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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 27, 2017

v No. 331183 Wayne Circuit Court DUANE ROSS ST. CLAIR, LC No. 15-007055-01-FH

Defendant-Appellant.

Before: J ANSEN , P.J., and M URPHY and B ORRELLO , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial convictions of as sault with a dangerous weapon (felonious assault), MCL 750.82, possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and brandishing a firear m in public, MCL 750.234e. He was sentenced to two years’ imprisonment for the felony-fire arm conviction and two years’ probation for each of the convictions for felonious assault and brandishing a firearm. The trial

court ordered that defendant ser ve his terms of probation concu rrently with each other but consecutively to the two-year prison term on the felony-firearm conviction. We affirm the convictions but remand for the ministerial task of correcting t he judgment of sentence so as to reflect that the probation terms are to run concurrently with t he prison sentence.

This case arises out of a road rage incident in which, after w ords and gestures had been exchanged, defendant brandished a handgun in view of the female victim, as defendant and the victim sat in their respective vehicles, which were temporarily stopped next to each other on the roadway. Defendant, who, indisputably, was armed and had a con cealed pistol license, informed the responding police officer that he had not removed the gun f rom its holster during the episode with the victim. However, at trial, defendant testified that h e may have pulled his gun out during the incident, but he questioned wh ether he even raised it high enough for the victim to see. On appeal, defendant argues that there was insufficient evidence t o support the felonious assault and felony-firearm convictions, 1 where the prosecution only proved beyond a reasonable doubt th at defendant had merely brandished a firearm. Defendant’s argumen t is based entirely on the

1 The predicate felony for the felony-firearm charge was felonio us assault; brandishing a firearm is a misdemeanor, MCL 750.234e(3).-2- assertion that the prosecution did not prove beyond a reasonabl e doubt that he actually pointed the gun at the victim. Implicit in defendant’s argument is acc eptance of a conclusion that

felonious assault would be estab lished if there were adequate p roof that the gun was indeed pointed at the victim.

Felonious assault requires proof of an assault with a dangerou s weapon with the intent to injure or to place the victim in reasonable apprehension of an immediate battery. People v

Bosca , 310 Mich App 1, 20; 871 NW2d 307 (2015); People v Avant , 235 Mich App 499, 505; 597 NW2d 864 (1999). First, defendant fails to cite any author ity in support of the proposition that felonious assault involving a firearm requires proof that the firearm was actually pointed at a victim. We can imagine numerous scenarios where, under the tot ality of the circumstances, the crime of felonious assault could be accomplished absent an offe nder directly pointing a weapon at a victim. Regardless, the victim in this case testified, “H e pointed it [the gun] at me and said some things.” (Emphasis added.) She then reiterated that defe ndant “just pointed” the firearm at

her. This Court has observed that it is “reasonable to conclud e that one who is confronted with a pointed gun would suffer a ‘reason able apprehension’ notwithsta nding the fleetin g duration of the gunman’s aim.” People v McConnell , 124 Mich App 672, 679; 335 NW2d 226 (1983). To the extent that defendant’s argument suggests that the victim’s testimony had to be corroborated in order for the evidence to reach the level of proof beyond a reasonable doubt, there is no legal authority supporting such a claim and none has been cited. Vie wing the direct and circumstantial evidence in a light most favorable to the prosecution, People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002), taking into

consideration all reasonable inf erences arising from the eviden ce, People v Carines , 460 Mich 750, 757; 597 NW2d 130 (1999), resolving all conflicts in the e vidence in favor of the prosecution, People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008), and deferring to the jury’s assessment of the weight of the evidence and the cre dibility of the witnesses, People v Wolfe , 440 Mich 508, 514-515; 489 NW2d 748 (1992), a rational juror could have found beyond a reasonable doubt that defendant pointed the gun at the victim and committed a felonious assault, thereby also committing t he crime of felony-firearm. Reversal is unwarranted.

With respect to sentencing, the trial court ordered that defen dant has to first complete the two-year prison sentence for th e felony-firearm conviction befo re the two-year terms of probation, which are concurrent to each other, commence. State d otherwise, the concurrent terms of probation run consecutively to the two-year prison sti nt. In People v Brown , 220 Mich App 680, 681; 560 NW2d 80 (1996), th e defendant “was sentenced to a term of two years' imprisonment for the felony-fire arm conviction and a consecutiv e term of five years' probation

for the felonious assault convi ction.” After examining and con struing the langua ge in the felonyfirearm statute, MCL 750.227b, and the statutes concerning prob ation, the Brown panel held that “the sentencing court erred in sentencing defendant to a consec utive sentence of probation in this

case.” Id. at 685. The Court focused and relied on the language in MCL 75 0.227b which indicates that a felony-firearm sentence is to be served consec utively with and before a sentence

“ of imprisonment ” for the predicate felony. Id. at 683. The panel remanded the case for the

“ ministerial task of correcting the judgment of sentence to refl ect that defendant's sentences of two years' imprisonment for the felony-firearm conviction and f ive years' probation for the felonious assault are to run concurrently.” Id. at 685. Accordingly, we likewise remand our case for the ministerial task of correcting the judgment of sentence so as to reflect that all of defendant’s sentences – probati on and incarceration – are to ru n concurrently.-3- Affirmed with respect to defe ndant’s convictions, but remanded for the ministerial task of correcting the judgment of sente nce consistent with this opinio n. We do not retain jurisdiction.

/s/ Kathleen Jansen /s/ William B. Murphy /s/ Stephen L. Borrello