State of Tennessee v. Darryl Alexis Howard

11/06/2026 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON September 1, 2026 Session1 STATE OF TENNESSEE v. DARRYL ALEXIS HOWARD Appeal from the Circuit Court for Henderson County No. 23-146-3 Kyle C. Atkins, Judge ___________________________________ No. W2025-00584-CCA-R3-CD ___________________________________ The defendant, Darryl Alexis Howard, was convicted of unlawful possession of a handgun after being convicted of a felony crime of violence, a Class B felony, and three counts of unlawful possession of a handgun by a convicted felon, Class E felonies. The convictions were merged for sentencing, and the trial court imposed a Range II sentence of twelve years. On appeal, the defendant challenges the sufficiency of the evidence and the trial court’s imposition of a Range II sentence. Following a thorough review of the record, the briefs, and oral arguments of the parties, we affirm the defendant’s three Class E felony convictions (Counts 2-4), modify the defendant’s Class B felony conviction to a Class E conviction (Count 1), and determine the trial court erred in its imposition of Range II sentence. Therefore, we remand for a new sentencing hearing at which the trial court should impose a sentence for the Class E felony conviction in Count 1 and for resentencing on all the convictions as a Range I offender. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part, Reversed in Part; Case Remanded J. ROSS DYER, J., delivered the opinion of the court, in which TIMOTHY L. EASTER, J. joined. TOM GREENHOLTZ, J., filed a separate opinion concurring in part and concurring in judgment. William W. Gill, Assistant Public Defender – Appellate Division, Tennessee Public Defenders Conference, and Elizabeth Thornton, Qualified Law Student2 (on appeal); 1 Oral argument in this case was heard at the Cecil C. Humphreys School of Law at the University of Memphis. We express our gratitude to the University and our court staff for their efforts in bringing this project to fruition. We also appreciate the attorneys and students who attended and participated in the session. 2 See Tenn. Sup. Ct. R. 7, § 10.03. Jeremy B. Epperson, District Public Defender; and Matthew Moore, John Hamiton, and Alexander R. Starr, Assistant District Public Defenders (at trial), Tennessee, for the appellant, Darryl Alexis Howard. Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant Attorney General; Joshua R. Gilbert, Legal Assistant (pro hac vice);3 Jody Pickens, District Attorney General; and Chadwick R. Wood, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Facts and Procedural History The defendant was indicted on four weapons possession offenses: unlawful possession of a handgun after being convicted of a felony crime of violence, “robbery- armed” (Count 1), unlawful possession of a handgun after being convicted of a felony for larceny of firearms (Count 2), unlawful possession of a handgun after being convicted of a felony for breaking and entering (Count 3), and unlawful possession of a handgun after being convicted of a felony for larceny in a building (Count 4). Prior to trial, the State filed a motion to have the trial court determine whether the defendant’s prior Michigan conviction for “robbery-armed” was a felony crime of violence rather than instructing the jury to make the determination. The State argued that the “determination of the status of the underlying statute” as a crime of violence was a “legal determination” to be made by the trial court and not a question of fact to be decided by the jury. The trial court heard arguments on the State’s motion the same day it was filed. The defendant argued that the jury should make the determination because it was an essential element of the charged offense of “convicted felon in possession of a firearm, that prior felony being a crime of violence.” Relying on the same reasoning as in its motion, the State asserted that the trial court should determine whether the defendant’s Michigan conviction for “robbery-armed” was a crime of violence. The trial court reviewed Michigan’s armed robbery statute and observed that it was “almost identical” to the language used in Tennessee’s aggravated robbery statute. The court ruled that it was not “the province of the jury to look at two statutes from two separate states and make a legal determination as to what a particular crime is and how it’s classified.” 3 Mr. Gilbert, a member of the California Bar, was authorized to practice in Tennessee pursuant to Tennessee Supreme Court Rule 7, section 10.07, pending his admission to the Tennessee Bar. -2-  The State’s proof at trial showed that on May 11, 2022, Officer Zachary Siegler with the Lexington Police Department was notified of a “be on the lookout” for the defendant and subsequently encountered him outside a gas station. The defendant identified himself and provided his date of birth. At that point, the officer placed the defendant under arrest. The officer noticed a duffle bag “about 20 feet away” from the defendant, which the defendant denied owning. The officer searched the bag and found a .22 caliber handgun inside it. The bag also contained paperwork and a debit card bearing the defendant’s name. Officer Siegler conducted a criminal history check on the defendant and learned he was a convicted felon. The State entered certified judgments showing the defendant had four prior convictions from Michigan, including a 1995 conviction for “robbery-armed,” a 1992 conviction for larceny of firearms, a 1985 conviction for breaking and entering a vehicle to steal property, and a 1985 conviction for larceny in a building. Defense counsel renewed his objection to the trial court’s instructing the jury that “robbery-armed” was a crime of violence. The trial court overruled the objection relying on its ruling on the motion at the pre-trial hearing. Thereafter, the trial court instructed the jury as follows: Count 1. Any person having been convicted of one of a certain specified felonies who possesses a firearm is guilty of a crime. For you to find the defendant guilty of this offense, the State must have proven beyond a reasonable doubt the existence of the following essential elements: One: That the defendant had been convicted of robbery slash armed; and, Two: That the defendant, after such felony conviction, possessed a firearm; and, Three: That the defendant acted either intentionally, knowingly, or recklessly; and, Four: That the conviction was for a felony crime of violence. Robbery slash armed is defined as a felony crime of violence. The jury convicted the defendant as charged on all four counts. At the sentencing hearing, the primary dispute amongst the parties pertained to the appropriate sentencing range. The State argued the defendant was a Range II offender, relying on the 1995 “robbery-armed” Michigan conviction as equivalent to aggravated -3- robbery in Tennessee and the 1985 larceny in a building Michigan conviction as the equivalent of a burglary conviction in Tennessee. The defendant asserted that the “robbery-armed” felony from Michigan did not meet the requirements to be considered for purposes of the sentencing range because there were different ways the offense could be committed and there was no proof of the facts underlying the conviction. The defendant also asserted that the larceny in a building conviction could not be considered for the same reason. The trial court agreed with the State. It examined the Michigan “robbery-armed” 4 statute and found that the “elements contained in the Michigan statute are not identical but . . . lay out the elements of [aggravated] robbery in the State of Tennessee, other than just they say larceny where we say theft.” The court commented that it did not see how the offenses did not match or “how the facts could be different[.]” The court determined that the underlying facts only became important when there were “qualifiers,” such as a theft that could be a felony or a misdemeanor. Thus, the trial court found that both of the prior convictions relied upon by the State qualified to sentence the defendant as a Range II offender and imposed a sentence of twelve years. The trial court made alternative findings to apply if its range enhancement was reversed on appeal. After reviewing some of the purposes and principles of sentencing, the trial court found that it would impose a sentence of ten years with eleven months and twenty-nine days to serve in confinement and the balance on probation. Following a timely motion for new trial, hearing on and denial of the motion, the defendant appealed. Analysis On appeal, the defendant challenges the sufficiency of the evidence and the trial court’s imposition of a Range II sentence. I. Sufficiency The defendant challenges the sufficiency of the convicting evidence, asserting that a “foreign conviction” cannot be used to establish a prior felony crime of violence under Tennessee Code Annotated section 39-17-1307(b)(1)(A), or alternatively, that the use of 4 At sentencing, the State apparently supplied the trial court with the Michigan statute in effect from July 1, 2004 to March 28, 2021, rather than the statute in effect at the time of the offense. However, the record indicates the trial court did examine the correct statute during its pre-trial analysis concerning whether “robbery-armed” was a crime of violence. -4- violence must be proven to the jury and his 1995 Michigan conviction for “robbery-armed” did not qualify as a “crime of violence” under the convicting code section. The State responds that the prior Michigan conviction can be used to establish a crime of violence, and “robbery-armed” is the equivalent of aggravated robbery in Tennessee, a decision in the purview of the trial court. We agree that an out-of-state conviction can be used to establish a crime of violence. However, because neither the legislature nor our supreme court has provided a framework for conducting such analysis, the evidence is insufficient to sustain the defendant’s Class B felony conviction in Count 1. When the sufficiency of the evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our Supreme Court has stated the following rationale for this rule: This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court. Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Unlawful possession of a firearm after having been convicted of a felony is a Class E felony. See Tenn. Code Ann. § 39-17-1307(c)(1), (2). The punishment is increased to a -5- Class B felony if the prior conviction is for a “felony crime of violence[.]” Id. § 39-17- 1307(b)(1)(A). At the time of the offense, our Tennessee Code provided that: “Crime of violence” includes any degree of murder, voluntary manslaughter, aggravated rape, rape, rape of a child, aggravated rape of a child, aggravated sexual battery, especially aggravated robbery, aggravated robbery, burglary, aggravated burglary, especially aggravated burglary, aggravated assault, kidnapping, aggravated kidnapping, especially aggravated kidnapping, carjacking, trafficking for commercial sex act, especially aggravated sexual exploitation, felony child abuse, and aggravated child abuse[.] Id. § 39-17-1301(3).5 The defendant does not dispute that he possessed a firearm or that his prior Michigan conviction for “robbery-armed” was a felony. Instead, he asserts that “the evidence is legally insufficient to establish that [he] committed the Class B felony version of unlawful possession of a firearm.” The defendant bases his argument on two fronts: (1) “foreign convictions” are not included in the list of enumerated crimes of violence; and (2) even if “foreign convictions” can qualify as prior crimes of violence in this context, the State failed to prove that his “robbery-armed” conviction qualified as such an offense. The defendant’s argument presents an issue of statutory construction. We review issues of statutory construction de novo with no presumption of correctness. State v. Howard, 504 S.W.3d 260, 267 (Tenn. 2016) (citing State v. Dycus, 456 S.W.3d 918, 924 (Tenn. 2015)). “The most basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.” Id. at 269 (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). The intent of the legislature is determined “from the natural and ordinary meaning of the statutory language within the context of the entire statute without any forced or subtle construction that would extend or limit the statute’s meaning.” State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). “When the statutory language is clear and unambiguous, we apply the plain language in its normal and accepted use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous that we may reference the broader statutory scheme, the history of the legislation, or other sources.” In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)). “Our obligation is simply to enforce the written language.” Id. 5 This section was amended effective July 1, 2025, to include “robbery” on the list of enumerated offenses. -6-  The defendant asserts that “foreign convictions” cannot be used to establish a crime of violence under Tennessee Code Annotated section 39-17-1301(3), the code section that provides definitions for the convicting code section, 39-17-1307(b). The defendant posits that because the plain language of the code section does not include offenses from other states or a mechanism for the courts to determine whether an out-of-state offense is equivalent to one of the enumerated crimes of violence, the legislature did not intend for out-of-state convictions to be used to establish a crime of violence for purposes of increasing a defendant’s punishment under section 39-17-1307(b). The defendant also points to the fact the legislature defined “prior convictions” to include felony offenses from other jurisdictions in the code section involving possession of a firearm during the commission of a dangerous felony, section 39-17-1324, as evidence of its intent to exclude “foreign convictions” from section 39-17-1307. Looking at the plain language of section 39-17-1307(b), the exact wording is “has been convicted of a felony crime of violence[.]” Tenn. Code Ann. § 39-17-1307(b)(1)(A). Section 39-17-1301, which provides definitions for Part 17, defines “crime of violence” and includes “aggravated robbery” within the definition. Id. § 1301(3). Our supreme court recently held in State v. Curry, that section -1301(3) provides an “illustrative,” non- exhaustive list of “the felonies deemed to be crimes of violence by the legislature.” 705 S.W.3d 176, 186-87 (Tenn. 2025). A felony is a violation of the law punishable “by one (1) year or more of confinement or by the infliction of the death penalty.” Tenn. Code Ann. § 39-11-110. Accord Felony, Black’s Law Dictionary, 12th ed. 2024. Simply put, there is no restriction in either section -1301 or -1307 that the prior felony must be from Tennessee. The only restriction is that it is a felony conviction for a crime of violence. The defendant asserts that because the Tennessee Legislature did not explicitly state that the felony conviction for a crime of violence can be from another state, then it intended to only refer to Tennessee offenses. We are unpersuaded based on our supreme court’s interpretation that the list enumerated in section1301(3) is illustrative, not exhaustive, and also because such view could lead to an absurd result. Under the view suggested by the defendant, a murder or rape conviction from another state would not be considered a qualifying crime of violence simply because it occurred in another state. We are mindful that in construing statutes, Tennessee law provides that courts are to avoid a construction that leads to absurd results. Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d 857, 872 (Tenn. 2016) (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010)). The legislature surely did not intend such loophole. We further find it very instructive that this Court has determined that out-of-state convictions qualify in the context of prior felony drug convictions under section 39-17- -7- 1307(b), the same section at issue here.6 State v. Smith, 495 S.W.3d 271, 275 (Tenn. Crim. App. 2016). The defendant urges this Court to use the maxims of statutory interpretation of in pari materia (relating to the same subject or having a common purpose) and expressio unius est exclusio alterius (the expression of one thing implies the exclusion of others) as proof that the legislature intended to exclude felony convictions from other jurisdictions from sections 39-17-1301 and -1307 because it explicitly included out-of-state convictions in the code section involving possession of a firearm during the commission of a dangerous felony, section 39-17-1324. See Tenn. Code Ann. § 39-17-1324(i)(2)(B). However, the section the defendant points to provides the definition for “prior conviction” for purposes of determining the appropriate sentence, see id. § 39-17-1324(g)(2), (h)(2), (j), so we do not view that as conclusive evidence of the legislature’s intent in leaving such proviso out of an offense-defining section. Most importantly, we observe that the legislature has evidenced a willingness to cross-reference other code sections when its intent is to provide a specific definition. See, e.g., Tenn. Code Ann. § 39-13-111(b) (citing to code section defining assault within the code section proscribing domestic assault); id. § 39-13-534(a)(3) (citing to the code sections defining kidnapping and false imprisonment within the code section proscribing especially aggravated rape). Furthermore, in section 39-17-1301 itself, the legislature cited to the Uniform Code of Military Justice and the Tennessee Code section relative to “[j]udicial commitment to a mental institution.” Thus, the legislature could have cited to the Tennessee Code sections applicable to the offenses listed as a “crime of violence” had it wished to limit those crimes to only Tennessee offenses. All of this taken together, we determine that an out-of-state conviction can be used to establish a prior crime of violence. The problem before us is that neither the legislature nor our supreme court has provided a framework or test for determining whether an out-of-state conviction qualifies as a crime of violence for purposes of sections 39-17-1301(3) and 39-17-1307(b)(1)(A). The State suggests that this Court adopt the three-part test used in the sentencing context. See State v. Henderson, No. W2020-01725-CCA-R3-CD, 2022 WL 630377, at *3 (Tenn. Crim. App. Mar. 4, 2022) (citing Tenn. Code Ann. §§ 40-35-106(b)(5), -107(b)(5), - 108(b)(5). However, to adopt such test would be undertaking the legislative function, something not in the purview of this Court. Accordingly, we are constrained to determine the evidence is insufficient to sustain the defendant’s conviction in Count 1 for the Class B felony of unlawful possession of a handgun after being convicted of a felony crime of 6 Section 1307(b)(1)(A) addresses possession of a firearm by one with a prior conviction for a felony crime of violence and section 1307(b)(1)(B) addresses possession of a firearm by one with a prior felony drug conviction. -8- violence. Given the defendant’s concession that his prior Michigan conviction for “robbery-armed” was a felony, we reduce the defendant’s conviction from a Class B felony to a Class E felony for possession of a firearm by a convicted felon and remand for appropriate resentencing consistent with this opinion. II. Sentencing The defendant also argues that the trial court erred in classifying him as a Range II offender for purposes of sentencing. The State concedes the defendant should have been sentenced as a Range I offender because the Michigan offense of larceny in a building is not analogous to burglary in Tennessee. We likewise determine that the trial court erred in imposing a Range II sentence. The trial court may sentence a defendant as a Range II, multiple offender when the defendant has received, relevant here, “[a] minimum of two (2) but not more than four (4) prior felony convictions within the conviction class, a higher class, or within the next two (2) lower felony classes[.]” Tenn. Code Ann. § 40-35-106(a)(1). “Prior convictions” include convictions under the laws of any other state, government or country that, if committed in this state, would have constituted an offense cognizable by the laws of this state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shall be used by the Tennessee court to determine what classification the offense is given. Tenn. Code Ann. § 40-35-106(b)(5). There is a three-part analysis to determine whether a foreign conviction equates to that of a Tennessee conviction. Under this framework the trial court first must determine whether the foreign conviction was a “cognizable” offense under Tennessee law. See Henderson, 2022 WL 630377, at *3 (citing Tenn. Code Ann. §§ 40-35-106(b)(5), - 107(b)(5), -108(b)(5). Next, the trial court must determine whether the foreign conviction was a “named felony” in Tennessee. Id. To meet the requirements for a “named felony,” a foreign felony conviction must have the same name as an offense that is currently a felony in Tennessee. Id. If the foreign felony is not a “named felony” in Tennessee, the trial court is required to analyze the elements of the foreign felony at the time of the defendant’s conviction to determine whether it “was analogous to a felony offense under Tennessee’s law as it existed at the time it was committed.” Id. (quoting State v. Vick, 242 S.W.3d 792, 795 (Tenn. Crim. App. 2007)). The determinative factor for whether a foreign conviction -9- constitutes a felony offense in Tennessee “is the elements of the convicted offense, not the facts or the elements of the originally charged offense.” Id. Here, the trial court determined the defendant was a Range II offender because of two applicable prior felony convictions – the 1995 “robbery-armed” conviction discussed above, the equivalent of a B felony, and a 1985 larceny in a building conviction, the equivalent of a D felony. As to the Michigan offense of larceny in a building, the State asserted: “Being in a building, you’re not supposed to be stealing something there, which is basically our burglary statute; entering into a building other than a habitation for the purposes of committing a theft, crime, or assault therein. Their’s [sic] is limited to larceny, which would meet the theft requirement[.]” The court reviewed the Michigan statutes and commented, “Their larceny statute is basically covering the same thing that our theft statute covers.” The larceny in a building statute, Michigan Compiled Laws Annotated section 750.360, in effect at the time of the offense provided: Any person who shall commit the crime of larceny by stealing in any dwelling house, house trailer, office, store, gasoline service station, shop, warehouse, mill, factory, hotel, school, barn, granary, ship, boat, vessel, church, house of worship, locker room or any building used by the public shall be guilty of a felony. “The elements of larceny in a building are: 1) an actual or constructive taking, 2) an asportation, 3) with a felonious intent, 4) of someone else’s property, 5) without that person’s consent, 6) in a building.” People v. Cavanaugh, 339 N.W.2d 509, 636 (Mich. Ct. App. 1983); see also People v. Goliday, 394 N.W.2d 476, 477 n.1 (Mich. Ct. App. 1986). The Tennessee burglary statute in effect prior to the repeal in 1989 provided, “Third degree burglary is the breaking and entering into a building other than a dwelling house with the intent to commit a felony.” State v. Teasley, 719 S.W.2d 148, 149 (Tenn. 1986) (citing Tenn. Code Ann. § 39-3-404(a) (1982) [repealed by Acts of 1989, ch. 591 § 1, effective November 1, 1989]). “In order to convict one of third degree burglary, the State must prove four distinct elements: (1) the breach, (2) the entry, (3) any house of another other than dwelling house, and (4) felonious intent.” Duchac v. State, 505 S.W.2d 237, 239 (Tenn. 1973). - 10 -  Initially, it is unclear whether the trial court referenced the current Tennessee burglary statute or the statute in effect at the time of the offense. Regardless, the elements of the two offenses are not comparable. A plain reading of the two statutes shows that the Michigan offense of larceny in a building requires an actual or constructive taking and an asportation, neither of which is required of burglary in Tennessee. Moreover, burglary in Tennessee requires a breach and entry, whereas larceny in a building in Michigan does not. In addition, “[a] foreign conviction cannot be used to elevate a defendant’s range classification if it could be committed in several different ways, one of which would have constituted a misdemeanor rather than a felony under Tennessee law at the time of the foreign conviction.” State v. Little, No. M2022-00738-CCA-R3-CD, 2023 WL 4930073, at *3 (Tenn. Crim. App. Aug. 2, 2023) (citing Vick, 242 S.W.3d at 794-95). The Michigan Court of Appeals has observed that it is within a prosecutor’s discretion to charge an offender with larceny in a building, a felony, rather than shoplifting, a misdemeanor, based on the same facts.7 See, e.g., People v. Thornsbury, 384 N.W.2d 88, 95 (Mich. Ct. App. 1985); People v. Frost, 328 N.W.2d 44, 46 (Mich. Ct. App. 1982); People v. Rush, 324 N.W.2d 586, 588 (Mich. Ct. App. 1982). For these reasons, we conclude that the defendant’s prior conviction for larceny in a building should not have been applied for range enhancement under the foreign conviction analysis test. Because the defendant’s conviction for larceny in a building did not qualify to enhance his range, the defendant did not have the required minimum of two prior convictions within the next two lower felony classifications. Therefore, the imposition of a Range II sentence was in error. We recognize the trial court made alternate sentencing findings in the event of a reversal on appeal, nevertheless, we remand for the trial court to conduct a new sentencing hearing and to impose a Range I sentence. Conclusion Based on the foregoing authorities and reasoning, we affirm the defendant’s three Class E felony convictions (Counts 2-4), modify the defendant’s Class B felony conviction to a Class E conviction (Count 1), and remand for a new sentencing hearing at which the trial court should impose a sentence for the Class E felony conviction in Count 1 and for resentencing on all the convictions as a Range I offender. 7 Michigan amended its penal code effective June 1, 1988, rendering this statement inaccurate. See People v. Odendahl, 505 N.W.2d 16, 17-18 (Mich. Ct. App. 1993), overruled in part on other grounds by People v. Edgett, 560 N.W.2d 360 (Mich. Ct. App. 1996). However, we look at the law at the time of the offense. - 11 - S/ J. ROSS DYER ___________ J. ROSS DYER, JUDGE - 12 -