Jury instruction; Waived issue; Ineffective assistance of counsel; Failure to request a proper instruction on the definition of constructive possession for purposes of the FIP charges; Jail credit; Due process

The court concluded that defendant was not denied the effective assistance of counsel. Also, he was not entitled to credit under MCL 769.11b, and the trial court did not plainly err when it sentenced him. Finally, he did not meet his burden to show that his sentence violated due process. He was convicted of FIP, FIP of ammunition, and felony-firearm. Defendant argued that his trial counsel provided ineffective assistance by failing to request a proper jury instruction. He claimed the instruction given was inadequate to inform the jury of the definition of constructive possession for purposes of FIP because it did not articulate the element of “dominion and control.” The instructions “on actual and constructive possession were derived from M Crim JI 11.34, the instructions for felony-firearm.” Even assuming the instruction “did not adequately convey the notion of an intent to exercise control over the weapon, and that counsel’s failure to request a more accurate instruction constituted deficient performance, any error was not outcome-determinative because the jury reasonably concluded defendant actually possessed a firearm on the date of the offense. A security guard testified that he saw defendant holding a gun and that defendant dropped the gun while fleeing from him.” While defendant testified that “he never touched the gun, he previously admitted to the police that he picked up the gun and fired two shots toward the victim. Defendant also admitted to police that when the security guard approached him, he dropped his gun and fled.” Other than his “own self-serving and contradictory testimony, which was inconsistent with his former statements and statements from witnesses, the record was bereft of evidence upon which the jury could have based a finding that defendant had constructively possessed a weapon.” He claimed the jury’s question “during deliberations—'Is being in the vicinity of others with guns being in possession[?]’—[wa]s evidence the jury believed defendant only constructively possessed the firearm and was confused by the trial court’s instruction. It may be that the jury was inclined to only convict defendant on the basis of constructive possession of the handgun. It may also be, however, that the jury wanted to understand all of the different elements in their entirety before rendering a verdict.” The court could not “state on the basis of the question alone the jury only believed defendant constructively possessed the handgun.” Affirmed.