PEOPLE OF MI V ANTHONY EDGE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 1, 2008
Plaintiff-Appellee,
v
No. 277417
Wayne Circuit Court
LC No. 06-006628-01
ANTHONY EDGE,
Defendant-Appellant.
Before: Markey, P.J., and White and Wilder, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of first-degree home invasion,
MCL 750.110a(2)(b), and receiving and concealing stolen property (RCSP) less than $200, MCL
750.535(5). Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to three to
twenty years in prison for the home invasion conviction and 163 days time served for the RCSP
conviction. We affirm.
Defendant first argues that there was insufficient evidence to support his conviction of
first-degree home invasion. We disagree. This Court reviews claims of insufficient evidence de
novo, viewing the evidence in the light most favorable to the prosecutor, to determine whether a
rational trier of fact could find that the essential elements of the crime were proved beyond a
reasonable doubt. Further, this Court must defer to the fact finder’s role in determining the
weight of the evidence and the credibility of the witnesses. People v Fletcher, 260 Mich App
531, 559, 561; 679 NW2d 127 (2004). “[C]onflicts in the evidence must be resolved in favor of
the prosecution.” Id. at 562.
The elements of the offense, as applied to this case, are: 1) breaking and entering a
dwelling, or entering a dwelling without permission, 2) committing a felony while entering,
present in, or exiting, the dwelling, 3) while another person is lawfully present in the dwelling.
MCL 750.110a(2)(b); People v Musser, 259 Mich App 215, 222; 673 NW2d 800 (2003).
Defendant argues that there was insufficient evidence that he entered the house, and that
someone was lawfully present in the house. We disagree.
The evidence in this case is circumstantial. James Olko saw defendant walking down his
street, asking for money. Less than five minutes later, when he returned from inside his house,
Olko saw defendant walking down the street in the opposite direction with a blue bicycle.
Defendant offered to sell the bicycle to Olko. Olko suspected that the bicycle was stolen and
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called the police. After the police detained defendant, the bicycle was discovered to have come
from inside a house on Olko’s street, owned by Pashko Kalmandi. The door to that house was
ajar. Kalmandi had been inside the house for approximately two hours prior to the incident and
had not given anyone permission to enter the house. He had seen the bicycle approximately ten
hours earlier.
This Court must view the evidence in the light most favorable to the prosecution and
defer to the credibility judgments of the trier of fact. Fletcher, supra, 260 Mich App at 562. The
trial court did not question the credibility of Olko’s or Kalmandi’s testimony. Defendant merely
raised the argument that there was a reasonable doubt presented by the possibility that defendant
could have obtained the bicycle from someone else during the five minutes Olko was in his
house. Defendant highlighted the fact that nobody actually saw him enter Kalmandi’s house.
However, the prosecutor need not disprove every possible theory of innocence. People v
Konrad, 449 Mich 263, 273 n 6; 536 NW2d 517 (1995). It is for the trier of fact to determine
whether reasonable theories of innocence have been negated. People v Wolfe, 440 Mich 508,
533; 489 NW2d 748 (1992). The evidence is sufficient for a rational trier of fact to conclude that
defendant entered Kalmandi’s house without permission and stole his bicycle, while Kalmandi
was inside the house.
Defendant also argues that the trial court erred in its factual findings. Defendant claims
that the trial court erroneously concluded that Kalmandi saw the bicycle shortly before it was
stolen. The court only stated that Kalmandi testified that he saw it “later in the day,” in response
to defense counsel’s incorrect assertion that he saw it at 7:00 a.m. Kalmandi, in fact, saw the
bicycle around 11 a.m. He did not recall seeing it when he returned home around 7 p.m., and
explained: “It’s not that I didn’t see it. I didn’t look for it because there was no reason. I
opened the door to go upstairs.” The court did not clearly err in its findings of fact.
Defendant next argues that the prior recorded preliminary exam testimony of Kalmandi
was improperly admitted at trial. We disagree. A trial court’s decision to admit or deny
evidence is reviewed for an abuse of discretion. People v Pattison, 276 Mich App 613, 615; 741
NW2d 558 (2007). Preliminary questions of law are reviewed de novo. Id. A trial court’s
findings of fact are reviewed for clear error. People v Rodriguez, 251 Mich App 10, 25; 650
NW2d 96 (2002); MCR 2.613(C).
Kalmandi did not appear for trial and the trial court admitted the transcript of his
testimony from defendant’s preliminary examination because it found that Kalmandi was
unavailable. In support of its ruling, the court stated, “Well there has been at least a minimum
showing of due diligence. There’s been a serving. They’ve gone out. He’s unavailable. The
court will entertain the transcript. And might I add that . . . the witness was subject to crossexamination at the time.” Defendant argues that the prosecutor did not show due diligence and,
thus, the trial court erred in admitting the preliminary examination testimony.
Prior recorded testimony is admissible under MRE 804(b)(1) if the party against whom
the testimony is offered had “an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination,” and the witness is unavailable. People v Meredith, 459
Mich 62, 66-67, n 7; 586 NW2d 538 (1998). Unavailability, as relevant to this case, requires that
Kalmandi was absent and that the prosecutor was unable to procure his attendance by process or
other reasonable means, and due diligence is shown. People v Bean, 457 Mich 677, 683-684;
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580 NW2d 390 (1998); MRE 804(a)(5). The test is one of reasonableness and requires only that
a diligent good-faith effort was made to procure the witness. Bean, supra at 684.
In this case, the prosecutor served Kalmandi with a subpoena and a police officer was
sent to his house on the morning of the trial. The prosecutor did not have any reason to suspect
that Kalmandi would not appear. In fact, Kalmandi had attempted to make an appearance the
week before, when the trial was postponed and he was sent home. Further, defense counsel
declined an opportunity to briefly adjourn to allow the police to make further efforts to procure
Kalmandi’s presence. Similarly, although defendant also contends that the trial court was
required to hold an evidentiary hearing in order to determine whether Kalmandi was unavailable,
defendant never requested an evidentiary hearing. Under these circumstances, we find no error
in the court’s conclusion that Kalmandi was unavailable and that his preliminary examination
testimony was admissible under MRE 804(b)(1).
Defendant argues that his constitutional right of confrontation was violated, although he
presents no substantive argument in this regard. Generally, the admission of preliminary
examination testimony does not violate a defendant’s right of confrontation. People v Meredith,
459 Mich 62, 67-71; 586 NW2d 538 (1998) (evidence properly within the former testimony
hearsay exception is, by definition, not vulnerable to a challenge based on the Confrontation
Clause). Defendant has not shown why this is not true in the instant case.
Affirmed.
/s/ Jane E. Markey
/s/ Helene N. White
/s/ Kurtis T. Wilder
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