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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 19, 2015

v No. 319566 Wayne Circuit Court GUADALUPE MALDONADO, LC No. 12-011910-FH

Defendant-Appellant.

Before: B OONSTRA , P.J., and S AWYER and O’C ONNELL , JJ.

P ER C URIAM

. Defendant, Guadalupe Maldonado, appeals as of right his convic tion of carrying a concealed weapon in a vehicle, MCL 750.227(2), following a jury trial. The trial court sentenced him to serve 4 to 10 years’ imprisonment as a fourth- offense habitual offender, MCL 769.12. We affirm.

I. FACTS

In February 2012, three DEA Task Force Officers drove in an un marked car to an address in Detroit. The officers intended to place a GPS tracking devi ce on a Cadillac Escalade pursuant to a search warrant. As two of the officers walked toward the Escalade, Maldonado and Jessica Brady left a nearby house and entered the Escalade. The office rs decided not to place the tracking device and instead contin ued walking toward their car, in which a third officer was waiting. At that point, the Escalade pulled alongside the offi cers’ car. The officers heard gunshots and saw muzzle flashes from inside the Escalade.

After apprehending Maldonado and Brady, officers recovered a s emiautomatic pistol from the Escalade’s driver’s side floorboard. Officers determi ned that Brady had a concealed pistol license, and witnesses te stified that the gun belonged t o Brady. One witness testified that he saw Brady handle the gun on one occasion when Maldonado was present, but Maldonado did not touch the gun. Brady and Maldonado had previously applied for a permit to use a gun range, and there was no reco rd that either rente d a gun. A latent pri nt examiner with the Michigan State Police Crime Laboratory found one of Maldonado’s fingerprints o n the pistol’s magazine.

The jury found Maldonado guilty of carrying a concealed weapon , but acquitted him of three counts of assault with intent to commit murder, one count of felon in possession of a firearm, one count of discharging a firearm from a vehicle, and one count of possessing a firearm-2- during the commission of a fel ony. When sentencing Maldonado, the trial court assessed ten points under offense variable (OV) 9 because the sentencing off ense involved three victims. Maldonado appeals his convi ction and sentence.

II. CARRYING A CONCEALED WEAPON

First, Maldonado contends that the trial court improperly inst ructed the jury when it instructed them on possession, but not on “carrying.” We disag ree.
When reviewing a claim of instr uctional error, this Court view s the instructions as a whole to determine whether the issues to be tried were adequate ly presented to the jury. People v Martin , 271 Mich App 280, 337-338; 721 NW2d 815 (2006). Generally, w e review de novo questions of law, including whether an omitted instruction viol ated a defendant’s due process rights. Id . But to preserve an issue for appellate review, the defendant must make a timely objection before the trial court. People v Pipes , 475 Mich 267, 277; 715 NW2d 290 (2006). If a defendant fails to do so, we review the issue for plain error. Id . at 278. The trial court commits plain error when an error occurred, it was clear or obvious, an d it affected the defendant’s substantial rights. Id . at 279.

The elements of carrying a con cealed weapon in a vehicle are t hat (1) there was a weapon present in a vehicle that the defendant operated or occupied, ( 2) the defendant knew the weapon was present, and (3) the defendant was carrying the weapon. People v Nimeth , 236 Mich App 616, 622; 601 NW2d 393 (1999). A defendant’s mere knowledge of a weapon while being present near it does not constitute carrying a weapon. People v Butler , 413 Mich 377, 384; 319 NW2d 540 (1982). A defendant carries a weapon when the defenda nt “exercises some element of intentional control or dominion” over the weapon. Id . at 390 n 11. Whether the defendant carried a weapon depends on the pres ence of several factors, in cluding

(1) the accessibility or proxim ity of the weapon to the person of the defendant, (2) defendant’s awareness that the weapon was in the motor vehicle, (3) defendant’s possession of items that connect him to the weapon, such as amm unition, (4) defendant’s ownership or operation of the vehicle, and (5) the length of time during which defendant drove or occupied the vehicle. [ Id .]

Similarly, a defendant has constructive possession of a firearm when the defendant has “proximity to the article togeth er with indicia of control.” People v Hill , 433 Mich 464, 470- 471; 446 NW2d 140 (1989). See Butler , 413 Mich at 390 n 11.

In this case, the trial court i nstructed the jury on actual an d constructive possession. As can be seen above, “carrying” a weapon is essentially the same thing as “possessing” a weapon. Both require that the defendant knows a weapon is present and e xercises dominion or control over it. Further, a review of the instructions as a whole indi cates that the trial court’s instructions adequately presented this issue to the jury. We conclude that the trial court did not plainly err when it instructed the jury on possessing a weapon rather than instructing it on carrying a
weapon.
Second, Maldonado contends that the evidence was not sufficien t to support his conviction because he did not carry the gun. Again, we disagre e.-3- A claim that the evidence was insufficient to convict a defend ant invokes that defendant’s constitutional right to due process of law. People v Wolfe , 440 Mich 508, 514; 489 NW2d 748 (1992). This Court reviews de novo issues involving the suffic iency of the evidence. People v Meissner , 294 Mich App 438, 452; 812 NW2d 37 (2011). We review the evi dence in a light most favorable to the prosecutor to determine whether a rationa l trier of fact could find that the prosecutor proved the crime’s elements beyond a reasonable doub t. Nimeth , 236 Mich App at 622. We will not interfere with the trier of fact’s role to de termine the weight of the evidence or the credibility of the witnesses. Wolfe , 440 Mich at 514-515; People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008). Circumstantial evidence and reas onable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime, including the defendant’s state of mind, knowledge, or intent. Nimeth , 236 Mich App at 622.

In this case, witnesses testified that Brady owned the gun and that Maldonado had been present when Brady was handling it. Brady and Maldonado went t o a gun range together, and there was no indication that eit her rented a different weapon. Maldonado’s fingerprint was on the gun’s magazine. Given this evidence, the jury could reason ably infer that Maldonado knew that Brady’s gun was in the vehicle and he exercised dominion a nd control over it, even if it concluded that he was not the person who shot at the officers. Further, a jury may render inconsistent verdicts. People v Vaughn , 409 Mich 463, 464; 295 NW2d 354 (1980). Therefore the jury’s inconsistent verdicts regarding felon in possession of a firearm and possessing a firearm during the commission of a felony do not require this C ourt to overturn Maldonado’s conviction. We conclude that su fficient evidence supported Mal donado’s conviction.

III. OV 9

Maldonado contends that the trial court improperly assessed te n points under OV 9. According to Maldonado, the tria l court considered conduct outs ide his sentencing offense, and there were no victims of his crime because the jury found that Maldonado was not the shooter. We disagree.

This Court reviews for clear e rror the trial court’s findings supporting its decisions to assess points under the sentencing guidelines. People v Osantowski , 481 Mich 103, 111; 748 NW2d 799 (2008). A finding is clearly erroneous if, after revi ewing the entire record, we are definitely and firmly convinced that the trial court made a mis take. People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012).

The trial court scores OV 9 if victims are placed in danger of death or physical injury. MCL 777.39(1). The trial court properly assesses 10 points und er OV 9 when “[t]here were 2 to 9 victims who were placed in dange r of physical injury or death [.]” MCL 777.39(1)(c). The trial court may not consider conduct afte r the completion of the sent encing offense when assessing OV 9. People v McGraw , 484 Mich 120, 133-134; 771 NW2d 655 (2009).

Two or more persons can constructively possess a firearm at th e same time. Hill , 433 Mich at 470. Whether Maldonado personally shot at the victims in danger is not determinative. For the reasons stated in the previous section, there was suffi cient evidence to find that Maldonado was carrying a concealed weapon in the vehicle. The weapon was shot several times at the three officers. There is no indication that Maldonado’s knowledge or control of the gun-4- was interrupted during the shooting. Accordingly, there was su fficient evidence from which the trial court could find that, while Maldonado was carrying a con cealed weapon, three victims were placed in danger of death or physical injury. We conclude that the trial court did not err when it assessed ten points under OV 9.

Affirmed.

/s/ Mark T. Boonstra /s/ David H. Sawyer /s/ Peter D. O’Connell