                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 19, 2016
               Plaintiff-Appellee,

v                                                                   No. 325032
                                                                    Wayne Circuit Court
RONALD BENSON,                                                      LC No. 14-005233-FH

               Defendant-Appellant.


Before: JANSEN, P.J., and SERVITTO and M. J. KELLY, JJ.

PER CURIAM.

       Defendant was convicted by a jury of larceny in a building, MCL 750.360. Defendant
was sentenced to two years’ probation with the last 90 days to be served in jail. Defendant now
appeals as of right. We affirm.

      Defendant first argues that the evidence at trial was insufficient to support his conviction.
We disagree.

        A challenge to the sufficiency of the evidence supporting a criminal conviction is
reviewed de novo. People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010). We
consider the evidence in the light most favorable to the prosecution to determine whether a
rational trier of fact could find that the prosecution proved the essential elements of the crime
beyond a reasonable doubt. People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014).
To sustain a conviction for larceny in a building, the prosecution must prove the following
elements:

       [1] an actual or constructive taking of goods or property; [2] a carrying away or
       asportation; [3] the carrying away must be with a felonious intent; [4] the goods
       or property must be the personal property of another; [5] the taking must be
       without the consent and against the will of the owner; and [6] the taking must
       occur with in [sic] the confines of the building. [People v Sykes, 229 Mich App
       254, 278; 582 NW2d 197 (1998).]

Larceny is a specific-intent crime, and felonious intent is the “intent to permanently deprive the
owner of his property.” People v Cain, 238 Mich App 95, 119-120; 605 NW2d 28 (1999)
(quotation marks and citation omitted). “[T]he intent to permanently deprive includes the
retention of property without the purpose to return it within a reasonable time or the retention of

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property with the intent to return the property on the condition that the owner pay some
compensation for its return.” Harverson, 291 Mich App at 178. Intent may be inferred from the
defendant’s “words or from the act, means, or the manner employed to commit the offense.”
People v Hawkins, 245 Mich App 439, 458; 628 NW2d 105 (2001) (citation omitted). “[O]nly
minimal circumstantial evidence is necessary to show . . . the requisite intent.” Harverson, 291
Mich App at 178.

        Viewing the evidence in a light most favorable to the prosecution, there was sufficient
evidence for a rational jury to find that the elements of larceny in a building were proven beyond
a reasonable doubt. It is not disputed that defendant took Deborah Smiley’s purse and its
contents from within her residence without her consent. Although Smiley’s purse was returned
to her, she testified that two of her cell phones that were in the purse were never returned.
Defendant argues that he did not act with the intent to permanently deprive because he intended
to return the purse within a reasonable time. Lisa Jones testified that she and defendant were
about to return the purse when defendant was arrested, that defendant removed two cell phones
from the purse first, and that defendant indicated the cell phones were his. Officer Joel
Hutchinson testified that he found defendant in the passenger seat of a car with the purse lying
between his legs. Defendant told Officer Hutchinson that the purse was Smiley’s and that he
took it because she scratched him in the face. The police then returned the purse to Smiley. We
conclude that the evidence that defendant took Smiley’s purse from her house and had it in his
possession at the time the police apprehended him provides the minimal circumstantial evidence
necessary to establish the requisite intent. See Harverson, 291 Mich App at 178. However, even
if we were to credit the testimony that defendant may have been in the process of returning the
purse, the evidence at trial supported beyond a reasonable doubt that he had no intent to return
the two phones, which in turn permits a reasonable inference that he had the requisite intent. See
Hawkins, 245 Mich App at 458. To the extent that defendant appears to argue that he had a right
to keep the cell phones because they were his, he asks this Court to weigh the evidence and
resolve conflicting testimony in his favor. But, when reviewing a challenge to the sufficiency of
the evidence, this Court is required to resolve all conflicting evidence in favor of the prosecution.
People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). Moreover, the jury had the
opportunity at trial to weigh the evidence and evaluate the credibility of the witnesses, and the
Court does not interfere with this role of the jury. See People v Stevens, 306 Mich App 620, 628;
858 NW2d 98 (2014). Considering the evidence in the light most favorable to the prosecution, a
jury could reasonably find that the two cell phones belonged to Smiley because they were in her
purse and that defendant intended to permanently deprive her of those phones because they were
never returned. This is more than minimal circumstantial evidence of defendant’s intent. See
Harverson, 291 Mich App at 178. The evidence was sufficient to support defendant’s
conviction. See Henderson, 306 Mich App at 9.

       Defendant also argues that the verdict is against the great weight of the evidence and a
new trial should be granted because the evidence supporting a finding that defendant intended to
permanently deprive Smiley of her property was not credible. We disagree.

        To preserve such a challenge, a criminal defendant must move for a new trial. See
People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). A defendant who fails to
move for a new trial based on this ground does not preserve the issue, and the issue is reviewed
for plain error on appeal. People v Cameron, 291 Mich App 599, 618; 806 NW2d 371 (2011).

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Here, defendant did not move for a new trial, so we review the issue for plain error. On plain-
error review, the defendant has the burden to establish (1) “error”; (2) that was “plain,” meaning
“clear or obvious”; (3) and that affected the outcome of the lower court proceedings. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

               The test to determine whether a verdict is against the great weight of the
       evidence is whether the evidence preponderates so heavily against the verdict that
       it would be a miscarriage of justice to allow the verdict to stand. “Conflicting
       testimony, even when impeached to some extent, is an insufficient ground for
       granting a new trial.” “[U]nless it can be said that directly contradictory
       testimony was so far impeached that it ‘was deprived of all probative value or that
       the jury could not believe it,’ or contradicted indisputable physical facts or defied
       physical realities, the trial court must defer to the jury’s determination.” [Musser,
       259 Mich App at 218-219 (alteration in original; citations omitted).]


         While Smiley’s testimony may have been impeached at trial, it was not contrary to
indisputable physical facts or physical realities, and the conflicts in Smiley’s stories did not
deprive her testimony of “all probative value” or make it impossible for the jury to believe that
two of her cell phones were not returned. See Musser, 259 Mich App at 219. Moreover,
although there was conflicting testimony about who owned the cell phones, the jury had the
opportunity to evaluate the credibility of the witnesses, and defendant had an opportunity to
cross-examine Smiley. Consequently, there is not an adequate basis for granting a new trial. See
People v Lemmon, 456 Mich 625, 646-647; 576 NW2d 129 (1998) (finding an inadequate basis
for granting a new trial where the testimony of the victims and the defendant was directly
contradictory). Defendant has failed to show plain error requiring reversal. See Cameron, 291
Mich App at 619 (holding that the defendant failed to show plain error on a great-weight-of-the-
evidence challenge by arguing that the victim’s statements during trial were inconsistent with her
earlier statements to police).

       Affirmed.


                                                             /s/ Kathleen Jansen
                                                             /s/ Deborah A. Servitto
                                                             /s/ Michael J. Kelly




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