PEOPLE OF MI V MICHAEL YARBOURGH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 2, 1999
Plaintiff-Appellee,
v
No. 203808
Recorder’s Court
LC No. 96-008133
MICHAEL YARBOURGH,
Defendant-Appellant.
Before: Sawyer, P.J., and Bandstra and R. B. Burns*, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions for armed robbery, MCL 750.529;
MSA 28.797, second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3),1 and
possession of firearm during the commission of a felony, MCL 750. 227b; MSA 28.424(2). Defendant,
as a third habitual offender, MCL 769.11; MSA 28.1083, was sentenced to an enhanced term of
twenty-five to forty years’ imprisonment for the armed robbery conviction, and ten to fifteen years’
imprisonment for the second-degree criminal sexual conduct conviction. Defendant was sentenced to
the mandatory term of two years’ imprisonment for the felony-firearm conviction. We affirm.
Defendant first argues that there was insufficient evidence presented at trial to sustain his
convictions. We disagree. The standard for deciding a sufficiency of the evidence issue is whether a
rational trier of fact, viewing the evidence in a light most favorable to the prosecution, could find the
elements of the crime to have been proven beyond a reasonable doubt. People v Jolly, 442 Mich 458,
466; 502 NW2d 177 (1993).
A defendant is guilty of second-degree criminal sexual conduct if he engages in sexual contact
with a victim during the commission of any other felony. MCL 750.520c(1)(c); MSA 28.788(3)(1)(c);
CJI2d 20.2; CJI2d 20.5. A defendant may also be guilty of second-degree criminal sexual conduct if
the defendant engages in sexual contact with a victim while armed with a dangerous weapon. MCL
750.520c(1)(e); MSA 28.788(3)(1)(e); CJI2d 20.2; CJI2d 20.8. The elements of armed robbery are:
(1) an assault; (2) a felonious taking of property from the person or in the presence of the victim; and,
(3) the defendant being armed with a dangerous weapon or an article which is used in such a way as to
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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lead a reasonable person to believe that it was a dangerous weapon. MCL 750.529; MSA 28.797;
Jolly, supra, 442 Mich 465; People v Johnson, 206 Mich App 122, 123; 520 NW2d 672 (1994).
The elements of felony-firearm are that the defendant possessed a firearm during the commission or
attempt to commit a felony. MCL 750.227b; MSA 28.424(2); People v Barclay, 208 Mich App 670,
674; 528 NW2d 842 (1995).
Defendant does not dispute that the crimes took place, nor does he dispute that the elements of
the crimes have been established. Rather, defendant argues that he was not the perpetrator of the
crimes and that the victim’s identification testimony was so incredible that a rational trier of fact could
not conclude that defendant committed the crimes. We disagree.
The victim testified that she was able to focus on her attacker’s features. While she admitted
that at the beginning of the attack she made an effort not to look at the perpetrator, the victim testified
that she tried to commit his features to memory in order to later help officers locate her attacker. She
remembered that he had a round face, a “pitted” complexion, a scar above his forehead and reeked of
alcohol. Defendant points out that the victim gave inconsistent descriptions of the perpetrator, failed to
mention to officers that the attacker had a scar, and even identified another man as the attacker. It is
true that there were some discrepancies in the victim’s descriptions, especially with regard to weight and
the scar, but the mere fact that there has been an inaccuracy in identification does not render the
testimony inadmissible. Rather, it merely goes to a witness’ credibility and the weight to be accorded
the witness’ testimony. People v Pennington, 113 Mich App 688, 694; 318 NW2d 542 (1982).
Not all identifications will be completely accurate, especially in a stressful situation. People v
Anderson, 389 Mich 155, 175 n 11; 205 NW2d 461 (1973). Such questions of credibility should be
left to the trier of fact to resolve. People v Daniels, 172 Mich App 374, 378; 431 NW2d 846 (1988);
People v Queenan, 158 Mich App 38, 55; 404 NW2d 693, (1987). The victim was able to study the
robber’s features during the crime itself. In addition, defendant was never misidentified. The officer
who showed the victim the mug books testified that the victim never identified another man as the
perpetrator; rather, the victim merely indicated that one photo look similar to the perpetrator. The
victim was able to identify defendant in the lineup and identified defendant once again in court.
There was also testimony from two police officers that a wallet containing certain items
belonging to the victim was found in the back seat of the patrol car where defendant was placed after
his arrest on an unrelated incident. Both officers testified that there was no such evidence in the car
prior to defendant being placed in the back seat. From this evidence, it is reasonable to assume that
defendant had possession and control of the wallet and its contents. The fact that he had several items
bearing the victim’s name is further support that defendant was the victim’s attacker. Circumstantial
evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime.
Jolly, supra, 442 Mich 466. Viewing the evidence in a light most favorable to the prosecution, the
victim’s identification testimony, coupled with the evidence that defendant possessed items belonging to
the victim, could lead a reasonable trier of fact to conclude that the elements of the crimes had been
proven beyond a reasonable doubt. Id.
Defendant next argues that his twenty-five-year minimum sentence for armed robbery was
disproportionate. We disagree. A sentencing court abuses its discretion when it violates the principle of
proportionality by imposing a sentence which is disproportionate to the seriousness of the circumstances
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surrounding the crime and the defendant. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1
(1990). The sentencing guidelines do not apply to habitual offenders and should not be considered when
reviewing a defendant’s sentence. People v McFall, 224 Mich App 403, 415; 569 NW2d 828
(1997).
Upon first conviction of armed robbery, a defendant may be sentenced to a maximum term of
life. MCL 750.529; MSA 28.797. Pursuant to MCL 769.11; MSA 28.1083 if a felony is “punishable
upon first conviction by imprisonment of life then the court . . . may sentence the person to imprisonment
for the term of life or for a lesser term.” The court actually gave defendant less of a term than it could
have.
Defendant’s sentence was not disproportionate. The presentence investigation report indicates
that defendant has had a lengthy history with the criminal justice system including at least three prior
felonies. Defendant’s adult record includes armed robbery, possession with intent to deliver less than
fifty grams of heroin, domestic violence, carrying a concealed weapon and numerous parole violations.
Taking into account the severity of the crime involved, as well as defendant’s history of violent behavior,
the trial court did not abuse its discretion in sentencing defendant as it did. Milbourn, 435 Mich 636.
Defendant next argues that the trial court erred in refusing to instruct the jury on receiving and
concealing stolen property as a cognate lesser offense to armed robbery. We disagree. Jury
instructions are to be read as a whole rather than extracted piecemeal to establish error, and even if
somewhat imperfect, there is no error if the instructions fairly presented the issues to be tried and
sufficiently protected the defendant’s rights. People v Daniel, 207 Mich App 47, 53; 523 NW2d 830
(1994).
Defendant was not entitled to such an instruction where armed robbery a receiving and
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concealing stolen property are not cognate offenses because they share no overlapping elements.
People v Jackson, 158 Mich App 544, 558-559; 405 NW2d 192 (1987); People v Robinson, 101
Mich App 687, 692; 301 NW2d 41 (1980). In addition, armed robbery and receiving and concealing
stolen property do not appear to be of the same class or category where the statute regarding receiving
and concealing stolen property is aimed at deterring others from assisting the person responsible for the
robbery itself. Robinson, supra, 101 Mich App 692; People v Rood, 83 Mich App 350; 268 NW2d
403 (1978).
Finally, we have considered the issues raised in defendant’s supplemental brief in propria
persona. We are not persuaded that defendant is entitled to relief on those issues.
Affirmed.
/s/ David H. Sawyer
/s/ Richard A. Bandstra
/s/ Robert B. Burns
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1
It is not clear whether the jury found defendant guilty of MCL 750.520c(1)(c); MSA 28.788(3)(1)(c)
(sexual contact under circumstances involving the commission of any other felony), or MCL
750.520c(1)(e); MSA 28.788(3)(1)(e) (sexual contact while armed with a weapon).
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