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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED August 9, 2016

v No. 327205 Wayne Circuit Court ANTRELL VONIQUE BROWN, LC No. 14-010058-FH

Defendant-Appellant.

Before: M URPHY , P.J., and S TEPHENS and B OONSTRA , JJ.

P ER C URIAM

. Defendant appeals by right his c onvictions, following a jury t rial, of possession of a firearm by a person convicted of a felony (felon-in-possession) , MCL 750.224f, possession of a firearm during the commission of a felony (felony-firearm) (sec ond offense), MCL 750.227b, carrying a concealed weapon (CCW), MCL 750.227, possession of l ess than 25 grams of cocaine, MCL 333.7403(2)(a)( v ), and possession of less than 25 grams of heroin, MCL 333.7403(2)(a)( v ). The trial court sentenced defendant as a fourth habitual of fender, MCL 769.12, to 46 months to 15 years’ imprisonment for the felo n-in-possession conviction, five years’ imprisonment for th e felony-firearm (second offense ) conviction, 46 months to 15 years’ imprisonment for the CCW conviction, 46 months to 15 yea rs’ imprisonment for the possession of less than 25 grams of cocaine conviction, and 46 months to 15 years’ imprisonment for the possession of less than 25 grams of heroinconviction. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises from defendant’s possession of a firearm, coc aine, and heroin in front of a store located on the corner of Chalmers and Glenfield in Detr oit on November 3, 2014. Detroit Police Officer Jarvis Reed and his partner, Detroit Police Offi cer Dominic Countryman, were assigned to the special operations unit, which required them to patrol the streets on the lookout for violent crimes. At approximately 9:00 p.m. on the date in question, Reed was driving southbound on Chalmers when he noticed a group of approximately six men in front of a party store located at 11306 Chalmers in Detroit. Reed and Countryma n believed that the men were in the midst of a possible alterc ation. Reed stopped the patrol c ar in front of the store, in the middle of the road on Chalmers. Defenda nt then walked north away from the group of men. Reed saw defendant pull a handgun from his right pants pocket, drop it o n the ground, and continue walking toward a nearby alley. Countryman recovered the handgu n while Reed detained-2- defendant. Reed later found packets containing cocaine and her oin on defendant’s person. At trial, defendant stipulated tha t he was a felon and not permitt ed to possess a firearm. After the close of the prosecution’s proofs, the trial court granted a mo tion by the prosecution to amend the information and jury instructions to reflect that the charg e of felony-firearm could be supported by either the felon-in-p ossession charge or the charg es related to the possession of controlled substances. The jury convicted defendant as describ ed above. This appeal followed. On appeal, defendant does not challenge his controlled substanc es convictions, but only the three convictions related to his possession of a firearm.

II. SUFFICIENCY O F THE EVIDENCE

Defendant argues that the pros ecution failed to present suffic ient evidence at trial to prove beyond a reasonable doubt the elements of felon-in-posses sion, felony-firearm, and CCW because there was no evidence that defendant actively or constr uctively possessed a firearm. We disagree.

We review de novo a defendant’s challenge to the sufficiency o f the evidence in support of his convictions. People v Meissner , 294 Mich App 438, 452; 812 NW2d 37 (2011). When determining whether sufficient evidence was presented in a jury trial to support a defendant’s conviction, we review the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the esse ntial elements of the crime were proven beyond a reasonable doubt. People v Gaines , 306 Mich App 289, 296; 856 NW2d 222 (2014). “Circumstantial evidence and reasonable inferences ari sing therefrom may be used to prove the elements of a crime.” People v Brantley , 296 Mich App 546, 550; 823 NW2d 290 (2012). Furthermore, this Court “will not interf ere with the t rier of fact’s role of determining the weight of the evidence or the credibility of witnesses.” People v Eisen , 296 Mich App 326, 331; 820 NW2d 229 (2012) (citation omitted).

A. FELON-IN-POSSESSION AND FELONY-FIREARM

A felon-in-possession charge requires that the prosecution pro ve the following elements: (1) the defendant possessed a firearm, (2) the defendant was pr eviously convicted of a specified felony, and (3) fewer than five years had elapsed since he or s he paid all fines, served all terms of imprisonment, and completed all terms of probation or parole imposed for the offense. MCL 750.224f(2)(a); see also People v Perkins , 262 Mich App 267, 270-271; 686 NW2d 237 (2004), abrogated in part on other grounds by People v Smith-Anthony , 494 Mich 669 (2013). Possession of a firearm “may be actual or constructive and may be proved by circumstantial evidence.” People v Burgenmeyer , 461 Mich 431, 437; 606 NW2d 645 (2000).

A rational fact-finder could have concluded that the prosecuti on proved beyond a reasonable doubt the elements of felon-in-possession. As state d, defendant stipulated to the second and third elements during his trial, leaving the prosecu tion the burden of proving solely that defendant actually or constructively possessed a firearm. Reed testified that he saw defendant pull a gun from his “right side pocket,” hold the gun in his hand, and drop it onto the ground in the same area that Count ryman found a firearm moments later. No other individuals were around defendant when he dropped the firearm and no other objects were found on the ground near the recovered firearm. Further, Reed testified tha t he saw defendant’s face when he-3- stopped the patrol car in front o f the store, that nothing obst ructed his view of defendant as he dropped the handgun, and that “[he] knew it was a gun” that def endant dropped. Therefore, when viewed in a light most favorable to the prosecution, a rat ional jury could have concluded that defendant actually possessed a firearm. Gaines , 306 Mich App at 296. W e will not interfere with the jury’s decision to find Reed’s testimony credible. Se e Eisen , 296 Mich App at 331. Therefore, the prosecution presented sufficient evidence to est ablish the elements of felon-inpossession.

To succeed on a charge of felony-firearm, the prosecution must prove that “defendant possessed a firearm during the commission of, or in the attempt to commit, a felony.” People v Bosca , 310 Mich App 1, 22; 871 NW2d 307 (2015) (quotation marks and citation omitted). Possession of a firearm “may be actual or constructive and may be proved by circumstantial evidence.” Burgenmeyer , 461 Mich at 437.

A rational fact-finder could have concluded that the prosecuti on proved beyond a reasonable doubt the elements of felony-firearm. First, as dis cussed above, Reed testified that he saw defendant pull a handgun from his right pants pocket and di spose of it. Further, Reed testified that his vie w of defendant was not obstructed and the re were no other ob jects found near the recovered firearm. Thus, it was reasonable for the jury to conclude that defendant actually possessed a firearm. Gaines , 306 Mich App at 296.

Next, the prosecution satisfied the second element of felony-f irearm by proving beyond a reasonable doubt the elements of felon-in-possession—a felony. See People v Calloway , 469 Mich 448, 452; 671 NW2d 733 (2003); MCL 750.224f(5). Thus, the prosecution presented sufficient evidence to support the predicate offense requiremen t for a felony-firearm charge. Accordingly, when viewed in a light most favorable to the prose cution, a rational fact-finder could have concluded that defe ndant actually possessed a firear m and did so while committing a felony. Gaines , 306 Mich App at 296. Therefore, the prosecution presented su fficient evidence to support the elements of felony-firearm. 1

B. CARRYING A CONCEALED WEAPON

In relevant part, the CCW statute provides:

A person shall not carry a pistol concealed on or about his or her person . . . except in his or her dwelling house, place of business, or on o ther land possessed by the person, without a license to carry the pistol as provide d by law and if

1 Defendant does not challenge the sufficiency of the evidence r elated to his controlled substance felony convictions, and we note that the evidence supporting th ose convictions also was sufficient. The substances were found in defendant’s actual po ssession during a search incident to arrest, and testing revealed them to be cocaine and heroin i n amounts less than 25 grams each. See MCL 333.7403(2)(a)( v ), see also People v Mayhew , 236 Mich App 112, 122; 600 NW2d 370 (1999). Therefore, those convictions also served as predic ate offenses for, and satisfied the second element of, the f elony-firearm charge.-4- licensed, shall not carry the pi stol in a place or manner incon sistent with any restrictions upon such l icense. [MCL 750.227(2).]

CCW is a general intent crime, meaning that the prosecution ne ed only prove that the accused possessed the intent to do the act prohibited—that is t o knowingly carry a pistol concealed on or about one’s person. People v Hernandez-Garcia , 266 Mich App 416, 418; 701 NW2d 191 (2005), vacated in part on other grounds by 477 Mich 1 039 (2007) (quotation marks and citations omitted). “Evidence that a defendant placed a re volver in his belt or waistband so that the weapon could not be readily seen has been found suffic ient to uphold a CCW conviction.” Id . at 422 (quotation marks and citation omitted).

Sufficient evidence existed such that a rational fact-finder c ould have concluded that the prosecution proved beyond a reasonable doubt the elements of CC W. As discussed above, Reed saw defendant pull a firearm from his right pants pocket, hold it in his hand, and then drop the weapon onto the ground. Further, Reed testified that nothing o bstructed his view of defendant as he dropped the handgun, and he noted that “[he] knew it was a g un.” Based on this evidence, it was reasonable for the jury to infer that up until the point th at defendant discarded the weapon, he possessed the general intent to carry the weapon concealed i n his pants pocket. See id . at 418, 422. We will not interfere with the jury’s decision to find Re ed’s testimony credible. Eisen , 296 Mich App at 331. Therefore, when viewed in a light most favora ble to the prosecution, a rational jury could have concluded that sufficient evidence was presente d in order to convict defendant of CCW. Gaines , 306 Mich App at 296.

III. AMENDMENT OF THE FELONY INFORMATION

Next defendant contends that the trial court erred when it gra nted the prosecution’s motion to amend the felony information during trial and, as a r esult, that his due process rights were violated. We disagree.

“A trial court’s decision to gr ant or deny a motion to amend a n information is reviewed for an abuse of discretion.” People v McGee , 258 Mich App 683, 686-687; 672 NW2d 191 (2003) (citation omitted). “An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outco mes.” People v Unger , 278 Mich App 210, 217; 749 NW2d 272 (2008). Additionally, a trial court ’s interpretation of a statute or court rule is reviewed de novo. People v Chavis , 468 Mich 84, 91; 658 NW2d 469 (2003).

An accused has a constitutional right to due process, which re quires that the accused be sufficiently apprised of the char ges being brought against him. People v Higuera , 244 Mich App 429, 442; 625 NW2d 444 (2001). Moreover, on a motion to amend a felony information, MCL 767.76 does not allow a new offense to be added. McGee , 258 Mich App at 688. However, MCL 767.76 does provide t hat a “court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidenc e” and that, in response to suc h amendment, a defendant may be entitled to the discharge of the jury unless the amendment does not prejudice defendant through “unfair surprise, inadequate notice, or insufficient opportunit y to defendant.” MCL 767.76; see also id . (quotation marks and citation omitted). Similarly, under MCR 6.112(H), the trial court-5- may allow the prosecution to amend the information before, duri ng, or after trial unless the proposed amendment would unfairly s urprise or prejudice the def endant. See MCR 6.112(H).

Defendant cannot show that he was prejudiced or unfairly surpr ised by the amendment of the information. In this case, the original information charge d defendant with felon-inpossession, felony-firearm (second offense), CCW, and possessio n of less than 25 grams of heroin. Later, at defendant’s preliminary examination held on November 17, 2014, one count of possession of less than 25 grams of cocaine was added to the in formation. At trial, after resting its case, the prosecution made a motion to amend the informatio n and jury instructions to add an “and/or” under the felony-firearm charge. By virtue of that am endment, the predicate offense for the felony-firearm charge was comprised not solely felon-in-pos session, but instead was either felon-in-possession or possessi on of a controlled substance.

Defendant argues that he was prejudiced because of unfair surp rise and inadequate notice of this amendment to the information, which he characterizes as “added offenses.” However, this characterization does not accurately reflect the nature of the amendment. The amendment did not add any new offenses to the information. Instead, it m erely amended the predicate offense for the felony-firearm charge to include not only the f elon-in-possession charge, but also both of the possession of contro lled substance charges. Theref ore, the amendment did not result in any “added offenses.”

Defendant’s argument also lacks merit because he could not hav e been subject to undue prejudice or unfair surprise. I t is clear that defendant was a lso charged— before trial—with one count of possession of less than 25 grams of heroin and one cou nt of possession of less than 25 grams of cocaine. Therefore, defense counsel not only had ampl e time to prepare a defense against those charges, but he al so had the opportunity during t he trial to cross-examine the prosecution’s witnesses regardi ng those charges. Further, defe ndant’s theory at trial, which if successful would have secured an acquittal of the felony-firear m charge regardless of the predicate offense(s), was that he was not in possession of a fi rearm. Finally, although the verdict form does not reflect the predi cate offense for the felony-fire arm charge, the evidence, as stated above, was sufficient for the jury to find that defendant was g uilty of any of the predicate offenses. Thus, defendant’s conviction for felon-in-possessioncould have served as the predicate offense irrespective of the amendment adding the poss ession of controlled substance offenses as alternative predicate offenses. Based on our revie w of the record, defendant therefore has failed to establ ish evidence of undue prejudice o r unfair surprise. See MCL 767.76; MCR 6.112(H); McGee , 258 Mich App at 688. Accordingly, trial court did not abuse its discretion when it gr anted the prosecution’s motion t o amend the felony information during defendant’s trial, and de fendant’s due process rights we re not violated. McGee , 258 Mich App at 686-687.

Affirmed.

/s/ William B. Murphy /s/ Cynthia Diane Stephens /s/ Mark T. Boonstra