STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 18, 2016
Plaintiff-Appellee,
v No. 327260
Wayne Circuit Court
KELVIN MOORE, LC No. 14-009023-01-FH
Defendant-Appellant.
Before: SAAD, P.J., and JANSEN and M. J. KELLY, JJ.
PER CURIAM.
After a bench trial, defendant was convicted of felon in possession of a firearm (felon-in-
possession), MCL 750.224f, carrying a concealed weapon, MCL 750.227, and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was
sentenced, as a third habitual offender, MCL 769.11, to one-to-five years’ imprisonment for the
felon-in-possession conviction, to be served consecutively to the mandatory two-year term for
the felony-firearm conviction. Defendant was also sentenced to one-to-five years’ imprisonment
for the conviction of carrying a concealed weapon, to be served concurrently with his felony-
firearm sentence. Defendant appeals, and we affirm.
This appeal arises from a traffic stop that occurred on August 17, 2012, near Seven Mile
Road and Mound Road in Detroit, Michigan. Detroit Police Officer Adam Verbeke and his
partner, Officer Robert Eisenmann, were on patrol traveling eastbound on Seven Mile. Officer
Verbeke observed that defendant was not wearing a seatbelt, in the front passenger seat of an old,
dark purple vehicle. Officer Verbeke advised Officer Eisenmann of the traffic violation, and
Officer Eisenmann made a U-turn to conduct a traffic stop. The vehicle defendant was traveling
in pulled over, but the vehicle took off after the officers approached on foot. The vehicle came
to a stop and the passenger, who Officer Verbeke identified as defendant, exited the passenger
side and fled on foot. Defendant turned at a nearby corner, and Officer Verbeke observed a
firearm “come”1 out of the waistband of defendant’s pants onto the house’s front lawn. Officer
1
At trial, there was conflicting testimony from Officer Verbeke on whether defendant
intentionally discarded the handgun or if the handgun accidently fell from the waistband of
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Verbeke stopped pursuing defendant and recovered the silver smaller-caliber firearm to preserve
evidence and ensure safety. Officer Verbeke then gave a description of defendant over police
radio because he was aware that other units were in the area.
Officer Dondre Penne responded to Officer Verbeke’s call for assistance, searched the
backyard of a home nearby and discovered defendant lying down and hiding under the bushes.
Officer Penne then detained defendant and brought him to Officer Verbeke who positively
identified defendant as the individual who had fled from the vehicle.
At trial, defendant denied being the passenger in the vehicle or the individual who Officer
Verbeke chased.
On appeal, defendant argues that his convictions were against the great weight of the
evidence. Specifically, defendant claims that his convictions cannot stand because the finding
that he was the one who possessed the firearm and fled from Officer Verbeke was against the
great weight of evidence. We disagree.
In a bench trial, to determine if the verdict was against the great weight of evidence, we
first review the court’s findings of fact for clear error. See Ambs v Kalamazoo Co Rd Comm,
255 Mich App 637, 651; 662 NW2d 424 (2003). A finding is clearly erroneous if the reviewing
court is left with a definite and firm conviction that a mistake was made. People v Allen, 295
Mich App 277, 281; 813 NW2d 806 (2011). The determination of whether a verdict is against
the great weight of evidence requires review of the whole body of proofs. People v Herbert, 444
Mich 466, 475; 511 NW2d 654 (1993), overruled on other grounds by People v Lemmon, 456
Mich 625 (1998). A verdict is against the great weight of evidence if “the evidence
preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the
verdict to stand.” People v Lacalamita, 286 Mich App 467, 469; 780 NW2d 311 (2009).
Further, where defendant’s great-weight claim challenges Officer Verbeke’s credibility,
“[s]pecial deference is given to a trial court’s findings when based on witness credibility.”
People v Sherman-Huffman, 241 Mich App 264, 267; 615 NW2d 776 (2000), aff’d 466 Mich 39
(2002).
The trial court did not clearly err when it found that defendant was the individual who
fled from the vehicle and subsequently discarded the firearm. Officer Verbeke identified
defendant as the individual who fled and possessed the firearm and was able to do so because he
initially saw defendant’s face through their respective front windshields when they were
traveling in opposite directions on Seven Mile. Further, the person matching the exact
description as the person Officer Verbeke chased was later found hiding under some bushes. Not
only did the defendant’s appearance match the appearance of the fleeing passenger, but his
attempt to hide is further evidence of guilt. People v Heath, 80 Mich App 185, 188; 263 NW2d
58 (1977); see also People v Unger, 278 Mich App 210, 226; 749 NW2d 272 (2008).
Importantly, the trial court, as the finder of fact, was free to disbelieve defendant’s self-serving
defendant’s pants. The trial court noted that the discrepancy was insignificant in its ultimate
determination of defendant’s guilt of the charged offenses.
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denial that he was not the person who fled from the vehicle. See People v Perry, 460 Mich 55,
63; 594 NW2d 477 (1999); People v Bosca, 310 Mich App 1, 13; 871 NW2d 307 (2015).
We further reject defendant’s claims that the evidence was somehow inadequate because
there was no video evidence from the police vehicle’s dash camera and because there was no
fingerprint evidence on the retrieved firearm. While these items, had they existed, could have
buttressed the prosecution’s case, their absence does not detract from the evidence provided or
our analysis. We hold that the officers’ testimony is sufficient to support defendant’s
convictions, and the resulting verdict is not against the great weight of evidence.
Affirmed.
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Michael J. Kelly
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