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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v YASMEN JOBY TUCKER, Defendant-Appellant.

UNPUBLISHED June 12, 2008

No. 277650 Wayne Circuit Court LC No. 06-013018-01

Before: Whitbeck, P.J., and O'Connell and Kelly, JJ. PER CURIAM. In this double jeopardy challenge, defendant Yasmen Tucker appeals as of right from March 2007 jury trial convictions of carrying a concealed weapon (CCW),1 felon in possession of a firearm,2 and possession of a firearm during the commission of a felony (felony-firearm).3 The trial court sentenced her to two years' imprisonment for the felony-firearm conviction and two years' probation for the CCW and felon in possession of a firearm convictions. We affirm. I. Basic Facts And Procedural History Detroit Police Officer Leroy Huelsenbeck testified that in October 2006 he was following up on a tip concerning a possible shooting perpetrator in the city of Detroit. As he pulled up, Officer Huelsenbeck observed Tucker walking off of the house's porch toward the sidewalk. However, Tucker turned around and walked back to the porch as Officer Huelsenbeck exited the police car. As Tucker reached the porch, she faced Officer Huelsenbeck, who observed an outline of a handgun in Tucker's right-front pocket. Officer Huelsenbeck asked Tucker to come over but she instead fled into the house, so Officer Huelsenbeck's partner went to the front door as Officer Huelsenbeck went to the northeast window. Through this window, Officer Huelsenbeck witnessed Tucker bending over the living room couch in the apparent act of placing something under the couch. Tucker then went to the door, where she spoke with Officer

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MCL 750.227. MCL 750.224f. MCL 750.227b.

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Huelsenbeck's partner while Officer Huelsenbeck entered the home, went over to and moved the couch, and recovered a handgun. A later investigation of this gun found it to be loaded with three live rounds. Tucker did not have a permit for the weapon. Officer Huelsenbeck's partner testified about the same events. As stated, a jury convicted Tucker of CCW, felon in possession of a firearm, and felonyfirearm. Preliminary examination evidence indicated that Tucker had a 2005 felony conviction for uttering and publishing.4 Tucker now appeals the felony-firearm conviction. II. Double Jeopardy Challenge A. Standard Of Review Tucker argues that the trial court lacked sufficient evidence to support her felony-firearm conviction because the underlying felony was felon in possession of a firearm. Although Tucker phrases her claim as a sufficiency of evidence argument, it substantively consists of a double jeopardy claim since Tucker's real claim concerns the application of the felony-firearm statute rather than the amount of evidence proffered as to each element. A double jeopardy challenge presents a de novo question of constitutional law.5 B. Felony-Firearm And Felon In Possession Of A Firearm The United States and Michigan Constitutions both protect defendants by prohibiting placing a defendant in jeopardy multiple times for a single offense.6 Despite this double jeopardy protection, cumulative punishment may be permitted when clearly intended by the legislature.7 The felony-firearm statute is one example of legislative intent to provide for cumulative punishments. The felony-firearm statute clearly does not list the offense of felon in possession of a firearm as an exception from use as an underlying felony.8 In addition, wellestablished caselaw has held that the offense of felon in possession of a firearm may constitute

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MCL 750.249. People v Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004). US Const, Am V; Const 1963, art 1,

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Michigan Law