PEOPLE OF MI V GREGORY KELLY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 14, 2000
Plaintiff-Appellee,
v
No. 216116
Wayne Circuit Court
LC No. 97-008096
GREGORY KELLY,
Defendant-Appellant.
Before: Jansen, P.J., and Doctoroff and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right from his bench trial conviction for attempted larceny in a
building, MCL 750.92; MSA 28.287; MCL 750.360; MSA 28.592. The trial court sentenced
defendant to one year probation. We affirm.
On August 26, 1997, defendant was driving a cab in Detroit. Sometime between 11:00
p.m. on August 26, 1997, and 3:00 a.m. on August 27, 1997, defendant picked up complainant.
The two men spent the rest of the evening and early morning together. Between 6:00 a.m. and
7:00 a.m. on August 27, 1997, defendant accompanied complainant to complainant’s apartment.
Shortly thereafter, defendant left complainant’s apartment. According to complainant, when
defendant left, he took complainant’s dual cassette CD player and cellular phone without
permission. On that basis, the trial court found defendant guilty of attempted larceny in a
building.
Defendant’s first issue on appeal involves a separate lower court case, No. 98-001419. In
that case, defendant was charged with carrying a concealed weapon (CCW), MCL 750.227(2);
MSA 28.424(2). On appeal, defendant contends that his purported guilty plea in No. 98-001419
was taken improperly. This issue, however, is not properly before this Court.
The Court of Appeals only has jurisdiction over a lower court proceeding for which an
appeal has been filed, and not over a case which has not been appealed. People v Anderson, 209
Mich App 527, 538; 531 NW2d 780 (1995); MCR 7.203(A)(1). In Anderson, the defendant
argued that the sentences he received in a separate lower court case violated the principle of
proportionality. Id. This Court held:
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We do not have jurisdiction to decide this issue. The order appealed from
in this case involves only lower court number 92-114972-FC. In that case,
defendant was convicted of first-degree murder, assault with intent to commit
murder, and two counts of felony-firearm. Thus, we have jurisdiction only to
decide any issues relating to the order appealed from in the lower court number
92-114972-FC, and not issues arising out of a different lower court case. MCR
7.203(A)(1). [Id.]
Similarly, in the present case, the order that defendant appeals involved only lower court
number 97-008096, wherein the court convicted defendant of attempted larceny in a building.
Therefore, this Court has jurisdiction only to decide issues relating to the order appealed from in
lower court case number 97-008096, and not issues arising out of a different lower court case,
specifically 98-001419. Therefore, we lack jurisdiction to decide this issue.
Defendant next contends that the verdict was against the great weight of the evidence.
We disagree. “A trial judge . . . may grant a new trial only if the evidence preponderates heavily
against the verdict so that it would be a miscarriage of justice to allow the verdict to stand.”
People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998).
To be found guilty of an attempt, the evidence must show that defendant intended to
commit a specific crime, and engaged in an overt act beyond preparation in furtherance of
committing that crime. People v Jones, 443 Mich 88, 100; 504 NW2d 158 (1993). The elements
of larceny in a building are:
[1] an actual or constructive taking of goods or property; [2] a carrying
away or asportation; [3] the carrying away must be with a felonious intent; [4] the
goods or property must be the personal property of another; [5] the taking must be
without the consent and against the will of the owner; and [6] the taking must
occur with in [sic] the confines of the building[.] [People v Sykes, 229 Mich App
254, 278; 582 NW2d 197 (1998).]
Defendant claims that the great weight of all the evidence presented at trial overcame
complainant’s testimony, and that without complainant’s unreliable testimony, the elements of
attempted larceny in a building cannot be satisfied. Defendant’s argument is without merit.
This Court greatly disfavors “trial motions based solely on the weight of the evidence
regarding witness credibility.” Lemmon, supra at 639. The trier of fact is in a far better position
than this Court to evaluate the witness’ “tonal quality, volume, speech patterns, and demeanor”
during testimony. Lemmon, supra at 646. Judging a witness’ credibility should be left with the
trier of fact. Id. This Court will only review a credibility determination if the evidence that the
trier of fact relied on was completely lacking in probative value, “contradicted indisputable
physical facts or defied physical realities.” Id. Beyond such extenuating circumstances,
resolution of credibility issues is within the exclusive province of the trier of fact. People v
DeLisle, 202 Mich App 658, 662; 509 NW2d 885 (1993).
The defendant in People v Gadomski, 232 Mich App 24, 27; 592 NW2d 75 (1998),
challenged the credibility of a sexual assault victim’s testimony. The victim’s testimony
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provided strong support for the defendant’s conviction and directly contradicted the defendant’s
accounting of the event in question. Id. at 27. This Court held that it had no authority to make
credibility determinations on appeal and that the jury had the power to decide for itself which
evidence to rely on. Id. at 28. This Court therefore held that the trial court did not abuse its
discretion in denying the defendant’s motion for a new trial. Id.
Defendant, in the instant case, raises the same argument as did the defendant in
Gadomski. As proof of complainant’s lack of credibility, defendant points to discrepancies in
complainant’s testimony. Complainant gave contradictory testimony regarding the time at which
the two men first met. He further testified that he had been to defendant’s mother’s house, but
not to defendant’s own home. This contradicted complainant’s statement to the investigating
officer that complainant and defendant had been to defendant’s home on the night in question.
Defendant also argues that complainant’s accounting of the night in question was irrational, as
strangers would not spend an entire night together as complainant described.
The court properly resolved these ambiguities. Neither the exact time when complainant
and defendant met, nor which house they visited that night, was relevant. The pertinent evidence
for purposes of defendant’s conviction was that the men visited a house together, that they
eventually traveled together to complainant’s apartment, and that defendant took complainant’s
CD player and cellular phone from complainant’s apartment without consent.
The trial court reached each of these determinations after considering the demeanor and
mannerisms of each witness during their respective testimony. The court had within its
discretion, despite the discrepancies in complainant’s testimony, to find complainant more
credible than defendant. Therefore, the verdict was not against the great weight of the evidence.
Affirmed.
/s/ Kathleen Jansen
/s/ Martin M. Doctoroff
/s/ Peter D. O’Connell
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