If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 29, 2021
Plaintiff-Appellee,
v No. 350537
Wayne Circuit Court
DARRYL BERNARD ELLISON, LC No. 19-000878-01-FH
Defendant-Appellant.
Before: LETICA, P.J., and CAVANAGH and FORT HOOD, JJ.
PER CURIAM.
Following a trial, a jury convicted defendant of two counts of possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b(1), but acquitted him of two counts
of felonious assault, MCL 750.82. The trial court sentenced defendant to concurrent terms of two
years’ imprisonment. Defendant challenges the sufficiency of the evidence presented during trial.
Viewing the evidence in the light most favorable to the prosecution, we affirm.
I. BACKGROUND
On January 3, 2019, mail carriers Brittany Black and Sara Bell parked their postal truck
near defendant’s home, stepped out of its sliding door, and immediately heard defendant yelling
and swearing at them to move it. Defendant, who was standing in his doorway, appeared angry
and hostile, and pointed a rifle at Black and Bell.
Fearing defendant might shoot at them, Black and Bell retreated behind the postal truck
and walked away from defendant’s home down separate streets. Black called her supervisor and
Bell called 911. Bell attempted to continue delivering mail, but she soon stopped because her heart
was racing over defendant’s actions.
Once the police arrived, Black and Bell described the incident and the gun to them.
Defendant also provided statements to the police. His video-recorded and written statements were
admitted during trial.
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At trial, defendant also testified in his own defense, stating that he had previously asked
the postal workers not to use his yard as a shortcut and had placed signs on his lawn to that effect.
Moreover, defendant had been unable to go to a doctor’s appointment in mid-December because
the postal truck had blocked his driveway. Defendant had called the police on that occasion and
the police had spoken to the postal workers. Defendant maintained that his purpose was not to
threaten Black and Bell or make them think they were going to be shot. His purpose was to prevent
damage to his front lawn. Defendant testified that he picked up the gun in case he had to detain
Black and Bell until the police arrived. And defendant denied that he held the gun with both hands
as described because of his near complete left-hand immobility due to an earlier stroke.
After deliberating for fifteen minutes, the jury acquitted defendant of felonious assault
against Black and Bell, but convicted him of two counts of felony-firearm. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the prosecution failed to present sufficient evidence to support his
conviction of two counts of felony-firearm. We disagree.
A. STANDARD OF REVIEW
This Court reviews de novo challenges to the sufficiency of evidence. People v Gaines,
306 Mich App 289, 296; 856 NW2d 222 (2014). To determine whether the prosecution has
presented sufficient evidence to sustain a conviction, this Court reviews “the evidence in the light
most favorable to the [prosecution] and determine whether a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” People v Smith-Anthony, 494 Mich 669, 676; 837
NW2d 415 (2013) (citation and quotation marks omitted). “The standard of review is deferential”
and requires the reviewing court “to draw all reasonable inferences and make credibility choices
in support of the jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
B. ANALYSIS
Under MCL 750.227b(1), a person commits the crime of felony-firearm if he “carries or
has in his . . . possession a firearm when he . . . commits or attempts to commit a felony.” MCL
750.227b(1). The prosecutor must prove beyond a reasonable doubt that (1) defendant committed
the underlying felony, and (2) that, at the time he committed the crime, he carried or possessed a
firearm. People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). A defendant need not
be convicted of the underlying felony, but the jury must find that he committed or attempted to
commit it. People v Lewis, 415 Mich 443, 454-455; 330 NW2d 16 (1982); People v Powell, 303
Mich App 271, 273-274; 842 NW2d 538 (2013).
In this case, there was sufficient evidence for the jury to determine that the crime of felony-
firearm was proven beyond a reasonable doubt. To establish the first element of felony-firearm,
the prosecution was required to prove that defendant committed or attempted to commit felonious
assault. Under MCL 750.82, a person is guilty of felonious assault if he “assaults another person
with a gun . . . without intending to commit murder or to inflict great bodily harm less than
murder.” MCL 750.82. In short, the elements of felonious assault are “(1) an assault, (2) with a
dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension
of an immediate battery.” Avant, 235 Mich App at 505. In other words, felonious assault is a
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simple assault that is aggravated by the use of a weapon. People v Jones, 443 Mich 88, 100; 504
NW2d 158 (1993). “An assault may be established by showing either an attempt to commit a
battery or an unlawful act that places another in reasonable apprehension of receiving an immediate
battery.” People v Starks, 473 Mich 227, 234; 701 NW2d 136 (2005).
There was sufficient evidence for a jury to conclude beyond a reasonable doubt that
defendant committed the underlying felony of felonious assault. According to Bell and Black, an
angry, cursing defendant directed them to move their vehicle while pointing a rifle at them.
Although defendant maintains that his intent was to simply deter them from walking on his grass
and potentially detain them until the police arrived, defendant’s angry demeanor toward Black and
Bell suggests otherwise.
Defendant also maintains he did not point the gun at Black and Bell and could not have
done so because of his near-complete left-side paralysis. But these factual questions of whether
or not defendant held the gun up and pointed it at Black and Bell—as well as the credibility
determination about the witnesses’ testimony on these questions—are for the jury; our role, as a
reviewing court, requires us “to draw all reasonable inferences and make credibility choices in
support of the jury verdict.” People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018), quoting
Nowack, 462 Mich at 400.
Defendant further contends that he did not intend to put Black and Bell in fear of immediate
harm. But “[m]inimal circumstantial evidence and reasonable inferences can sufficiently prove
the defendant’s state of mind, knowledge, or intent.” People v Miller, 326 Mich App 719, 735;
929 NW2d 821 (2019). “Intent is a mental attitude made known by acts.” People v Strong, 143
Mich App 442, 452; 372 NW2d 335 (1985). Intent may be disclosed by a defendant’s
“declarations or by his actions . . . .” Id. In this case, Black and Bell testified that they were afraid
that defendant, who was angrily and profanely demanding that they move their vehicle, was going
to shoot them with the rifle he had.
Defendant also contends that Black and Bell’s continued delivery of the mail after the
incident shows that they were not in reasonable apprehension of an immediate battery. But a
victim’s subjective fear is not a mandatory element of criminal assault. People v Davis, 277 Mich
App 676, 684-686; 747 NW2d 555 (2008), vacated in part on another grounds 482 Mich 978
(2008). Instead, an assault is “either an attempt to commit a battery or an unlawful act that causes
apprehension of a battery.” See Starks, 473 Mich at 234. Thus, the prosecution need only present
evidence from which the jury could determine beyond a reasonable doubt that the defendant
engaged in behavior designed to place the victim in apprehension of an immediate battery. Davis,
277 Mich App at 684-686. Again, it is reasonable for a person to fear an immediate battery when
a gun is pointed in her direction. See Avant, 235 Mich App at 506. Indeed, Black and Bell’s
testimony reveals that each continued delivering the mail only because she was afraid that
defendant was going to shoot her. Both wanted to move away from defendant’s house because
they felt that it was the safest thing to do, not because they were unaffected by defendant’s actions
and solely concerned with delivering the mail. In fact, they retreated to side streets in order to call
their supervisor and the police. Moreover, although Bell may have attempted to make a few
deliveries while on the side street, she soon realized that she could not continue because her heart
was racing despite her attempts to remain calm in the face of defendant’s actions. Black and Bell’s
testimony show that they were experiencing exactly what defendant’s actions suggest he intended
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them to experience: apprehension of harm. Because the jury believed Black and Bell rather than
defendant, this Court must make credibility choices in support of the jury’s verdict. Oros, 502
Mich at 239; Nowack, 462 Mich at 400.
Defendant next suggests that the fact that the jury found him not guilty of the felonious
assault charges means that they could not be used as underlying felonies to support to his felony-
firearm convictions. But in the same factual scenario, our Supreme Court rejected this argument,
stating: “The conviction of felony-firearm may be read as an implicit finding that the defendant
did commit the [underlying] felony.” Lewis, 415 Mich at 452. The law permits this result because
MCL 750.227b(1) does not require that a defendant be convicted of the underlying felony; it only
requires that he commit or attempt to commit the underlying felony. Id. at 454-455. Moreover,
the law recognizes that verdicts, like the ones in this case, suggest that the jury either compromised
or was lenient; both options are within its province. Id. at 450-453.
Defendant further contends that Black and Bell’s testimony was inconsistent and that those
inconsistencies should be resolved in his favor. Defendant points to the difference in Black and
Bell’s estimations of their distance from defendant and Bell’s testimony about her prior
experiences with defendant as evidence of unreliability. Again, whether the prosecution’s
evidence is consistent and credible was for the jury to decide; as a reviewing court, we are required
to make credibility choices in support of the jury’s verdict. Oros, 502 Mich at 239; Nowack, 462
Mich at 400. And “when an appellate court reviews the evidence supporting a conviction, factual
conflicts are to be viewed in a light favorable to the prosecution[.]” Oros, 502 Mich at 246
(quotation marks and citation omitted). Properly applying the law, we reject defendant’s
arguments.
In addition to being legally incorrect, defendant’s arguments are also factually wrong. The
difference in Black and Bell’s estimations of distance do not suggest that they were unreliable
witnesses, particularly in light of the fact that Bell’s estimate was proposed by the prosecutor, not
Bell. Likewise, Bell’s testimony about prior experiences with defendant does not establish that
her testimony is unreliable because the December 2018 instance she referenced was a conversation
with a police officer about defendant, not an experience involving defendant directly.
Finally, defendant asserts that Black and Bell’s testimony was inconsistent regarding how
he held the gun, but he provides no facts or analysis to support his claim. In any event, his
argument fails because the law requires us to view the evidence in the light most favorable to the
prosecution and to resolve all factual conflicts in support of the jury’s verdict. Id.; Nowack, 462
Mich at 400.
Viewed in the light most favorable to the prosecution, Black and Bell’s testimony amply
supported defendant’s felony-firearm convictions.
Affirmed.
/s/ Anica Letica
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood
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