Order Michigan Supreme Court 

Lansing, Michigan 

March 21, 2007 Clifford W. Taylor,

 Chief Justice 

129038 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellee, Justices 

v SC: 129038 

 COA: 252516 
 Kent CC: 02-000104-FH 

ANGEL HERNANDEZ-GARCIA, 

Defendant-Appellant. 

_________________________________________/ 

On January 13, 2006, this Court granted leave to appeal. 474 Mich 1000 (2006). 

On order of the Court, the judgment of the Court of Appeals is AFFIRMED in part and 

VACATED in part. We affirm and adopt the Court of Appeals holding that the trial court 

correctly instructed the jury that momentary innocent possession of a concealed weapon 

is not a defense to a charge of unlawfully carrying a concealed weapon (CCW).1

 266 

Mich App 416, 417-420 (2005). People v Coffey, 153 Mich App 311 (1986), is 

overruled.2

 We also affirm the Court of Appeals holding that “the trial court’s response 

to the jury’s questions regarding the definition of ‘concealment’ did not constitute a 

finding of fact or an order to the jury to find defendant guilty.” 266 Mich App at 421. 

1

 Our decision in People v Tombs, 472 Mich 446 (2005), does not require recognition of a 

defense of momentary innocent possession. In Tombs, supra at 454-455, this Court held 

that there exists a presumption that a criminal intent or mens rea requirement applies to 

each element of a statutory crime. Applying Tombs, the CCW statute, MCL 750.227(2), 

requires only that a defendant knowingly possess a concealed weapon. The mens rea 

requirement does not extend to the defendant’s purpose for carrying the concealed 

weapon. 

2

 Justice Kelly incorrectly asserts that our decision to affirm the Court of Appeals 

decision disrupts established law. As the Court of Appeals explained, Coffey is no longer 

good law in light of People v Pasha, 466 Mich 378 (2002). Even defendant does not 

dispute this conclusion. Coffey must be interpreted in light of subsequent decisions by 

this Court. The Court of Appeals’ reasoning in Coffey is no longer legally sustainable in 

light of our decision in Pasha. While we did not explicitly overrule Coffey in Pasha, we 

do so today. 
 

2 

We vacate the Court of Appeals holding that the trial court’s contradictory 

preliminary and final instructions regarding the validity of the momentary innocent 

possession defense were harmless error because defendant requested the erroneous 

instruction, and jurors are presumed to follow the incorrect instruction. Nonetheless, we 

affirm the Court of Appeals result on different grounds. Even if the trial court had given 

consistent instructions regarding the validity of the momentary innocent possession 

defense, the outcome would more probably than not have been the same. People v 

Lukity, 460 Mich 484, 495-496 (1999). 

First, even if the trial court had followed Coffey and adhered to its preliminary 

instruction that momentary innocent possession is a valid defense to CCW, the evidence 

does not show that defendant’s possession of the gun was innocent. In Coffey, supra at 

315, the Court of Appeals held that “momentary or brief possession of a weapon resulting 

from the disarming of a wrongful possessor is a valid defense against a charge of carrying 

a concealed weapon if the possessor had the intention of delivering the weapon to the 

police at the earliest possible time.” Defendant admitted on the stand that he never 

indicated his intention to relinquish the gun to the police on the night in question because 

he “was drunk.” Further, when an officer responding to a report of gunshots told 

defendant to stop walking, defendant turned around, looked at the uniformed officer, and 

walked away from the officer at a faster pace. The jury did not believe defendant’s 

testimony that he did not conceal the gun, and there is no indication that the jury would 

have believed that defendant’s possession of the gun was innocent. Defendant has not 

shown that the jury more probably than not would have found that he intended to deliver 

the gun to the police at the earliest possible time. Rather, defendant’s own admission 

establishes that he was not entitled to an instruction on momentary innocent possession, 

because he concedes that he did not relinquish the weapon to the police at the earliest 

possible time. 

Conversely, if the trial court had consistently instructed the jury that momentary 

innocent possession is not a valid defense to a CCW charge, and defendant had instead 

argued the defense of duress, the outcome of the trial still would not have changed. 

There is no evidence that defendant, in order to avoid death or serious bodily harm, was 

compelled to grab the unloaded gun from the sellers or to hold onto the gun and conceal 

it in his waistband after the sellers had run away. People v Lemons, 454 Mich 234, 247 

(1997).3 

3

 Justice Cavanagh argues that the error was not harmless because defendant directed his 

case toward the defense of momentary innocent possession, and defense counsel relied on 

the trial court’s acceptance of the preliminary jury instructions. But Justice Cavanagh 

fails to consider that defendant also claimed that the weapon was not concealed. 

Defendant testified that he walked with the gun in front of him so that the “whole world 

could see” that he “didn’t have it concealed.” By its guilty verdict, the jury obviously 
 

 

3

 CAVANAGH, J., dissents and states as follows: 

I disagree with the majority’s decision to affirm the judgment of the Court of 

Appeals. I would grant defendant a new trial because the conflicting jury instructions 

prejudiced defendant. It is well established that a trial court must properly instruct the 

jury so that it may correctly and intelligently decide the case. People v Clark, 453 Mich 

572, 583 (1996). Where the trial court errs in misleading or misinforming counsel 

regarding the ultimate instructions that will be given to the jury and prejudice results, a 

new trial is required. Id. at 587. In this case, defense counsel relied on the trial court’s 

acceptance of the preliminary jury instructions, which included an instruction on 

momentary innocent possession. Defendant directed his case toward this defense, which 

was still valid law at the time of the trial. People v Coffey, 153 Mich App 311 (1986). In 

fact, when objecting to the trial court’s final jury instructions, defense counsel told the 

trial court, “I prepared this case with this defense in mind.” Had defense counsel known 

that the trial court would refuse to instruct on momentary innocent possession after 

closing arguments, he may well have taken a different approach at trial. For example, 

defendant could have requested an instruction regarding duress and conducted his 

defense accordingly. Or, as a practical matter, defendant might have pursued a plea 

bargain that would have resulted in a more favorable outcome. 

Further, the jury’s confusion about the contradictory instructions was apparent 

when it sought clarification regarding the relevance of intent or motive. Given the jury’s 

confusion and defense counsel’s extensive reliance on the validity of the defense, I 

cannot say that this error was harmless. Instructing the jury that a defense exists, 

allowing counsel to proceed in reliance on the preliminary ruling, and then issuing a final 

jury instruction that specifically repudiates the validity of the defense causes prejudice 

that can only be rectified by a new trial. 

MARKMAN, J., joins the statement of CAVANAGH, J. 

KELLY, J., dissents and states as follows: 

For the reasons articulated in Justice Cavanagh’s statement, I dissent from the 

order affirming the judgment of the Court of Appeals. I write separately to discuss the 

unnecessary overruling of People v Coffey, 153 Mich App 311 (1986). 

rejected defendant’s testimony. Justice Cavanagh also fails to acknowledge defendant’s 

admission that he did not act in a manner consistent with the intent to deliver the weapon 

to the police at the earliest possible time, a necessary element of the momentary innocent 

possession defense articulated in Coffey. Lastly, in light of the evidence adduced at trial, 

Justice Cavanagh fails to articulate how the error changed the outcome of the trial. 
 

4 

On December 16, 2001, the Grand Rapids Police responded to a report of “shots 

fired.” Officer Jeffrey Freres found defendant leaving the crime scene and told him to 

stop. Defendant, who does not speak English, continued to walk away until he was 

directed in Spanish to stop. When he turned to face the officer, the officer saw that 

defendant had a gun. 

Defendant was arrested and charged with carrying a concealed weapon (CCW), 

MCL 750.227(2). At trial, he testified that two men had approached him and offered to 

sell him drugs. When defendant told them he was not interested, one of the men offered 

to sell him a gun. Defendant said he seized the gun and fled. When the men pursued 

him, defendant loaded the gun and fired two shots to frighten them. He said he intended 

to call the police and turn the gun over to them. He testified that he did not immediately 

stop when the officer called to him because he did not see the officer and feared that the 

two men were following him. He realized that it was the police only when he was 

ordered in Spanish to stop. 

 Defendant argued at trial that these factual allegations entitled him to have the jury 

instructed on the defense of momentary innocent possession. The trial court gave a 

preliminary instruction on the defense but refused to give a final instruction on it. The 

jury convicted defendant of CCW, and the Court of Appeals affirmed the conviction. 

In 1986, the Court of Appeals recognized in Coffey, supra, that momentary 

innocent possession could be raised as a defense to the charge of carrying a concealed 

weapon. People v Coffey. In order to establish the defense, defendant in this case had to 

show that he took the weapon from a wrongful possessor. He also had to assert his 

intention to deliver the weapon to the police at the earliest possible time. Coffey, 153 

Mich App at 315. 

A majority of this Court concludes that the facts do not support an instruction on 

momentary innocent possession. Given that conclusion, the Court need not decide 

whether Coffey should be overruled. Yet, the majority has overruled Coffey. This case 

represents another in a long series of needless disruptions of established law. I continue 

to object to this practice. Cf. Joliet v Pitoniak, 475 Mich 30, 46 (2006) (Kelly, J., 

dissenting); People v Cornell, 466 Mich 335, 371 (2002) (Kelly, J., dissenting); People v 

Kazmierczak, 461 Mich 411, 427 (2000) (Kelly, J., dissenting). 

The majority claims that it has not disrupted established law because Coffey was 

no longer good law in light of People v Pasha, 466 Mich 378 (2002). This simply is not 

true. In Pasha, this Court held that lawful ownership of a pistol is not a prerequisite to 
 _________________________________________ 

 

5 

establishing an exception to the CCW statute. Id. at 383. In so deciding, the Court stated 

that “our holding is confined to an interpretation of the dwelling house exception to the 

CCW statute.” Id. at 383 n 8. Since this Court explicitly stated that its holding in Pasha 

was limited to an issue not presented in Coffey, it is preposterous to claim that, by 

implication, Pasha overruled Coffey. Coffey remained good law and should not have 

been overruled here. 

t0314 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

March 21, 2007 

Clerk