Background
Romulus police responded to a report of an armed person in a purple vehicle. When Sergeant Matthew Reese ordered the occupants of a purple Chrysler 300 to show their hands, the car backed out and drove toward him, forcing him to jump aside. Police pursued the Chrysler until it reached a dead end, crossed a carport and grass, and stopped. Detective Jason Otter testified that a shorter man left the passenger side while Johnson, a substantially larger man, left the driver’s side.
Corporal Nathan Kuczera saw the two men running and observed the taller man carrying and raising a rifle toward his marked patrol vehicle. Kuczera ducked and heard gunfire; Otter saw the taller man raise his arms, followed by a muzzle flash and two shots. Police later found evidence of a bullet strike near Kuczera’s vehicle and two rifle casings. Johnson was convicted of felonious assault, third-degree fleeing and eluding, and felony-firearm offenses. The trial court imposed above-guidelines sentences of 32 to 48 months for felonious assault and 40 to 60 months for fleeing and eluding, in addition to the mandatory felony-firearm term.
The Court’s Holding
The Court of Appeals held that sufficient evidence supported the felony-firearm conviction associated with fleeing and eluding. Although no witness directly saw Johnson possess the rifle while driving, evidence that he possessed it almost immediately after leaving the car permitted a rational jury to infer that he knew where the weapon was, could access it, and controlled it while driving. That circumstantial evidence was sufficient to establish constructive possession during the fleeing-and-eluding offense.
The court also upheld the departure sentences as reasonable and proportionate. The trial court adequately explained both its decision to depart and the departures’ extent by citing Johnson’s criminal history, repeated similar conduct, lack of growth after earlier encounters with law enforcement, allocution, and low potential for rehabilitation. The sentencing judge expressly considered the guidelines and quantified the departures as 9 months for felonious assault and 11 months for fleeing and eluding.
Finally, the court agreed that the judgment of sentence incorrectly included a felony-firearm count tied to an underlying charge on which the jury found Johnson not guilty. It affirmed the convictions and sentences but remanded for the ministerial correction of removing that erroneous felony-firearm count. The court did not retain jurisdiction.
Key Takeaways
- A defendant’s possession of a firearm immediately after leaving a vehicle can support an inference that the defendant constructively possessed it while driving, even without direct evidence of possession inside the vehicle.
- Low rehabilitation potential, criminal history, repeated similar conduct, and a defendant’s statements at sentencing may support an above-guidelines sentence when the trial court connects those considerations to proportionality and the extent of the departure.
- A felony-firearm count cannot remain on the judgment when the clarified verdict acquitted the defendant of that count and its underlying felony.
Why It Matters
The unpublished decision illustrates how Michigan courts may use circumstantial evidence to establish constructive firearm possession during a continuing offense. Immediate possession after leaving a vehicle may permit an inference of prior knowledge, accessibility, and control.
It also underscores that a departure sentence must be explained well enough for appellate review. A sentencing court may consider rehabilitation potential and the defendant’s allocution, but its reasoning must show why the resulting sentence is proportionate to both the offense and the offender.