-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 4, 2014

v No. 316848 Eaton Circuit Court JARON HOWARD MORGAN, LC No. 12-020195-FC

Defendant-Appellant.

Before: M ETER , P.J., and W HITBECK and R IORDAN , JJ.

P ER C URIAM

. Defendant, Jaron Morgan, app eals as of right his jury tr ial convictions of carrying a concealed weapon (CCW), MCL 750.227, possessi on of a firearm by a felon (felon in possession), MCL 750.224f, and posse ssion of a firearm during th e commission of a felony (felony-firearm), MCL 750.227b. Defendant’s convictions stem from aiding and abetting his brother, Jermaine Fowler (Fow ler), murder the victim. The victim had stolen money from defendant while he was incarcerated. From pris on, the defendant told his brother where to find the murder weapon.

Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 44 to 360 months for CCW and felon in possession, respectiv ely, and two years for felony-firearm. We affirm.

I. EVIDENTIARY ISSUES

Defendant first contends that the trial court erred in failing to reda ct references to his parole status from the recorded jailhouse pho ne calls wherein defendant was heard giving instructions on where to find the gun used in th e murder. Defendant has waived this issue.

Before trial, plaintiff asked defendant if he wanted to request reda ction of, or object to, the references to his parole status in the ja il calls. Defendant responded by offering a proposed jury instruction, which instructed that while the jury would hear re ference to his parolee status, it could not consider it in deliberations. Defendant thereafter stipulated to the admission of the phone calls, and the court read th e aforementioned instruction.-2- As the Michigan Supreme Court has held, “[w] aiver has been defined as the intentional relinquishment or abandonme nt of a known right.” People v Carter , 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks and citation om itted). “One who waives his rights under a rule may not then seek appellate review of a cl aimed deprivation of thos e rights, for his waiver has extinguished any error.” Id. Because defendant affirmatively agreed to the admission of the tapes, with the disputed references, he waived appe llate review of this issue. Nor do we find the fleeting references to defendant’s parole status a sufficient basis to overturn the verdict. MRE 403; MCR 2.613.

II. SUFFICIENCY OF THE EVIDENCE

A. STANDARD OF REVIEW

Defendant next contends that his convi ctions were not supported with sufficient evidence. 1 We review de novo a challenge to the suffici ency of the evidence. People v Ericksen

, 288 Mich App 192, 195; 793 NW2d 120 (2010). “I n determining whether the prosecutor has presented sufficient evidence to su stain a conviction, an appellate co urt is required to take the evidence in the light most favorable to the pros ecutor” to ascertain “whether a rational trier of fact could find the defendant gui lty beyond a reasonable doubt.” People v Tennyson , 487 Mich 730, 735; 790 NW2d 354 (2010) (quotat ion marks and citations omitted). We resolve conflicts of the evidence in favor of the prosecution, “and we will not interfere with the jury’s determinations regarding the weight of the ev idence and the credibility of the witnesses.” People v Unger , 278 Mich App 210, 222; 749 NW2d 272 (2008). Circumstantial evidence and reasonable inferences arising therefrom can constitute sufficient proof of the elements of a crime. People v Allen , 201 Mich App 98, 100; 505 NW2d 869 (1993).

B. CARRYING A CONCEALED WEAPON

The prosecutor advanced an aiding and abetting theory of defendant’s guilt. To support an aiding and abetting theory, “the prosecution must show that (1) the crime charged was committed by the defendant or some other pers on, (2) the defendant performed acts or gave encouragement that assisted the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that th e principal intended its commission at the time he gave aid and encouragement.” People v Jackson , 292 Mich App 583, 589; 808 NW2d 541 (2011) (quotation marks and citation omitted). Ai ding and abetting pertains to all forms of assistance, including words or d eeds that support, encourage, or incite the commission of the crime. Id. As MCL 767.39 provides: “Every person conc erned in the commission of an offense, whether he directly commits the act constituting th e offense or procures, c ounsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.” See also People v Moore , 470 Mich 56, 70; 679 NW2d 41 (2004). As our Supreme Court has explained:

1 Defendant also raises a sufficiency challenge in his Standard 4 brief.-3- A defendant is criminally liable for th e offenses the defendant specifically intends to aid or abet, or has knowledge of, as well as those crimes that are the natural and probable consequences of th e offense he intends to aid or abet. Therefore, the prosecutor must pr ove beyond a reasonable doubt that the defendant aided or abetted the commission of an offense and that the defendant intended to aid the charge d offense, knew the princi pal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable consequence of the commi ssion of the intended offense. [ People v Robinson , 475 Mich 1, 15; 715 NW2d 44 (2006).]

Carrying a concealed weapon prohibits a person from carrying “a pistol concealed on or about his or her person, or, whethe r concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dw elling house, place of business, or on other land possessed by the person, without a license to ca rry the pistol as provided by law and if licensed, [he] shall not carry the pistol in a place or manner inconsistent with any restrictions upon such license.” MCL 750.227(2).

Defendant contends that he had no reason to know that hi s brother would transport the gun in a car, or conceal it. However, on appeal, defendant admits that there was evidence he “knew [his brother] wanted a gun and was looking” for the victim and defendant “was aware that [his brother] was being driven around Lansing[.]” A logical inference from these facts is that, in directing Fowler to a gun wh ile knowing Fowler was drivi ng around looking to confront the victim, defendant aided and abetted his brot her’s commission of CCW. The evidence was sufficient to sustain de fendant’s conviction.

C. FELON IN POSSESSION

Sufficient evidence also existed for the felon in possession conviction. In order to prove felon in possession, the prosecution had to prove that defendant ai ded and abetted his brother’s possession of a firearm, and his brother had been convicted of a specified felony. MCL 750.224f(2).

Defendant’s brother was convicted of a contro lled substance offense, which is a specified felony pursuant to MCL 750.224f(10)(b). This pr ecluded him from possessing a firearm for a five year period. Defendant contends that while he may have known Fowler had been to prison, that does not translate to knowing Fowler was ineligible to possess a firearm.

However, defendant knew that his brothe r had been in and out of prison and was becoming increasingly angry at the victim for stealing defendant’s property. Defendant was aware that his brother was l ooking to confront the victim. Armed with this knowledge, defendant directed his brothe r to the location of the pieces of a disassembled gun. He encouraged his brother to confront the victim and recover his propert y. After obtaining the gun, defendant’s brother approached the vict im, drew the gun, and fatally shot him.

Under these circumstances, the jury could reas onably conclude that defendant aided and abetted his brother in committing the crime of felon in possession. It was reasonable for the jury to conclude that defendant, as the shooter’s brother, was aware of his brother criminal-4- background and ineligibility to pos sess a firearm. The jury also was reasonable in concluding that defendant’s instructions led his brother to the gun, which resulted in Fowler’s possession of a firearm. As defendant concedes on appeal, “it is a fair inference that [defendant] was directing Mr. Fowler to the magazine and pistol in” the house.

D. FELONY-FIREARM

To the extent that defendant challenges hi s felony-firearm convict ion, we find no basis for reversal. MCL 750.227b prohib its persons from using a fir earm during the commission of a felony. “At its core, felony-firearm is a possessory offense.” People v Goree , 296 Mich App 293, 302; 819 NW2d 82 (2012). In order to estab lish that a defendant aided and abetted a felony-firearm offense, the pr osecution must prove: (1) a pers on violated the felony-firearm statute; (2) defendant performed acts or gave encouragement that assisted in the commission of the felony-firearm violation; a nd (3) “defendant intended the co mmission of the felony-firearm violation or had knowledge that the principal intended its comm ission at the time that the defendant gave aid and encouragement.” People v Moore , 470 Mich 56, 70-71; 679 NW2d 41 (2004).

In furnishing his brother with information about the location of a gun, defendant provided the means by which his brother murdered the victim . Defendant also encouraged his brother to confront the victim regarding the victim’s alleged theft of defendant’s property. From such facts, the jury could reasonably conclude that defe ndant aided and intended the commission of the felony-firearm, as he directed his felon brother to obtain the gun while driving around Lansing to confront the victim.

III. NEWLY DISCOVERED EVIDENCE

Lastly, defendant requests a remand for the trial court to hold an evidentiary hearing based on newly discovered evidence. Of initial significance is that we have previously denied defendant’s request for a remand, an d defendant merely asserts the same grounds as he did in his motion. See People v Morgan , unpublished order of the Court of Appeals, entered April 25, 2011 (Docket No. 316848). Nor is there a ny merit to defendant’s argument.

The evidence defendant relies on is from an individual—“Damien Lee Long,” aka “Debo” 2 —who claims that he took the gun from the house before the shooting. This evidence supposedly undermines the testimony of Bethany Brockwell, who claimed that Fowler entered the house and retrieved two parts of a gun.

First, defendant has offered no argument why with “reasonable diligence” he could not “have discovered and produced the evidence at trial[.]” People v Cress , 468 Mich 678, 692; 664

2 While defendant refers to this individual with the surname “Long,” the signature of the affidavit appears to state “Lang,” and the prosecution asse rts that this individual is named “Damien Lee Lang.” In order to avoid confusion, we will refer to this individual as “Lang.”-5- NW2d 174 (2003). “An appellant may not merely announce his position a nd leave it to this Court to discover and rationalize th e basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” People v Payne , 285 Mich App 181, 195; 774 NW2d 714 (2009) (quotation marks and citation omitted). 3

Furthermore, this new evidence does not make a different result probable on retrial. Cress , 468 Mich at 692. The fact that Lang now cl aims to have taken a gun from the residence does not undermine Brockwell’s testimony. It could very well be that there were multiple guns in the home. Moreover, this ev idence does nothing to undermine the actual basis for defendant’s convictions, namely, that he inst ructed his brother on the wherea bouts of a gun in order to aid and abet the murder of the victim. The fact th at Fowler may have obtai ned a different gun than the specific one defendant direct ed him to is immaterial. The re levant evidence, that remains undisturbed, is that defendant instructed his br other to retrieve a gun and confront the victim. 4

Thus, defendant has not established the essential elements under Cress , and is not entitled to an evidentiary hearing under MCR 7.211(C)(1).

IV. CONCLUSION

Defendant’s convictions were supported with sufficient evidence. Defendant is not entitled to a remand based on newly discovered evidence. We affirm.

/s/ Patrick M. Meter /s/ William C. Whitbeck /s/ Michael J. Riordan

3 Nor does defendant provide any support for his asse rtion, in his Standard 4 brief, that “it is obvious, the prosecution withheld exculpatory or impeaching evidence from the defense[.]”

4 In his Standard 4 brief, defendant generall y contends that Brockwell’s testimony was not credible because she made a deal with the prosec ution in exchange for testifying. However, this evidence was produced at trial, and the court instru cted the jury that it may consider Brockwell’s agreement when assessing her credibility. We defer to the trier of fact’s credibility determinations. People v Hardiman , 466 Mich 417, 431; 646 NW2d 158 (2002). Nor does defendant demonstrate a basis for reversal regarding the pr osecution “allowing” Brockwell’s testimony to go uncorrected.