.239a. The new definition of “firearm” prescribed by 2015 PAs 26 and 28 supports our conclusion that operability is no longer a defense to a CCW charge. Under the new definition, a “ ‘[f]irearm’ means any weapon which will, is designed to, or may readily be converted to expel a projectile by action of an explosive.” MCL 750.222(e) (emphasis added).

This definition, like the former definition interpreted by the Michigan Supreme Court in Peals, “describes the category of weapons that constitute a ‘firearm,’ but. . . does not prescribe a requirement that the weapon be ‘operable’ or ‘reasonably or readily repairable,’ ” and indicates that “the design and construction of the weapon, rather than its state of operability, are relevant in determining whether it is a ‘firearm.’ ” Peals, 476 Mich at 638. Thus, we conclude that the reasoning employed in Peals is still viable under the amended definition.

See also id. at 642 (“[T]he statute requires only that the weapon be of a type that is designed or intended to propel a dangerous projectile.”) (emphasis added).