PEOPLE OF MI V ROY MCKINDLEY HINES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 22, 2002
Plaintiff-Appellee,
v
No. 224532
Oakland Circuit Court
LC No. 99-167270-FH
ROY MCKINDLEY HINES,
Defendant-Appellant.
Before: Cavanagh, P.J., and Doctoroff and Jansen, JJ.
PER CURIAM.
Defendant appeals as of right his conviction by a jury of receiving and concealing stolen
property valued at over $1,000 but less than $20,000, MCL 750.535(3)(a). Defendant, a fourth
habitual offender, was sentenced to an enhanced term of 2 to 10 years’ imprisonment. We
affirm.
Defendant argues that there was insufficient evidence to support his conviction.1 In
reviewing the sufficiency of the evidence, we must view the evidence in a light most favorable to
the prosecutor and determine whether a rational trier of fact could find that the essential elements
of the crime were proven beyond a reasonable doubt. People v Reid, 233 Mich App 457, 466;
592 NW2d 767 (1999). Our review is de novo. See People v Mayhew, 236 Mich App 112, 124;
600 NW2d 370 (1999).
Defendant was convicted of receiving and concealing stolen property valued at more than
$1,000 but less than $20,000. MCL 750.535, the statute pertaining to this offense, provides in
part:
(1) A person shall not buy, receive, possess, conceal, or aid in the concealment of
stolen, embezzled, or converted money, goods, or property knowing the money,
goods, or property is stolen, embezzled, or converted.
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1
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Defendant only argues that plaintiff did not satisfy the element dealing with the value of the
stolen property. Therefore, we confine our discussion of this issue to that element.
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(3) If any of the following apply, a person who violates subsection (1) is guilty of
a felony punishable by imprisonment for not more than 5 years or a fine of not
more than $10,000.00 or 3 times the value of the property purchased, received,
possessed, or concealed, whichever is greater, or both imprisonment and a fine:
(a) The property purchased, received, possessed, or concealed has a value
of $1000.00 or more but less than $20,000.00.
Therefore, in order to demonstrate that defendant was guilty of receiving and concealing stolen
property, plaintiff must prove beyond a reasonable doubt (1) that the property was stolen; (2) the
value of the property; (3) the receiving, possession or concealment of the property by the
defendant; (4) the identity of the property as being stolen; and (5) the constructive or actual
knowledge of the defendant that the property received or concealed had been stolen. People v
Quinn, 219 Mich App 571, 574; 557 NW2d 151 (1996).
In determining the value of stolen property, courts may use fair market value as the
relevant standard when such a value exists. People v Johnson, 133 Mich App 150, 153; 348
NW2d 716 (1984). Proof of value is determined by reference to the time and place of the
offense. Id. Value means the price that the item will bring on an open market between a willing
buyer and seller. Id. An owner of personal property is qualified to testify regarding the value of
the property only if the testimony does not relate to sentimental or personal value. People v
Dyer, 157 Mich App 606, 611; 403 NW2d 84 (1986). “Personal value” means subjective value
to the owner or a value that cannot be objectively substantiated. Dyer, supra at 611.
In this case, plaintiff presented sufficient evidence for a rational trier of fact to conclude
that the value of the stolen Chrysler Lebaron was greater than $1,000 but less than $20,000.
Specifically, Helen Weingarden, one of the owners of the automobile, testified that the condition
of the automobile was “absolutely perfect.” The automobile had less than 37,000 miles on it.
The automobile was a convertible and was “loaded.” Helen also testified that the minimum
amount of money she would have accepted for the automobile, before it was stolen, was $4,000.
We find that this testimony allowed a rational trier of fact to conclude that the value of the
automobile was greater than $1,000 but less than $20,000.2
Next, defendant argues that the trial court abused its discretion in qualifying Lester
Monger as an expert witness, in failing to make a formal ruling on this issue, and by denying
defendant an opportunity to voir dire Monger on his qualifications.
The qualification of a witness as an expert and the admissibility of expert testimony are
in the trial court’s discretion. People v Murray, 234 Mich App 46, 52; 593 NW2d 690 (1999).
An abuse of discretion will be found only if an unprejudiced person, considering the facts on
which the trial court acted, would say that there was no justification or excuse for the ruling
made. Id.
2
Defendant also argues that the jury could not rely on an appraisal or the testimony of the
prosecution’s expert witness to determine the value of the automobile. We have already
concluded that the value of the automobile could be readily ascertained from the testimony of
Weingarden. Thus, we decline to address these additional arguments raised by defendant.
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MRE 702 governs the admission of expert testimony and provides:
If the court determines that recognized scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or
otherwise.
Expert testimony will be admissible if (1) the expert is qualified, (2) the testimony gives the trier
of fact a better understanding of the evidence or assists in determining a fact in issue, and (3) the
testimony is from a recognized discipline. People v Peebles, 216 Mich App 661, 667-668; 550
NW2d 589 (1996).
Defendant argues that Monger could not satisfy the first prong of this test because he was
not qualified as an expert. We disagree. Monger testified that he had been employed in the
automobile business for twenty years and was a used car manager at Ed Smith Ford for the last
eight years. Monger’s responsibilities included appraising “trade in’s,” preparing vehicles for
marketing, wholesaling vehicles he did not want, and buying vehicles at auctions. Monger
appraised thousands of automobiles over the last eight years. We note that Monger admitted that
he only occasionally works with Chrysler vehicles, he did not examine the stolen automobile
before estimating its value, and he has not testified as an expert in other court cases. Although
these considerations could be used by the jury to weigh Monger’s testimony, they do not prevent
him from being qualified as an expert. We conclude that Monger’s qualifications were
sufficient, and he was competent to testify as an expert witness.
Defendant also argues that the trial court failed to rule that Monger was qualified as an
expert witness and that this error requires a new trial. Again, we disagree.
The prosecutor elicited testimony concerning the qualifications of Monger. The
prosecutor inquired about Monger’s opinion of the value of the stolen automobile. However,
defendant objected to Monger’s testimony as an expert witness as follows:
Mr. Escobedo [defense counsel]: Your Honor, if I may interpose an objection at
this point. I don’t know if we’ve qualified this witness as an expert at this point,
but it sounds –
The Court: Do you have an objection?
Mr. Escobedo: I do.
The Court: What?
Mr. Escobedo: If I may voir dire the witness.
The Court: What is the objection?
Mr. Escobedo: My objection is, number one, this witness has testified that he
occasionally appraises Chrysler products. Number two, there’s been no
foundation established that in fact he is qualified, if you will, to conduct an
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appraisal of a used vehicle other than he does so in the context of his job. And I’d
like an opportunity to voir dire here with respect to his alleged expertise in
evaluating or valuating vehicles.
The Court: Objection is overruled. Go ahead and I’ll take it under advisement if
I find he’s not qualified. [Emphasis added.]
The prosecutor finished questioning Monger and defendant then cross-examined Monger.
Defendant renewed his objection at the end of his cross-examination and before Monger was
excused. The trial court excused Monger and instructed the prosecutor to call the next witness.
The trial court’s actions imply that the court, at the conclusion of the testimony, found
Monger qualified. If the trial court had not made such a conclusion, the jury would have been
instructed to disregard the testimony of Monger. In fact, the trial court instructed the jury on
how to evaluate the expert testimony of Monger before the jury retired to deliberate. This is
further evidence that the trial court found Monger qualified to testify as an expert. Moreover,
even defense counsel understood that Monger had been qualified as an expert. On at least two
occasions, during closing argument, defense counsel referred to Monger testifying as an expert.
Therefore, we do not agree with defendant’s claim that the trial court did not rule on the
admissibility of Monger’s testimony.
Defendant also argues that the trial court abused its discretion by admitting the testimony
of Monger without allowing defendant an opportunity to voir dire the witness. We disagree.
Our Supreme Court in People v Kimbrough, 193 Mich 330, 335; 159 NW 533 (1916), held that
preliminary cross-examination of expert witnesses is within the trial court’s discretion and is not
a matter of right. The Court further explained:
While it is the usual practice for such a privilege to be granted to opposing
counsel before the witness expresses his opinion, we are not prepared to hold that
it is error to refuse it. [Id.]
We agree with the rule of Kimbrough. While it is unusual for an attorney to be denied
the opportunity to voir dire an expert witness, that denial was not problematic in this case.
Defendant cross-examined Monger on his qualifications and the basis of his opinion. This crossexamination revealed nothing that would warrant the conclusion that Monger was not qualified
to testify as an expert. Indeed, we have already concluded that Monger was qualified to testify
as an expert witness, and defendant’s argument on this matter fails.
Finally, defendant argues that the prosecutor engaged in misconduct during closing
argument. However, defendant did not object to the claimed incident of prosecutorial
misconduct. Therefore, we review defendant’s claim for plain error. People v Schutte, 240 Mich
App 713, 720; 613 NW2d 370 (2000).
We decide issues of prosecutorial misconduct case by case through examining the
pertinent portion of the record and evaluating the prosecutor’s remarks in context to determine
whether the defendant was denied a fair trial. People v Noble, 238 Mich App 647, 660; 608
NW2d 123 (1999). A prosecutor may argue the evidence and all reasonable inferences arising
from that evidence. Schutte, supra at 721.
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Here, defendant complains that the following statement made by the prosecutor during
closing argument was improper. The prosecutor stated:
But, ladies and gentlemen, all the evidence that you’ve heard, the only
evidence that you’ve heard is that, that vehicle is valued somewhere between
$3,000 and $4,000.
Defendant argues that this statement was impermissible for two reasons. First, it improperly
shifted the burden of proof to defendant. Second, it indirectly reminded the jury that defendant
did not testify.
Defendant is correct that a prosecutor cannot comment on a defendant’s failure to testify
or shift the burden of proof to defendant. Reid, supra at 477; People v Fields, 450 Mich 94, 104118; 538 NW2d 356 (1995). However, after reviewing the prosecutor’s comments in context,
we do not agree that the prosecutor did either of these things. Defense counsel devoted a
significant portion of his closing argument to discussing the fact that the prosecutor failed to
prove the value of the automobile. The prosecutor, during rebuttal closing argument, simply
responded to that argument by reviewing the evidence that had been presented, during the trial,
of the value of the automobile. The prosecutor explained to the jury that the fair market value
could be used to determine the value of the automobile. The prosecutor also indicated that the
testimony of Weingarden indicated the value of the automobile. The prosecutor pointed out that
Monger, an expert in appraising cars, also estimated the value of the automobile for the jury.
The statement at issue was made after the prosecutor reviewed all of this testimony with the jury
and was simply the prosecutor’s attempt to summarize the testimony on this point and remind the
jury that this element of the crime had been proven. We find no error plain or otherwise3.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Martin M. Doctoroff
/s/ Kathleen Jansen
3
We also note that the trial court instructed the jury that defendant has an absolute right not to
testify and that the arguments and statements of the attorneys were not evidence. Juries are
presumed to follow the instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229
(1998).
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