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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROD STERLING HOLMES, Defendant-Appellant.

UNPUBLISHED September 23, 2008

No. 276590 Wayne Circuit Court LC No. 06-003320-01

Before: Wilder, P.J., and Markey and Talbot, JJ. PER CURIAM. Defendant was convicted, following a bench trial, of carrying a concealed weapon (CCW), MCL 750.227, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b. He was sentenced to concurrent prison terms of one to five years each for the CCW and felon-in-possession convictions to be served consecutively to two years' imprisonment for the felony-firearm conviction. He appeals by right. We affirm. Defendant first argues that the trial court erroneously applied the preponderance of the evidence standard and shifted the burden of proof by convicting him on the basis of its belief that he failed to show that he was probably not guilty. We disagree. In reviewing a verdict reached in a bench trial, we review the trial court's factual findings for clear error and its conclusions of law de novo. MCR 2.613(C); People v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). Convicting a defendant of a criminal offense requires due process: the prosecutor must present sufficient evidence from which a rational trier of fact could find every element of the crime proven beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268-270; 380 NW2d 11 (1985); People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). A trial court sitting without a jury must make findings of fact and conclusions of law on contested matters and state its findings and conclusions either on the record or in a written opinion. MCR 6.403; People v Feldmann, 181 Mich App 523, 534; 449 NW2d 692 (1989). The court's findings show that although it stated that a mere possibility existed that Officer Dwayne Robinson planted the gun in defendant's vehicle, it determined beyond a

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reasonable doubt that defendant instead possessed the weapon. Although the trial court mentioned possibilities and probabilities, it did not apply the preponderance of the evidence standard or shift the burden of proof. Rather, our review of the record clearly shows that the court determined that the prosecutor proved that defendant possessed the weapon beyond a reasonable doubt. Indeed, the court repeatedly referenced the beyond a reasonable doubt standard. Thus, the record fails to support defendant's argument. Defendant also argues that the trial court based its verdict in part on its erroneous finding that Officer Myron Watkins observed Officer Robinson retrieve the gun from defendant's vehicle. The trial court's finding was not erroneous. Officer Watkins testified as follows: Q. Did you see if Officer Robinson recovered anything? A. Yes, he did. Q. What did he recover? A. He recovered a handgun. Q. Did you see where Officer Robinson recovered this handgun from? A. From the center console.
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Q. Did you see Officer Robinson make a confiscation? A. After he pulled the gun out of the console. Q. Did you see Officer Robinson go into the console and extract a gun, yes or not? Did you see that? A. No. Although Officer Watkins's testimony is contradictory regarding whether he saw Officer Robinson retrieve the gun from the console, it can be read as supporting the trial court's finding that Officer Watkins witnessed Officer Robinson retrieve a gun from defendant's vehicle. Officer Watkins merely testified that he did not see Officer Robinson reach into the console. In any event, Officer Nevin Hughes testified that he witnessed Officer Robinson open the console and retrieve a weapon. Defendant argues that Officer Hughes's testimony was equivocal. Officer Hughes testified as follows: Q. And, do you watch Officer Robinson confiscate the weapon? A. I see him look into the vehicle, check it and

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