People v. Dupree

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

FILED JULY 23, 2010

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 139396

ROBERTO MARCHELLO DUPREE,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

In this criminal case, we hold that the traditional common law affirmative defense

of self-defense may be interposed to a charge of being a felon in possession of a firearm,

MCL 750.224f. Defendant temporarily possessed a firearm in violation of the felon-in-

possession statute but introduced evidence at trial supporting the theory that his violation

was justified because he acted in self-defense. The prosecutor did not resist defendant’s

argument regarding the availability of self-defense, and the trial court gave a standard

self-defense jury instruction. Over defendant’s objection, the trial court also instructed
the jury regarding the momentary innocent possession defense to the charge of being a

felon in possession. The jury convicted defendant. The Court of Appeals reversed

defendant’s conviction and remanded for a new trial, concluding that the common law

affirmative defenses of self-defense and duress are generally available to a defendant

charged with being a felon in possession if supported by sufficient evidence. 1

We originally granted leave to consider whether any of the traditional common

law affirmative defenses are available for a charge of felon-in-possession and, if so,

whether the defendant has the burden of proving the affirmative defense. We conclude,

however, that only the common law affirmative defense of self-defense was properly

raised before the trial court. Limiting our analysis to the issue preserved below, we agree

with the Court of Appeals that self-defense is generally available for a felon-in-

possession charge if supported by sufficient evidence. Defendant introduced sufficient

evidence from which the jury could have concluded that he violated the felon-in-

possession statute but that his violation could be justified because he honestly and

reasonably believed that his life was in imminent danger and that it was necessary for

him to exercise force to protect himself. Therefore, we hold that self-defense is an

available defense under these facts.

We also take this opportunity to reaffirm that the prosecution bears the burden of

disproving the common law affirmative defense of self-defense beyond a reasonable

doubt. Finally, we conclude that the Court of Appeals properly ruled that the trial court’s

1
People v Dupree, 284 Mich App 89; 771 NW2d 470 (2009).

2
modified jury instruction on the momentary innocent possession defense was erroneous.

Because this instructional error more probably than not resulted in a miscarriage of

justice, defendant is entitled to a new trial on the felon-in-possession charge.

Accordingly, we affirm the Court of Appeals’ result and remand for further proceedings

consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

On September 11, 2005, defendant Roberto Marchello Dupree and a female

companion attended a birthday party for his brother at the house of defendant’s sister-in-

law, Adrian Dupree. Adrian’s 24-year-old niece, Ashley Horton, and Horton’s 24-year-

old boyfriend, Damond Reeves, also attended. When the party was ending, defendant

and Reeves began quarrelling on the porch. The altercation culminated in defendant

shooting Reeves three times. As a result of the altercation, the prosecutor charged

defendant with two counts of assault with intent to commit murder, 2 felonious assault,3

felon-in-possession, 4 and possession of a firearm during the commission of a felony. 5

After a three-day trial, the jury acquitted defendant of all charges except the felon-in-

possession charge.

The witnesses gave conflicting testimony at trial about the circumstances

surrounding the altercation. Reeves testified that defendant directed an expletive at him

2
MCL 750.83.
3
MCL 750.82.
4
MCL 750.224f.
5
MCL 750.227b.

3
and shoved him for no reason. Reeves also testified that he and defendant fought until

defendant left the fracas, went inside, and returned with a gun. Reeves stated that

defendant shot him three times as he continued wrestling with defendant from the front

yard to the street. Although the sequence of events was unclear, Horton testified that

when she attempted to intervene, defendant struck her in the face with the gun. She went

inside to call the police and heard a shot. Horton returned to the porch and heard a

second shot before going back inside, where she heard a third shot. She stated that

defendant later entered the house, put the gun to her chin, and pulled the trigger. The gun

did not fire.

By contrast, defendant and two other bystanders testified that the altercation began

when Reeves shoved Adrian Dupree off the porch. Defendant told Reeves not to

disrespect his sister-in-law and asked him to leave. Reeves then pushed defendant. The

two men fell off the porch and began wrestling. Reeves’s shirt was pulled up, exposing a

gun in the waistband of his pants. Defendant testified that he feared for his life because

Reeves was larger than defendant, inebriated, and armed. Defendant stated that Reeves

went for his gun and that defendant grabbed it to protect himself. As the two men

struggled over the gun, defendant shot Reeves three times. Defendant kept the gun until

he left with his female companion in her vehicle, throwing the gun out the window after

he was some distance from the house.

During the three-day jury trial, defense counsel argued that defendant had not

assaulted Horton, but had acted in self-defense in response to Reeves’s actions.

Regarding the felon-in-possession charge, defense counsel asserted that defendant’s

4
temporary possession of the gun was justified because defendant had seized possession of

the gun to protect himself during the struggle. Defense counsel requested a standard self-

defense jury instruction for all charges. The prosecutor did not object, and the trial court

instructed the jury as requested. Additionally, the court instructed the jury sua sponte that

it could find defendant not guilty of being a felon in possession if it found the following:

As to being a felon in possession, [defendant] claims that the gun
was produced in a struggle. And of course, if that’s the case that the gun
was produced during the course of a struggle and you find that it happened
that way, that would be a defense to felon in possession provided you find
that he did not keep the gun in his possession any longer than necessary to
defend himself.

Defense counsel objected to the trial court’s instruction, arguing that the court should not

have included the phrase “any longer than necessary to defend himself.” The trial court

responded that it had crafted the instruction, which it labeled “the necessity defense to

being a felon-in-possession,” from federal law. After further discussion, the court gave

defense counsel more time to locate legal authority to substantiate the objection.

When defense counsel failed to locate any legal authority invalidating the

instruction, the prosecutor suggested that the trial court provide an instruction on the

momentary innocent possession defense to carrying a concealed weapon then under

consideration by this Court in People v Hernandez-Garcia, 477 Mich 1039 (2007). 6

Defense counsel objected. The court overruled the objection and reinstructed the jury

6
Approximately five months following this trial, we affirmed and adopted the
Court of Appeals’ holding in Hernandez-Garcia that the momentary innocent possession
of a concealed weapon is not a defense to the charge of unlawfully carrying a concealed
weapon, MCL 750.227(2). Hernandez-Garcia, 477 Mich at 1040, overruling People v
Coffey, 153 Mich App 311; 395 NW2d 250 (1986).

5
concerning the momentary innocent possession defense to being a felon in possession as

follows:

And if the person had a brief or momentary possession of the
weapon based on necessity, that’s a defense to being a felon in possession.
And the elements to that are that the defendant had the gun because he had
taken it from someone else who was in wrongful possession of it, or he
took it from him because of necessity, because he needed to. Second, that
the possession after taking the gun was brief. And third, that it was the
defendant’s intention to deliver the gun to the police at the earliest possible
time. The law imposes that duty as a concomitant part of that. [Emphasis
added.]

The trial court stated that the modified instruction replaced its prior instruction regarding

“the necessity defense.” Subsequently, the jury acquitted defendant of all felony charges

except the felon-in-possession charge. The court sentenced defendant to serve a term of

48 months’ to 30 years’ imprisonment as a fourth-offense habitual offender. 7

In a published opinion, the Court of Appeals reversed defendant’s conviction and

remanded for a new trial. The majority concluded that defendant had not waived his

claim of instructional error and that the common law affirmative defenses of self-defense

and duress are generally available for felon-in-possession charges. The Court adopted

the term “justification” to describe the affirmative defense under which “a defendant

might be justified in temporarily possessing a firearm—even though the possession is

unlawful—if the possession is immediately necessary to protect the defendant or another

from serious bodily harm.” 8 Using the elements of common law duress as its basis, the

7
MCL 769.12.
8
Dupree, 284 Mich App at 104 (opinion by M. J. KELLY, J.).

6
lead opinion listed five elements that would allow a defendant to raise a justification

defense to a felon-in-possession charge. 9 The Court held that each of the five elements

had been established in this case and that the instructional error was not harmless because

the trial court’s modified jury instruction effectively directed a guilty verdict on the

felon-in-possession charge. The dissenting Court of Appeals judge disagreed, concluding

that the instructional error was harmless and that the evidence did not support a jury

instruction on the justification defense.

9
The Court of Appeals stated:

[A] defendant may raise justification as a defense to being a felon-
in-possession by introducing evidence from which the jury could conclude
all the following:

(1) The defendant or another person was under an unlawful and
immediate threat that was sufficient to create in the mind of a reasonable
person the fear of death or serious bodily harm, and the threat actually
caused a fear of death or serious bodily harm in the mind of the defendant
at the time of the possession of the firearm.

(2) The defendant did not recklessly or negligently place himself or
herself in a situation where he or she would be forced to engage in criminal
conduct.

(3) The defendant had no reasonable legal alternative to taking
possession, that is, a chance to both refuse to take possession and also to
avoid the threatened harm.

(4) The defendant took possession to avoid the threatened harm, that
is, there was a direct causal relationship between the defendant's criminal
action and the avoidance of the threatened harm.

(5) The defendant terminated his or her possession at the earliest
possible opportunity once the danger had passed. [Id. at 107-108.]

7
 The prosecution then applied for leave to appeal in this Court. We granted the

application and directed the parties to address whether any of the traditional common law

affirmative defenses of self-defense, necessity, or duress are available for the charge of

being a felon in possession, MCL 750.224f, and, if so, whether the defendant has the

burden of proof to establish the defense. 10

II. STANDARD OF REVIEW

Whether common law affirmative defenses are available for a statutory crime and,

if so, where the burden of proof lies are questions of law. This Court reviews questions

of law de novo. People v Thompson, 477 Mich 146, 151; 730 NW2d 708 (2007). We

review a claim of instructional error involving a question of law de novo, but we review

the trial court’s determination that a jury instruction applies to the facts of the case for an

abuse of discretion. People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006). The

defendant bears the burden of establishing that the asserted instructional error resulted in

a miscarriage of justice. MCL 769.26; People v Lukity, 460 Mich 484, 493-494; 596

NW2d 607 (1999).

III. ANALYSIS

The preliminary issue in this case is whether the prosecution or defendant properly

raised and preserved the traditional common law affirmative defenses of self-defense and

duress before the trial court. Although the Court of Appeals analyzed the availability of

both affirmative defenses in its decision and the parties addressed both defenses in their

10
People v Dupree, 485 Mich 916 (2009).

8
arguments before this Court, our review is necessarily limited by the specific issue

preserved below. We have “long recognized the importance of preserving issues for the

purpose of appellate review.” People v Grant, 445 Mich 535, 546; 520 NW2d 123

(1994); see also People v Brott, 163 Mich 150, 152; 128 NW 236 (1910) (“This court has

often held that it will not review questions that have not been raised in the trial court, and

such is the rule according to the great weight of authority.”). In accordance with the

general rule of issue preservation, “issues that are not properly raised before a trial court

cannot be raised on appeal absent compelling or extraordinary circumstances.” Grant,

445 Mich at 546.

After thoroughly reviewing the record, we conclude that neither defendant nor the

prosecution properly raised the affirmative defense of duress before the trial court.

Defendant did not present evidence that pertained to the affirmative defense of duress or

otherwise assert its availability for the charge of felon-in-possession. Similarly, the

prosecution failed to interpose any issue concerning duress or its attendant burden of

proof at trial. It appears that defendant first injected the issue of duress in the Court of

Appeals. The prosecution seized on the issue in this Court, discussing duress extensively

in its brief and at oral argument. In light of these facts, we cannot conclude that the

parties preserved the issue of duress.

However, we conclude that defendant properly raised the common law affirmative

defense of self-defense before the trial court. Defendant’s theory of the case was that he

did not assault Horton, but acted in self-defense in response to Reeves’s actions.

Defendant introduced testimony to support his self-defense theory at trial, which the

9
prosecutor attempted to discredit. Further, defendant requested a standard self-defense

jury instruction for all charges. The prosecutor did not object to defendant’s request for a

self-defense jury instruction. Consequently, we agree with the Court of Appeals to the

extent that it concluded that self-defense is generally available for a felon-in-possession

charge because defendant preserved the issue of self-defense for appellate review. 11

The felon-in-possession statute, MCL 750.224f, places defendants in two distinct

categories. People v Perkins, 473 Mich 626, 630; 703 NW2d 448 (2005). 12 The

statutory prohibition is identical for defendants in either category. MCL 750.224f

provides that both categories of defendants “shall not possess, use, transport, sell,

purchase, carry, ship, receive, or distribute a firearm in this state” until a series of

requirements is fulfilled. The statute does not address the availability of common law

affirmative defenses, including self-defense.

11
An affirmative defense admits the crime but seeks to excuse or justify its
commission. It does not negate specific elements of the crime. People v Lemons, 454
Mich 234, 246 n 15; 562 NW2d 447 (1997); see also People v Pegenau, 447 Mich 278,
319; 523 NW2d 325 (1994) (BOYLE, J.) (“[A]n affirmative defense in effect concedes the
facial criminality of the conduct and presents a claim of justification or excuse . . . .”).
12
The Perkins Court explained:

The first category consists of persons convicted of a “felony.” These
persons regain their right to possess a firearm three years after paying all
fines imposed for their violations, serving all jail time imposed, and
successfully completing all conditions of parole or probation. MCL
750.224f(1). The second category consists of persons convicted of a
“specified felony.” These persons must wait five years after completing the
same requirements and, moreover, must have their right to possess a
firearm restored. MCL 750.224f(2). [Perkins, 473 Mich at 630-631.]

In this case, the parties stipulated that defendant had been convicted of a
“specified felony” under MCL 750.224f(2).
10
 The Legislature’s failure to provide explicitly for the common law affirmative

defense of self-defense does not foreclose defendants from relying on it to justify a

violation of MCL 750.224f. It is axiomatic that the common law affirmative defense of

self-defense is embedded in our criminal jurisprudence. 13 Historically, in cases in which

the statutory provision did not squarely resolve the issue before this Court, we have

applied the common law, presuming that the Legislature enacted statutes mindful of those

aspects of common law that have become “firmly embedded in our jurisprudence . . . .” 14

More recently, the United States Supreme Court recognized the interrelated nature of

criminal statutes and the common law, stating that legislative bodies enact criminal

statutes “against a background of Anglo-Saxon common law . . . .” 15 We find this

rationale instructive. Absent some clear indication that the Legislature abrogated or

modified the traditional common law affirmative defense of self-defense for the felon-in-

possession charge in MCL 750.224f or elsewhere in the Michigan Penal Code, we

13
See, e.g., People v Coughlin, 65 Mich 704; 32 NW 905 (1887).
14
Garwols v Bankers Trust Co, 251 Mich 420, 424; 232 NW 239 (1930); see also
Const 1963, art 3, § 7 (“The common law and the statute laws now in force, not
repugnant to this constitution, shall remain in force until they expire by their own
limitations, or are changed, amended or repealed.”).
15
United States v Bailey, 444 US 394, 415 n 11; 100 S Ct 624; 62 L Ed 2d 575
(1980). In Bailey, the trial court refused the defendants’ requests for jury instructions on
the common law defenses of duress and necessity in their prosecutions for escaping a
federal prison. The majority of the Court concluded that the facts presented were
insufficient to support the defenses. Significantly, however, all members of the Supreme
Court agreed that the common law affirmative defenses could be asserted against the
charged offense even though the statute did not specifically provide for it.

11
presume that the affirmative defense of self-defense remains available to defendants if

supported by sufficient evidence.

Our conclusion that self-defense remains an available defense is reinforced by our

canvass of authorities elsewhere. Among the states that have addressed whether self-

defense is an available defense to a statutory prohibition against felons possessing

firearms, most other jurisdictions have concluded that self-defense is an available

defense. The Tennessee Supreme Court, for example, acknowledged the availability of

self-defense as one potential affirmative defense to the charge of being a felon in

possession. See State v Bledsoe, 226 SW3d 349, 357 n 7 (Tenn, 2007). Similarly, the

Indiana Court of Appeals concluded that

Indiana’s prohibition against a felon possessing a firearm was not intended
to affect his or her right to use a firearm in self-defense, but was intended
only to prohibit members of the affected classes from arming themselves
with firearms or having such weapons in their custody or control in
circumstances other than those in which the right to use deadly force in
self-defense exists or reasonably appears to exists. [Harmon v State, 849
NE2d 726, 734 (Ind App, 2006).]

The Minnesota Supreme Court also recognized the availability of self-defense for the

charge of felon-in-possession but stated that “the closer questions are whether the

defendant, even if justified in wresting the gun away from [a dangerous aggressor],

continued his aggression beyond the limits of self-defense or his possession of the pistol

beyond justifiable possession.” State v Spaulding, 296 NW2d 870, 876 (Minn, 1980).

We agree with the weight of authority from our sister jurisdictions that self-defense is an

available defense to the charge of being a felon in possession if supported by sufficient

evidence.

12
 At common law, the affirmative defense of self-defense justifies otherwise

punishable criminal conduct, usually the killing of another person, “if the defendant

honestly and reasonably believes his life is in imminent danger or that there is a threat of

serious bodily harm and that it is necessary to exercise deadly force to prevent such harm

to himself.” 16 Generally,

[o]ne who is not the aggressor in an encounter is justified in using a
reasonable amount of force against his adversary when he reasonably
believes (a) that he is in immediate danger of unlawful bodily harm from
his adversary and (b) that the use of such force is necessary to avoid this
danger.[ 17]

“A finding that a defendant acted in justifiable self-defense necessarily requires a finding

that the defendant acted intentionally, but that the circumstances justified his actions.” 18

Professor LaFave articulated the rationale of the affirmative defense of self-defense:

It is only just that one who is unlawfully attacked by another, and
who has no opportunity to resort to the law for his defense, should be able
to take reasonable steps to defend himself from physical harm. When the
steps he takes are reasonable, he has a complete defense to such crimes
against the person as murder and manslaughter, attempted murder, assault
and battery and the aggravated forms of assault and battery, and perhaps
other crimes as well. His intentional infliction of (or, if he misses, his
attempt to inflict) physical harm upon the other, or his threat to inflict such
harm, is said to be justified when he acts in proper self-defense, so that he
is not guilty of any crime.[ 19]

16
People v Riddle, 467 Mich 116, 127; 649 NW2d 30 (2002).
17
2 LaFave, Substantive Criminal Law (2d ed), § 10.4, p 142.
18
People v Heflin, 434 Mich 482, 503; 456 NW2d 10 (1990).
19
2 LaFave, § 10.4(a), pp 143-144.

13
With the enactment of the Self-Defense Act (SDA), MCL 780.971 et seq., the Legislature

codified the circumstances in which a person may use deadly force in self-defense or in

defense of another person without having the duty to retreat. 20 However, the SDA did

not become effective until October 1, 2006, and the altercation in this case occurred on

September 11, 2005. Because the SDA does not retroactively apply to conduct that

occurred before its effective date, 21 the traditional common law affirmative defense of

self-defense in existence before the enactment of the SDA governs. 22

In this case, sufficient evidence supported a jury instruction on the common law

affirmative defense of self-defense. As the Court of Appeals succinctly observed,

“[defendant] presented evidence from which a jury could find—and apparently did

find—that he acted in self-defense when he struggled over the gun with Reeves and

ultimately shot Reeves three times.” 23 We agree that defendant introduced evidence from

which a jury could conclude that defendant’s criminal possession of the firearm was

justified because defendant honestly and reasonably believed that his life was in

imminent danger and that it was necessary for him to exercise force to protect himself.

Defendant testified that when he intervened after Reeves shoved defendant’s

sister-in-law off the porch, Reeves responded by grabbing defendant and pulling him off

20
See MCL 780.972.
21
People v Conyer, 281 Mich App 526, 531; 762 NW2d 198 (2008).
22
See MCL 780.973 (“[T]his act does not modify the common law of this state in
existence on October 1, 2006 regarding the duty to retreat before using deadly force or
force other than deadly force.”).
23
Dupree, 284 Mich App at 101 (opinion by M. J. KELLY, J.).

14
the porch. Defendant stated that as he and Reeves continued wrestling, he became aware

that Reeves had a gun. Further, defendant testified that he feared for his life because

Reeves was a large man, weighing approximately 300 pounds, and because Reeves was

intoxicated and armed. Defendant also testified that he and Reeves continued struggling

over the gun even after he shot Reeves three times. Defendant stated that he repeatedly

told Reeves “Just stop” and “Let me go” after Reeves said “I’m hit.” Additionally,

defendant testified that he retained possession of the gun after he and Reeves separated

and that he threw the gun from the window of his female companion’s vehicle once they

had driven some distance from the house. However, the testimony is unclear whether

Reeves remained in the vicinity of the house before defendant left the scene with his

female companion. The record is similarly unclear concerning at what point Reeves no

longer posed a threat to defendant, particularly because the testimony suggests that

Reeves continued to challenge defendant for possession of the gun even after he had been

shot three times. Under these facts, defendant introduced sufficient evidence from which

the jury could have concluded that defendant violated the felon-in-possession statute but

that his violation could be justified because he acted in self-defense.

Having concluded that the common law affirmative defense of self-defense may

be interposed in this felon-in-possession case, we also conclude that the prosecution bears

the burden of disproving the common law defense of self-defense beyond a reasonable

doubt. Stated another way, once the defendant injects the issue of self-defense and

satisfies the initial burden of producing some evidence from which a jury could conclude

that the elements necessary to establish a prima facie defense of self-defense exist, the

15
prosecution bears the burden of proof “‘to exclude the possibility that the killing was

done in self-defense . . . .’” 24 This allocation of the burden of proof is well settled in this

Court 25 and the Court of Appeals. 26 We discern no cogent reason to disrupt the

established burden of proof. Accordingly, we reaffirm that once the defendant satisfies

the initial burden of production, the prosecution bears the burden of disproving the

common law defense of self-defense beyond a reasonable doubt.

Finally, we conclude that the trial court’s jury instruction on the momentary

innocent possession defense was not harmless error. Defendant, therefore, is entitled to a

new trial on the felon-in-possession charge. Under MCL 769.26, a preserved

nonconstitutional error is not grounds for reversal unless, after an examination of the

entire cause, it affirmatively appears that it is more probable than not that the asserted

error was outcome determinative. 27 In this case, after instructing the jury sua sponte

24
People v Jackson, 390 Mich 621, 626; 212 NW2d 918 (1973), quoting People v
Stallworth, 364 Mich 528, 535; 111 NW2d 742 (1961) (“[O]nce the issue of self-defense
is injected and evidentially supported, ‘[t]he burden of proof to exclude the possibility
that the killing was done in self-defense, rests on the prosecution.’”).
25
See Coughlin, 65 Mich at 705 (“The charge made against respondent in this case
could not be made out unless the testimony should exclude the idea of self-defense
beyond a reasonable doubt. Consequently it was incumbent upon the people to show
such facts and circumstances as convinced the jury that the killing was not done in self-
defense.”).
26
See People v Pearson, 13 Mich App 371, 377; 164 NW2d 568 (1968) (“[It is]
the well-settled law of this State that in criminal cases where the issue of self-defense has
been raised, the burden of proof, beyond a reasonable doubt, still rests with the people,
and that the burden is not on defendant to satisfy the jury that he acted in self-defense, but
rather the people have the burden of showing facts that would convince a jury beyond a
reasonable doubt that defendant did not act in self-defense.”).
27
Lukity, 460 Mich at 495-496.
16
about “the necessity defense” to being a felon in possession from federal law, the trial

court rescinded that instruction and gave the jury a modified instruction on the now

defunct momentary innocent possession defense. 28 Over defense counsel’s objection, the

trial court instructed the jury that it could find defendant not guilty of being a felon in

possession if the jury found the following elements of the momentary innocent

possession defense:

And the elements to that are [first] that the defendant had the gun
because he had taken it from someone else who was in wrongful possession
of it, or he took it from him because of necessity, because he needed to.
Second, that the possession after taking the gun was brief. And third, that it
was the defendant’s intention to deliver the gun to the police at the earliest
possible time. [Emphasis added.]

The trial court clarified that this instruction replaced its prior instruction regarding “the

necessity defense” to being a felon in possession.

The Court of Appeals majority correctly ruled that the modified jury instruction

was not harmless. We presume that the jury followed the trial court’s instructions. 29

Under the trial court’s modified instruction on the momentary innocent possession

defense, the jury had no alternative but to find defendant guilty of being a felon in

possession because defendant proffered no evidence that he intended “to deliver the gun

to the police at the earliest possible time.” To the contrary, defendant testified that he

28
See Hernandez-Garcia, 477 Mich at 1039-1040 (affirming and adopting the
Court of Appeals’ holding that the trial court correctly instructed the jury that momentary
innocent possession of a concealed weapon is not a defense to a charge of unlawfully
carrying a concealed weapon).
29
See People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).

17
threw the gun from the window of his female companion’s vehicle after he was some

distance from the house. As a result, the modified jury instruction wholly negated

defendant’s theory of the case in regard to the felon-in-possession charge, namely that his

temporary possession of the gun was justified under the circumstances because defendant

had seized possession to protect himself during a struggle. “A criminal defendant is

entitled to have a properly instructed jury consider the evidence against him.” 30

Defendant did not have a properly instructed jury in this regard. After examining the

nature of the instructional error in light of the weight and strength of the untainted

evidence, it affirmatively appears more probable than not that the error was outcome

determinative. Accordingly, defendant is entitled to a new trial on the felon-in-

possession charge.

IV. CONCLUSION

Having necessarily limited our analysis to the specific issue properly raised and

preserved before the trial court, we conclude that the traditional common law affirmative

defense of self-defense is generally available to a defendant charged with being a felon in

possession if supported by sufficient evidence. We also conclude that self-defense was

available under the facts of this case. Once a defendant satisfies the initial burden of

producing some evidence from which a jury could conclude that the elements necessary

to establish a prima facie defense of self-defense exist, the prosecution bears the burden

of disproving the affirmative defense of self-defense beyond a reasonable doubt. Finally,

30
Riddle, 467 Mich at 124.

18
we hold that the trial court’s modified jury instruction on the momentary innocent

possession defense to being a felon in possession was not harmless error. Consequently,

we affirm the Court of Appeals’ result and remand for further proceedings consistent

with this opinion.

WEAVER, YOUNG, MARKMAN, and HATHAWAY, JJ., concurred with CORRIGAN, J.

19
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 139396

ROBERTO MARCHELLO DUPREE,

Defendant-Appellee.

CAVANAGH, J. (concurring in part and dissenting in part).

I concur in the result only. I agree that common-law self defense is a valid

defense to a charge of being a felon in possession of a firearm, MCL 750.224f. I also

agree that once a defendant properly raises the defense, the prosecution bears the burden

of disproving self-defense beyond a reasonable doubt. Finally, I agree that the trial

court’s erroneous jury instruction was not harmless error. I write separately because I

disagree that the affirmative defense of duress is not properly before this Court. Indeed,

the record belies the majority’s claim that “[d]efendant did not present evidence that

pertained to the affirmative defense of duress . . . .” Ante at 9.

To properly raise a duress defense, the defendant bears the burden of producing

“‘some evidence from which the jury can conclude that the essential elements of duress

are present.’” People v Lemons, 454 Mich 234, 246; 562 NW2d 447 (1997) (citation

omitted). To satisfy the burden of production, a defendant must produce some evidence

from which the jury could conclude the following:
 “A) The threatening conduct was sufficient to create in the mind of a
reasonable person the fear of death or serious bodily harm;

“B) The conduct in fact caused such fear of death or serious bodily
harm in the mind of the defendant;

“C) The fear or duress was operating upon the mind of the defendant
at the time of the alleged act; and

“D) The defendant committed the act to avoid the threatened harm.”
[Id. at 247 (citation omitted).]

I agree with the Court of Appeals concurrence that “[a]lthough defendant in the

instant case labeled his defense ‘self-defense’ rather than ‘duress,’ he unquestionably

presented to the jury a scenario entirely consistent with a classic duress defense.” People

v Dupree, 284 Mich App 89, 113; 771 NW2d 470 (2009) (GLEICHER, J., concurring). As

the majority acknowledges, defendant testified that Damond Reeves, a 300-pound, highly

inebriated man with a gun, pushed defendant and then began wrestling with him. During

the struggle, defendant became aware that Reeves possessed a gun, and defendant

testified that he feared for his life. Defendant also testified that Reeves reached for his

gun during the struggle and that he shot Reeves as they struggled over the gun. Finally,

defendant testified that Reeves continued to attempt to take the gun from defendant even

after defendant shot Reeves three times, despite the fact that defendant repeatedly told

Reeves to “Just stop” and “Let me go.” In my view, this account is a textbook example

of a factual scenario from which a jury could conclude that the essential elements of

duress were present.

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 Furthermore, I agree with the Court of Appeals concurrence that the trial court

essentially instructed the jury on the duress defense when the court stated the following in

its initial jury instruction:

“As to being a felon in possession, [Dupree] claims that the gun was
produced in a struggle. And of course, if that’s the case that the gun was
produced during the course of a struggle and you find that it happened that
way, that would be a defense to felon in possession provided you find that
he did not keep the gun in his possession any longer than necessary to
defend himself.” [Id. at 114.]

Thus, I disagree with the majority’s conclusion that the issues related to the duress

defense are not properly before this Court. I nonetheless concur because the result is the

same given that the majority correctly holds that defendant is entitled to a new trial.

KELLY, C.J., concurred with CAVANAGH, J.

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