                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 19, 2015
               Plaintiff-Appellee,

v                                                                  No. 319566
                                                                   Wayne Circuit Court
GUADALUPE MALDONADO,                                               LC No. 12-011910-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and O’CONNELL, JJ.

PER CURIAM.

       Defendant, Guadalupe Maldonado, appeals as of right his conviction of carrying a
concealed weapon in a vehicle, MCL 750.227(2), following a jury trial. The trial court
sentenced him to serve 4 to 10 years’ imprisonment as a fourth-offense habitual offender, MCL
769.12. We affirm.

                                           I. FACTS

        In February 2012, three DEA Task Force Officers drove in an unmarked car to an address
in Detroit. The officers intended to place a GPS tracking device on a Cadillac Escalade pursuant
to a search warrant. As two of the officers walked toward the Escalade, Maldonado and Jessica
Brady left a nearby house and entered the Escalade. The officers decided not to place the
tracking device and instead continued walking toward their car, in which a third officer was
waiting. At that point, the Escalade pulled alongside the officers’ car. The officers heard
gunshots and saw muzzle flashes from inside the Escalade.

         After apprehending Maldonado and Brady, officers recovered a semiautomatic pistol
from the Escalade’s driver’s side floorboard. Officers determined that Brady had a concealed
pistol license, and witnesses testified that the gun belonged to Brady. One witness testified that
he saw Brady handle the gun on one occasion when Maldonado was present, but Maldonado did
not touch the gun. Brady and Maldonado had previously applied for a permit to use a gun range,
and there was no record that either rented a gun. A latent print examiner with the Michigan State
Police Crime Laboratory found one of Maldonado’s fingerprints on the pistol’s magazine.

       The jury found Maldonado guilty of carrying a concealed weapon, but acquitted him of
three counts of assault with intent to commit murder, one count of felon in possession of a
firearm, one count of discharging a firearm from a vehicle, and one count of possessing a firearm

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during the commission of a felony. When sentencing Maldonado, the trial court assessed ten
points under offense variable (OV) 9 because the sentencing offense involved three victims.
Maldonado appeals his conviction and sentence.

                           II. CARRYING A CONCEALED WEAPON

        First, Maldonado contends that the trial court improperly instructed the jury when it
instructed them on possession, but not on “carrying.” We disagree.

        When reviewing a claim of instructional error, this Court views the instructions as a
whole to determine whether the issues to be tried were adequately presented to the jury. People
v Martin, 271 Mich App 280, 337-338; 721 NW2d 815 (2006). Generally, we review de novo
questions of law, including whether an omitted instruction violated a defendant’s due process
rights. Id. But to preserve an issue for appellate review, the defendant must make a timely
objection before the trial court. People v Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006). If a
defendant fails to do so, we review the issue for plain error. Id. at 278. The trial court commits
plain error when an error occurred, it was clear or obvious, and it affected the defendant’s
substantial rights. Id. at 279.

        The elements of carrying a concealed weapon in a vehicle are that (1) there was a weapon
present in a vehicle that the defendant operated or occupied, (2) the defendant knew the weapon
was present, and (3) the defendant was carrying the weapon. People v Nimeth, 236 Mich App
616, 622; 601 NW2d 393 (1999). A defendant’s mere knowledge of a weapon while being
present near it does not constitute carrying a weapon. People v Butler, 413 Mich 377, 384; 319
NW2d 540 (1982). A defendant carries a weapon when the defendant “exercises some element
of intentional control or dominion” over the weapon. Id. at 390 n 11. Whether the defendant
carried a weapon depends on the presence of several factors, including

       (1) the accessibility or proximity of the weapon to the person of the defendant, (2)
       defendant’s awareness that the weapon was in the motor vehicle, (3) defendant’s
       possession of items that connect him to the weapon, such as ammunition, (4)
       defendant’s ownership or operation of the vehicle, and (5) the length of time
       during which defendant drove or occupied the vehicle. [Id.]

Similarly, a defendant has constructive possession of a firearm when the defendant has
“proximity to the article together with indicia of control.” People v Hill, 433 Mich 464, 470-
471; 446 NW2d 140 (1989). See Butler, 413 Mich at 390 n 11.

        In this case, the trial court instructed the jury on actual and constructive possession. As
can be seen above, “carrying” a weapon is essentially the same thing as “possessing” a weapon.
Both require that the defendant knows a weapon is present and exercises dominion or control
over it. Further, a review of the instructions as a whole indicates that the trial court’s instructions
adequately presented this issue to the jury. We conclude that the trial court did not plainly err
when it instructed the jury on possessing a weapon rather than instructing it on carrying a
weapon.

       Second, Maldonado contends that the evidence was not sufficient to support his
conviction because he did not carry the gun. Again, we disagree.
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        A claim that the evidence was insufficient to convict a defendant invokes that defendant’s
constitutional right to due process of law. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748
(1992). This Court reviews de novo issues involving the sufficiency of the evidence. People v
Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). We review the evidence in a light
most favorable to the prosecutor to determine whether a rational trier of fact could find that the
prosecutor proved the crime’s elements beyond a reasonable doubt. Nimeth, 236 Mich App at
622. We will not interfere with the trier of fact’s role to determine the weight of the evidence or
the credibility of the witnesses. Wolfe, 440 Mich at 514-515; People v Kanaan, 278 Mich App
594, 619; 751 NW2d 57 (2008). Circumstantial evidence and reasonable inferences arising from
that evidence can constitute satisfactory proof of the elements of a crime, including the
defendant’s state of mind, knowledge, or intent. Nimeth, 236 Mich App at 622.

       In this case, witnesses testified that Brady owned the gun and that Maldonado had been
present when Brady was handling it. Brady and Maldonado went to a gun range together, and
there was no indication that either rented a different weapon. Maldonado’s fingerprint was on
the gun’s magazine. Given this evidence, the jury could reasonably infer that Maldonado knew
that Brady’s gun was in the vehicle and he exercised dominion and control over it, even if it
concluded that he was not the person who shot at the officers. Further, a jury may render
inconsistent verdicts. People v Vaughn, 409 Mich 463, 464; 295 NW2d 354 (1980). Therefore
the jury’s inconsistent verdicts regarding felon in possession of a firearm and possessing a
firearm during the commission of a felony do not require this Court to overturn Maldonado’s
conviction. We conclude that sufficient evidence supported Maldonado’s conviction.

                                            III. OV 9

       Maldonado contends that the trial court improperly assessed ten points under OV 9.
According to Maldonado, the trial court considered conduct outside his sentencing offense, and
there were no victims of his crime because the jury found that Maldonado was not the shooter.
We disagree.

        This Court reviews for clear error the trial court’s findings supporting its decisions to
assess points under the sentencing guidelines. People v Osantowski, 481 Mich 103, 111; 748
NW2d 799 (2008). A finding is clearly erroneous if, after reviewing the entire record, we are
definitely and firmly convinced that the trial court made a mistake. People v Reese, 491 Mich
127, 139; 815 NW2d 85 (2012).

        The trial court scores OV 9 if victims are placed in danger of death or physical injury.
MCL 777.39(1). The trial court properly assesses 10 points under OV 9 when “[t]here were 2 to
9 victims who were placed in danger of physical injury or death[.]” MCL 777.39(1)(c). The trial
court may not consider conduct after the completion of the sentencing offense when assessing
OV 9. People v McGraw, 484 Mich 120, 133-134; 771 NW2d 655 (2009).

        Two or more persons can constructively possess a firearm at the same time. Hill, 433
Mich at 470. Whether Maldonado personally shot at the victims in danger is not determinative.
For the reasons stated in the previous section, there was sufficient evidence to find that
Maldonado was carrying a concealed weapon in the vehicle. The weapon was shot several times
at the three officers. There is no indication that Maldonado’s knowledge or control of the gun

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was interrupted during the shooting. Accordingly, there was sufficient evidence from which the
trial court could find that, while Maldonado was carrying a concealed weapon, three victims
were placed in danger of death or physical injury. We conclude that the trial court did not err
when it assessed ten points under OV 9.

       Affirmed.

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




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