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____________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion
Stephen J. Markman
FILED SEPTEMBER 17, 2002

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, Cross-Appellee
v No. 120825 MOBILE LUNDY, Defendant-Appellee, Cross-Appellant.
PER CURIAM A

jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b). 1 The Co urt of Appeals determined that there was insu ffic ient evidence of the underlying felony of

1 MCL 750.316(1) provides: A

person who commi ts a ny of the following is guilty of first degree murder and shall be punished by imprisonment for life: (b) Murder committed in the perpetration of, or attempt to perpetrate . . . larceny of any kind

. . . .larceny and remanded the case to the circuit court for entry of a convictio n of second-degree murder and resentencing. 2 Finding the evidence of larceny sufficient, we reverse the judgment of the Court of Appeals and reinstate defendant’s first-degree felony-murder conviction. I This case arose out of the robbery and stabbing death of Reginald May. The prosecutor’s theory was that defendant and his girlfriend, Debra Hart, were alone with the victim in an apartment when defendant saw he had some money, stabbed him to death, and took the money. Defendant testified that he, Hart, the vic tim, and two others had been drinking beer and vodka and smoking crack cocaine. He said he went to use the bathroom when the two othe rs left to get more crack cocaine. Defendant indica te d that, when he came out of the bathroom, Hart said the victim had been bothering her. He explained that he stabbed the victim to protect Hart and himself from the victim during a struggle. 3 Defendant said that the victim’s money was not related to the stabbing, that he did not see the victim with

2 Unpublish ed opinion per curiam, issued October 9, 2001 (Docket No. 220100).
3 The medical examiner testified that the victim had been stabbed nine times. 2money before the a lte rcation, and that Hart took the money from the victim after the stabbing as they were leaving the apartment. However, defendant acknowledged during crossexaminationthat he had made a prior inconsistent statement to the effect that he had seen the victim with money before the stabbing. After considering all the evidence, the jury returned a verdict of first-degree felony murder. II The Court of Appeals reversed the conviction on the basis that defendant’s prior inconsistent statement, that he had
seenthe v ictim with money before the stabbing, had been improperly considered as substantive evidence, rather than just for impeachment purposes. In reaching this conclusion the Court of Appeals relied upon People v Jenkins , 450 Mich 249, 260-261; 537 NW2d 828 (1995). Judge Zahra dissented, indicating that he believed th e evidence was sufficient to support the jury’s verdict. III The prosecution has applied to t his Co urt for leave to appeal. D efen dant has filed a cross-appeal regarding other issues that the Court of Appeals rejected. The prosecution contends, and we agree, that the Court of Appeals erred in applying People v Jenkins to de fend ant’s 3prior inconsistent statement. Jenkins stands for the general propositionthat prior unsworn statements of a witness are
mere hearsay and are generally inadmissible as substantive evidence. However, Jenkins is inapplicable because it related to impeachment of a prosecution witness with an inconsistent statement, whereas this case concerns defendant’s out-of-court statem ent. Admissions by a party are specifically excluded from hearsay and, thus, are admissible as bothimpeachment and substantive evidence under MRE 801(d)(2). 4 Thus , pr operly understood, Jenkins only applies to nonparty witnesses. Inreviewing a chall enge to the sufficiency of the evidence, this Court analyz es t he evidence presented in the light most favorable to the prosecution to determine whether any rational trier of fact could have found that the essential elements of the crime charged were proven beyond a reasonable doubt. People v Wolfe , 440 Mich 508, 515; 489 NW2d 748 (1992)
m od 441 Mich 1201 (1992). The element in dispute her e i s whether the defendant, at the time he stabbed the victim, was committing or attempting to commit a larceny or helping Hart

4 MRE 801(d) provides: A statement is not hearsay if— (2) . . . The statement is offered against a party and is (A) the party’s own statement . . . . 4commit a larceny. 5 Viewing the evidence in the light most favorable to the prosecution, including defendant’s prior inconsistent statement that he had seen the victim with money before the stabbing, we hold that the evidence of the underlying larceny was sufficient. As Judge Zahra indicated, from the evidence the jury could conclude that defendant or Hart knew that the victim had money and decided to seize the moment to r ob an d murder the victim. Slip op at 1. The jury was free to discount testimony suggesting that de fend ant or Hart formed the intent to take the money only after the stabbing. 6 It is for these reasons that we reverse the judgment of the Court of Appe als and reinstate defendant’s first-degree

5 The trial court correctly instructed the jury that, in order to find defendant guilty, it had to find that, at the time defendant did the act that caused the victim’s death, he was committing, or attempting to commit, or helping som eone else commit the crime of larceny. 6 [A]ppellate courts are not juries, and even whenreviewing the sufficiency of the evidence, they must not interfere with the jury's role: [Anappellate court] must remember that the jury is the sole judge of the facts. It is the function of the jury alone to listen to testimony, weight he evidence and decide the questions of fact. . . . Juries, not appellate courts, see and hear witnesses and are in a muchbetter position to decide the weight and credibility to be given to their testimony. [ Wolfe, supra at 514-515]. 5felony-murder conviction. With regard to the defe ndant's cross-appeal, we deny leave to appeal. C ORRIGAN , C.J., and C AVANAGH , W EAVER , K ELLY , T AYLOR , Y OUNG , and M

ARKMAN , JJ., concurred.

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