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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, V GEORGE CALVIN PAYNE III, Defendant-Appellant.

UNPUBLISHED July 31, 2008

No. 273233 Berrien Circuit Court LC No. 2005-412913-FH

Before: Wilder, P.J., and Saad, C.J., and Smolenski, J. PER CURIAM. Following a jury trial, defendant was convicted of two counts of armed robbery, MCL 750.529. The trial court sentenced defendant to concurrent sentences of 450 months to 50 years' imprisonment. Defendant appeals as of right his convictions and sentences. We affirm. Defendant first claims on appeal that his convictions for armed robbery were not supported by sufficient evidence, because Ray Floyd, who pleaded guilty to committing the armed robberies, and who identified defendant as his accomplice, was not a credible witness. It is the province of the jury to assess the credibility of a witness, People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998), and in reviewing the sufficiency of the evidence to sustain a criminal conviction, we will not interfere with the jury's credibility determinations. People v Williams, 268 Mich App 416, 419; 707 NW2d 624 (2005). Thus, while there may be some evidence to support defendant's assertion that Floyd lied about the name of his accomplice, we will not interfere with the jury's determination that Floyd was a credible witness. Id. Accordingly, we reject defendant's argument that his convictions were not supported by sufficient evidence because Floyd was not a credible witness. Defendant also asserts that his conviction for armed robbery as to Christopher Opfer was not supported by sufficient evidence, because there was no evidence that any property or money was stolen from Opfer's person or in his presence. We disagree. Under MCL 750.529 as amended in 2004, the elements of armed robbery are: (1) the defendant, in the course of committing a larceny of any money or other property that may be the subject of a larceny, used force or violence against any person who was present or assaulted or put the person in fear, and (2) the defendant, in the course of committing the larceny, either possessed a dangerous weapon, possessed an article used or fashioned in a manner to lead any person -1-


present to reasonably believe that the article was a dangerous weapon, or represented orally or otherwise that or she was in possession of a dangerous weapon. People v Chambers, 277 Mich App 1, 8; __ NW2d __ (2007). This 2004 legislative amendment to MCL 750.529 eliminated the previous requirement that the prosecutor establish, as an element of armed robbery, that the felonious taking of property was from "the complainant's person or in his presence." It is undisputed that Opfer was present in the Hardee's restaurant while defendant and Floyd committed a larceny, and there was testimony that defendant possessed a six-inch steak knife during the course of the larceny. In addition, because Opfer testified that he was scared during the larceny, there was evidence that defendant's actions put Opfer in fear. Accordingly, defendant's argument that his conviction for armed robbery as to Opfer was unsupported by sufficient evidence, because no property was taken from Opfer's person or in his presence, is without merit. Defendant next claims on appeal that the trial court erred in denying his motion to suppress evidence of the conversation Detectives James Millin and Richard Krueger, overheard while standing outside the front door to Belinda McMichael's trailer. According to defendant, the "eavesdropping" of Millin and Krueger violated his Fourth Amendment right against unreasonable searches and seizures, and MCL 750.539c, which prohibits eavesdropping on a private conversation. We review a trial court's ultimate decision on a motion to suppress de novo, but its factual findings are reviewed for clear error. People v Wilkens, 267 Mich App 728, 732; 705 NW2d 728 (2005). The United States Constitution and the Michigan Constitution protect a person against unreasonable searches and seizures. US Const, AM IV; Const 1963, art 1,

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