People v. Johnson

128 Mich. App. 618 (1983) 341 N.W.2d 160

PEOPLE
v.
JOHNSON

Docket No. 61977.

Michigan Court of Appeals.

Decided September 13, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James J. Gregart, Prosecuting Attorney, and Douglas E. Weldon, Assistant Prosecuting Attorney, for the people.

Marovich & Stroba (by Milton J. Marovich), for defendant on appeal.

Before: D.E. HOLBROOK, JR., P.J., and D.F. WALSH and J.C. KINGSLEY,^[*] JJ.

D.E. HOLBROOK, JR., P.J.

Defendant was convicted by a jury of criminal sexual conduct in the third degree contrary to MCL 750.520d(1)(b); MSA 28.788(4)(1)(b). Thereafter sentenced to a prison term of 3 to 22-1/2 years, defendant appeals as of right.

First, defendant claims that the trial court erred in ruling that evidence of defendant's prior conviction for uttering and publishing was admissible for purposes of impeachment. More specifically, defendant contends that the trial court misinterpreted the ten-year time limitation set forth in MRE 609(b). On June 1, 1970, defendant was sentenced to two years probation, plus $100 in fines, for the crime of uttering and publishing. On January 11, 1971, defendant pled guilty to a probation violation and was sentenced to 2 to 14 years imprisonment. Defendant spent one to two years in prison. We hold that the trial court did not misapply said rule. Although defendant's incarceration followed his violation of probation, the incarceration still related to the original conviction of uttering and publishing. Defendant's release from confinement imposed for the conviction of uttering and publishing, therefore, came within the ten-year limit of MRE 609(b).

Defendant further contends that the trial court failed to determine whether the probative value of the evidence of the conviction outweighed its prejudicial effect as required by MRE 609(a)(2). We disagree. The trial judge must positively indicate and identify his exercise of discretion. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). It is sufficient if the record reflects that the trial judge was aware that he had the discretion to disallow the evidence of a prior conviction and that his decision was based upon an exercise of this discretion. People v Hollis, 96 Mich App 333; 292 NW2d 538 (1980); People v Worden, 91 Mich App 666; 284 NW2d 159 (1979); People v Castillo, 82 Mich App 476; 266 NW2d 460 (1978). A review of the trial court's decision indicates that it did consider whether the prejudicial effect of admitting evidence of defendant's prior conviction outweighed the probative value on the issue of credibility. Moreover, the court recognized its discretion to deny the use of the evidence of the conviction if its prejudicial effect outweighed the probative value. We find no reversible error.

Second, defendant claims that the trial court erred in denying the jury's request to have the complainant's and defendant's testimony read back. As a general rule, when a jury requests that testimony be read back to it, both the reading and extent of the reading are matters within the sound discretion of the trial judge. People v Howe, 392 Mich 670, 675; 221 NW2d 350 (1974). This Court has repeatedly held that a trial court properly exercises its discretion when it directs a jury to deliberate further without rehearing the testimony, so long as the possibility of having the testimony read at a later time is not ruled out. See People v Joseph, 114 Mich App 70; 318 NW2d 609 (1982); People v Solomon, 82 Mich App 502; 266 NW2d 453 (1978). Such is the case herein. We find no abuse of discretion.

Third, defendant claims that the verdict was against the great weight of the evidence. Defendant's claim is properly preserved for appeal since defendant moved for a new trial on that ground in the trial court. People v Ferguson, 94 Mich App 137, 148; 288 NW2d 587 (1979). The standard of review for a great weight question is whether upon review of the record the trial court abused its discretion in denying defendant's motion for a new trial. People v Nichols, 69 Mich App 357, 362; 244 NW2d 335 (1976). Since the defendant admitted to engaging in sexual intercourse with the complainant, the only issue at trial was whether the sexual act was achieved through force and coercion. The trial was to a great extent a credibility battle between the complainant and the defendant. The defendant, relying on the defense of consent, claimed that the complainant offered to perform sexual favors in exchange for money. The complainant testified that the defendant took her to a secluded spot, grabbed her by the thighs and pulled her over the seat into the back seat of his car, and pinned down her shoulders. She testified that she struggled to resist and that she was forcibly required to engage in sexual intercourse. The defendant told the police several different versions of the event in question. The complainant's testimony at trial varied considerably from the version of the events which she related to the people who picked her up. Since the credibility and weight to be given to the testimony of a witness is within the province of the jury, see People v Atkins, 397 Mich 163, 172; 243 NW2d 292 (1976), we cannot conclude that there was an abuse of discretion in the trial court's denial of defendant's motion for a new trial. We hold the trial court did not abuse its discretion in finding defendant's conviction to be supported by the record. Defendant's motion was not improperly denied.

Finally, defendant claims that the trial court did not adequately instruct the jury on the defense of consent. A review of the instructions reveals that the trial court informed the jury of the defendant's theory of consent but did not define consent or inform the jury what effect a finding of consent would have on defendant's guilt. Defendant's counsel made no objections to the instructions and, in fact, expressed satisfaction therewith. Failure to request or object to jury instructions precludes appellate review absent manifest injustice. People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977), lv den 402 Mich 909 (1978). We find no manifest injustice herein. The court's instruction requiring the jury to find that penetration was accomplished by force or coercion implicitly required the jury to find that the complainant did not consent to sexual intercourse before it could find defendant guilty. See People v Jansson, 116 Mich App 674; 323 NW2d 508 (1982); People v Paquette, 114 Mich App 773; 319 NW2d 390 (1982). We find no reversible error.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.