_______________________________ 

 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

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 possession1

 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. FACTS AND PROCEDURAL HISTORY 

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 750.224f5 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 paid 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 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. 

(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 the 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 from 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 larceny9

 and larceny from the person. 

If a defendant10 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 ninetythree 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 RIGHTS 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. CONCLUSION 

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. UNDERLYING FACTS AND PROCEDURAL HISTORY 

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 affirmed4 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. FELONIES AND SPECIFIED FELONIES 

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 SUBSTANTIAL RISK OF FORCE 

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 statute7

 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. RESTORATION OF RIGHTS IS AN ELEMENT OF MCL 750.224f(2) 

A. THE LANGUAGE AND STRUCTURE 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 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. 

(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 intent to include among 

the prosecution’s proofs a showing that the right to 

possess a firearm was not restored to the defendant. 

B. CREATION OF AN EXCEPTION BY USE OF THE TERM “UNLESS” 

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-inpossession 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. PEOPLE V PEGENAU 

The prosecution relies on People v Pegenau17 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. PEOPLE V HENDERSON 

The majority finds People v Henderson20 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 after 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. THE MAJROITY’S PHILOSOPHICAL CONTRADICTIONS 

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 analysis 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 turn 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. THE BURDEN PLACED ON THE PROSECUTION 

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. THE RULE OF LENITY 

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. THE DUE PROCESS PROBLEM 

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. MY CONCLUSION REGARDING THE FELON-IN-POSSESSION STATUTE 

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. CONCLUSION 

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. 

CAVANAGH, 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