PEOPLE OF MI V MARVIN MORRISON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 19, 2000
Plaintiff-Appellee,
v
No. 215425
Genesee Circuit Court
LC No. 98-002162-FC
MARVIN MORRISON,
Defendant-Appellant.
Before: Gribbs, P.J., and Kelly and Sawyer, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial conviction for armed robbery, MCL
750.529; MSA 28.797. Defendant was sentenced, as a second habitual offender, MCL 769.10;
MSA 28.1082, to seven to fifteen years’ imprisonment, with 167 days credit for time served. We
affirm.
Defendant’s first issue on appeal is that there was insufficient evidence to convict him of
armed robbery when the prosecution failed to prove beyond a reasonable doubt the dangerous
weapon element of the offense. We disagree.
When determining whether sufficient evidence has been presented to sustain a conviction,
we review the evidence in the light most favorable to the prosecution and determine whether any
rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748, amended 441
Mich 1201 (1992). The offense of armed robbery requires proof of (1) an assault and (2) a
felonious taking of property from the victim’s person or presence (3) while the defendant is
armed with a dangerous weapon described in the statute. People v Norris, 236 Mich App 411,
414; 600 NW2d 658 (1999). On appeal, defendant alleges a failure of proof regarding the third
element, which requires the prosecutor prove that defendant was “armed with a dangerous
weapon, or any article used or fashioned in a manner to lead the person so assaulted to
reasonably believe it to be a dangerous weapon.” Id. (quoting MCL 750.529; MSA 28.797).
Defendant argues that there was insufficient evidence as to this element because both employees
testified that they did not see a gun or other weapon, defendant did not say he had a gun or other
weapon, the employees did not see an outline of a gun or other weapon, and defendant did not
hold his hand in a manner to suggest that he had a weapon.
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Proof of armed robbery does not require the submission of a dangerous weapon into
evidence, nor does it require that the witness actually see the gun or knife. All that is required is
some objective evidence of the existence of a weapon or article used or fashioned in a manner to
lead the person so assaulted to reasonably believe it to be a dangerous weapon. People v Jolly,
442 Mich 458, 468; 502 NW2d 177 (1993). The Michigan Supreme Court in Jolly found there
was objective evidence that the defendant was armed when the defendant’s accomplice
threatened that the defendant would shoot or kill the victim if he failed to comply with the
demand for money, coupled with the fact that the victim observed a bulge in the defendant’s vest
that he believed was a gun. The Court stated that “[b]oth the bulge and the threat are
circumstantial evidence that defendant was armed either with a dangerous weapon or an article
fashioned to look like one.” Id. at 470. Thus, the Court found the dangerous weapon element
satisfied for purposes of the armed robbery statute and upheld the defendant’s conviction. Id. at
470-471.
The facts in Jolly are similar to the facts in the instant case. In the case at hand, defendant
threatened two store employees, Allen and Holder, during the robbery. Defendant told Allen that
he did not think anything about killing her and told Holder he would kill her. Furthermore, when
defendant was leaving the store, he threatened to shoot Allen or “blow her head off through the
window” if she called the police. In addition to the threats during the robbery, defendant used or
fashioned some article in a manner to lead Allen and Holder to reasonably believe he had a
dangerous weapon, specifically a gun. Allen described defendant’s right-hand pocket as being
heavy, with something “buzzed” or “pudged” out of it. Allen also observed defendant grab at his
coat on the right-hand side where it was pudged out as he was threatening them. Holder also
observed defendant grab at his right side, like he was pulling something out of his pocket. She
described a bulge on his right side near his waist level. From his threats and actions, both
employees thought defendant had a gun and was going to shoot them The threats, together with
the bulge or pudge on defendant’s right side, are evidence that defendant was armed with a
dangerous weapon or used or fashioned some article in a manner to lead the victims to
reasonably believe that it was a dangerous weapon. This evidence, when viewed in the light
most favorable to the prosecution, was sufficient to prove the dangerous weapon element of
armed robbery beyond a reasonable doubt. Thus, the prosecution presented sufficient evidence to
convict defendant of armed robbery.
Defendant’s second issue on appeal is that the trial court’s denial of defendant’s motion
for a mistrial was so unfairly prejudicial that it deprived defendant of a fair trial. We disagree.
We review a lower court’s denial of a motion for a mistrial for an abuse of discretion.
People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995). “A mistrial should be
granted only for an irregularity that is prejudicial to the rights of the defendant, . . . and impairs
his ability to get a fair trial.” Id. Reversal of a trial court’s decision to deny a motion for a
mistrial is not warranted unless the defendant makes an affirmative showing of prejudice
resulting from the abuse of discretion. People v Vettese, 195 Mich App 235, 246; 489 NW2d
514 (1992).
Defendant claims he was unfairly prejudiced when Sergeant Black testified that she
obtained defendant’s picture from the police files, and therefore, the trial court denied defendant
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a fair trial when it denied his motion for a mistrial. Any error that occurred as a result of
Sergeant Black’s testimony was not so prejudicial to the rights of defendant as to impair his
ability to obtain a fair trial or to amount to a miscarriage of justice. People v Stewart, 199 Mich
App 199, 200; 500 NW2d 756 (1993). Sergeant Black only briefly mentioned that she was able
to obtain a picture of defendant from police files. She did not state that he had a prior conviction,
prior arrests, spent time in jail, or even that he had a criminal record. Furthermore, any possible
prejudicial inference the jury may have drawn from Sergeant Black’s statement was cured by the
trial court’s instruction to the jury to disregard that portion of the testimony in its entirety and not
consider it at all during deliberations. To support this conclusion further, “juries are presumed to
follow their instructions.” People v Torres (On Remand), 222 Mich App 411, 423; 564 NW2d
149 (1997). Thus, we hold that the trial court did not abuse its discretion when it denied
defendant’s motion for a mistrial.
Affirmed.
/s/ Roman S. Gribbs
/s/ Michael J. Kelly
/s/ David H. Sawyer
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