**_______________________________** Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

**FILED JULY 29, 2005 PEOPLE OF THE STATE OF MICHIGAN,**  **Plaintiff-Appellee,**

**v No. 126727**  **DAVID MICHAEL PERKINS, Defendant-Appellant.** 

**BEFORE THE ENTIRE BENCH**
**PER CURIAM We granted leave in this case to consider two issues**  **involving MCL 750.224f, which sets forth restrictions concerning the possession**  **1 of firearms by persons having**  **been convicted of a felony. The first is whether larceny from the person is a “specified felony” for the purposes of**  **MCL 750.224f(6)(** i **), thus subjecting defendant to more stringent requirements in order to regain his right to**  **possess a firearm. We conclude that larceny from the**

**1 Although we mention only possession in this opinion,**  **MCL 750.224f does not pertain only to the possession of firearms, but also to the use, transportation, sale,**  **purchase, carrying, shipping, receiving, or distribution of firearms.** **person involves a substantial risk that force will be used during its commission and, therefore, hold that it is a**  **specified felony. The second issue is whether the prosecution is always**  **required to show that a person convicted of a specified felony has not had his or her right to possess a firearm**  **restored pursuant to MCL 750.224(2)(b), or whether the prosecution’s burden to disprove restoration only arises if**  **the defendant first introduces evidence that the defendant’s right to possess a firearm has been restored.**  **We conclude, on the basis of MCL 776.20 and** People v Henderson **, 391 Mich 612, 616; 218 NW2d 2 (1974), that the defendant has the burden of producing evidence to establish**  **that his or her right to possess a firearm has been restored. Once the defendant meets this burden of**  **production, the prosecution bears the burden of persuasion beyond a reasonable doubt. In this case, defendant failed**  **to produce evidence that his firearm rights were restored, and the prosecution thus was not required to prove the lack**  **of restoration. Accordingly, we affirm the judgment of the Court of Appeals.** 

**I. F**  **ACTS AND P**  **ROCEDURAL H**  **ISTORY In 1977, defendant David M. Perkins was convicted of**  **the felony offense of larceny from the person in violation of MCL 750.357. In 2001, Perkins was involved in an**  **2 altercation where he pointed a gun at another person, and,**  **in the subsequent struggle, the gun discharged. As a result, Perkins was charged with, among other things,**  **2 being**  **a felon in possession of a firearm (felon in possession) in violation of MCL 750.224f(2). This statute makes it a**  **crime for a person who has been convicted of a “specified felony”-one that either involves a substantial risk of, or**  **contains as an element the threatened, attempted, or actual use of, physical force against a person or property–to**  **possess a firearm until that person has had the right to possess a firearm restored pursuant to MCL 28.424 and**  **fulfilled certain other requirements. The trial court, after a bench trial, concluded that**  **the 1977 conviction for larceny from the person was a specified felony and, thus, MCL 750.224f(2) could apply to**  **Perkins. Moreover, the court construed the statute as requiring the prosecution to prove that Perkins’s right to**  **possess a firearm had not been restored only if Perkins first affirmatively produced evidence that his right to**  **possess had been restored by a proper concealed weapons licensing board. Therefore, the trial court convicted** 

**2 Defendant was also charged with felonious assault in**  **violation of MCL 750.82, and possession of a firearm while committing or attempting to commit a felony in violation of**  **MCL 750.227b. These charges are not at issue in this appeal.** 

**3 Perkins of the offense because he had not produced any such**  **evidence, thus relieving the prosecution of the burden of proving that Perkins’s right to possession had not been**  **restored. The Court of Appeals affirmed.**  **3 It concluded that**  **larceny from the person constitutes a specified felony within the meaning of MCL 750.224f, and that a defendant**  **must present evidence of a claimed restoration of the right to possess a firearm before the prosecution’s burden of**  **proving a lack of restoration arises. We granted defendant’s application for leave to**  **appeal. 4** 

**II. STANDARD OF REVIEW**  **This case involves issues of statutory construction. These are issues of law that we review de novo.**  People v Koonce, **466 Mich 515, 518; 648 NW2d 153 (2002). When interpreting statutes, our goal is to give effect to the**  **intent of the Legislature by reviewing the plain language of the statute.**  Id.

**III. LARCENY FROM THE PERSON IS**  **A “SPECIFIED FELONY”** 

**3** People v Perkins **, 262 Mich App 267; 686 NW2d 237 (2004).** 

**4 471 Mich 914 (2004).** 

**4 MCL 750.224f**  **5 places felons in two different** 

5 **This statute provides, in part: (1)**  **Except as provided in subsection (2), a person convicted of a felony shall not possess,**  **use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state**  **until the expiration of 3 years after all of the following circumstances exist:**  **(a) The person has pa**  **id all fines imposed for the violation.**  **(b) The person has served all terms of**  **imprisonment imposed for the violation. (c)**  **The person has successfully completed all conditions of probation or parole imposed for**  **the violation. (2)**  **A person convicted of a specified felony shall not possess, use, transport, sell,**  **purchase, carry, ship, receive, or distribute a firearm in this state until all of the following**  **circumstances exist: (a)**  **The expiration of 5 years after all of the following circumstances exist:**  **(** i **) The person has pa**  **id all fines imposed for the violation.**  **(** ii **) The person has served all terms of**  **imprisonment imposed for the violation. (**  iii **) The person has successfully completed**  **all conditions of probation or parole imposed for the violation.**  **(b) The person’s right to possess, use,**  **transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored**  **pursuant to section 4 of Act No. 372 of the Public Acts of 1927, being section 28.424 of the**  **Michigan Compiled Laws.**

**5 categories. The first category consists of persons**  **convicted of a “felony.” These persons regain their right to possess a firearm three years after paying all fines**  **imposed for their violations, serving all jail time imposed, and successfully completing all conditions of**  **parole or probation. MCL 750.224f(1). The second category consists of persons convicted of a “specified felony.”**  **These persons must wait five years after completing the same requirements and, moreover, must have their right to**  **possess a firearm restored. MCL 750.224f(2). The term “specified felony” is defined in MCL**  **750.224f(6), which provides: As used in subsection (2), “specified**  **felony” means a felony in which 1 or more of the following circumstances exist:**  **(** i **) An element of that felony is the use,**  **attempted use, or threatened use of physical force against the person or property of another,**  **or that** by its nature **, involves a substantial risk that physical force**  **against the person or property of another may be used in the course of**  **committing the offense. (**  ii **) An element of that felony is the**  **unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a**  **controlled substance. (**  iii **) An element of that felony is the**  **unlawful possession or distribution of a firearm. (**  iv **) An element of that felony is the**  **unlawful use of an explosive.**

**6 (**  v **) The felony is burglary of an occupied**  **dwelling, or breaking and entering an occupied dwelling, or arson. [Emphasis added.]**  **The prosecution in this case has neither alleged that an element of larceny from the person is “the use,**  **attempted use, or threatened use of physical force against the person or property of another,” MCL 750.224f(6)(**  i **), nor that any of the criteria in subsections**  ii **through** v **apply in this case. Therefore, the inquiry is whether larceny**  **from the person is a crime that “by its nature, involves a substantial risk that physical force against the person or**  **property of another may be used in the course of committing the offense.” We hold that it does.**  **The crime of larceny from the person consists of a larceny effectuated by “stealing from the person of**  **another.” 6**  **The defendant acknowledges that there is a risk of force inherent in the crime of larceny from the person**  **because of the potential for the victim to notice the taking of his or her personal property and use force to**  **prevent it. 7**  **However, he claims that such a risk is not substantial. We disagree.** 

**6 MCL 750.357.** 

**7 At oral argument, defense counsel stated, “I**  **certainly don’t dispute that there’s a risk in any larceny from a person because of the requirement that the larceny**  **has to occur either from the person or near the person, there is a risk. . . . As I said, there is always a risk,**  **(continued...) 7** **“Substantial” is defined as “of ample or considerable amount, quantity, size, etc.”**  Random House Webster’s College Dictionary **(1995). Therefore, the issue is whether larceny from the person by its nature involves a**  **substantial or considerable risk that physical force will be used. We believe that it does. In order to commit a**  **larceny from the person, the defendant must steal something from a person in that person’s presence. That is, the**  **victim must be present when the defendant steals something from the victim. Unless the victim submits to the theft or**  **does not notice the theft, physical force will almost certainly be used in response.**  **8 As the Court of Appeals**  **explained:**

**(...continued) and nobody could deny there is always a risk in larceny**  **from a person that violence may occur.”**

**8 Justice Cavanagh posits that “every felony” involves**  **a risk of force.** Post **at 2 However, Justice Cavanagh fails fully to appreciate that not all felonies require the**  **defendant to steal something from th e victim’s presence.**  **Because a defendant must steal something from the victim’s presence in order to commit a larceny from the person, a**  **larceny from the person does not just pose** a **risk of force, it poses a**  substantial **risk of force. Justice Cavanagh also contends**  **that, if detected, a perpetrator could “choose to avoid confrontation if it**  **becomes apparent that force or the threat of force must be used to complete the intended act.”**  Post **at 3. However, if the perpetrator chooses to abandon the attempt to steal**  **the property from the victim once detected, the perpetrator has not committed a larceny from the person. In order to**  **commit a larceny from the person, the perpetrator would, in (continued...)**  **8 [T]he offense of larceny fro**  **m a person is separated from other larceny offenses because it**  **is committed in the immediate presence of another person. The “Legislature decided that larceny**  **from a person presents a social problem separate and apart from simple larceny.” Specifically,**  **“the invasion of the person or immediate presence of the victim.” Because a person whose property**  **is stolen from his presence may take steps to retain possession, and the offender may react**  **violently, we conclude that the offense of larceny from a person, “**  by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” **We therefore hold that larceny from a person is a specified**  **felony within the meaning of MCL 750.224f. [**  Perkins, supra **at 272 (citations omitted; emphasis in the original).]**  **That the Legislature has recognized that larceny from the person involves a substantial risk of physical force is**  **demonstrated by the different punishments that it has chosen to impose for larceny**  **9 and larceny from the person.**  **If a defendant 10**  **steals property from another outside the person’s presence and the property is worth less than**  **$1,000, the defendant is only guilty of a misdemeanor. MCL**

**(...continued) all likelihood, have to use force or the threat of force to**  **steal the property from the victim. Therefore, a larceny from the person involves more than a “mere**  potential **” of force or threat of force;**  post **at 2, rather, it involves a “substantial” risk of force or threat of force.** 

**9 A larceny is committed when one steals the property**  **of another outside the person’s presence. MCL 750.356.**

**10 All of the following hypothetical examples involve a**  **defendant who does not have any prior larceny convictions.**

**9 750.356(4)(a).**  **11 If the property is**  **worth less than $200, the defendant cannot be imprisoned for more than ninety**  **** **three days. MCL 750.356(5). 12**  **On the other hand, if the same defendant steals the same property directly from the**  **person, the defendant can be imprisoned for ten years. A defendant who steals property from a person outside the**  **person’s presence can only face a ten-year sentence if the property is worth $20,000 or more. MCL 750.356(2)(a).**  **That the Legislature has chosen to subject a defendant who steals property from a person in that person’s presence to**  **a ten-year sentence, regardless of the value of the property, and has chosen to subject a defendant who steals**  **property worth less than $200 from a person outside that person’s presence to a ninety-three-day sentence**  **demonstrates that the Legislature recognized the substantial risk of force that is involved when one steals**  **something from somebody’s person, a risk that is absent when one steals something outside the person’s presence.**  **13**

**11 A defendant who steals property from another outside**  **the person’s presence is only guilty of a felony if the property is worth $1,000 or more. MCL 750.356(2)(a) and**  **(3)(a).**

**12 If the property is worth $200 or more, but less than**  **$1,000, the defendant cannot be imprisoned for more than one year. MCL 750.356(4)(a).** 

**13 Although it is not necessary to our analysis, we**  **note that the federal courts have held that larceny from (continued...)**  **10 Therefore, we hold that larceny from the person is a**  **“specified felony” under MCL 750.224f(6)(i).**

**IV. THE DEFENDANT BEARS THE BURDEN OF PRODUCING EVIDENCE THAT THE**  **DEFENDANT ’**  **S FIREARM R**  **IGHTS HAVE BEEN RESTORED Subsection 2 of the felon-in-possession statute**  **prohibits a person convicted of a specified felony from possessing a firearm “until” certain conditions are**  **satisfied. MCL 750.224f(2). One of the conditions set forth in the statute is that the defendant’s right to**  **possess a firearm must have been legally restored. MCL 750.224f(2) provides:**  **A person convicted of a specified felony shall not possess, use, transport, sell,**  **purchase, carry, ship, receive, or distribute a firearm in this state**  until all of the following circumstances exist **: (a)**  **The expiration of 5 years after all of the following circumstances exist:**  **(** i **) The person has paid all fines imposed**  **for the violation. (**  ii **) The person has served all terms of**  **imprisonment imposed for the violation. (**  iii **) The person has successfully completed**  **all conditions of probation or parole imposed for the violation.**  **(...continued) the person is a “crime of violence” for the purpose of the**  **federal sentencing guidelines, which define a crime of violence as a crime that “involves conduct that presents a**  **serious potential risk of physical injury to another.” USSG 4B1.2(a)(2);**  United States v Payne, **163 F3d 371, 375 (CA 6, 1998).** 

**11 (b)**  **The person’s right to possess, use, transport, sell, purchase, carry, ship, receive,**  **or distribute a firearm has been restored pursuant to section 4 of Act No. 372 of the**  **Public Acts of 1927, being section 28.424 of the Michigan Compiled Laws. [Emphasis added.]**  **Thus, the statute provides that a person convicted of a specified felony may not possess a firearm “until” all**  **the listed circumstances exist. Specifically, the felon**  **may not possess a firearm “until” (1) five years have expired from the payment of all fines, the service of all**  **terms of imprisonment, and the successful completion of all conditions of probation or parole, and (2) the person’s**  **right to possess a firearm has been restored. In this case, as noted in our discussion of the first issue, the**  **prosecution established that the defendant was convicted of a specified felony and that he possessed a firearm.**  **The question remains, however, whether the prosecution must prove that the defendant’s possession of the firearm**  **occurred before the restoration of firearm rights where, as here, the defendant produced no evidence that his firearm**  **rights had been restored. In answering this question, we must consider MCL 776.20, which states:**  **In any prosecution for the violation of any acts of the state relative to use, licensing and**  **possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or**  **exemption contained in any such act shall be upon the defendant but this does not shift the burden**  **of proof for the violation. 12** **It appears that the Legislature enacted this statute in response to**  People v Schrader **, 10 Mich App 211, 217; 159 NW2d 147 (1968). In**  People v Jiminez **, 27 Mich App 633, 635; 183 NW2d 853 (1970), the Court of Appeals stated:**  **Prior to 1968, we would have given serious consideration to such an objection.**  People v Schrader **(1968), 10 Mich App 211. However, in that year, the legislature took notice of our**  **decisions holding that it was the burden of the prosecutor to prove that the defendant did not**  **come within a statutory exception. The legislature responded by enacting a law [MCL**  **776.20] which held that, in trials for carrying concealed weapons, the burden is on the defendant**  **to show that he comes within one of the exemptions.**  **[14] The broad language used in MCL 776.20 plainly extends**  **to the felon-in-possession statute, MCL 750.224f, because it is a statute regarding the use, licensing, and**  **possession of firearms. We must therefore give effect to the plain language of MCL 776.20 requiring the defendant to**  **establish “any” exception, excuse, proviso, or exemption**

**14 We disagree with Justice Kelly’s assertion that MCL**  **776.20 cannot alter what the prosecution has to prove in**  **order to obtain a conviction under MCL 750.224f.** Post **at 18.**  **The Legislature has the authority to change the law if it wishes, and this is what it did by enacting MCL 776.20.**  **After its enactment, MCL 776.20 was controlling. Moreover, contrary to Justice Kelly’s statements, MCL**  **776.20 never altered MCL 750.224f because it predated it.**  **This fact also undercuts Justice Kelly’s rule of lenity and due process arguments because, when enacted, MCL 750.224f**  **had to be read as fitting into the legal context already created by MCL 776.20.** 

**13 contained in any statute “relative to use, licensing and**  **possession” of firearms. In applying the text of MCL 776.20, we adhere to this**  **Court’s interpretation in** Henderson **. In** Henderson **, this Court considered the effect of MCL 776.20 in a prosecution**  **for carrying a pistol in a motor vehicle in violation of MCL 750.227. The issue was whether the prosecution or the**  **defendant bore the burden of establishing whether the defendant had a license to carry a pistol. After**  **considering the text of MCL 776.20, this Court concluded that the defendant bore the burden of**  producing **evidence regarding licensure, while the prosecution bore the**  **ultimate burden of persuasion. 15**  **Specifically, the** Henderson **Court stated: Accordingly, we hold that upon a showing**  **that a defendant has carried a pistol in a vehicle operated or occupied by him, [a] prima**  **facie case of violation of the statute has been made out. Upon the establishment of such a prima**  **facie case,** the defendant has the burden of injecting the issue of license by offering some proof–not necessarily by official record—that he has been so licensed. **The people thereupon are obliged to establish the contrary beyond a**  **reasonable doubt. [** Henderson **,** supra **at 616 (emphasis added).]** 

**15 Justice Kelly asserts that**  Henderson **“cannot be correct” because it would mean that there are only two, not**  **three, elements to the crime of carrying a concealed weapon in a vehicle.**  Post **at 21-22. We are puzzled by this argument because we know of no requirement for a minimum,**  **or a maximum, number of elements.**

**14 The interpretation set forth in**  Henderson **accords with the well-established principle that “[c]ourts must give**  **effect to every word, phrase, and clause in a statute, and must avoid an interpretation that would render any part of**  **the statute surplusage or nugatory.”** Koontz v Ameritech Services **,** Inc **, 466 Mich 304, 312; 645 NW2d 34 (2002). The** Henderson **Court gave effect to the entirety of MCL 776.20. By recognizing that the defendant bore the burden of**  **producing or going forward with evidence that he was licensed, the**  Henderson **Court gave effect to the statutory phrase “the burden of establishing any exception, excuse,**  **proviso or exemption contained in any such act shall be upon the defendant . . . .” And by concluding that the**  **prosecution bore the ultimate burden of persuasion beyond a reasonable doubt, the**  Henderson **Court avoided rendering nugatory the phrase “but this does not shift the burden of**  **proof for the violation.” 16**  **We thus adhere to the framework established in** Henderson **. Like the firearms offense considered in**

**16 While it is not necessary to our analysis, we note**  **that the majority of courts in other states that have considered this issue has similarly allocated at least the**  **burden of production regarding the lack of license to the defendant. See Anno:**  Burden of proof as to lack of license in criminal prosecution for carrying or possession of weapon without license **, 69 ALR3d 1054.**

**15**Henderson **, the offense of felon in possession falls within the strictures of MCL 776.20 requiring the defendant to**  **establish “any exception, excuse, proviso or exemption . . . .” We may consult dictionary definitions of terms**  **that are not defined in a statute.** Koontz **,** supra **at 312. The dictionary definition of the term “proviso” is**  **instructive. A “proviso” is “an article or clause that introduces a condition: stipulation.”**  Webster’s Seventh New Collegiate Dictionary **(1967). MCL 750.224f(2) contains a clause that introduces conditions that must be met before**  **a person convicted of a specified felony may possess a firearm. Specifically, the five-year period from the**  **specified events described in the statute must have expired, and the felon’s firearm rights must have been**  **restored. Until those conditions are satisfied, the felon may not possess a firearm.**  **We conclude that the felon-in-possession statute contains a proviso. Thus, we are bound to follow the plain**  **language of MCL 776.20 and the analytic approach established in**  Henderson **. Defendant here produced no evidence to establish that**  **his right to possess a firearm had been restored. Because defendant failed to meet his burden of production, the**  **prosecution was not required to prove the lack of**

**16 restoration of firearm rights beyond**  **a reasonable doubt. MCL 776.20;**  Henderson **,** supra **at 616.**

**V. C**  **ONCLUSION We conclude that larceny from the person is a crime**  **that carries a substantial risk that physical force will be used or threatened against another. Therefore, we agree**  **with the Court of Appeals that it qualifies as a specified felony under MCL 750.224f(6)(**  i **). Also, a defendant bears the burden of producing**  **evidence to establish that his or her right to possess a firearm has been restored, in light of MCL 776.20 and this**  **Court’s decision in** Henderson **. Because defendant failed to meet his burden of production in this case, the**  **prosecution was not required to prove the lack of restoration of firearm rights beyond**  **a reasonable doubt. Accordingly, we affirm the judgment of the Court of**  **Appeals. Clifford W. Taylor**  **Elizabeth A. Weaver Maura D. Corrigan**  **Robert P. Young, Jr. Stephen J. Markman** 

**17 _______________________________**  **v S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,** 

**No. 126727**  **DAVID MICHAEL PERKINS, Defendant-Appellant.** 

**KELLY, J. (** concurring in part and dissenting in part **). We granted leave to appeal in this case to address two**  **questions: (1) whether larceny from a person is a “specified felony” for the purposes of MCL 750.224f(6)(**  i **) and (2) whether, under MCL 750.224f(2)(b), the lack of**  **restoration of the right to possess a firearm is an element of the offense. 471 Mich 914 (2004).**  **With regard to the first question, I believe that larceny from a person is a specified felony. Therefore, I**  **concur in the result of the majority opinion on this issue. With respect to the second question, I believe that the**  **lack of restoration of the right to possess a firearm is an element of the offense of felon in possession (possession**  **of a firearm by someone convicted of a felony). Accordingly, I would hold that, to secure a conviction, the**  **prosecution must show the lack of restoration of that right. MCL 750.224f. Consequently, I dissent from the**  **portion of the majority opinion dealing with that issue. I would affirm in part the decision of the Court of**  **Appeals, reverse it in part, and vacate defendant’s convictions and sentences.** 

**I. U**  **NDERLYING F**  **ACTS AND P**  **ROCEDURAL H**  **ISTORY Defendant was arrested after a dispute involving a**  **firearm. He was charged with felonious assault, 1**  **felon in possession,**  **2 and possession of a firearm when committing or**  **attempting to commit a felony (felony-firearm). 3**  **The court acquitted him of the assault charge, concluding that, at the time of the offense, he was too**  **intoxicated to formulate the intent necessary for the crime. Defendant stipulated that he had been convicted in**  **1977 of larceny from a person. MCL 750.357. The court**  **convicted him of the two firearm charges. It ruled that defendant’s admissions of the 1977 felony conviction and of**  **possessing a firearm provided sufficient evidence to convict him of the offense of felon in possession.** 

**1 MCL 750.82.** 

**2 MCL 750.224f.** 

**3 MCL 750.227b.** 

**2 On appeal, the Court of Appeals affirmed**  **4 the trial**  **court’s rulings stating: “The prosecutor must prove that the defendant’s right to possess a firearm has not been**  **restored only if the defendant produces some evidence that his right has been restored.”**  Id. **at 271. It also concluded that larceny from a person constitutes a**  **specified felony within the meaning of MCL 750.224f. It reasoned:**  **Because a person whose property is stolen from his presence may take steps to retain**  **possession, and the offender may react violently, we conclude that the offense of larceny from a**  **person, “** by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense **.” [** Id **. at 272, quoting MCL 750.224f(6)(**  i **) (emphasis in original).] We granted leave to appeal.** 

**II. F**  **ELONIES AND S**  **PECIFIED F**  **ELONIES Both questions before this Court involve issues of**  **statutory construction. Hence, we review them de novo.** People v Kimble **, 470 Mich 305, 308-309; 684 NW2d 669 (2004). The first question is whether larceny from a**  **person is a specified felony under the felon-in-possession statute. MCL 750.224f.** 

**4** People v Perkins **, 262 Mich App 267; 686 NW2d 237 (2004).** 

**3 The statute divides felonies into two types,**  **“felonies” and “specified felonies.” A person convicted of a “felony” can legally possess a firearm three years after**  **(a) completing all terms of imprisonment imposed for the**  **violation, (b) paying all fines imposed for the violation, and (c) completing all conditions of probation or parole.**  **MCL 750.224f(1). A person convicted of a “specified felony” must**  **satisfy the same requirements and must obtain restoration of the right to possess a firearm pursuant to MCL 28.424.**  **Also, the person must wait five years after completion of the statutory requirements, as compared to three years for**  **other felonies. The Legislature defines “specified felony” in MCL**  **750.224f(6). It provides: As used in subsection (2), “specified**  **felony” means a felony in which 1 or more of the following circumstances exist:**  **(** i **) An element of that felony is the use,**  **attempted use, or threatened use of physical force against the person or property of another,**  **or that** by its nature **, involves a substantial risk that physical force**  **against the person or property of another may be used in the course of**  **committing the offense. (**  ii **) An element of that felony is the**  **unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a**  **controlled substance. (**  iii **) An element of that felony is the**  **unlawful possession or distribution of a firearm. 4** **(** iv **) An element of that felony is the**  **unlawful use of an explosive. (**  v **) The felony is burglary of an occupied**  **dwelling, or breaking and entering an occupied dwelling, or arson. [Emphasis added.]**  **All parties agree that subsections** ii **through** v **do not apply to this case. Therefore, to constitute a specified**  **felony, defendant’s 1977 conviction of larceny from a person must fall within the definition in subsection**  i **. The use, attempted use, and threatened use of force**  **are not elements of larceny from a person. In fact, the absence of force and the absence of the threat of force are**  **what distinguish larceny from a person from robbery.** People v Randolph **, 466 Mich 532, 544; 648 NW2d 164 (2002). But subsection**  i **includes more crimes than just those in which force is an element. It includes crimes that, by**  **their nature, involve a substantial risk of the use of force.** 

**III. A**  **S UBSTANTIAL**  **R ISK OF**  **F ORCE**  **In this case, defense counsel conceded at oral argument that larceny from a person involves a risk that**  **force will be used. However, he asserted that the risk is not “substantial.”**  **“Substantial” is defined as “of ample or considerable amount, quantity, size, etc.”**  Random House Webster’s College Dictionary **(2001). The question becomes whether, 5** **during the commission of a larceny from a person, there is an “ample or considerable amount” of risk that force will**  **be used. The statute prohibiting larceny from a person**  **provides: Any person who shall commit the offense of**  **larceny by stealing** from the person **of another shall be guilty of a felony, punishable by**  **imprisonment in the state prison not more than 10 years. [MCL 750.357 (emphasis added).]**  **Hence, larceny from a person requires direct contact with the victim. The perpetrator must take personal property**  **from the victim while it is in the victim’s possession. This increases the risk that force will be used. A**  **perpetrator is obliged to use force or threaten the use of force to obtain the property unless the victim willingly**  **submits to or remains ignorant of the theft. 5**  **Larceny from a person quickly evolves into robbery when force is**  **employed to complete the theft. Physical force may be used during the commission of**  **many felonies, especially if the perpetrator is caught in**

**5 Justice Cavanagh argues that the perpetrator could**  **abort the attempt to obtain the property when it becomes apparent that he may need to use or threaten force to**  **obtain the property. But if the perpetrator aborts the attempt to obtain the property, larceny from a person will**  **not be committed. I center my analysis on what may occur if the perpetrator does not abort the attempt. Under those**  **circumstances, I believe that the risk of force is “substantial.”** 

**6 the act. However, the risk that force will be used during**  **a larceny from a person is considerably greater than the risk of force in many other felonies. This is because the**  **crime, by its nature, is often confrontational and always involves the presence of the victim. Its perpetration**  **requires either direct contact with or the actual presence of the victim. Also, the risk of detection is heightened.**  **With an ample risk of confrontation and detection comes an ample risk of the use or threatened use of force to**  **complete the crime. 6**  **Therefore, larceny from a person involves a “substantial” risk of the use or threat of**  **physical force. Additionally, the very structure of the larceny**  **statute, when compared with the larceny-from-a-person statute, supports a conclusion that the Legislature**  **recognized that larceny from a person involves a substantial risk that force will be used. The general**  **larceny statute 7**  **allocates punishment according to the value of the property taken. For example, if the property is** 

**6 Justice Cavanagh notes that almost every felony runs**  **some risk of the use of force. But his analysis does not consider the fact that larceny from a person requires**  **contact with or the presence of the victim every time the crime is committed. This distinguishes it from many**  **felonies that can be committed without the victim being in harm’s way.** 

**7 MCL 750.356.** 

**7 valued at from $200 to $1,000,**  **the thief is guilty of a misdemeanor punishable by as much as one year in jail, a**  **$2,000 fine, or both. MCL 750.356(4). But if it has a value of from $1,000 to $20,000, the crime is a felony**  **punishable by as much as five years’ imprisonment, a $10,000 fine, or both. MCL 750.356(3).**  **This contrasts with larceny from a person, which abandons a gradation of punishment. The defendant is**  **subject to a possible ten years in prison without regard to the value of the property stolen. MCL 750.357.**  **The only difference between the crimes of larceny and larceny from a person is the presence of the victim.**  **Without question, the possibility of harm to the victim is greater if the property is taken from his person.**  **Consequently, it appears that the threat to the victim was of greater concern to the Legislature than the loss of the**  **property, and hence, it provided a greater penalty for larceny from a person.**  **The magnitude of the difference in penalties demonstrates just how seriously the Legislature viewed the**  **risk of force against the victim of a larceny from a person. If the value of the property taken in a normal**  **larceny is less than $200, the defendant is subject to no more than ninety-three days in jail. But, if the defendant**  **takes that same property directly from a person, he is 8** **guilty of a felony and subject to potentially ten years in prison. MCL 750.356(5); MCL 750.357.**  **The only logical reason for the great difference in penalties is that a significant danger exists that force**  **will be used, injuring the victim of a larceny from a person. Therefore, the Legislature viewed that crime as**  **involving a substantial risk that physical force will be employed against another. This qualifies it as a specified**  **felony under MCL 750.224f(6)(** i **).**

**IV. R**  **ESTORATION OF R**  **IGHTS IS AN E**  **LEMENT OF MCL 750.224f(2)** 

**A. THE LANGUAGE AND**  **S TRUCTURE OF**  **MCL 750.224f(2) Section 2 of the felon-in-possession statute indicates**  **the circumstances under which a person convicted of a specified felony may possess a firearm. MCL 750.224f(2).**  **One of the requirements contained in that statute is that the defendant must have had his right to possess a firearm**  **legally restored. But in this case, the prosecution argues that it need**  **not show that restoration has not occurred in order to establish the elements of the crime. Rather, it asserts**  **that it is defendant who bears that burden. Neither the**

**9 language nor the structure of the statute supports the**  **prosecution’s contention. 8**  **MCL 750.224f(2) provides: A person convicted of a specified felony**  **shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a**  **firearm in this state** until all of the following circumstances exist **: (a)**  **The expiration of 5 years after all of the following circumstances exist:**  **(** i **) The person has pa**  **id all fines imposed for the violation.**  **(** ii **) The person has served all terms of**  **imprisonment imposed for the violation. (**  iii **) The person has successfully completed**  **all conditions of probation or parole imposed for the violation.**  **(b) The person’s right to possess, use,**  **transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored**  **pursuant to section 4 of Act No. 372 of the Public Acts of 1927, being section 28.424 of the**  **Michigan Compiled Laws. [Emphasis added.]**

**8 I would hold that the prosecution must show the lack**  **of restoration contingent on its failure to show that (1) five years have not passed since all fines were paid, (2)**  **five years have not passed since all jail time was served, or (3) five years have not passed since the defendant**  **successfully completed all conditions of probation or parole. The prosecution would have the option of carrying**  **its burden on only one of the four subparts of MCL 750.224f(2). Once it proves one of the four, it need not**  **go further. Therefore, I believe that the Legislature intended the prosecution to choose which element of MCL**  **750.224f(2) to address. But the contingent nature of the element should not change on whom the burdens of production**  **and persuasion lie.**

**10 In interpreting MCL 750.224f(2), our goal is to give**  **effect to the Legislature’s intent.** People v Koonce **, 466 Mich 515, 518; 648 NW2d 153 (2002). We start with the**  **language of the statute itself. The language of MCL 750.224f(2) demonstrates a clear inte**  **nt to include among the prosecution’s proofs a showing that the right to**  **possess a firearm was not restored to the defendant.**

**B. C**  **REATION OF AN E**  **XCEPTION BY U**  **SE OF THE T**  **ERM “U**  **NLESS ”**  **The Legislature has demonstrated that it knows how to create an exception, and it created one in subsection 4 of**  **the very statute in question. MCL 750.224f(4) provides: This section does not apply to a conviction**  **that has been expunged or set aside, or for which the person has been pardoned,**  unless **the expunction, order, or pardon expressly provides**  **that the person shall not possess a firearm. [Emphasis added.]**  **By using the term “unless,” it demonstrated its intent to create an exception.**  **9 “Unless” is an exclusionary term.**  **By contrast, in subsection 2 of the felon-in-possession statute, the Legislature chose not to use an exclusionary**  **term. Instead, it used the phrase “until all.”**

**9 The Legislature has repeatedly used the term “unless”**  **to create an exception in the Penal Code. Examples are: MCL 750.14, MCL 750.42b(2), MCL 750.50(2)(g), MCL 750.51,**  **MCL 750.61, MCL 750.115(2), MCL 750.141, MCL 750.144, MCL 750.147a(1), MCL 750.197(3), and MCL 750.216.** 

**11 Looking at the definition of “until” helps demonstrate**  **that “until all” is an inclusive phrase. The definition is “1. up to the time that or when;**  **till. 2. before . . . 3. onward to or till . . .”**  Random House Webster’s College Dictionary **(2001). Applying this definition to the statute, the defendant is guilty of the offense of felon in**  **possession only if he (1) was convicted of a specified offense and (2) possessed a firearm “before” (a) the**  **passage of five years from the time he paid all pertinent fines, or he served his term, or he successfully completed**  **all conditions of probation or parole, or (b) his right to possess a firearm was not restored. MCL 750.224f(2).**  **Therefore, to prove the crime, the prosecution must demonstrate that the possession occurred “before” one of**  **the specified events. If the prosecution fails to prove this, it has not met the burden created by the Legislature.**  **The result would be quite different had the Legislature chosen to use an exclusionary term like**  **“unless.” “Unless” is defined as “1. except under the circumstances that . . . 2. except; but; save[.]”**  Random House Webster’s College Dictionary **(2001). Substituting this word into the statute would change**  **the statute’s meaning, so that the prosecution would need to prove only that the defendant (1) had been convicted of**  **a specified offense and (2) possessed a firearm. The 12** **defendant would be left to produce evidence that, more than five years before, he had (1) paid all pertinent fines, (2)**  **served his term, (3) successfully completed all conditions of probation and parole, and that (4) he currently had the**  **right to possess the firearm. Hence, the difference in the burden of production on**  **the prosecution and on the defense is enormous depending on whether “until” introduces an element or an exception.**  **Accordingly, we should assume that the decision to use “until” rather than “unless” was carefully made.**  **We presuppose that the words the Legislature uses have a purpose. And we should not speculate that it**  **inadvertently used one word or phrase when it intended another. The chosen wording is presumed intentional.**  Detroit v Redford Twp **, 253 Mich 453, 456; 235 NW 217 (1931).**  **When writing this statute, the Legislature demonstrated a clear knowledge of how to create an**  **exception, but it chose not to do so. Its use of the term “until” is a strong indication that it intended the**  **restoration of rights to be a contingent element of the offense.**  **Because the Legislature chose to use the term “until,” the prosecution bears the burden of production for MCL**  **750.224f(2). Here the prosecution failed to present any 13** **evidence that defendant’s right to possess a firearm had not been restored. And it made no effort to show that any**  **of the three other factual circumstances listed in MCL 750.224f(2) had not occurred. Hence, it did not satisfy**  **its burden, and defendant’s convictions were in error.**

**C. MCL 776.20**  **The majority asserts that MCL 776.20 controls this case and holds that it requires that defendant bear the**  **burden of production regarding the restoration of the right to possess a firearm. MCL 776.20 provides:**  **In any prosecution for the violation of any acts of the state relative to use, licensing and**  **possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or**  **exemption contained in any such act shall be upon the defendant but this does not shift the burden**  **of proof for the violation. MCL 776.20 comes into play only after the prosecution**  **proves all the elements of a crime. Therefore, for the majority’s argument to have merit, I would have to accept**  **the conclusion that MCL 750.224f(2)(b) is an exception. As discussed above, this conclusion is implausible given the**  **language and structure chosen by the Legislature. I find MCL 776.20 inapplicable to this case.**  **believe that, if the Legislature had intended MCL 776.20 to apply, it specifically would have used a term contained in**  **that statute. Alternatively, it would have used its often**

**14 I** **repeated term “until,” or a similarly clear expression, to create an exception or a proviso.**  **The words “exception, [10]**  **excuse, [11]**  **proviso [12]**  **or exemption**  **[13] ” in MCL 776.20 apply to situations where all**  **the elements of a crime have been established. Once the prosecution has satisfied all the elements, it is for the**  **defendant to produce evidence showing the existence of a circumstance excusing him from culpability.**  **14**

**10 “Except” means “to exclude; leave out.”**  Random House Webster’s College Dictionary **(2001).**

**11 “Excuse” means “to release from an obligation or**  **duty.”** Random House Webster’s College Dictionary **(2001).**

**12 A “proviso” is “a clause, as in a statute or**  **contract, by which a condition is introduced” or “a stipulation or condition.”**  Random House Webster’s College Dictionary **(2001).**

**13 “Exempt” means “to free from an obligation or**  **liability to which others are subject; release.”** Random House Webster’s College Dictionary **(2001).**

**14 Some may argue that the definition of “proviso”**  **could apply to any clause. But I believe that the Legislature intended it to apply only to clauses relieving**  **a defendant of liability. This is indicated by its placement in a list with “exception,” “excuse,” and**  **“exemption.” The doctrine of** noscitur a sociis **requires that this Court interpret terms in context with the other**  **words around them.** G C Timmis & Co v Guardian Alarm Co **, 468 Mich 416, 420-422; 662 NW2d 710 (2003). When words are**  **grouped in a list, they must be given related meaning.** Third Nat’l Bank in Nashville v Impac, Ltd, Inc **, 432 US 312, 322; 97 S Ct 2307; 53 L Ed 2d 368 (1977).**  **Interpretive aids, such as the doctrine of** noscitur a sociis **, are meant to aid us in arriving at the meaning intended by the Legislature. By using a term in a list,**  **the Legislature gave this Court a legitimate means of (continued...)**  **15 An example of a situation in which MCL 776.20 would**  **apply can be seen in MCL 750.224f(4): “This section does not apply to a conviction that has been expunged or set**  **aside, or for which the person has been pardoned . . . .” This subsection creates an exception to the felon-in**  **** **possession crime. Under MCL 776.20, the defendant would have**  **the burden**  **of producing**  **evidence to**  **prove the**  **exception. 15** 

**In MCL**  **776.20, the**  **Legislature demonstrated**  **its ability to use the terms “exception,” “excuse,”**  **“exception,” and “proviso.” But in 750.224f(2), it used none of them. It could have stated in MCL 750.224f(2):**  **A person convicted of a specified felony shall not possess, use, transport, sell,**  **purchase, carry, ship, receive, or distribute a**

**(...continued) finding its intent. The main goal in interpreting any**  **statute is to ascertain and give effect to the Legislature’s intent.**  People v Tombs **, 472 Mich 446, 451; 697 NW2d 494 (2005). By interpreting the word “proviso” in**  **the context it was used, I have chosen to give effect to the Legislature’s demonstrated intent.** 

**15 Some may claim that my analysis renders sections of**  **MCL 776.20 nugatory. But this is not true. I simply find the statute inapplicable to this case. It would fully**  **apply to other statutes actually containing an exception, excuse, proviso, or exemption. MCL 750.224f(4) provides an**  **example of when I would apply MCL 776.20. A defendant would bear the burden of proving that his crime had been**  **expunged, set aside, or pardoned. Just because I disagree with the application of MCL 776.20 to this case does not**  **mean that my reading renders it nugatory.**

**16 firearm in this state**  providing the following circumstances do not exist **. Or:**  **A person convicted of a specified felony shall not possess, use, transport, sell,**  **purchase, carry, ship, receive, or distribute a firearm in this state,**  except when all of the following circumstances exist. **Or: A person convicted of a specified felony**  **shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a**  **firearm in this state,** but the person is excused when the following circumstances exist. **Instead of any of these or other wordings, the Legislature chose to use “until all.” I believe this is a**  **strong indication that it intended that MCL 776.20 should not apply to MCL 750.224f(2).**  **In interpreting statutes, we are reluctant to assume that the Legislature wrote what it did by accident or**  **error. But this is what the majority presumes in its holding today. I support giving effect to the**  **Legislature’s chosen phrasing rather than changing it to fit within MCL 776.20.**  **16**

**16 I believe that the majority has misunderstood my**  **argument in n 14 of its opinion,** ante **at 13. Of course I know that the Legislature can change the law. My point is**  **that the Legislature intentionally drafted MCL 750.224f(2) so that MCL 776.20 would not apply to it. The Legislature**  **enacted MCL 750.224f(2) after it enacted MCL 776.20. Hence, it knew when it wrote MCL 750.224f(2) that MCL**  **776.20 requires the defendant to shoulder the burden of**  **(continued...) 17** **The existence of MCL 776.20 does not alter what the prosecution has to prove in order to obtain a conviction**  **for felon in possession. But reading MCL 750.224f(2)(b) as a proviso does shift the burden of production from what the**  **Legislature intended, because it turns what is an element of the crime into a proviso.** 

**D.** P EOPLE V P EGENAU **The prosecution relies on** People v Pegenau **17 to support**  **its argument. This reliance is misplaced. In** Pegenau **, the defendant was charged with unlawful possession of Xanax and**  **Valium pursuant to MCL 333.7403(1). 18**  People v Pegenau **, 447 Mich 278, 281; 523 NW2d 325 (1994). The only question at**  **trial was whether the defendant had a valid prescription, (...continued)**  **production in matters involving a proviso. Accordingly, if it had wanted to make a proviso in MCL 750.224f(2), it knew**  **it had to write the statute to clearly contain a proviso. Since it did not do that, we must conclude that it did not**  **intend a proviso.**

**17** People v Pegenau **, 447 Mich 278; 523 NW2d 325 (1994).**

**18 MCL 333.7403(1) provides:**  **A person shall not knowingly or intentionally possess a controlled substance, a**  **controlled substance analogue, or a prescription form unless the controlled substance, controlled**  **substance analogue, or prescription form was obtained directly from, or pursuant to, a valid**  **prescription or order of a practitioner while acting in the course of the practitioner’s**  **professional practice, or except as otherwise authorized by this article.** 

**18 which would exclude him from prosecution under the language**  **of MCL 333.7403 and MCL 333.7531. 19**  Pegenau **,** supra **at 282. This Court held that the burden of proof regarding the**  **existence of a valid prescription was on the defendant.** Pegenau **is distinguishable from the present case because MCL 333.7403 expressly uses a term creating an**  **exception. In fact, MCL 333.7403 uses the term “unless.” As discussed above, “unless” is defined as “1. except under**  **the circumstances that . . . 2. except; but; save[.]”** Random House Webster’s College Dictionary **(2001). Because an exception is specifically created, the defendant bears**  **the burden of production under MCL 333.7531.**

**19 MCL 333.7531 provides:**  **(1) It is not necessary for this state to**  **negate any exemption or exception in this article in a complaint, information, indictment, or other**  **pleading or in a trial, hearing, or other proceeding under this article. The burden of**  **proof of an exemption or exception is upon the person claiming it.**  **(2) In the absence of proof that a person is**  **the authorized holder of an appropriate license or order form issued under this article, the**  **person is presumed not to be the holder of the license or order form. The burden of proof is**  **upon the person to rebut the presumption. (3)**  **A liability is not imposed by this article or an authorized state, county, or local**  **officer, engaged in the lawful performance of the officer's duties.** 

**19 In contrast, MCL 750.224f(2) does not provide an**  **exception or exemption to felon-in-possession prosecutions. The Legislature did not use a term that would create an**  **exception. It used the inclusive phrase “until all.” Therefore, the subsections are elements of the crime rather**  **than exceptions, and MCL 776.20 does not apply.** Pegenau **is inapplicable and is in clear contrast to this case. Therefore, I find it of no support to the**  **prosecution’s argument.**

**E.** P EOPLE V H ENDERSON **The majority finds** People v Henderson **20 persuasive on**  **the issue whether restoration of the right to possess a firearm is an element of felon in possession. I believe**  **that this decision does not aid the majority’s position.**  **21 Moreover, I find that**  Henderson **was wrongly decided.** Henderson **dealt with MCL 750.227, which, at that time, provided:**  **Any person who shall carry a dagger, dirk, stiletto or other dangerous weapon except hunting**  **knives adapted and carried as such, concealed on**

**20 391 Mich 612; 218 NW2d 2 (1974).** 

**21 I also find**  Henderson **simply inapplicable to this case because it does not analyze the core question before**  **us. That question is what language in a statute constitutes an exception, excuse, proviso, or exemption.**  Henderson **becomes relevant only afte r a determination is**  **made that an exception, excuse, proviso, or exemption exists.** 

**20 or about his person, or whether concealed or**  **otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of**  **business or on other land possessed by him; and any person who shall carry a pistol concealed on**  **or about his person, or, whether concealed or otherwise, in any vehicle operated or occupied by**  **him, except in his dwelling house or place of business or on other land possessed by him,**  **without a license to so carry said pistol as provided by law, shall be guilty of a felony,**  **punishable by imprisonment in the state prison for not more than five years, or by fine of not**  **more than two thousand five hundred dollars. The**  Henderson **Court concluded that, as regards the facts of that case, the only elements of the crime were:**  **(1) the defendant was carrying a pistol and (2) he was in a**  **vehicle operated or occupied by him. It ruled that the language “without a license to so carry said pistol” did**  **not add an element to the offense.** People v Henderson **, 391 Mich 612, 616; 218 NW2d 2 (1974).**  **This conclusion cannot be correct. If only two elements existed, the sole defenses available to a**  **defendant would be (1) that he did not carry a pistol or (2)**  **that he was not in a vehicle with it. Whether the defendant was licensed to carry that pistol would not**  **matter. He would be guilty of the crime, even though licensed, because he (1) carried a pistol (2) in a vehicle.** 

**21 It is obvious that there is a third key element. It is**  **found in the statute’s language “without a license.” 22**  **My interpretation is strengthened by the fact that, in writing MCL 750.227, the Legislature did not use any of the**  **terms listed in MCL 776.20. The clause “without a license” is not prefaced by anything signaling or otherwise phrased**  **to signal that it constitutes an exception, excuse, proviso, or exemption.**  **Contrast this with the language “except in his dwelling house or place of business or on other land**  **possessed by him” that is also contained in the statute. The Legislature knew how to create an exception, excuse,**  **proviso, or exemption when it wrote MCL 750.227. And, in fact, it did so in that statute by explicitly using the**  **term “except.” But it did not use any of those terms with respect to the lack of a license. Again, the Legislature’s**  **choice of wording should not be presumed accidental.** Redford Twp **,** supra **at 456. To rule as it did, the**  Henderson **Court had to read words into the statute. Specifically, it had to read in**  **some form of exception, excuse, proviso, or exemption**

**22 Contrary to the majority’s contention, I do not**  **suggest that there are a minimum number of elements that must be contained in a criminal statute. Rather, I am**  **pointing out that this statute has three elements. The** Henderson **Court recognized only two of them.**

**22 before the language “without a license.” But this violates**  **the well-established rule of statutory construction that a court cannot read into a statute what is not there.**  AFSCME v Detroit **, 468 Mich 388, 412; 662 NW2d 695 (2003). 23**  **Therefore, the** Henderson **Court failed to construe the language actually chosen by the Legislature. Instead, it**  **added language to change the burden of production. The majority today falls into the same trap. And in doing so,**  **it violates its own repeatedly stated rule of statutory construction.** 

**F. T**  **HE M**  **AJROITY ’**  **S P**  **HILOSOPHICAL C**  **ONTRADICTIONS The justices of the majority have departed from their**  **own rules of statutory construction in construing MCL 750.224f(2). During this very court term, most of the same**  **justices stated: Fundamental canons of statutory**  **interpretation require us to discern and give effect to the Legislature’s intent as expressed**  **by the language of its statutes. If such language is unambiguous, as most such [sic]**  **language is, we presume that the Legislature intended the meaning clearly expressed—no further**  **judicial construction is required or permitted, and the statute must be enforced as written.** 

**23 This is a principle often repeated by this majority.**  **See** Halloran v Bhan **, 470 Mich 572, 577; 683 NW2d 129 (2004),**  People v Phillips **, 469 Mich 390, 395; 666 NW2d 657 (2003),**  People v Davis **, 468 Mich 77, 79; 658 NW2d 800 (2003),**  Lesner v Liquid Disposal, Inc **, 466 Mich 95, 101; 643 NW2d 553 (2002), and**  Roberts v Mecosta Co Gen Hosp **, 466 Mich 57, 63; 642 NW2d 663 (2002).** 

**23 [**  Garg v Macomb Co Community Mental Health Services **, 472 Mich 263, 281; 696 NW2d 646 (2005) (citations and quotation marks omitted).]**  **There is no suggestion that the majority finds the language in MCL 750.224f(2) ambiguous. Hence, it violates**  **its own rules of statutory interpretation when it relies on decisions in sister states to interpret the intent of the**  **Michigan Legislature. Under the majority’s judicial philosophy, reference to outside material is of no value in**  **the face of a clear text. Moreover, the citation of the annotation at 69 ALR3d**  **1054 adds nothing to the majority’s analysis of the statute in this case. The decisions cited in the annotation are**  **based on widely divergent statutory language in other states. Because that language is so different from the**  **language of MCL 750.224f(2), conclusions in the annotation are of no assistance in determining what the Michigan**  **Legislature intended when enacting our statute. Beyond this, at least some of the cases cited in the**  **annotation demonstrate that a legislature can create an easily recognizable exception or proviso when it desires to**  **do so. For example, the Pennsylvania statute provides that no person shall carry a firearm in public “‘**  unless **. . . such person is licensed to carry a firearm[.]’”**  Commonwealth v Bigelow, **250 Pa Super 330, 332; 378 A2d 961 (1977), quoting 18 Pa Consol Stat 6108 (emphasis added).**  **24 Clearly the Michigan Legislature could have done what the**  **Pennsylvania legislature did: it explicitly created an exemption.**  **24 Furthermore, even under the a**  **nalysis offered by the majority,**  Henderson **was wrongly decided. One thing the majority and I agree about in the instant case is that an**  **exception, excuse, proviso, or exemption has to be clearly indicated by the language of the statute. In the statute**  **before us, MCL 750.224f(2), the majority argues that the word “until” introduces a proviso.**  **In contrast, the statute involved in** Henderson **contains nothing preceding the language “without a license” that could be argued to introduce an exemption, excuse,**  **proviso, or exemption. 25**  **Therefore, I believe that, under the majority’s analysis,**  Henderson **must be found to have been wrongly decided. In addition, its reliance on**  Henderson **contradicts the majority’s analysis discussing exceptions, excuses, provisos, and exemptions. In the end,** 

**24 As noted above, the Legislature used the same**  **“unless” language to create an exception in MCL 750.224f(4).** 

**25 “Without” does not qualify. “Unless the defendant**  **possesses” would qualify. As with the statute at issue in this case, the Legislature could have phrased the critical**  **language as an exemption, but it chose not to do so.**

**25**Henderson **offers nothing supportive of the majority’s construction of MCL 750.224f(2).**  **Again, the Legislature knows how to use the terms “exception,” “excuse,” “proviso,” or “exemption.” And it**  **knows how to create exceptions by the use of the term “unless,” as it has repeatedly done throughout the Penal**  **Code. But the Legislature chose not to use** any **of those terms in either MCL 750.224f(2) or MCL 750.227, the statute**  **analyzed in** Henderson **. I would not t urn a blind eye to**  **those choices. Instead, I would enforce the statutes as the Legislature wrote them. In this case, it requires**  **finding that the restoration of the right to possess a firearm**  **is an element of**  **the offense**  **of felon in possession.** 

**G. T HE**  **B URDEN**  **P LACED ON THE**  **P ROSECUTION**  **The prosecution asserts that, if it must initially go forward with evidence that defendant’s right to possess a**  **firearm has not been restored, its burden of proof will be rendered too difficult. It argues that, to make this**  **showing, it would have to obtain certificates showing no restoration of defendant’s right to possess firearms from**  **all eighty-three counties in Michigan. I believe that this is a wildly exaggerated approach**  **to the situation. Normally, to satisfy MCL 750.224f(2), the prosecution would have to show simply that five years**  **26 had not passed since the defendant served his term or**  **completed probation or paid his fines. Only if none of those situations existed would it become necessary to**  **address whether the right to carry a firearm had been restored. And then, in almost every case, the prosecution**  **could show that the defendant resided in one or two counties while eligible to have the right restored and that**  **those counties had not restored the right. My reading of the statute requires more proofs from**  **the prosecution then it would prefer. But the fact that it may find difficulty in proving a crime does not provide a**  **reason for this Court to rewrite the law to change the Legislature’s intent. I am satisfied that the language of**  **the statute demonstrates that a showing of no restoration of the right to possess a firearm is an element of the**  **crime. Hence, the burdens of production and persuasion are on the prosecution.** 

**H. T**  **HE R**  **ULE OF L**  **ENITY A consistent textualist would have to admit that no**  **language in MCL 750.224f(2) or MCL 750.227 creates an explicit exception, excuse, proviso, or exemption. At**  **most, those statutes could be read to infer an exception or proviso by adding words to them. By finding an exception**  **and a proviso, the majority violates its textualist philosophy. Its holding today seems to require that any**  **27 time words can be added to a statute to form an exception**  **or proviso, those words should be added. Surely, this does not give effect to the text of the statute as written.**  **Rather, it reads into the statute what the Legislature did not include and perhaps chose not to include. Not only is**  **this inconsistent with the majority’s “plain language” textualist approach, it also violates the rule of lenity.**  **Courts have long held that any ambiguity regarding the scope of criminal statutes must be resolved in favor of**  **lenity.** Huddleston v United States **, 415 US 814, 830-831, 94 S Ct 1262; 39 L Ed 2d 782 (1974), quoting**  Rewis v United
States **, 401 US 808, 812; 91 S Ct 1056; 28 L Ed 2d 493**  **(1971). This is part of the time-honored rule that penal statutes are construed in favor of the defendant. As Chief**  **Justice Marshall of United States Supreme Court stated in 1820:**  **The rule that penal laws are to be construed strictly, is perhaps not much less old than**  **construction itself. It is founded on the tenderness of the law for**  **the rights of individuals; and on the plain principle that the**  **power of punishment is vested in the legislative, not in the judicial department. It is the**  **legislature, not the Court, which is to define a crime, and ordain its punishment. [**  United States v Wiltberger **, 18 US (5 Wheat) 76, 95; 5 L Ed 37 (1820).]**  **I believe that a court may go beyond the text of a**  **statute when it is ambiguous or when serious questions arise regarding the reasonable meaning of its language.**  **28 But when weighing the words of a criminal statute, the**  **court must place on the scales the rule of lenity. This rule requires that the statute be construed strictly in**  **favor of the defendant. Here, the majority disregards the language contained**  **in MCL 776.20 and effectively finds that, if certain words are added to form an exception or proviso, the statute**  **should be read that way. This interpretation violates the rule of lenity. Far from reading the statute in favor of**  **defendant, it requires that the statute be read to disfavor him.**  **I believe that my interpretation of the statute best gives effect to the Legislature’s intent. And it best**  **adheres to the long-established tradition of applying the rule of lenity to criminal statutes. The majority’s**  **construction violates the spirit of the rule of lenity. And it turns a hardened eye on the “tenderness of the law**  **for the rights of individuals . . . .”** Wiltberger, supra **at 95. Instead of following this longstanding rule, the**  **majority focuses on the potential burden placed on the prosecution. I continue to adhere to the rule of lenity.**  **Therefore, I would hold that the prosecution bears the burden of production regardless of whether it might, at**  **times, find that burden difficult. 29** **I. T**  **HE D**  **UE P**  **ROCESS P**  **ROBLEM This Court has ruled that exemptions and provisos in**  **criminal statutes must be defined with specificity. Exemptions and provisos within a criminal**  **statute must be defined with the same specificity as the prohibitive language of the statute.**  **This court is not able, within the bounds of due process, to “interpret” a criminal statute**  **which contains an ambiguous exemption such that it results in conviction of the defendant charged**  **in the specific case. That is not the “fair warning” demanded by the Constitution. [**  People v Dempster **, 396 Mich 700, 715; 242 NW2d 381 (1976) (citation omitted).]**  **Therefore, when a “clarifying gloss” is placed on a statute by a court, it can apply only**  **to future violations. It cannot apply retroactively. This includes cases that**  **clarify when an exemption or proviso exists.** Id **. at 715 -**  **717. This case constitutes the first instance when the**  **“clarifying gloss” in question has been placed on MCL 750.224f(2). Therefore, at the least, the majority’s**  **interpretation of the statute cannot apply retroactively. Because the majority finds for the first time that the**  **statute contains a proviso, defendant did not have constitutional fair warning of what he would have to prove.**  **Accordingly, his conviction cannot stand.** Dempster **,** supra **at 717-718.**

**30 J.**  **M Y**  **C ONCLUSION**  **R EGARDING THE**  **F ELON**  **- IN**  **-P OSSESSION**  **S TATUTE**  **The felon-in-possession statute indicates clearly that the prosecution has the burden of showing that five years**  **have not passed (1) since the defendant paid all fines, or (2)**  **since the defendant served his term of imprisonment, or (3)**  **since the defendant successfully completed all conditions of probation or parole, or of showing (4) that**  **the defendant’s right to possess a firearm has not been restored. In this case, the prosecution concedes that it**  **presented no evidence showing that one of the four occurrences did not take place. Therefore, it failed to**  **satisfy its burden. Accordingly, I would reverse the decision of the Court of Appeals in part and vacate**  **defendant’s convictions and sentences.**

**V. C**  **ONCLUSION The risk that force will be used during a larceny from**  **a person is considerably greater than the risk of force in many other felonies. This is because the crime, by its**  **nature, is often confrontational and always involves the presence of the victim. Therefore, I concur with the**  **majority that larceny from a person is a specified felony. But I dissent from the majority’s holding on the**  **second issue. The felon-in-possession statute indicates clearly that the prosecution has the burden of production**  **and persuasion on all the elements of the offense. This 31** **includes the lack of restoration of the right to possess a firearm.**  **I would affirm in part the decision of the Court of Appeals,**  **reverse it**  **in part,**  **and vacate defendant’s**  **convictions and sentences. Marilyn Kelly** 

**32 _______________________________**  **v S T A T E O F M I C H I G A N** 
**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,** 

**No. 126727**  **DAVID MICHAEL PERKINS, Defendant-Appellant.** 

**C AVANAGH**  **, J. (**  dissenting **). I disagree with the majority’s position that the crime**  **of larceny from the person is a specified felony pursuant to MCL 750.224f(6). Because I believe that larceny from**  **the person is not a specified felony under MCL 750.224f(6), I do not reach the issue whether the lack of restoration of**  **firearm rights is an element of MCL 750.224f(2). Accordingly, I respectfully dissent.**  **The Legislature has defined a “specified felony” as including a felony in which the following circumstance**  **exists: An element of that felony is the use,**  **attempted use, or threatened use of physical force against the person or property of another,**  **or that by its nature, involves a substantial risk that physical force**  **against the person or property of another may be used in the course of**  **committing the offense. [MCL 750.224f(6)(** i **).] [1]**  **Larceny from the person is defined as follows: “Any person who shall commit the offense of larceny by stealing**  **from the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more**  **than 10 years.” MCL 750.357. Larceny from the person differs from robbery because larceny from the person is**  **committed without the use of force or the threat of force. “[R]obbery is a larceny aggravated by the fact that the**  **taking is from the person, or in his presence, accomplished with force or the threat of force.”**  People v Randolph **, 466 Mich 532, 544; 648 NW2d 164 (2002). By its very nature,**  **larceny from the person involves the** absence **of force or threat of force.**  **While I agree with the majority that there is a risk of force or threat of force when larceny from the person is**  **committed, this is essentially the case with** every **felony. Indeed, one can conceive of a risk of force in almost every**  **situation in which a felony is committed. However, I do not believe that the mere**  potential **for force or threat of force, or the mere**  potential **that a perpetrator** may **become**

**1 Other subsections of the statute specifying**  **additional circumstances that also define a specified felony are not applicable in this case.** 

**2 confrontational if detected, means larceny from the person**  **presents a “** substantial **risk” of force or threat of force. A perpetrator could just as likely choose to avoid**  **confrontation if it becomes apparent that force or the threat of force must be used to complete the intended act.**  **Therefore, because there is not a “** substantial risk **” of force or threat of force when larceny from the person is**  **committed, I respectfully dissent. Michael F. Cavanagh** 

**3**