Opinion
Docket No. 78-4174.
Decided March 5, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
State Appellate Defender Office (by Daniel J. Wright and Mardi Crawford), for defendant on appeal.
Defendant was charged with, and convicted of, first-degree criminal sexual conduct, MCL 750.520b(1); MSA 28.788(2)(1), and armed robbery, MCL 750.529; MSA 28.797. He claims this appeal by right.
We have reviewed the record and conclude that only one of the five issues raised by defendant need be addressed. That is, whether or not the trial court erred reversibly in permitting evidence of defendant's prior conviction of assault with intent to rob while being armed to be used for purposes of impeachment. We find that it did not.
The complaining witness testified that defendant sprayed something in her face as she exited from her car, told her that he would stab her with a knife if she were not quiet, took $12 from her wallet, then had her drive them to a secluded spot where he raped her after a struggle. Defendant denied having taken any money and testified that the complainant consented to intercourse. Defendant's wallet was recovered from the complainant's car, and he was arrested at his boarding house that same night with $12 and a nail file found in the clothes he was reportedly wearing.
Following the prescribed test for review of the present issue, we note that the trial court recognized its discretion in this matter on the record. People v Worden, 91 Mich. App. 666, 674; 284 N.W.2d 159 (1979). The evidence admitted was a 1971 conviction for assault with intent to rob while being armed to which defendant plead guilty. While that offense was similar to one of the crimes for which defendant was being tried, it was not identical, and any resultant prejudice does not approach the level noted in People v Worden, supra, 678. An impressive factor in our review is that defense counsel agreed to the admission of evidence of defendant's prior conviction if defendant chose to testify. Defendant did testify at trial and made only one reference to his conviction on direct examination. Thus, it appears that there was no problem with defendant's foregoing the act of testifying due to fear of impeachment, nor was there any alternative means of impeaching him under the given circumstances. People v Jones, 92 Mich. App. 100, 110-111; 284 N.W.2d 501 (1979). Consideration of all of these factors convinces us that the trial court did not abuse its discretion in this matter.
Affirmed.
P.C. ELLIOTT, J. concurs in the result only.