PEOPLE OF MI V JORGE ANTONIO IBARRA-PEREZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 16, 2004
Plaintiff-Appellee,
v
No. 248738
Wayne Circuit Court
LC No. 02-011705-01
JORGE ANTONIO IBARRA PEREZ,
Defendant-Appellant.
Before: Zahra, P.J., and White and Talbot, JJ.
PER CURIAM.
Defendant was convicted by a jury of two counts of first-degree criminal sexual conduct,
MCL 750.520(b). He was sentenced to concurrent ten- to twenty-year terms. He appeals as of
right, and we affirm.
Defendant first argues that the trial court erred when it failed to suppress the victim’s onthe-scene identification on grounds that it violated defendant’s constitutional rights to counsel
and to due process. We disagree.
This Court reviews the trial court’s decision to allow identification evidence for clear
error. People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). Clear error exists when
the reviewing court is left with the definite and firm conviction that a mistake has been made. Id.
“The right to counsel attaches only to corporeal identifications conducted at or after the
initiation of adversarial judicial criminal proceedings.” People v Hickman, 470 Mich 602, 611;
684 NW2d 267 (2004) (overruling People v Anderson, 389 Mich 155; 205 NW2d 461 [1973], to
the extent it extended the right to counsel to a time before initiation of adversarial criminal
proceedings.) Hickman, supra, was decided during the pendency of this appeal. Before
Hickman, this Court had held that prompt on the-scene identifications were proper
notwithstanding the absence of counsel. People v Winters, 225 Mich App 718, 727; 571 NW2d
764 (1997). Here, police conducted the challenged on-the-scene identification promptly. Thus,
under either Hickman or Winters, defendant’s challenge fails.
With regard to defendant’s second assertion, in order to sustain a due process challenge
in connection with a pretrial identification procedure, a defendant must show that the procedure
was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood
of misidentification. Kurylczyk, supra at 302-303. The factors to be considered in evaluating the
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likelihood of misidentification include: the opportunity of the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description
of the criminal, the level of certainty demonstrated by the witness to the confrontation, and the
length of time between the crime and the confrontation. Id.
In the present case, there is nothing in the record to suggest that the on-the-scene
identification procedure presented a substantial likelihood of misidentification. Further, there is
nothing in the record to suggest that the police made any improper suggestion to the victim that
they had apprehended the right person. Rather, it appears that police brought defendant, who
apparently spoke only Spanish, to the victim’s location to determine if he was the perpetrator
because they were unable to communicate with him, and that police said nothing to the victim
before she became upset and spontaneously identified defendant.
Defendant next argues that the prosecution presented insufficient evidence to prove
beyond a reasonable doubt that he was the person who committed the charged crimes. Again, we
disagree.
In reviewing the sufficiency of the evidence, this Court reviews the evidence in a light
most favorable to the prosecution and determines 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). “A reviewing court is required to draw
all reasonable inferences and make credibility choices in support of the jury verdict.” Id. at 400.
Here, defendant challenges the sufficiency of the evidence only as to his identity as the
perpetrator. Defendant stresses that the DNA evidence established that the scrapings from the
victim’s fingernails were not from the victim or defendant, and that a witness testified that the
man following the victim was dressed in light, rather than dark, clothing. We conclude,
however, that it was for the jury to determine whether these facts created a reasonable doubt in
light of the substantial evidence of defendant’s guilt. The victim identified defendant as her
assailant, and witnesses testified that she described him in a manner consistent with his actual
appearance before the on-the-scene identification. Further, defendant’s appearance was
consistent with his having fought with the victim in the grass, and defendant had the victim’s
bracelet in his possession. Thus, the prosecution presented sufficient evidence for a rational trier
of fact to find beyond a reasonable doubt that defendant committed the crimes of which he was
convicted.
Affirmed.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Michael J. Talbot
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