Double jeopardy; Alleged successive prosecutions for the same offense; The Blockburger v United States “same elements” test; People v Nutt; Whether the prosecution impermissibly fragmented a single continuing offense; People v Beverly; Waiver; People v Powers; People v Cooper; Sentencing; Proportionality challenge to a within-guidelines sentence

While the court concluded that defendant did not waive his double jeopardy argument, it held that the record did not “establish a single continuing possession offense” and thus, it rejected his claim of successive prosecutions for the same offense. It also found that he failed to overcome the presumption that his within-guidelines sentence was proportionate. He was convicted of FIP and felony-firearm, and sentenced as a fourth-offense habitual offender to 3 to 20 years for FIP and a consecutive 2 years for felony-firearm. He pled guilty in 2018 to the same charges with an offense date of 6/9/16. During the plea proceedings, he acknowledged that a 4/8/16 photo showed him holding a Glock handgun with a visible serial number. “He denied possessing the firearm recovered on [6/9/16], or knowing how it came to be in the kitchen drawer. In 2020, [he] was charged in the present case with open murder,” FIP, and felony-firearm. At trial, a witness testified that on 5/24/16, defendant left witness-E’s “apartment with a semiautomatic firearm visible on his person. Forensic testing revealed DNA samples from both defendant and [E] on the recovered Glock.” Defendant argued on appeal that “the prosecution failed to prove a break in possession between [4/8/16], and [5/25/16], thereby rendering the present conviction a successive prosecution for the same offense.” The court disagreed. Uninterrupted control over the firearm is required to show a single continuing possession offense. The court held that the record did “not establish uninterrupted possession.” Rather, the jury could have reasonably concluded “that defendant possessed the firearm on or about [5/25/16]. He subsequently dispossessed it, and then possessed it again on [6/9/16].” The gun was observed in his “possession in early April. It was recovered from [E’s] residence in early June. Defendant denied possessing it on [6/9/16], and disclaimed knowledge of how it arrived in [E’s] apartment. The trial evidence established that [E] also had access to and control over the weapon. These circumstances support a reasonable inference that defendant’s possession on or about [5/25/16], was not part of a single, uninterrupted episode extending through” 6/9/16. Because he did not show “his April possession and his May possession constituted a single, uninterrupted offense, his successive-prosecution claim fails.” Affirmed.