State of Michigan v KENYATTA LAJUAN DANIELS
No. 265367
Michigan Court of Appeals
February 22, 2007, Decided
Prior case history: Wayne County Circuit Court. LC No. 05-004009-01.
Before: Murphy, P.J. and Smolenski and Kelly, JJ. Michael R. Smolenski, J. (concurring in part and dissenting in part).
OPINION
PER CURIAM.
Following a jury trial, defendant was convicted of felon in possession of a firearm, MCL 750.224f, felony-firearm, MCL 750.227b, and operating while intoxicated, MCL 257.625(1). 1 Defendant was sentenced to two years in prison for the felony-firearm conviction, and two years' probation for the felon in possession of a firearm and operating while intoxicated convictions. Defendant appeals of right. We reverse in part and affirm in part. This case is being decided without oral argument pursuant to MCR 7.214(E).
1 Defendant was acquitted of an additional charge of carrying a concealed weapon, MCL 750.227.
Defendant argues that the evidence was insufficient to support his convictions for felon in possession of a firearm and felony-firearm. In response, plaintiff filed a confession of error conceding that the evidence was insufficient to support these convictions. We agree and reverse defendant's convictions of felon in possession of a firearm and felony-firearm. We affirm defendant's conviction and sentence of operating while intoxicated. 2
2 Defendant does not challenge either his conviction or sentence with respect to his conviction of operating while intoxicated.
Reversed in part, affirmed in part and remanded to correct the judgment of sentence. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Kirsten Frank Kelly
CONCUR BY: Michael R. Smolenski
DISSENT BY: Michael R. Smolenski
DISSENT
SMOLENSKI, J. (concurring in part and dissenting in part).
I concur with the majority's decision to affirm defendant's conviction for operating a vehicle while intoxicated, MCL 257.625(1) . However, because I conclude that there was sufficient evidence from which a reasonable jury could conclude beyond a reasonable doubt that defendant had constructive possession of the firearm found in the center console of the car he drove, see People v Burgenmeyer, 461 Mich 431, 438; 606 NW2d 645 (2000), I would not reverse defendant's convictions for felon in possession of a firearm, MCL 750.224f, and possessing or carrying a firearm during the commission of a felony, MCL 750.227b . Therefore, I must respectfully dissent from the majority's decision to reverse those convictions.
/s/ Michael R. Smolenski
