People v. Cope , 169 Mich. App. 461 ( 1988 )

J. H. Gillis, P.J.

Following a jury trial, defendant was convicted of third-degree criminal sexual conduct, MCL 750.520d(1)(a); MSA 28.788(4)(1)(a). Defendant was sentenced to ten to fifteen years imprisonment. Defendant appealed as of right, claiming that the trial court abused its discretion when it allowed him to be impeached by evidence of his 1976 Ohio conviction for gross sexual imposition and that the verdict was against the great weight of the evidence. This Court affirmed defendant’s conviction. People v Cope, unpublished opinion per curiam of the Court of Appeals, decided February 14, 1985 (Docket No. 70305). Defendant sought leave to appeal and our Supreme Court, in lieu of granting leave to appeal, vacated our opinion and remanded this case to us for reconsideration in light of its recent decision in People v Allen, 429 Mich 558; 420 NW2d 499 (1988). People v Cope, 430 Mich 871; 421 NW2d 917 (1988). We affirm.

As noted above, defendant was charged with third-degree criminal sexual conduct. Defendant had three prior convictions: (1) a Michigan third-degree esc conviction in 1978, (2) an Ohio unarmed robbery conviction in 1976, and (3) an Ohio gross sexual imposition conviction in 1976. Defendant’s trial was held in October, 1982. The trial court suppressed evidence of defendant’s third-degree esc conviction, but allowed him to be impeached with evidence of the Ohio convictions. Defendant only challenges the trial court’s decision to admit evidence of the gross sexual imposition conviction. We note that at trial defendant testified on direct examination that the gross sexual imposition conviction was related to the robbery incident and was not a rape charge. Defendant and defendant’s witnesses testified that defendant was not with the victim when the crime occurred or that defendant was not alone with the victim long enough for the crime to occur. The prosecution’s witnesses’ testimony indicated that defendant had been alone with the victim long enough for the crime to occur. The fourteen-year-old victim had a vaginal bruise consistent with forcible intercourse and one nonmotile sperm was found. The victim was not examined until the day following the assault and the examining physician testified that sperm could live for seventy-two hours. Defendant hypothesized that the victim had had intercourse with someone else.

Applying the clarified balancing test in Allen to these facts, we find that the trial court abused its discretion in admitting evidence of the gross sexual imposition conviction for impeachment purposes. Nevertheless, having reviewed the entire record, we believe that this error was harmless beyond a reasonable doubt.

Our opinion concerning the great weight of the evidence issue remains unchanged.

Affirmed.

Cynar, J., concurred.