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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ERNEST GRAHAM, Defendant-Appellant.

UNPUBLISHED April 10, 2012

No. 301389 Wayne Circuit Court LC No. 09-020192-FH

Before: MARKEY, P.J., and MURRAY and SHAPIRO, JJ. PER CURIAM. Defendant appeals by delayed leave granted his jury trial convictions for carrying a concealed weapon, MCL 750.227, felon in possession of a firearm (felon-in-possession), MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced, as a third habitual offender, MCL 769.11, to five years' imprisonment for the felony-firearm (second offense) conviction and to three years' probation for the carrying a concealed weapon and felon-in-possession convictions. We affirm. I. BACKGROUND On May 7, 2009, Detroit police officers George Pajor, Brandon Shortridge, and Sergeant Michael Jackson were driving in a police vehicle when they noticed defendant riding his bicycle on the sidewalk. Defendant and Pajor made eye contact, and then defendant looked directly at the police vehicle before he turned the sidewalk corner on his bicycle. Defendant continued to bike down the sidewalk but he removed his left hand from the bicycle's handle bar, reached into his left jacket pocket, and removed a gun from the pocket. Then, defendant reached over a four foot fence that ran parallel to the sidewalk and dropped the gun on the other side of the fence. At that point, Jackson stopped the police vehicle, and detained defendant while Pajor hopped over the fence and retrieved the gun. After a jury trial, defendant was convicted of carrying a concealed weapon, felon-in-possession, and felony-firearm. I. ANALYSIS The prosecution concedes that the jury was improperly instructed on the elements of felony-firearm, and that the prosecutor misstated the law regarding felony-firearm during her closing argument. However, because neither of these errors were objected to, we review them for plain error affecting defendant's substantial rights. People v Gonzalez, 468 Mich 636, 642-1-

643; 664 NW2d 159 (2003); People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008). Under the plain error rule, a defendant must establish that an error occurred, the error was clear and obvious, and that it affected his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Because we do not find that the errors below affected defendant's substantial rights, we affirm.1 A. INSTRUCTIONAL ERROR The trial court must clearly instruct the jurors on the applicable law, which includes giving them all the elements of the charged offenses. People v Fennell, 260 Mich App 261, 265; 677 NW2d 66 (2004). If the trial court's instructions were erroneous, an error exists under the plain error rule. Carines, 460 Mich at 768. However, where the evidence alone was sufficient to support the defendant's conviction, the alleged instructional error will not affect the defendant's substantial rights. People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003). The felony-firearm statute, MCL 750.227b(1), provides: (1) A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of . . . [MCL 750.223, carrying a concealed weapon, MCL 750.227, MCL 750.227a, or MCL 750.230], is guilty of a felony, 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 subsequent conviction under this subsection, the person shall be imprisoned for 10 years. The trial court gave the jurors the following instruction regarding defendant's felonyfirearm charge: To prove this charge, ladies and gentlemen, the prosecutor must prove each of the following elements beyond a reasonable doubt: First, that the defendant committed or attempted to commit the crime of weapons, carrying a concealed, and weapons firearm possession by a felon which has been defined for you. *** Second, it must [sic] proven that at the time the defendant committed or attempted to commit that crime he knowingly carried or possessed a firearm, does not matter whether or not the [sic] was loaded.

Although defendant waived review of any jury instruction error because he approved of the instructions on the record, People v Kowalski, 489 Mich 488, 504-505; 803 NW2d 200 (2011), we will nonetheless review this unpreserved issue.

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The trial court erroneously instructed the jurors that the prosecutor had to prove that defendant committed or attempted to commit carrying a concealed weapon to prove the charge of felony-firearm because carrying a concealed weapon is not a valid underlying felony for felonyfirearm. MCL 750.227b(1); People v Cortez, 206 Mich App 204, 207; 520 NW2d 693 (1994). Nevertheless, this error did not affect defendant's substantial rights because the evidence alone was sufficient to support defendant's conviction, Gonzalez, 256 Mich App at 225-226. The testimony of Pajor, Shortridge, and Jackson supports the finding that defendant possessed a gun. These witnesses testified that defendant reached into his left jacket pocket, removed a gun from his pocket, and threw the gun over a fence while riding on his bike down the sidewalk. Furthermore, defendant stipulated to the fact that on the date in question he was ineligible to possess a firearm because he had been previously convicted of a felony. Therefore, we hold that the evidence was sufficient to support defendant's conviction of felon-in-possession, which is a valid underlying felony for felony-firearm, and accordingly, sufficient evidence was presented to convict defendant of felony-firearm. MCL 750.224f; MCL 750.227b; see also People v Sturgis, 427 Mich 392, 405-406; 397 NW2d 783 (1986) (the presence of a second underlying felony allows defendant's felony-firearm conviction to stand). Because the instructional error did not affect defendant's substantial rights, reversal is not required. Gonzalez, 256 Mich App at 225226; see People v Kowalski, 489 Mich 488, 506; 803 NW2d 200 (2011) ("If the evidence related to the missing element was over-whelming and uncontested, it cannot be said that the error affected the defendant's substantial rights or otherwise undermined the outcome of the proceedings.").2 B. THE PROSECUTION'S MISSTATEMENT OF LAW During closing argument, the prosecution misstated the elements needed to prove the charge of felony-firearm. Defendant asserts that this error requires reversal. We agree with the prosecution that, although there was error, defendant has failed to show plain error affecting his substantial rights. People v Fyda, 288 Mich App 446, 460-461; 793 NW2d 712 (2010). During closing argument, the prosecution described the crime of felony-firearm as follows:

We also note that defendant mischaracterizes this erroneous instruction as a structural error based on People v Duncan, 462 Mich 47; 610 NW2d 551 (2000). The Duncan Court held that a "jury's conviction must be set aside where the court omitted instructions on all the elements of an offense" because such a failure constitutes a structural error requiring automatic reversal. Id. at 57. (Emphasis added.) However, as the Kowalski Court held, where the trial court did not fail to instruct on all the elements of the charged offense

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