PEOPLE OF MI V MICHAEL GAINOUS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 23, 2004
Plaintiff-Appellee,
v
No. 246024
Wayne Circuit Court
LC No. 01-013371
MICHAEL GAINOUS,
Defendant-Appellant.
Before: Zahra, P.J., and Saad and Schuette, JJ.
PER CURIAM.
Defendant was charged with two counts of first-degree criminal sexual conduct, MCL
750.520b(1)(a). Following a nonjury trial, he was convicted of one count of first-degree criminal
sexual conduct and one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a),
for which he was sentenced to prison terms of six to fifteen years and eighteen months to fifteen
years, respectively. Defendant appeals his convictions as of right and we affirm. This appeal is
being decided without oral argument pursuant to MCR 7.214(E).
I. FACTS
This case arises from a sexual assault that occurred in late August or early September,
2001. The twelve-year-old victim testified that defendant forced her into his home, led her to the
basement, and sexually assaulted her. According to the victim, when defendant could not get her
shorts off, he pulled the crotch of the victim’s shorts and underwear aside and inserted two
fingers into her vagina. The defendant then attempted to have intercourse with the victim and
placed his penis against her genital area.
II. ANALYSIS
Defendant’s sole claim on appeal is that the evidence was insufficient to sustain the
verdict. Defendant does not challenge the sufficiency of the evidence as it relates to the elements
of the offenses. Rather, he contends that because the victim’s testimony was somewhat
inconsistent or contradictory, because she could not specify the date the incident occurred, and
because no one could verify that the incident occurred, the court erred in finding that the
evidence was sufficient to prove the crimes charged beyond a reasonable doubt. We disagree.
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The exact date of the offense need not be proved unless time is of the essence of the
offense, which it is not in a criminal sexual conduct case against a child victim. MCL
767.45(1)(b); People v Stricklin, 162 Mich App 623, 634; 413 NW2d 457 (1987). In addition,
the victim’s testimony need not be corroborated. MCL 750.520g.
“As a general rule, the trial judge, as trier of fact, has the duty to weigh the testimony and
assess the credibility of the witnesses.” People v Snell, 118 Mich App 750, 755; 325 NW2d 563
(1982). The factfinder, be it the judge or the jury, “may choose to believe or disbelieve any
witness or any evidence presented in reaching a verdict.” People v Cummings, 139 Mich App
286, 293-294; 362 NW2d 252 (1984). Because the trial court is in the best position to judge
credibility, this Court will not substitute its judgment for that of the trial court but will defer to
the trial court’s resolution of factual issues that involve the credibility of witnesses. People v
Cartwright, 454 Mich 550, 555; 563 NW2d 208 (1997); People v Martin, 199 Mich App 124,
125; 501 NW2d 198 (1993). Given this general rule and the additional fact that witness
credibility is a matter of weight, not sufficiency, of the evidence, People v Scotts, 80 Mich App
1, 9; 263 NW2d 272 (1977), we find no error.
Affirmed.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Bill Schuette
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