People v. Perkins

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 29, 2005
PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 126727

DAVID MICHAEL PERKINS,

Defendant-Appellant.
_______________________________

BEFORE THE ENTIRE BENCH

PER CURIAM

We granted leave in this case to consider two issues

involving MCL 750.224f, which sets forth restrictions

concerning the possession1 of firearms by persons having

been convicted of a felony. The first is whether larceny

from the person is a “specified felony” for the purposes of

MCL 750.224f(6)(i), thus subjecting defendant to more

stringent requirements in order to regain his right to

possess a firearm. We conclude that larceny from the

1
Although we mention only possession in this opinion,
MCL 750.224f does not pertain only to the possession of
firearms, but also to the use, transportation, sale,
purchase, carrying, shipping, receiving, or distribution of
firearms.
person involves a substantial risk that force will be used

during its commission and, therefore, hold that it is a

specified felony.

The second issue is whether the prosecution is always

required to show that a person convicted of a specified

felony has not had his or her right to possess a firearm

restored pursuant to MCL 750.224(2)(b), or whether the

prosecution’s burden to disprove restoration only arises if

the defendant first introduces evidence that the

defendant’s right to possess a firearm has been restored.

We conclude, on the basis of MCL 776.20 and People v

Henderson, 391 Mich 612, 616; 218 NW2d 2 (1974), that the

defendant has the burden of producing evidence to establish

that his or her right to possess a firearm has been

restored. Once the defendant meets this burden of

production, the prosecution bears the burden of persuasion

beyond a reasonable doubt. In this case, defendant failed

to produce evidence that his firearm rights were restored,

and the prosecution thus was not required to prove the lack

of restoration. Accordingly, we affirm the judgment of the

Court of Appeals.

I. FACTS AND PROCEDURAL HISTORY

In 1977, defendant David M. Perkins was convicted of

the felony offense of larceny from the person in violation

of MCL 750.357. In 2001, Perkins was involved in an
2

altercation where he pointed a gun at another person, and,

in the subsequent struggle, the gun discharged. As a

result, Perkins was charged with, among other things,2 being

a felon in possession of a firearm (felon in possession) in

violation of MCL 750.224f(2). This statute makes it a

crime for a person who has been convicted of a “specified

felony”-one that either involves a substantial risk of, or

contains as an element the threatened, attempted, or actual

use of, physical force against a person or property–to

possess a firearm until that person has had the right to

possess a firearm restored pursuant to MCL 28.424 and

fulfilled certain other requirements.

The trial court, after a bench trial, concluded that

the 1977 conviction for larceny from the person was a

specified felony and, thus, MCL 750.224f(2) could apply to

Perkins. Moreover, the court construed the statute as

requiring the prosecution to prove that Perkins’s right to

possess a firearm had not been restored only if Perkins

first affirmatively produced evidence that his right to

possess had been restored by a proper concealed weapons

licensing board. Therefore, the trial court convicted

2
Defendant was also charged with felonious assault in
violation of MCL 750.82, and possession of a firearm while
committing or attempting to commit a felony in violation of
MCL 750.227b. These charges are not at issue in this
appeal.

3

Perkins of the offense because he had not produced any such

evidence, thus relieving the prosecution of the burden of

proving that Perkins’s right to possession had not been

restored.

The Court of Appeals affirmed.3 It concluded that

larceny from the person constitutes a specified felony

within the meaning of MCL 750.224f, and that a defendant

must present evidence of a claimed restoration of the right

to possess a firearm before the prosecution’s burden of

proving a lack of restoration arises.

We granted defendant’s application for leave to

appeal.4

II. STANDARD OF REVIEW

This case involves issues of statutory construction.

These are issues of law that we review de novo. People v

Koonce, 466 Mich 515, 518; 648 NW2d 153 (2002). When

interpreting statutes, our goal is to give effect to the

intent of the Legislature by reviewing the plain language

of the statute. Id.

III. LARCENY FROM THE PERSON IS A “SPECIFIED FELONY”

3
People v Perkins, 262 Mich App 267; 686 NW2d 237
(2004).
4
471 Mich 914 (2004).

4

MCL 750.224f5 places felons in two different

5
This statute provides, in part:

(1) Except as provided in subsection (2), a
person convicted of a felony shall not possess,
use, transport, sell, purchase, carry, ship,
receive, or distribute a firearm in this state
until the expiration of 3 years after all of the
following circumstances exist:

(a) The person has paid all fines imposed
for the violation.

(b) The person has served all terms of
imprisonment imposed for the violation.

(c) The person has successfully completed
all conditions of probation or parole imposed for
the violation.

(2) A person convicted of a specified felony
shall not possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a
firearm in this state until all of the following
circumstances exist:

(a) The expiration of 5 years after all of
the following circumstances exist:

(i) The person has paid all fines imposed
for the violation.

(ii) The person has served all terms of
imprisonment imposed for the violation.

(iii) The person has successfully completed
all conditions of probation or parole imposed for
the violation.

(b) The person’s right to possess, use,
transport, sell, purchase, carry, ship, receive,
or distribute a firearm has been restored
pursuant to section 4 of Act No. 372 of the
Public Acts of 1927, being section 28.424 of the
Michigan Compiled Laws.

5

categories. 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).

The term “specified felony” is defined in MCL

750.224f(6), which provides:

As used in subsection (2), “specified
felony” means a felony in which 1 or more of the
following circumstances exist:

(i) An element of that felony is the use,
attempted use, or threatened use of physical
force against the person or property of another,
or that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course of
committing the offense.

(ii) An element of that felony is the
unlawful manufacture, possession, importation,
exportation, distribution, or dispensing of a
controlled substance.

(iii) An element of that felony is the
unlawful possession or distribution of a firearm.

(iv) An element of that felony is the
unlawful use of an explosive.

6

 (v) The felony is burglary of an occupied
dwelling, or breaking and entering an occupied
dwelling, or arson. [Emphasis added.]

The prosecution in this case has neither alleged that

an element of larceny from the person is “the use,

attempted use, or threatened use of physical force against

the person or property of another,” MCL 750.224f(6)(i), nor

that any of the criteria in subsections ii through v apply

in this case. Therefore, the inquiry is whether larceny

from the person is a crime that “by its nature, involves a

substantial risk that physical force against the person or

property of another may be used in the course of committing

the offense.” We hold that it does.

The crime of larceny from the person consists of a

larceny effectuated by “stealing from the person of

another.”6 The defendant acknowledges that there is a risk

of force inherent in the crime of larceny from the person

because of the potential for the victim to notice the

taking of his or her personal property and use force to

prevent it.7 However, he claims that such a risk is not

substantial. We disagree.

6
MCL 750.357.
7
At oral argument, defense counsel stated, “I
certainly don’t dispute that there’s a risk in any larceny
from a person because of the requirement that the larceny
has to occur either from the person or near the person,
there is a risk. . . . As I said, there is always a risk,
(continued…)
7
 “Substantial” is defined as “of ample or considerable

amount, quantity, size, etc.” Random House Webster’s

College Dictionary (1995). Therefore, the issue is whether

larceny from the person by its nature involves a

substantial or considerable risk that physical force will

be used. We believe that it does. In order to commit a

larceny from the person, the defendant must steal something

from a person in that person’s presence. That is, the

victim must be present when the defendant steals something

from the victim. Unless the victim submits to the theft or

does not notice the theft, physical force will almost

certainly be used in response.8 As the Court of Appeals

explained:

(…continued)

and nobody could deny there is always a risk in larceny

from a person that violence may occur.”

8
Justice Cavanagh posits that “every felony” involves
a risk of force. Post at 2 However, Justice Cavanagh
fails fully to appreciate that not all felonies require the
defendant to steal something from the victim’s presence.
Because a defendant must steal something from the victim’s
presence in order to commit a larceny from the person, a
larceny from the person does not just pose a risk of force,
it poses a substantial risk of force.

Justice Cavanagh also contends that, if detected, a
perpetrator could “choose to avoid confrontation if it
becomes apparent that force or the threat of force must be
used to complete the intended act.” Post at 3. However,
if the perpetrator chooses to abandon the attempt to steal
the property from the victim once detected, the perpetrator
has not committed a larceny from the person. In order to
commit a larceny from the person, the perpetrator would, in
(continued…)
8
 [T]he offense of larceny from a person is
separated from other larceny offenses because it
is committed in the immediate presence of another
person. The “Legislature decided that larceny
from a person presents a social problem separate
and apart from simple larceny.” Specifically,
“the invasion of the person or immediate presence
of the victim.” Because a person whose property
is stolen from his presence may take steps to
retain possession, and the offender may react
violently, we conclude that the offense of
larceny from a person, “by its nature, involves a
substantial risk that physical force against the
person or property of another may be used in the
course of committing the offense.” We therefore
hold that larceny from a person is a specified
felony within the meaning of MCL 750.224f.
[Perkins, supra at 272 (citations omitted;
emphasis in the original).]

That the Legislature has recognized that larceny from

the person involves a substantial risk of physical force is

demonstrated by the different punishments that it has

chosen to impose for larceny9 and larceny from the person.

If a defendant10 steals property from another outside the

person’s presence and the property is worth less than

$1,000, the defendant is only guilty of a misdemeanor. MCL

(…continued)
all likelihood, have to use force or the threat of force to
steal the property from the victim. Therefore, a larceny
from the person involves more than a “mere potential” of
force or threat of force; post at 2, rather, it involves a
“substantial” risk of force or threat of force.
9
A larceny is committed when one steals the property
of another outside the person’s presence. MCL 750.356.
10
All of the following hypothetical examples involve a
defendant who does not have any prior larceny convictions.

9

750.356(4)(a).11 If the property is worth less than $200,

the defendant cannot be imprisoned for more than ninety-

three days. MCL 750.356(5).12 On the other hand, if the

same defendant steals the same property directly from the

person, the defendant can be imprisoned for ten years. A

defendant who steals property from a person outside the

person’s presence can only face a ten-year sentence if the

property is worth $20,000 or more. MCL 750.356(2)(a).

That the Legislature has chosen to subject a defendant who

steals property from a person in that person’s presence to

a ten-year sentence, regardless of the value of the

property, and has chosen to subject a defendant who steals

property worth less than $200 from a person outside that

person’s presence to a ninety-three-day sentence

demonstrates that the Legislature recognized the

substantial risk of force that is involved when one steals

something from somebody’s person, a risk that is absent

when one steals something outside the person’s presence.13

11
A defendant who steals property from another outside
the person’s presence is only guilty of a felony if the
property is worth $1,000 or more. MCL 750.356(2)(a) and
(3)(a).
12
If the property is worth $200 or more, but less than
$1,000, the defendant cannot be imprisoned for more than
one year. MCL 750.356(4)(a).
13
Although it is not necessary to our analysis, we
note that the federal courts have held that larceny from
(continued…)
10
 Therefore, we hold that larceny from the person is a

“specified felony” under MCL 750.224f(6)(i).

IV. THE DEFENDANT BEARS THE BURDEN OF PRODUCING EVIDENCE THAT THE

DEFENDANT’S FIREARM RIGHTS HAVE BEEN RESTORED

Subsection 2 of the felon-in-possession statute

prohibits a person convicted of a specified felony from

possessing a firearm “until” certain conditions are

satisfied. MCL 750.224f(2). One of the conditions set

forth in the statute is that the defendant’s right to

possess a firearm must have been legally restored.

MCL 750.224f(2) provides:

A
person convicted of a specified felony
shall not possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a
firearm in this state until all of the following
circumstances exist:

(a) The expiration of 5 years after all of
the following circumstances exist:

(i) The person has paid all fines imposed
for the violation.

(ii) The person has served all terms of
imprisonment imposed for the violation.

(iii) The person has successfully completed
all conditions of probation or parole imposed for
the violation.

(…continued)
the person is a “crime of violence” for the purpose of the
federal sentencing guidelines, which define a crime of
violence as a crime that “involves conduct that presents a
serious potential risk of physical injury to another.”
USSG 4B1.2(a)(2); United States v Payne, 163 F3d 371, 375
(CA 6, 1998).

11

 (b) The person’s right to possess, use,
transport, sell, purchase, carry, ship, receive,
or distribute a firearm has been restored
pursuant to section 4 of Act No. 372 of the
Public Acts of 1927, being section 28.424 of the
Michigan Compiled Laws. [Emphasis added.]

Thus, the statute provides that a person convicted of

a specified felony may not possess a firearm “until” all

the listed circumstances exist. Specifically, the felon

may not possess a firearm “until” (1) five years have

expired from the payment of all fines, the service of all

terms of imprisonment, and the successful completion of all

conditions of probation or parole, and (2) the person’s

right to possess a firearm has been restored. In this

case, as noted in our discussion of the first issue, the

prosecution established that the defendant was convicted of

a specified felony and that he possessed a firearm.

The question remains, however, whether the prosecution

must prove that the defendant’s possession of the firearm

occurred before the restoration of firearm rights where, as

here, the defendant produced no evidence that his firearm

rights had been restored. In answering this question, we

must consider MCL 776.20, which states:

In any prosecution for the violation of any
acts of the state relative to use, licensing and
possession of pistols or firearms, the burden of
establishing any exception, excuse, proviso or
exemption contained in any such act shall be upon
the defendant but this does not shift the burden
of proof for the violation.
12
 It appears that the Legislature enacted this statute

in response to People v Schrader, 10 Mich App 211, 217; 159

NW2d 147 (1968). In People v Jiminez, 27 Mich App 633,

635; 183 NW2d 853 (1970), the Court of Appeals stated:

Prior to 1968, we would have given serious
consideration to such an objection. People v
Schrader (1968), 10 Mich App 211. However, in
that year, the legislature took notice of our
decisions holding that it was the burden of the
prosecutor to prove that the defendant did not
come within a statutory exception. The
legislature responded by enacting a law [MCL
776.20] which held that, in trials for carrying
concealed weapons, the burden is on the defendant
to show that he comes within one of the
exemptions.[14]

The broad language used in MCL 776.20 plainly extends

to the felon-in-possession statute, MCL 750.224f, because

it is a statute regarding the use, licensing, and

possession of firearms. We must therefore give effect to

the plain language of MCL 776.20 requiring the defendant to

establish “any” exception, excuse, proviso, or exemption

14
We disagree with Justice Kelly’s assertion that MCL
776.20 cannot alter what the prosecution has to prove in
order to obtain a conviction under MCL 750.224f. Post at
18. The Legislature has the authority to change the law if
it wishes, and this is what it did by enacting MCL 776.20.
After its enactment, MCL 776.20 was controlling.
Moreover, contrary to Justice Kelly’s statements, MCL
776.20 never altered MCL 750.224f because it predated it.
This fact also undercuts Justice Kelly’s rule of lenity and
due process arguments because, when enacted, MCL 750.224f
had to be read as fitting into the legal context already
created by MCL 776.20.

13

contained in any statute “relative to use, licensing and

possession” of firearms.

In applying the text of MCL 776.20, we adhere to this

Court’s interpretation in Henderson. In Henderson, this

Court considered the effect of MCL 776.20 in a prosecution

for carrying a pistol in a motor vehicle in violation of

MCL 750.227. The issue was whether the prosecution or the

defendant bore the burden of establishing whether the

defendant had a license to carry a pistol. After

considering the text of MCL 776.20, this Court concluded

that the defendant bore the burden of producing evidence

regarding licensure, while the prosecution bore the

ultimate burden of persuasion.15 Specifically, the

Henderson Court stated:

Accordingly, we hold that upon a showing
that a defendant has carried a pistol in a
vehicle operated or occupied by him, [a] prima
facie case of violation of the statute has been
made out. Upon the establishment of such a prima
facie case, the defendant has the burden of
injecting the issue of license by offering some
proof–not necessarily by official record—that he
has been so licensed. The people thereupon are
obliged to establish the contrary beyond a
reasonable doubt. [Henderson, supra at 616
(emphasis added).]

15
Justice Kelly asserts that Henderson “cannot be
correct” because it would mean that there are only two, not
three, elements to the crime of carrying a concealed weapon
in a vehicle. Post at 21-22. We are puzzled by this
argument because we know of no requirement for a minimum,
or a maximum, number of elements.

14

 The interpretation set forth in Henderson accords with

the well-established principle that “[c]ourts must give

effect to every word, phrase, and clause in a statute, and

must avoid an interpretation that would render any part of

the statute surplusage or nugatory.” Koontz v Ameritech

Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). The

Henderson Court gave effect to the entirety of MCL 776.20.

By recognizing that the defendant bore the burden of

producing or going forward with evidence that he was

licensed, the Henderson Court gave effect to the statutory

phrase “the burden of establishing any exception, excuse,

proviso or exemption contained in any such act shall be

upon the defendant . . . .” And by concluding that the

prosecution bore the ultimate burden of persuasion beyond a

reasonable doubt, the Henderson Court avoided rendering

nugatory the phrase “but this does not shift the burden of

proof for the violation.”16

We thus adhere to the framework established in

Henderson. Like the firearms offense considered in

16
While it is not necessary to our analysis, we note
that the majority of courts in other states that have
considered this issue has similarly allocated at least the
burden of production regarding the lack of license to the
defendant. See Anno: Burden of proof as to lack of license
in criminal prosecution for carrying or possession of
weapon without license, 69 ALR3d 1054.

15

Henderson, the offense of felon in possession falls within

the strictures of MCL 776.20 requiring the defendant to

establish “any exception, excuse, proviso or exemption

. . . .” We may consult dictionary definitions of terms

that are not defined in a statute. Koontz, supra at 312.

The dictionary definition of the term “proviso” is

instructive. A “proviso” is “an article or clause that

introduces a condition: stipulation.” Webster’s Seventh

New Collegiate Dictionary (1967). MCL 750.224f(2) contains

a clause that introduces conditions that must be met before

a person convicted of a specified felony may possess a

firearm. Specifically, the five-year period from the

specified events described in the statute must have

expired, and the felon’s firearm rights must have been

restored. Until those conditions are satisfied, the felon

may not possess a firearm.

We conclude that the felon-in-possession statute

contains a proviso. Thus, we are bound to follow the plain

language of MCL 776.20 and the analytic approach

established in Henderson.

Defendant here produced no evidence to establish that

his right to possess a firearm had been restored. Because

defendant failed to meet his burden of production, the

prosecution was not required to prove the lack of

16

restoration of firearm rights beyond a reasonable doubt.

MCL 776.20; Henderson, supra at 616.

V. CONCLUSION

We conclude that larceny from the person is a crime

that carries a substantial risk that physical force will be

used or threatened against another. Therefore, we agree

with the Court of Appeals that it qualifies as a specified

felony under MCL 750.224f(6)(i).

Also, a defendant bears the burden of producing

evidence to establish that his or her right to possess a

firearm has been restored, in light of MCL 776.20 and this

Court’s decision in Henderson. Because defendant failed

to meet his burden of production in this case, the

prosecution was not required to prove the lack of

restoration of firearm rights beyond a reasonable doubt.

Accordingly, we affirm the judgment of the Court of

Appeals.

Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

17

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 126727

DAVID MICHAEL PERKINS,

Defendant-Appellant.
_______________________________

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

We granted leave to appeal in this case to address two

questions: (1) whether larceny from a person is a

“specified felony” for the purposes of MCL 750.224f(6)(i)

and (2) whether, under MCL 750.224f(2)(b), the lack of

restoration of the right to possess a firearm is an element

of the offense. 471 Mich 914 (2004).

With regard to the first question, I believe that

larceny from a person is a specified felony. Therefore, I

concur in the result of the majority opinion on this issue.

With respect to the second question, I believe that the

lack of restoration of the right to possess a firearm is an

element of the offense of felon in possession (possession

of a firearm by someone convicted of a felony).

Accordingly, I would hold that, to secure a conviction, the

prosecution must show the lack of restoration of that
right. MCL 750.224f. Consequently, I dissent from the

portion of the majority opinion dealing with that issue.

I would affirm in part the decision of the Court of

Appeals, reverse it in part, and vacate defendant’s

convictions and sentences.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

Defendant was arrested after a dispute involving a

firearm. He was charged with felonious assault,1 felon in

possession,2 and possession of a firearm when committing or

attempting to commit a felony (felony-firearm).3

The court acquitted him of the assault charge,

concluding that, at the time of the offense, he was too

intoxicated to formulate the intent necessary for the

crime. Defendant stipulated that he had been convicted in

1977 of larceny from a person. MCL 750.357. The court

convicted him of the two firearm charges. It ruled that

defendant’s admissions of the 1977 felony conviction and of

possessing a firearm provided sufficient evidence to

convict him of the offense of felon in possession.

1
MCL 750.82.
2
MCL 750.224f.
3
MCL 750.227b.

2

 On appeal, the Court of Appeals affirmed4 the trial

court’s rulings stating: “The prosecutor must prove that

the defendant’s right to possess a firearm has not been

restored only if the defendant produces some evidence that

his right has been restored.” Id. at 271. It also

concluded that larceny from a person constitutes a

specified felony within the meaning of MCL 750.224f. It

reasoned:

Because a person whose property is stolen
from his presence may take steps to retain
possession, and the offender may react violently,
we conclude that the offense of larceny from a
person, “by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course of
committing the offense.” [Id. at 272, quoting
MCL 750.224f(6)(i) (emphasis in original).]

We granted leave to appeal.

II. FELONIES AND SPECIFIED FELONIES

Both questions before this Court involve issues of

statutory construction. Hence, we review them de novo.

People v Kimble, 470 Mich 305, 308-309; 684 NW2d 669

(2004). The first question is whether larceny from a

person is a specified felony under the felon-in-possession

statute. MCL 750.224f.

4
People v Perkins, 262 Mich App 267; 686 NW2d 237
(2004).

3

 The statute divides felonies into two types,

“felonies” and “specified felonies.” A person convicted of

a “felony” can legally possess a firearm three years after

(a) completing all terms of imprisonment imposed for the

violation, (b) paying all fines imposed for the violation,

and (c) completing all conditions of probation or parole.

MCL 750.224f(1).

A person convicted of a “specified felony” must

satisfy the same requirements and must obtain restoration

of the right to possess a firearm pursuant to MCL 28.424.

Also, the person must wait five years after completion of

the statutory requirements, as compared to three years for

other felonies.

The Legislature defines “specified felony” in MCL

750.224f(6). It provides:

As used in subsection (2), “specified
felony” means a felony in which 1 or more of the
following circumstances exist:

(i) An element of that felony is the use,
attempted use, or threatened use of physical
force against the person or property of another,
or that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course of
committing the offense.

(ii) An element of that felony is the
unlawful manufacture, possession, importation,
exportation, distribution, or dispensing of a
controlled substance.

(iii) An element of that felony is the
unlawful possession or distribution of a firearm.
4
 (iv) An element of that felony is the
unlawful use of an explosive.

(v) The felony is burglary of an occupied
dwelling, or breaking and entering an occupied
dwelling, or arson. [Emphasis added.]

All parties agree that subsections ii through v do not

apply to this case. Therefore, to constitute a specified

felony, defendant’s 1977 conviction of larceny from a

person must fall within the definition in subsection i.

The use, attempted use, and threatened use of force

are not elements of larceny from a person. In fact, the

absence of force and the absence of the threat of force are

what distinguish larceny from a person from robbery.

People v Randolph, 466 Mich 532, 544; 648 NW2d 164 (2002).

But subsection i includes more crimes than just those

in which force is an element. It includes crimes that, by

their nature, involve a substantial risk of the use of

force.

III. A SUBSTANTIAL RISK OF FORCE

In this case, defense counsel conceded at oral

argument that larceny from a person involves a risk that

force will be used. However, he asserted that the risk is

not “substantial.”

“Substantial” is defined as “of ample or considerable

amount, quantity, size, etc.” Random House Webster’s

College Dictionary (2001). The question becomes whether,
5
during the commission of a larceny from a person, there is

an “ample or considerable amount” of risk that force will

be used.

The statute prohibiting larceny from a person

provides:

Any person who shall commit the offense of
larceny by stealing from the person of another
shall be guilty of a felony, punishable by
imprisonment in the state prison not more than 10
years. [MCL 750.357 (emphasis added).]

Hence, larceny from a person requires direct contact with

the victim. The perpetrator must take personal property

from the victim while it is in the victim’s possession.

This increases the risk that force will be used. A

perpetrator is obliged to use force or threaten the use of

force to obtain the property unless the victim willingly

submits to or remains ignorant of the theft.5 Larceny from

a person quickly evolves into robbery when force is

employed to complete the theft.

Physical force may be used during the commission of

many felonies, especially if the perpetrator is caught in

5
Justice Cavanagh argues that the perpetrator could
abort the attempt to obtain the property when it becomes
apparent that he may need to use or threaten force to
obtain the property. But if the perpetrator aborts the
attempt to obtain the property, larceny from a person will
not be committed. I center my analysis on what may occur
if the perpetrator does not abort the attempt. Under those
circumstances, I believe that the risk of force is
“substantial.”

6

the act. However, the risk that force will be used during

a larceny from a person is considerably greater than the

risk of force in many other felonies. This is because the

crime, by its nature, is often confrontational and always

involves the presence of the victim. Its perpetration

requires either direct contact with or the actual presence

of the victim. Also, the risk of detection is heightened.

With an ample risk of confrontation and detection comes an

ample risk of the use or threatened use of force to

complete the crime.6 Therefore, larceny from a person

involves a “substantial” risk of the use or threat of

physical force.

Additionally, the very structure of the larceny

statute, when compared with the larceny-from-a-person

statute, supports a conclusion that the Legislature

recognized that larceny from a person involves a

substantial risk that force will be used. The general

larceny statute7 allocates punishment according to the value

of the property taken. For example, if the property is

6
Justice Cavanagh notes that almost every felony runs
some risk of the use of force. But his analysis does not
consider the fact that larceny from a person requires
contact with or the presence of the victim every time the
crime is committed. This distinguishes it from many
felonies that can be committed without the victim being in
harm’s way.
7
MCL 750.356.

7

valued at from $200 to $1,000, the thief is guilty of a

misdemeanor punishable by as much as one year in jail, a

$2,000 fine, or both. MCL 750.356(4). But if it has a

value of from $1,000 to $20,000, the crime is a felony

punishable by as much as five years’ imprisonment, a

$10,000 fine, or both. MCL 750.356(3).

This contrasts with larceny from a person, which

abandons a gradation of punishment. The defendant is

subject to a possible ten years in prison without regard to

the value of the property stolen. MCL 750.357.

The only difference between the crimes of larceny and

larceny from a person is the presence of the victim.

Without question, the possibility of harm to the victim is

greater if the property is taken from his person.

Consequently, it appears that the threat to the victim was

of greater concern to the Legislature than the loss of the

property, and hence, it provided a greater penalty for

larceny from a person.

The magnitude of the difference in penalties

demonstrates just how seriously the Legislature viewed the

risk of force against the victim of a larceny from a

person. If the value of the property taken in a normal

larceny is less than $200, the defendant is subject to no

more than ninety-three days in jail. But, if the defendant

takes that same property directly from a person, he is
8
guilty of a felony and subject to potentially ten years in

prison. MCL 750.356(5); MCL 750.357.

The only logical reason for the great difference in

penalties is that a significant danger exists that force

will be used, injuring the victim of a larceny from a

person. Therefore, the Legislature viewed that crime as

involving a substantial risk that physical force will be

employed against another. This qualifies it as a specified

felony under MCL 750.224f(6)(i).

IV. RESTORATION OF RIGHTS IS AN ELEMENT OF MCL 750.224f(2)

A. THE LANGUAGE AND STRUCTURE OF MCL 750.224f(2)

Section 2 of the felon-in-possession statute indicates

the circumstances under which a person convicted of a

specified felony may possess a firearm. MCL 750.224f(2).

One of the requirements contained in that statute is that

the defendant must have had his right to possess a firearm

legally restored.

But in this case, the prosecution argues that it need

not show that restoration has not occurred in order to

establish the elements of the crime. Rather, it asserts

that it is defendant who bears that burden. Neither the

9

language nor the structure of the statute supports the

prosecution’s contention.8

MCL 750.224f(2) provides:

A person convicted of a specified felony
shall not possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a
firearm in this state until all of the following
circumstances exist:

(a) The expiration of 5 years after all of
the following circumstances exist:

(i) The person has paid all fines imposed
for the violation.

(ii) The person has served all terms of
imprisonment imposed for the violation.

(iii) The person has successfully completed
all conditions of probation or parole imposed for
the violation.

(b) The person’s right to possess, use,
transport, sell, purchase, carry, ship, receive,
or distribute a firearm has been restored
pursuant to section 4 of Act No. 372 of the
Public Acts of 1927, being section 28.424 of the
Michigan Compiled Laws. [Emphasis added.]

8
I would hold that the prosecution must show the lack
of restoration contingent on its failure to show that (1)
five years have not passed since all fines were paid, (2)
five years have not passed since all jail time was served,
or (3) five years have not passed since the defendant
successfully completed all conditions of probation or
parole. The prosecution would have the option of carrying
its burden on only one of the four subparts of MCL
750.224f(2). Once it proves one of the four, it need not
go further. Therefore, I believe that the Legislature
intended the prosecution to choose which element of MCL
750.224f(2) to address. But the contingent nature of the
element should not change on whom the burdens of production
and persuasion lie.

10

 In interpreting MCL 750.224f(2), our goal is to give

effect to the Legislature’s intent. People v Koonce, 466

Mich 515, 518; 648 NW2d 153 (2002). We start with the

language of the statute itself. The language of MCL

750.224f(2) demonstrates a clear intent to include among

the prosecution’s proofs a showing that the right to

possess a firearm was not restored to the defendant.

B. CREATION OF AN EXCEPTION BY USE OF THE TERM “UNLESS”

The Legislature has demonstrated that it knows how to

create an exception, and it created one in subsection 4 of

the very statute in question. MCL 750.224f(4) provides:

This section does not apply to a conviction
that has been expunged or set aside, or for which
the person has been pardoned, unless the
expunction, order, or pardon expressly provides
that the person shall not possess a firearm.
[Emphasis added.]

By using the term “unless,” it demonstrated its intent

to create an exception.9 “Unless” is an exclusionary term.

By contrast, in subsection 2 of the felon-in-possession

statute, the Legislature chose not to use an exclusionary

term. Instead, it used the phrase “until all.”

9
The Legislature has repeatedly used the term “unless”
to create an exception in the Penal Code. Examples are:
MCL 750.14, MCL 750.42b(2), MCL 750.50(2)(g), MCL 750.51,
MCL 750.61, MCL 750.115(2), MCL 750.141, MCL 750.144, MCL
750.147a(1), MCL 750.197(3), and MCL 750.216.

11

 Looking at the definition of “until” helps demonstrate

that “until all” is an inclusive phrase. The definition is

“1. up to the time that or when; till. 2. before . . . 3.

onward to or till . . .” Random House Webster’s College

Dictionary (2001). Applying this definition to the

statute, the defendant is guilty of the offense of felon in

possession only if he (1) was convicted of a specified

offense and (2) possessed a firearm “before” (a) the

passage of five years from the time he paid all pertinent

fines, or he served his term, or he successfully completed

all conditions of probation or parole, or (b) his right to

possess a firearm was not restored. MCL 750.224f(2).

Therefore, to prove the crime, the prosecution must

demonstrate that the possession occurred “before” one of

the specified events. If the prosecution fails to prove

this, it has not met the burden created by the Legislature.

The result would be quite different had the

Legislature chosen to use an exclusionary term like

“unless.” “Unless” is defined as “1. except under the

circumstances that . . . 2. except; but; save[.]” Random

House Webster’s College Dictionary (2001).

Substituting this word into the statute would change

the statute’s meaning, so that the prosecution would need

to prove only that the defendant (1) had been convicted of

a specified offense and (2) possessed a firearm. The
12
defendant would be left to produce evidence that, more than

five years before, he had (1) paid all pertinent fines, (2)

served his term, (3) successfully completed all conditions

of probation and parole, and that (4) he currently had the

right to possess the firearm.

Hence, the difference in the burden of production on

the prosecution and on the defense is enormous depending on

whether “until” introduces an element or an exception.

Accordingly, we should assume that the decision to use

“until” rather than “unless” was carefully made.

We presuppose that the words the Legislature uses have

a purpose. And we should not speculate that it

inadvertently used one word or phrase when it intended

another. The chosen wording is presumed intentional.

Detroit v Redford Twp, 253 Mich 453, 456; 235 NW 217

(1931).

When writing this statute, the Legislature

demonstrated a clear knowledge of how to create an

exception, but it chose not to do so. Its use of the term

“until” is a strong indication that it intended the

restoration of rights to be a contingent element of the

offense.

Because the Legislature chose to use the term “until,”

the prosecution bears the burden of production for MCL

750.224f(2). Here the prosecution failed to present any
13
evidence that defendant’s right to possess a firearm had

not been restored. And it made no effort to show that any

of the three other factual circumstances listed in MCL

750.224f(2) had not occurred. Hence, it did not satisfy

its burden, and defendant’s convictions were in error.

C. MCL 776.20

The majority asserts that MCL 776.20 controls this

case and holds that it requires that defendant bear the

burden of production regarding the restoration of the right

to possess a firearm. MCL 776.20 provides:

In any prosecution for the violation of any
acts of the state relative to use, licensing and
possession of pistols or firearms, the burden of
establishing any exception, excuse, proviso or
exemption contained in any such act shall be upon
the defendant but this does not shift the burden
of proof for the violation.

MCL 776.20 comes into play only after the prosecution

proves all the elements of a crime. Therefore, for the

majority’s argument to have merit, I would have to accept

the conclusion that MCL 750.224f(2)(b) is an exception. As

discussed above, this conclusion is implausible given the

language and structure chosen by the Legislature.

I find MCL 776.20 inapplicable to this case. I

believe that, if the Legislature had intended MCL 776.20 to

apply, it specifically would have used a term contained in

that statute. Alternatively, it would have used its often

14

repeated term “until,” or a similarly clear expression, to

create an exception or a proviso.

The words “exception,[10] excuse,[11] proviso[12] or

exemption[13]” in MCL 776.20 apply to situations where all

the elements of a crime have been established. Once the

prosecution has satisfied all the elements, it is for the

defendant to produce evidence showing the existence of a

circumstance excusing him from culpability.14

10
“Except” means “to exclude; leave out.” Random House
Webster’s College Dictionary (2001).
11
“Excuse” means “to release from an obligation or
duty.” Random House Webster’s College Dictionary (2001).
12
A “proviso” is “a clause, as in a statute or
contract, by which a condition is introduced” or “a
stipulation or condition.” Random House Webster’s College
Dictionary (2001).
13
“Exempt” means “to free from an obligation or
liability to which others are subject; release.” Random
House Webster’s College Dictionary (2001).
14
Some may argue that the definition of “proviso”
could apply to any clause. But I believe that the
Legislature intended it to apply only to clauses relieving
a defendant of liability. This is indicated by its
placement in a list with “exception,” “excuse,” and
“exemption.” The doctrine of noscitur a sociis requires
that this Court interpret terms in context with the other
words around them. G C Timmis & Co v Guardian Alarm Co,
468 Mich 416, 420-422; 662 NW2d 710 (2003). When words are
grouped in a list, they must be given related meaning.
Third Nat’l Bank in Nashville v Impac, Ltd, Inc, 432 US
312, 322; 97 S Ct 2307; 53 L Ed 2d 368 (1977).
Interpretive aids, such as the doctrine of noscitur a
sociis, are meant to aid us in arriving at the meaning
intended by the Legislature. By using a term in a list,
the Legislature gave this Court a legitimate means of
(continued…)
15
 An example of a situation in which MCL 776.20 would

apply can be seen in MCL 750.224f(4): “This section does

not apply to a conviction that has been expunged or set

aside, or for which the person has been pardoned . . . .”

This subsection creates an exception to the felon-in-

possession crime. Under MCL 776.20, the defendant would

have the burden of producing evidence to prove the

exception.15

In MCL 776.20, the Legislature demonstrated its

ability to use the terms “exception,” “excuse,”

“exception,” and “proviso.” But in 750.224f(2), it used

none of them. It could have stated in MCL 750.224f(2):

A person convicted of a specified felony
shall not possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a

(…continued)
finding its intent. The main goal in interpreting any
statute is to ascertain and give effect to the
Legislature’s intent. People v Tombs, 472 Mich 446, 451;
697 NW2d 494 (2005). By interpreting the word “proviso” in
the context it was used, I have chosen to give effect to
the Legislature’s demonstrated intent.
15
Some may claim that my analysis renders sections of
MCL 776.20 nugatory. But this is not true. I simply find
the statute inapplicable to this case. It would fully
apply to other statutes actually containing an exception,
excuse, proviso, or exemption. MCL 750.224f(4) provides an
example of when I would apply MCL 776.20. A defendant
would bear the burden of proving that his crime had been
expunged, set aside, or pardoned. Just because I disagree
with the application of MCL 776.20 to this case does not
mean that my reading renders it nugatory.

16

 firearm in this state providing the following
circumstances do not exist.

Or:

A person convicted of a specified felony
shall not possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a
firearm in this state, except when all of the
following circumstances exist.

Or:

Aperson convicted of a specified felony
shall not possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a
firearm in this state, but the person is excused
when the following circumstances exist.

Instead of any of these or other wordings, the

Legislature chose to use “until all.” I believe this is a

strong indication that it intended that MCL 776.20 should

not apply to MCL 750.224f(2).

In interpreting statutes, we are reluctant to assume

that the Legislature wrote what it did by accident or

error. But this is what the majority presumes in its

holding today. I support giving effect to the

Legislature’s chosen phrasing rather than changing it to

fit within MCL 776.20.16

16
I believe that the majority has misunderstood my
argument in n 14 of its opinion, ante at 13. Of course I
know that the Legislature can change the law. My point is
that the Legislature intentionally drafted MCL 750.224f(2)
so that MCL 776.20 would not apply to it. The Legislature
enacted MCL 750.224f(2) after it enacted MCL 776.20.
Hence, it knew when it wrote MCL 750.224f(2) that MCL
776.20 requires the defendant to shoulder the burden of
(continued…)
17
 The existence of MCL 776.20 does not alter what the

prosecution has to prove in order to obtain a conviction

for felon in possession. But reading MCL 750.224f(2)(b) as

a proviso does shift the burden of production from what the

Legislature intended, because it turns what is an element

of the crime into a proviso.

D. PEOPLE V PEGENAU

The prosecution relies on People v Pegenau17 to support

its argument. This reliance is misplaced. In Pegenau, the

defendant was charged with unlawful possession of Xanax and

Valium pursuant to MCL 333.7403(1).18 People v Pegenau, 447

Mich 278, 281; 523 NW2d 325 (1994). The only question at

trial was whether the defendant had a valid prescription,

(…continued)

production in matters involving a proviso. Accordingly, if

it had wanted to make a proviso in MCL 750.224f(2), it knew

it had to write the statute to clearly contain a proviso.

Since it did not do that, we must conclude that it did not

intend a proviso.

17
People v Pegenau, 447 Mich 278; 523 NW2d 325 (1994).
18
MCL 333.7403(1) provides:

A person shall not knowingly or
intentionally possess a controlled substance, a
controlled substance analogue, or a prescription
form unless the controlled substance, controlled
substance analogue, or prescription form was
obtained directly from, or pursuant to, a valid
prescription or order of a practitioner while
acting in the course of the practitioner’s
professional practice, or except as otherwise
authorized by this article.

18

which would exclude him from prosecution under the language

of MCL 333.7403 and MCL 333.7531.19 Pegenau, supra at 282.

This Court held that the burden of proof regarding the

existence of a valid prescription was on the defendant.

Pegenau is distinguishable from the present case

because MCL 333.7403 expressly uses a term creating an

exception. In fact, MCL 333.7403 uses the term “unless.”

As discussed above, “unless” is defined as “1. except under

the circumstances that . . . 2. except; but; save[.]”

Random House Webster’s College Dictionary (2001). Because

an exception is specifically created, the defendant bears

the burden of production under MCL 333.7531.

19
MCL 333.7531 provides:

(1) It is not necessary for this state to
negate any exemption or exception in this article
in a complaint, information, indictment, or other
pleading or in a trial, hearing, or other
proceeding under this article. The burden of
proof of an exemption or exception is upon the
person claiming it.

(2) In the absence of proof that a person is
the authorized holder of an appropriate license
or order form issued under this article, the
person is presumed not to be the holder of the
license or order form. The burden of proof is
upon the person to rebut the presumption.

(3) A liability is not imposed by this
article or an authorized state, county, or local
officer, engaged in the lawful performance of the
officer's duties.

19

 In contrast, MCL 750.224f(2) does not provide an

exception or exemption to felon-in-possession prosecutions.

The Legislature did not use a term that would create an

exception. It used the inclusive phrase “until all.”

Therefore, the subsections are elements of the crime rather

than exceptions, and MCL 776.20 does not apply.

Pegenau is inapplicable and is in clear contrast to

this case. Therefore, I find it of no support to the

prosecution’s argument.

E. PEOPLE V HENDERSON

The majority finds People v Henderson20 persuasive on

the issue whether restoration of the right to possess a

firearm is an element of felon in possession. I believe

that this decision does not aid the majority’s position.21

Moreover, I find that Henderson was wrongly decided.

Henderson dealt with MCL 750.227, which, at that time,

provided:

Any person who shall carry a dagger, dirk,
stiletto or other dangerous weapon except hunting
knives adapted and carried as such, concealed on

20
391 Mich 612; 218 NW2d 2 (1974).
21
I also find Henderson simply inapplicable to this
case because it does not analyze the core question before
us. That question is what language in a statute
constitutes an exception, excuse, proviso, or exemption.
Henderson becomes relevant only after a determination is
made that an exception, excuse, proviso, or exemption
exists.

20

 or about his person, or whether concealed or
otherwise in any vehicle operated or occupied by
him, except in his dwelling house or place of
business or on other land possessed by him; and
any person who shall carry a pistol concealed on
or about his person, or, whether concealed or
otherwise, in any vehicle operated or occupied by
him, except in his dwelling house or place of
business or on other land possessed by him,
without a license to so carry said pistol as
provided by law, shall be guilty of a felony,
punishable by imprisonment in the state prison
for not more than five years, or by fine of not
more than two thousand five hundred dollars.

The Henderson Court concluded that, as regards the

facts of that case, the only elements of the crime were:

(1) the defendant was carrying a pistol and (2) he was in a

vehicle operated or occupied by him. It ruled that the

language “without a license to so carry said pistol” did

not add an element to the offense. People v Henderson, 391

Mich 612, 616; 218 NW2d 2 (1974).

This conclusion cannot be correct. If only two

elements existed, the sole defenses available to a

defendant would be (1) that he did not carry a pistol or

(2) that he was not in a vehicle with it. Whether the

defendant was licensed to carry that pistol would not

matter. He would be guilty of the crime, even though

licensed, because he (1) carried a pistol (2) in a vehicle.

21

It is obvious that there is a third key element. It is

found in the statute’s language “without a license.”22

My interpretation is strengthened by the fact that, in

writing MCL 750.227, the Legislature did not use any of the

terms listed in MCL 776.20. The clause “without a license”

is not prefaced by anything signaling or otherwise phrased

to signal that it constitutes an exception, excuse,

proviso, or exemption.

Contrast this with the language “except in his

dwelling house or place of business or on other land

possessed by him” that is also contained in the statute.

The Legislature knew how to create an exception, excuse,

proviso, or exemption when it wrote MCL 750.227. And, in

fact, it did so in that statute by explicitly using the

term “except.” But it did not use any of those terms with

respect to the lack of a license. Again, the Legislature’s

choice of wording should not be presumed accidental.

Redford Twp, supra at 456.

To rule as it did, the Henderson Court had to read

words into the statute. Specifically, it had to read in

some form of exception, excuse, proviso, or exemption

22
Contrary to the majority’s contention, I do not
suggest that there are a minimum number of elements that
must be contained in a criminal statute. Rather, I am
pointing out that this statute has three elements. The
Henderson Court recognized only two of them.

22

before the language “without a license.” But this violates

the well-established rule of statutory construction that a

court cannot read into a statute what is not there. AFSCME

v Detroit, 468 Mich 388, 412; 662 NW2d 695 (2003).23

Therefore, the Henderson Court failed to construe the

language actually chosen by the Legislature. Instead, it

added language to change the burden of production. The

majority today falls into the same trap. And in doing so,

it violates its own repeatedly stated rule of statutory

construction.

F. THE MAJROITY’S PHILOSOPHICAL CONTRADICTIONS

The justices of the majority have departed from their

own rules of statutory construction in construing MCL

750.224f(2). During this very court term, most of the same

justices stated:

Fundamental canons of statutory
interpretation require us to discern and give
effect to the Legislature’s intent as expressed
by the language of its statutes. If such
language is unambiguous, as most such [sic]
language is, we presume that the Legislature
intended the meaning clearly expressed—no further
judicial construction is required or permitted,
and the statute must be enforced as written.

23
This is a principle often repeated by this majority.
See Halloran v Bhan, 470 Mich 572, 577; 683 NW2d 129
(2004), People v Phillips, 469 Mich 390, 395; 666 NW2d 657
(2003), People v Davis, 468 Mich 77, 79; 658 NW2d 800
(2003), Lesner v Liquid Disposal, Inc, 466 Mich 95, 101;
643 NW2d 553 (2002), and Roberts v Mecosta Co Gen Hosp, 466
Mich 57, 63; 642 NW2d 663 (2002).

23

 [Garg v Macomb Co Community Mental Health
Services, 472 Mich 263, 281; 696 NW2d 646 (2005)
(citations and quotation marks omitted).]

There is no suggestion that the majority finds the

language in MCL 750.224f(2) ambiguous. Hence, it violates

its own rules of statutory interpretation when it relies on

decisions in sister states to interpret the intent of the

Michigan Legislature. Under the majority’s judicial

philosophy, reference to outside material is of no value in

the face of a clear text.

Moreover, the citation of the annotation at 69 ALR3d

1054 adds nothing to the majority’s analysis of the statute

in this case. The decisions cited in the annotation are

based on widely divergent statutory language in other

states. Because that language is so different from the

language of MCL 750.224f(2), conclusions in the annotation

are of no assistance in determining what the Michigan

Legislature intended when enacting our statute.

Beyond this, at least some of the cases cited in the

annotation demonstrate that a legislature can create an

easily recognizable exception or proviso when it desires to

do so. For example, the Pennsylvania statute provides that

no person shall carry a firearm in public “‘unless . . .

such person is licensed to carry a firearm[.]’”

Commonwealth v Bigelow, 250 Pa Super 330, 332; 378 A2d 961

(1977), quoting 18 Pa Consol Stat 6108 (emphasis added).
24
Clearly the Michigan Legislature could have done what the

Pennsylvania legislature did: it explicitly created an

exemption.24

Furthermore, even under the analysis offered by the

majority, Henderson was wrongly decided. One thing the

majority and I agree about in the instant case is that an

exception, excuse, proviso, or exemption has to be clearly

indicated by the language of the statute. In the statute

before us, MCL 750.224f(2), the majority argues that the

word “until” introduces a proviso.

In contrast, the statute involved in Henderson

contains nothing preceding the language “without a license”

that could be argued to introduce an exemption, excuse,

proviso, or exemption.25 Therefore, I believe that, under

the majority’s analysis, Henderson must be found to have

been wrongly decided. In addition, its reliance on

Henderson contradicts the majority’s analysis discussing

exceptions, excuses, provisos, and exemptions. In the end,

24
As
noted above, the Legislature used the same
“unless” language to create an exception in MCL
750.224f(4).
25
“Without” does not qualify. “Unless the defendant
possesses” would qualify. As with the statute at issue in
this case, the Legislature could have phrased the critical
language as an exemption, but it chose not to do so.

25

Henderson offers nothing supportive of the majority’s

construction of MCL 750.224f(2).

Again, the Legislature knows how to use the terms

“exception,” “excuse,” “proviso,” or “exemption.” And it

knows how to create exceptions by the use of the term

“unless,” as it has repeatedly done throughout the Penal

Code. But the Legislature chose not to use any of those

terms in either MCL 750.224f(2) or MCL 750.227, the statute

analyzed in Henderson. I would not turn a blind eye to

those choices. Instead, I would enforce the statutes as

the Legislature wrote them. In this case, it requires

finding that the restoration of the right to possess a

firearm is an element of the offense of felon in

possession.

G. THE BURDEN PLACED ON THE PROSECUTION

The prosecution asserts that, if it must initially go

forward with evidence that defendant’s right to possess a

firearm has not been restored, its burden of proof will be

rendered too difficult. It argues that, to make this

showing, it would have to obtain certificates showing no

restoration of defendant’s right to possess firearms from

all eighty-three counties in Michigan.

I believe that this is a wildly exaggerated approach

to the situation. Normally, to satisfy MCL 750.224f(2),

the prosecution would have to show simply that five years
26
had not passed since the defendant served his term or

completed probation or paid his fines. Only if none of

those situations existed would it become necessary to

address whether the right to carry a firearm had been

restored. And then, in almost every case, the prosecution

could show that the defendant resided in one or two

counties while eligible to have the right restored and that

those counties had not restored the right.

My reading of the statute requires more proofs from

the prosecution then it would prefer. But the fact that it

may find difficulty in proving a crime does not provide a

reason for this Court to rewrite the law to change the

Legislature’s intent. I am satisfied that the language of

the statute demonstrates that a showing of no restoration

of the right to possess a firearm is an element of the

crime. Hence, the burdens of production and persuasion are

on the prosecution.

H. THE RULE OF LENITY

A consistent textualist would have to admit that no

language in MCL 750.224f(2) or MCL 750.227 creates an

explicit exception, excuse, proviso, or exemption. At

most, those statutes could be read to infer an exception or

proviso by adding words to them. By finding an exception

and a proviso, the majority violates its textualist

philosophy. Its holding today seems to require that any
27
time words can be added to a statute to form an exception

or proviso, those words should be added. Surely, this does

not give effect to the text of the statute as written.

Rather, it reads into the statute what the Legislature did

not include and perhaps chose not to include. Not only is

this inconsistent with the majority’s “plain language”

textualist approach, it also violates the rule of lenity.

Courts have long held that any ambiguity regarding the

scope of criminal statutes must be resolved in favor of

lenity. Huddleston v United States, 415 US 814, 830-831,

94 S Ct 1262; 39 L Ed 2d 782 (1974), quoting Rewis v United

States, 401 US 808, 812; 91 S Ct 1056; 28 L Ed 2d 493

(1971). This is part of the time-honored rule that penal

statutes are construed in favor of the defendant. As Chief

Justice Marshall of United States Supreme Court stated in

1820:

The rule that penal laws are to be construed
strictly, is perhaps not much less old than
construction itself. It is founded on the
tenderness of the law for the rights of
individuals; and on the plain principle that the
power of punishment is vested in the legislative,
not in the judicial department. It is the
legislature, not the Court, which is to define a
crime, and ordain its punishment. [United States
v Wiltberger, 18 US (5 Wheat) 76, 95; 5 L Ed 37
(1820).]

I believe that a court may go beyond the text of a

statute when it is ambiguous or when serious questions

arise regarding the reasonable meaning of its language.
28
But when weighing the words of a criminal statute, the

court must place on the scales the rule of lenity. This

rule requires that the statute be construed strictly in

favor of the defendant.

Here, the majority disregards the language contained

in MCL 776.20 and effectively finds that, if certain words

are added to form an exception or proviso, the statute

should be read that way. This interpretation violates the

rule of lenity. Far from reading the statute in favor of

defendant, it requires that the statute be read to disfavor

him.

I believe that my interpretation of the statute best

gives effect to the Legislature’s intent. And it best

adheres to the long-established tradition of applying the

rule of lenity to criminal statutes. The majority’s

construction violates the spirit of the rule of lenity.

And it turns a hardened eye on the “tenderness of the law

for the rights of individuals . . . .” Wiltberger, supra

at 95.

Instead of following this longstanding rule, the

majority focuses on the potential burden placed on the

prosecution. I continue to adhere to the rule of lenity.

Therefore, I would hold that the prosecution bears the

burden of production regardless of whether it might, at

times, find that burden difficult.
29

 I. THE DUE PROCESS PROBLEM

This Court has ruled that exemptions and provisos in

criminal statutes must be defined with specificity.

Exemptions and provisos within a criminal
statute must be defined with the same specificity
as the prohibitive language of the statute.

This court is not able, within the bounds of
due process, to “interpret” a criminal statute
which contains an ambiguous exemption such that
it results in conviction of the defendant charged
in the specific case. That is not the “fair
warning” demanded by the Constitution. [People v
Dempster, 396 Mich 700, 715; 242 NW2d 381 (1976)
(citation omitted).]

Therefore, when a “clarifying gloss” is placed on a statute

by a court, it can apply only to future violations. It

cannot apply retroactively. This includes cases that

clarify when an exemption or proviso exists. Id. at 715-

717.

This case constitutes the first instance when the

“clarifying gloss” in question has been placed on MCL

750.224f(2). Therefore, at the least, the majority’s

interpretation of the statute cannot apply retroactively.

Because the majority finds for the first time that the

statute contains a proviso, defendant did not have

constitutional fair warning of what he would have to prove.

Accordingly, his conviction cannot stand. Dempster, supra

at 717-718.

30

 J. MY CONCLUSION REGARDING THE FELON-IN-POSSESSION STATUTE

The felon-in-possession statute indicates clearly that

the prosecution has the burden of showing that five years

have not passed (1) since the defendant paid all fines, or

(2) since the defendant served his term of imprisonment, or

(3) since the defendant successfully completed all

conditions of probation or parole, or of showing (4) that

the defendant’s right to possess a firearm has not been

restored. In this case, the prosecution concedes that it

presented no evidence showing that one of the four

occurrences did not take place. Therefore, it failed to

satisfy its burden. Accordingly, I would reverse the

decision of the Court of Appeals in part and vacate

defendant’s convictions and sentences.

V. CONCLUSION

The risk that force will be used during a larceny from

a person is considerably greater than the risk of force in

many other felonies. This is because the crime, by its

nature, is often confrontational and always involves the

presence of the victim. Therefore, I concur with the

majority that larceny from a person is a specified felony.

But I dissent from the majority’s holding on the

second issue. The felon-in-possession statute indicates

clearly that the prosecution has the burden of production

and persuasion on all the elements of the offense. This
31
includes the lack of restoration of the right to possess a

firearm.

I would affirm in part the decision of the Court of

Appeals, reverse it in part, and vacate defendant’s

convictions and sentences.

Marilyn Kelly

32

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 126727

DAVID MICHAEL PERKINS,

Defendant-Appellant.
_______________________________

CAVANAGH, J. (dissenting).

I disagree with the majority’s position that the crime

of larceny from the person is a specified felony pursuant

to MCL 750.224f(6). Because I believe that larceny from

the person is not a specified felony under MCL 750.224f(6),

I do not reach the issue whether the lack of restoration of

firearm rights is an element of MCL 750.224f(2).

Accordingly, I respectfully dissent.

The Legislature has defined a “specified felony” as

including a felony in which the following circumstance

exists:

An element of that felony is the use,
attempted use, or threatened use of physical
force against the person or property of another,
or that by its nature, involves a substantial
risk that physical force against the person or
 property of another may be used in the course of
committing the offense. [MCL 750.224f(6)(i).][1]

Larceny from the person is defined as follows: “Any

person who shall commit the offense of larceny by stealing

from the person of another shall be guilty of a felony,

punishable by imprisonment in the state prison not more

than 10 years.” MCL 750.357. Larceny from the person

differs from robbery because larceny from the person is

committed without the use of force or the threat of force.

“[R]obbery is a larceny aggravated by the fact that the

taking is from the person, or in his presence, accomplished

with force or the threat of force.” People v Randolph, 466

Mich 532, 544; 648 NW2d 164 (2002). By its very nature,

larceny from the person involves the absence of force or

threat of force.

While I agree with the majority that there is a risk

of force or threat of force when larceny from the person is

committed, this is essentially the case with every felony.

Indeed, one can conceive of a risk of force in almost every

situation in which a felony is committed. However, I do

not believe that the mere potential for force or threat of

force, or the mere potential that a perpetrator may become

1
Other subsections of the statute specifying
additional circumstances that also define a specified
felony are not applicable in this case.

2

confrontational if detected, means larceny from the person

presents a “substantial risk” of force or threat of force.

A perpetrator could just as likely choose to avoid

confrontation if it becomes apparent that force or the

threat of force must be used to complete the intended act.

Therefore, because there is not a “substantial risk” of

force or threat of force when larceny from the person is

committed, I respectfully dissent.

Michael F. Cavanagh

3