PEOPLE OF MI V ROCKYBA FERGUSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 19, 2002
Plaintiff-Appellee,
v
No. 228529
Wayne Circuit Court
LC No. 99-002311
ROCKYBA FERGUSON,
Defendant-Appellant.
Before: Neff, P.J., and Cavanagh and Saad, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of one count of attempted arson, MCL
750.72, and was sentenced to five years’ probation. He now appeals as of right and we affirm.
Defendant first argues that the prosecution committed error requiring reversal by
allowing an expert to invade the province of the jury by testifying that defendant was guilty. No
objection was made in the trial court, so this issue has not been preserved on appeal; however,
because defendant is alleging a violation of his constitutional rights, this issue, although
unpreserved, is reviewed for plain error. People v Carines, 460 Mich 750, 763-766; 597 NW2d
130 (1999). This Court reviews constitutional issues de novo. People v Echavarria, 233 Mich
App 356, 358; 592 NW2d 737 (1999).
A criminal defendant has a right, under our federal and state constitutions, to be tried by a
fair and impartial jury. US Const, Am VI; Const 1963, art 1, § 20; People v Daoust, 228 Mich
App 1, 7; 577 NW2d 179 (1998). Defendant argues that the testimony was improper because an
expert may not testify regarding the crucial issue whether an accused committed the crime.
Defendant also argues that because the expert was a fireman, arson investigator, and police
officer, he should be held to a higher standard of avoiding prejudicial remarks.
Defendant has failed to demonstrate any error in the expert’s testimony. The
prosecution’s expert witness merely testified that defendant was a suspect in the case. Moreover,
this testimony was not part of his “expert” testimony. Rather the disputed testimony was made
while the witness explained why he arrested defendant – because he was a suspect. Defendant
cannot complain that the jury was advised that defendant was considered a suspect in a case in
which he was charged and for which he was on trial. The expert did not testify that defendant
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was guilty. He also did not testify that, in his opinion, the material witness’ testimony was
credible. Further, the jury was instructed more than once that the mere fact that defendant was
charged with a crime was not evidence against him. Finally, the prosecutor still had the burden
to demonstrate that defendant was guilty, and the trial court instructed the jury on the elements of
the crime that had to be proven.
Defendant next argues that there was insufficient evidence to sustain his attempted arson
conviction. A criminal defendant need not take any special steps to preserve an issue regarding a
challenge to the sufficiency of the evidence. People v Cain, 238 Mich App 95, 116-117; 605
NW2d 28 (1999).
To determine whether sufficient evidence has been presented to sustain a conviction, this
Court must view the evidence in a light most favorable to the prosecution to determine whether a
rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000).
Because the standard of review is deferential, a reviewing court is required to draw all reasonable
inferences and make credibility choices in support of the jury verdict. Id. The scope of review is
the same whether the evidence is direct or circumstantial. Id.
Due process requires that the prosecution introduce evidence sufficient to justify a trier of
fact in concluding that the defendant is guilty beyond a reasonable doubt. People v Johnson, 460
Mich 720, 722-723; 597 NW2d 73 (1999). An arson conviction under MCL 750.72 requires
proof of the malicious and voluntary or willful burning of a dwelling house of another. A
conviction for attempted arson requires proof that the defendant intended to commit the crime of
arson and that the defendant took some action toward committing the crime but failed to
complete it.
In arson cases, the trier of fact typically draws inferences from circumstantial evidence.
Nowack, supra at 402-403. Circumstantial evidence and the reasonable inferences arising from
it may constitute satisfactory proof of the elements of the crime. Carines, supra at 757.
Defendant contends that there was insufficient evidence to prove that he maliciously and
voluntarily or wilfully caused the burning. However, the evidence supports a reasonable
inference that defendant intentionally set the fire. The victim testified that on the night of the
fire, he saw defendant with the person who was later convicted of burglarizing the victim’s home
that night. The victim also saw defendant in front of the field next to his house when he came
running out of his burning house. The material witness testified that defendant was one of three
people she overheard talking about setting a house on fire. She also stated that after she smelled
smoke, she looked out on her back porch and saw defendant running from the side of the burning
house into the back alley.
This Court should not interfere with the jury’s role in determining the weight of evidence
or the credibility of witnesses. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
A reviewing court must consider the evidentiary facts in conjunction with one another and in a
light most favorable to the prosecution. Nowack, supra at 404. While no witness testified to
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seeing defendant start the fire, the evidence supports a reasonable inference that he was guilty of
attempted arson of a dwelling house.
Affirmed.
/s/ Janet T. Neff
/s/ Mark J. Cavanagh
/s/ Henry William Saad
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