Dеfendants were charged with armed robbery, MCL 750.529; MSA 28.797, and with breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. In a joint trial, defendant Joseph Newcomb was convicted by a jury of breaking and entering, and on the following day defendant Ronald New-comb, who had waived trial by jury, was convicted by the trial judge of both armed robbery and breaking and entering. Ronald Newcomb was sentenced to seven to twenty years for the armed robbery conviction. However, that sentence was vacated upon his plea of guilty of being an habitual offender, fourth offense, and he was sentenced to eight tо thirty years. He was also sentenced to six to fifteen years for the breaking and entering conviction, to be served concurrently. Joseph New-comb was sentenced to four to fifteen years fоr his conviction of breaking and entering. Both defendants now appeal their convictions as of right. We affirm.
DOCKET NO. 118019
Defendant Joseph Newcomb argues that he is entitled to resentencing because the trial court, *427 notwithstanding his acquittal of armed robbery, found him to have participated in the armed robbery and used that finding to justify the sentence.
At issue here is the following statement by the sentencing court:
All right. The Cоurt heard the testimony and the Court is basing its sentence on what it heard as opposed to the factual statements outlined in the presentence report but with regard to the use of the hammer the Cоurt heard the testimony and the fact that this defendant participated in it not withstanding what the jury said but I’m going to sentence the defendant within the guidelines so to that extent it doesn’t matter what the Court believes.
The guidеlines are appropriate and both counsel agree to them. They’ve been modified in accordance with the defendant’s request.
To facilitate appellate review, a sеntencing court must articulate on the record the criteria considered and the reasons for a sentence imposed.
People v Fleming,
A sentencing court has a duty to respond to challenges to the accuracy of information in a presentencе report.
People v Sutton,
In the case before us, the court articulated on the record that it had heard from the victim that the person who had entered her room had used a hammer. Finding that someone used a hammer is not the equivalent of finding someone guilty of armed robbеry. In this case, the use of the hammer was but one element of that crime. Because a sentencing court can rely on facts underlying an acquittal, the trial court’s consideration of information presented by a witness in a trial that resulted in defendant’s acquittal was proper.
The court below also listened to defense objections to perceived inaccuracies in the presentence report. It identified another source of information and therefore did not depend on the presentence report when considering the use of the hammer. The sentencing cоurt opted to disregard the challenged information. However, information from the trial was available to the court to assist it in its sentencing decision. We find no abuse of discretion in the court’s considеration of that information. We also note that the sentence imposed upon defendant complies with the sentencing guidelines.
The record is quite clear that the sentencing court carefully considered the seriousness of the crime. In doing so, it took into account the use of the hammer during the breaking and entering of the victim’s occupied room. Accordingly, we do not believe that this constituted an abuse of discretion warranting resentencing.
DOCKET NO. 117605
In his appeal, defendant Ronald Newcomb raises four issues, the first being that he was prejudiced *429 by the trial court’s admission of testimony from third parties concerning two extrajudicial identifications.
MRE 801(d)(1) sets forth the rule relating to admission of prior statements of witnesses. A statement is not hearsay if the "declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving him.” There has been a split in this Court over whether the rulе is applicable to third-party testimony related to identification.
Some panels have found that MRE 801(d)(1) allows the declarant to testify regarding the declarant’s prior identification of a defendant but does not allow a third party to testify about the declarant’s identification of a defendant; the third party may only testify about the facts and circumstances surrounding the previous identification. 1 Other panels, however, have held that a third party can testify concerning an identification of a defendant at a lineup. 2
Although we are aware of the weaknesses of identification testimony as discussed in
People v Sanford,
After reviewing the record below, we find that the admission of the testimony of Timothy Jordan, the victim’s neighbor, and Wendy Keelty, a Pontiac police officer, regarding the victim’s extrajudicial identification of defendant Ronald Newcomb was properly admitted under MRE 801(d)(1). There was no abuse of discretion on the part of the trial court warranting reversal.
Next, defendant argues that the evidence was insufficient to sustain his conviction of armed robbery. In resolving a challenge to the sufficiency of the evidence in a criminal case, we must view the evidence in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt.
People v Petrella,
Michigan has adopted the view that robbery is a
*431
continuous offense that is not complеte until the perpetrator reaches a place of temporary safety.
People v Tinsley,
Thus, in the case at bar, even if the hammer appеared after the property was in the Newcombs’ hands, the defendants had not yet left the victim’s room. The victim was still considered to be in possession of her property and the armed robbery was still in рrogress. The elements of armed robbery were therefore proven, and the evidence was sufficient to support defendant’s conviction.
The next issue defendant raises is whether he was deniеd his constitutional right of confrontation. Defendant did not raise this issue below. Generally, we will not review an issue raised for the first time on appeal.
People v Davis,
Upon review of the record, we conclude thаt the issue of defendant’s right to cross-examine his codefendant, who was not a witness against him, was not outcome-decisive, and we will not review it.
Defendant’s final claim raises two separate issues. Thе first, that the Oakland County Prosecutor’s policy of charging all repeat offenders under the habitual-offender statute is an abuse of
*432
discretion and denies him fundamental fairness, due process, or equal protection of law is without merit. See
People v
Sunday,
The second half of defendant’s final claim is that the sentence he received for the habitual offender conviction should shock the consciеnce of this Court. The "shock the conscience” standard of review has been abandoned in favor of a principle of proportionality. See
People v Milbourn,
The eight-year minimum sentence imposed on defendant does not exceed two-thirds of the twenty-year maximum, thus there is no violation of the two-thirds rule. Moreover, the sentencing court was very clear on the record why it was sentencing defendant as it did. The court stated that defendant had committed a dangerous crime and that he had been continuously committing crimes for almost thirty years. We find that defendant’s sentence was proportional to the crime and to his criminal history.
Affirmed.
Notes
People v Turner,
People v Beam,