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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 24, 2015

v No. 319168 Wayne Circuit Court DAMON WASHINGTON, LC No. 10-005387-FH

Defendant-Appellant.

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

P ER C URIAM

. Defendant appeals as of right his bench trial convictions of p ossession of a firearm by a person convicted of a felony (f elon-in-possession), MCL 750.224 f, possession of a firearm during the commission of a felo ny (felony-firearm) (second offe nse), MCL 750.227b, and carrying a concealed weapon, MCL 750.227. Defendant was senten ced to one to five years’ imprisonment for the felon-in- possession conviction, five years ’ imprisonment for the felonyfirearm (second offense) convicti on, and one to five years’ imp risonment for the carrying a concealed weapon conviction. We affirm defendant’s convictions , but remand the case to the trial court to correct the judgment of sentence to reflect that defendant’s felony-firearm sentence will run consecutive to his felon-in-possession sentence and co ncurrent with his carrying a concealed weapon sentence.

This case arises from an incident in which defendant placed a gun in a Chevy Tahoe sports utility vehicle, which was parked in a parking lot. Def endant argues that his convictions were against the great weight of the evidence because there was no evidence corroborating the testimony of the police officers who viewed the incident, and i t was unlikely that the police officers were able to see w hether defendant placed a gun in the Tahoe. We disagree.

This Court reviews a trial cour t’s findings of fact for clear error. MCR 2.613(C). “In the application of this principle, r egard shall be given to the spe cial opportunity of the trial court to judge the credibility of the witn esses who appeared before it.” MCR 2.613(C). “ ‘Clear error exists when the reviewing court is left with a definite and fir m conviction that a mistake was made.’ ” People v Brooks , 304 Mich App 318, 319-320; 848 NW2d 161 (2014) (citation omitted).

“The test to determine whether a verdict is against the great weight of the evidence is whether the evidence preponderates so heavily against the verdi ct that it would be a miscarriage-2- of justice to allow the verdict to stand.” People v Lacalamita , 286 Mich App 467, 469; 780 NW2d 311 (2009). This Court vacates a verdict only if “the evi dence does not reasonably support it and it was more likely the result of causes outside the record, such as passion, prejudice, sympathy, or some other extraneous influence.” Id . Additionally, “ ‘[c]onflicting testimony, even when impeached to some extent, is an insufficie nt ground for granting a new trial.’ ” Id . at 469-470 (citation omitted). Under ordinary circumstances, the trier of fact determines the credibility of witnesses. See People v Unger , 278 Mich App 210, 232; 749 NW2d 272 (2008). However, reversal is proper if a witness’s “ ‘testimony contradicts indisputable physical facts or laws,’ ‘[w]here testimony is pat ently incredible or defies physical realities,’ ‘[w]here a witness’s testimony is material and is s o inherently implausible that it could not be believed by a reasonable juror,’ or where the witnesses [sic] testimony has been seriously ‘impeached’ and the case marked by ‘uncertainties and discrepan cies.’ ” People v Lemmon , 456 Mich 625, 643-644; 576 NW2d 129 (1998) (citations omitted) (fir st and second alterations in original).

The trial court’s verdict was not against the great weight of the evidence because the evidence reasonably supported the verdict. According to Detroi t Police Officer Craig Schramek, defendant pulled what Officer Schramek believed was a handgun f rom the back of the waistband of his shorts and entered the Tahoe through the driver’s side d oor. According to Detroit Police Officer LeShaun Peoples, defendant put a handgun in the Tahoe. Officer Peoples retrieved the gun from the Tahoe. The officers also saw defendant throw a se t of car keys for the Tahoe into a field. This evidence provided reasonable support for the trial court’s verdict. See Lacalamita
, 286 Mich App at 469.

Although defendant testified that the distance between the sid e of the Tahoe and the end of the parking lot would have b een approximately 45 feet and th at the distance between the Tahoe and Lynn Street was 198 feet, it was the province of the trial court as the trier of fact to determine whether defendant’s testimony was credible and whethe r the officers could have properly seen defendant. See Unger , 278 Mich App at 232. Furthermore, the officers’ ability to see defendant as they approached him from a distance of 45 to 1 98 feet would not have defied physical reality so that defendant’s conviction was against the great weight of the evidence. See Lemmon , 456 Mich at 643-644.

Defendant points out that he was wearing loose-fitting clothin g and that it would have been unlikely that he could ha ve held the gun in his pants beca use of the size and weight of the gun. The trial judge held the gun and stated that it was heavy . However, Officer Schramek testified that defendant was wearing a belt. The belt may have held the gun. In addition, even if defendant were not wearing a belt, the fact that defendant mana ged to hold a gun in loose-fitting clothing does not defy physical r eality or contradict indisputa ble physical facts or laws so that defendant’s convictions were agai nst the great weight of the ev idence. See Lemmon , 456 Mich at 643-644. Instead, the trial court reasonably found that def endant managed to hold the gun in his pants. See id

. In addition, the fact that there was no physical evidence tyin g defendant to the gun or the Tahoe does not require this Court to find that defendant’s conv ictions were against the great weight of the evidence. As explained above, the trier of fact determines the credibility of the witnesses. See Unger , 278 Mich App at 232. Therefore, the trial court properly det ermined that-3- Officers Schramek and Peoples gave credible testimony even thou gh there was no physical evidence to corroborat e their testimony. See Lemmon , 456 Mich at 642-643.

Finally, the fact that there was conflicting testimony with re gard to the amount of lighting at the scene of the incident is not grounds for reversal. The trial court noted when it rendered its verdict that the police officers were able to use the spotlight s on their police car to light the parking lot area and that defendant was able to see the police officers enter the park. The trial court stated:

So, I think that there has beena lot of time and effort spent on trying to get the Court to understand how poorly lit this area was. But this Court is clear that, from the testimony from both of the officers, as well as from t he Defendant, that there really wasn’t anything bloc king either the Defendant’s vi ew from seeing the police officers when they first came in, or vice versa.

Defendant testified that the scen e of the incident is called “G host Town” because it is completely dark. He explained that a person cannot see in the park unless the person comes all the way inside the park. Defendant explained that there was nothing th at would prevent someone from seeing in the area. However, one can only see into the area if he or she is standing under the light because of how dimly lit the park is. Nonetheless, defen dant was able to see the police car approaching the scene. He testified that there was only one wo rking light in the area, which projected a “yellowish tanish color.” The light had debris or dead insects inside it. However, defendant acknowledged that there were light fixtures on homes across the alley from the scene of the incident.

In contrast, Officers Schramek and Peoples believed that there was enough light to see what was happening. According to Officer Schramek, there was a t least one light in the parking lot. In addition, the headlights in the police car were turned on, and Officer Schramek turned on one or two spotlights. Although Officer Peoples could not reca ll at trial whether there was more than one light in the area, he testified that there might have been two or three other public lights in the area. In addition, once the officers reached the scene of the incident, nothing blocked their view. Thus, the officers’ testim ony indicated that the officer s could see defendant putting a gun into the Tahoe. To the extent that the testimony is conflictin g with regard to the lighting at the scene of the incident, the trial court as the trier of fact had the ability to determine the credibility of the witnesses, and a credibility challenge alone is an insuf ficient ground to grant a new trial. See Lacalamita , 286 Mich App at 469-470; Unger , 278 Mich App at 232. Therefore, the trial court’s verdict was not against the great weight of the evidenc e.
Defendant next argues that the trial court should not have con victed him of both felon-inpossession and felony-firearm because the Legislature did not i ntend for the felony-firearm statute to apply when the underl ying felony is felon-in-possess ion. We disagree.

“For an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court.” People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). Defendant did not raise the issue in the trial court. Therefore, the issue is unpreserved. See id

.-4- This Court reviews an unpreserved nonconstitutional claim for plain error affecting the defendant’s substantial rights. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). In order to establish plain error, the defendant must establish th e following: “1) error must have occurred, 2) the error was plai n, i.e., clear or obvious, 3) an d the plain error affected substantial rights.” Id . With regard to the last requir ement, the defendant must showprejudice, meaning that the error affected the outcome in the trial court. Id

. MCL 750.227b(1), the relevant prov ision of the felony-firearm statute, provides:

A person who carries or has in his or her possession a firearmwhen he or she commits or attempts to commit a felony, except a violation of [MCL 750.223, MCL 750.227, MCL 750.227a or MCL 750.230], is guilty of a felon y, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subseq uent conviction under this subsection, the pers on shall be imprisoned for 10 ye ars.
MCL 750.223 prohibits the sale of firearms and ammunitions unde r certain conditions. MCL 750.227 prohibits the carrying of a concealed weapon. MCL 750. 227a prohibits the unlawful possession of a pistol by a licensee. MCL 750.230 prohibits th e alteration, removal, or obliteration of a mark of ident ity on a firearm. MCL 750.224f, the felon-in-possession statute, prohibits the possession of a firearm by a person convicted of a felony. Felon-in-possession is not one of the exceptions listed i n the felony-firearm statute. See MCL 750.227b(1).

In People v Mitchell , 456 Mich 693, 698; 575 NW2d 283 (1998), the Michigan Supreme Court held that the four exceptions listed in the felony-firear m statute are exclusive. The Court reasoned that the Legislature had listed four crimes as excepti ons to application of the felonyfirearm statute and did not include a catchall phrase that woul d indicate that the number of exceptions could increase. Id . at 697-698. The Court noted that “the Legislature’s intent i n drafting the felony-firearm statut e was to provide for an addit ional felony charge and sentence whenever a person possessing a firearm committed a felony other than those four explicitly enumerated in the felony-firearm statute.” Id . at 698.

In People v Dillard , 246 Mich App 163, 167-169; 631 NW2d 755 (2001), this Court he ld that convictions for felon-in-pos session and felony-firearm do not violate double jeopardy because the Legislature intended to permit a defendant charged with felon-in-possession to be charged with felony-firearm. This Court explained that the Leg islature intended for the four exceptions listed in MCL 750.277b(1) to be exclusive. Id . at 167. Thus, this Court reiterated that the Legislature intended th at commission of every other cr ime involving a firearm can also result in a felony-firearm conviction. Id . This Court also rejected the defendant’s argument that the Legislature did not intend for multiple punishments for the two crimes. Id . at 168. This Court reasoned that the Legislat ure is presumed to have known a bout the felony-firearm exceptions when it enacted the felon-in-possession statute and would have amended the felonyfirearm statute to preclude convi ction of both crimes if it had intended to precl ude conviction of both crimes. Id . This Court also held that the purposes of the two statutes i ndicated that a defendant could be convicted of both crimes since the statutes had different purposes addressing different social norms. Id . at 169-171.-5- In People v Calloway , 469 Mich 448, 452; 671 NW2d 733 (2003), t he Michigan Supreme Court held that the defendant’s convictions for felon-in-posses sion and felony-firearm did not violate double jeopardy. The Cou rt held that the Legislature i ntended for the felony-firearm statute to apply to situations in which a person used a firearmto commit a felony other than the four felonies specifically e xcluded in MCL 750.227b(1). Id . Thus, this Court and the Michigan Supreme Court have held that the four exceptions listed in the felony-firearm statute are exclusive. Id .; Mitchell , 456 Mich at 698; Dillard , 246 Mich App at 167-168. Therefore, defendant’s claim that he coul d not have been convicted of bothcrimes fails.

In addition, it should be noted that, contrary to defendant’s assertion, this Court and the Michigan Supreme Court did interpret legislative intent. Calloway , 469 Mich at 452; Mitchell
, 456 Mich at 698; Dillard , 246 Mich App at 168. Defendant also argues that this Court incorrectly considered the intent of the Legislature when it en acted the felon-in-possession law rather than the felony-firearm law. However, “ ‘the Legislatur e is presumed to be aware of, and thus to have considered the effect on, all existing statutes wh en enacting new laws.’ ” People v Bragg , 296 Mich App 433, 451; 824 NW2d 170 (2012) (citation omitted) . Thus, this Court properly considered the fact that the Legislature contemplated the effect of the felon-inpossession law on the felony-firearm statute when it did not ad d the felon-in-posse ssion statute to the list of statutory exceptions in the felony-firearm statute. See id .; Dillard , 246 Mich App at 168.

Defendant also argues that the Michigan Supreme Court overlook ed the fact that the felon-in-possession law was passe d after the felony-firearm sta tute. However, the Michigan Supreme Court in Calloway cited to Dillard in determining that the Legislature intended that a defendant may be convicted of both felon-in-possession and felo ny-firearm. Calloway , 469 Mich at 451-452. As discussed above, this Court contemplated the fact that the felon-inpossession law was passed after t he felony-firearm statute in Dillard

. Dillard , 246 Mich App at 168. Therefore, defendant’s argument fails. For the reasons s tated above, defendant was properly convicted of both felon- in-possession and felony-firearm. See Calloway , 469 Mich at 452; Mitchell , 456 Mich at 698; Dillard , 246 Mich App at 167-168.

Defendant next argues that the trial court erred when it sente nced him to consecutive sentences for his felony-firearm conviction and carrying a conc ealed weapon conviction. We
agree.
“For an issue to be preserved for appellate review, it must be raised, addressed, and decided by the lower court.” Metamora Water Serv, Inc , 276 Mich App at 382. Defendant did not raise the issue in the trial court. Therefor e, the issue i s unpreserved. See id

. Since defendant failed to preserve his claim, this Court revie ws the unpreserved nonconstitutional claim for plain error affecting the defendant ’s substantial rights. Carines , 460 Mich at 763. As stated above, in order to establish plain erro r, the defendant must establish the following: “1) error must have o ccurred, 2) the error was plain , i.e., clear or obvious, 3) and the plain error affected s ubstantial rights.” Id . With regard to the last requirement, the defendant must show prejudice, meaning that the error aff ected the outcom e in the trial court. Id

. MCL 750.227b(2) provides:-6- A term of imprisonment prescrib ed by this section is in additi on to the sentence imposed for the conviction of the felony or the attemp t to commit the felony, and shall be served cons ecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attemp t to commit the felony.

“A consecutive sentence may be imposed only if specifically authorized by law.” People v Gonzalez , 256 Mich App 212, 229; 663 NW2d 499 (2003). The felony-firearm statute does not permit the trial court to sente nce a defendant to consecutive s entences for felony-firearm and another offense that is not the underlying offense for the felo ny-firearm conviction. People v Clark , 463 Mich 459, 464; 619 NW2d 538 (2000). In People v McCrady , 213 Mich App 474, 486; 540 NW2d 718 (1995), this Court held that the defendant wa s improperly sentenced to consecutive sentences for his felony-firearm and carrying a con cealed weapon convictions since there is no statute that mandates that the sentences run consec utively. See also People v Cortez
, 206 Mich App 204, 206; 520 NW2d 693 (1994) (holding that the de fendant’s sentence for carrying a concealed weapon could not run consecutive to his se ntence for felony-firearm since carrying a concealed weapon cannot be the underlying offense fo r felony-firearm).

Here, defendant was sentenced to five years’ imprisonment for his felony-firearm conviction consecutive to concurrent sentences of one to five y ears’ imprisonment for his felonin-possession conviction and one to five years’ imprisonment fo r his carrying a concealed weapon conviction. As discussed above, felon-in-possession was the underlying offense for defendant’s felony-firearm convic tion. The offense of carrying a concealed weapon is specifically excluded as a poten tial underlying offense for a f elony-firearm c onviction. See MCL 750.227b. Therefore, the trial court erred when it sentenc ed defendant to consecutive sentences for carrying a concea led weapon and felony-firearm. See Clark , 463 Mich at 464; McCrady , 213 Mich App at 486; Cortez , 206 Mich App at 206. The error also affected the outcome in the trial court since defendant was sentenced to con secutive sentences, instead of concurrent sentences, for his fe lony-firearm and carrying a con cealed weapon convictions. See Carines , 460 Mich at 763. Defendant is entitled to amendment of his j udgment of sentence.

Defendant’s convictions are affirmed, but the matter is remand ed to correct the judgment of sentence to reflect the fact that defendant’s felony-firearm sentence should run consecutively to his felon-in-possession sent ence and concurrently with his c arrying a concealed weapon sentence. We do not retain jurisdiction.

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