PEOPLE OF MI V DAVID NATHANIEL HOLLOWAY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 14, 1997
Plaintiff-Appellee,
v
No. 187999
Recorder’s Court
LC No. 93-006267 FC
DAVID NATHANIEL HOLLOWAY,
Defendant-Appellant.
Before: MacKenzie, P.J., and Wahls and Markey, JJ.
PER CURIAM.
Defendant appeals as a matter of right from his jury trial conviction of robbery armed, MCL
750.529; MSA 28.797. Defendant was sentenced to ten to twenty years’ imprisonment. We affirm.
Defendant first argues that the trial court erred when it denied his motion for a directed verdict.
We disagree. When ruling on a motion for a directed verdict, this Court must consider the evidence
presented by the prosecutor up to the time the motion was made in the light most favorable to the
prosecution and determine whether a rational trier of fact could find that the essential elements of the
charged crime were proven beyond a reasonable doubt. People v Jolly, 442 Mich 458, 466; 502
NW2d 177 (1993). The essential elements of the crime of armed robbery are (1) an assault committed
by the defendant on the complainant; (2) a felonious taking of property from the complainant or in the
complainant’s presence; (3) committed while the defendant was armed with a dangerous weapon or
with an article fashioned to make the complainant reasonably believe it to be a dangerous weapon.
People v Newcomb, 190 Mich App 424, 430; 476 NW2d 749 (1991).
Defendant argues that the trial court erroneously considered impeachment testimony as
substantive evidence of defendant’s identification as a perpetrator of the robbery. Our Supreme Court
ruled in People v Malone, 445 Mich 369, 371, 377; 518 NW2d 418 (1994), that MRE 801(d)(1)(C)
permits the substantive use of any prior statement of identification by a witness as non-hearsay,
provided the witness is available for cross-examination. The Malone Court also indicated that the rule
does not distinguish between first-party and third-party testimony. In the case at bar, the prosecution
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presented two witnesses, Dinkins and Warrior, who were also involved in the robbery. At trial, both
witnesses denied knowing defendant and denied that defendant was involved in the robbery. The
prosecutor then introduced prior statements in which each witness identified defendant as a perpetrator
in the robbery. Pursuant to MRE 801(d)(1)(C) and Malone, the trial court could properly consider the
witnesses’ prior statements of identification of defendant as substantive evidence because both
witnesses were available for cross-examination.
We also find that the prosecution presented evidence from which a rational trier of fact could
find that the essential elements of armed robbery were proven. In addition to Dinkins’ and Warrior’s
statements of identification of defendant a one of the robbers, the investigating officer testified that
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Warrior immediately picked out defendant from a photographic lineup. This testimony was also
admissible as substantive evidence pursuant to MRE 801(d)(1)(C). The complaining witness testified
that one of her assailants was shorter and held a hand gun. Dinkins identified defendant as the shorter
man who went into the grocery store that was robbed. The license plate of the vehicle seen leaving the
grocery store was registered to Warrior, who drove with defendant. Dinkins gave investigators a pager
number of a man named Dave who participated in the robbery. That number was registered to
defendant. Dinkins described where the man named Dave lived, and defendant’s residence matched
that description. The trial court did not err in denying defendant’s motion for a directed verdict.
Defendant also argues that the trial court erred because it did not timely instruct the jury that it
could not consider impeachment evidence as substantive evidence of guilt. Again, we disagree.
Defendant did not request such an instruction at trial. Thus, this issue is not preserved for appeal and
we review only for manifest injustice. People v Van Dorsten, 441 Mich 540, 544-545; 494 NW2d
737 (1993).
The record reveals that the trial court instructed the jury regarding the proper use of
impeachment testimony along with the rest of its instructions at the close of the proofs. The trial court’s
instruction conformed with CJI2d 4.5, Michigan’s approved impeachment testimony instruction. We do
not find any manifest injustice.
Affirmed.
/s/ Barbara B. MacKenzie
/s/ Myron H. Wahls
/s/ Jane E. Markey
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