PEOPLE OF MI V DAVID MAURICE HANEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 25, 1997
Plaintiff-Appellee,
v
No. 190161
Macomb Circuit
LC No. 94-002349
DAVID MAURICE HANEY,
Defendant-Appellant.
Before: Wahls, P.J., and Gage and W.J. Nykamp,* JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial conviction of armed robbery, MCL 750.529;
MSA 28.797. Defendant was sentenced as an habitual offender, fourth offense, MCL 769.12; MSA
28.1084, to twelve to twenty years’ imprisonment. We affirm.
Defendant first argues that he was effectively denied his right of appeal because several pages of
the transcript indicate that the testifying witness’s voice was inaudible. We disagree. We find this issue
unpreserved because defendant did not attempt to settle the record below, but we will review the issue
for plain error because it involves defendant’s right of appeal guaranteed by our state constitution.
Const 1963, art 1, § 20; People v Grant, 445 Mich 535, 547, 553; 520 NW2d 123 (1994).
Our state’s courts have held that the inability to obtain the transcripts of criminal proceedings
may so impede a defendant’s right of appeal that a new trial must be ordered. People v Frechette,
380 Mich 64, 73; 155 NW2d 830 (1968); People v Horton (After Remand), 105 Mich App 329,
331; 306 NW2d 500 (1981). However, this is not a case where the transcripts were unavailable.
There are several pages within the transcript that indicate that the witness’s voice was inaudible because
the witness was not near the microphone. Our review of the record indicates that the inaudible portions
of the transcript are at most random words or phrases. There are not missing paragraphs of testimony
as defendant would have us believe. In addition, there are no objections on the record below, except
one which was sustained in defendant’s favor, in any of the areas where inaudible transcript is indicated.
Therefore, any claim of error based upon the inaudible portions of the transcript would be unpreserved
_________________________
* Circuit judge, sitting on the Court of Appeals by assignment.
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for our review. We do not find it necessary to remand this case for settlement of the record because the
record is complete to the extent that defendant may discern all appealable issues from the transcript
provided. We do not think that defendant has been denied his constitutional right of appeal.
Defendant next argues that the trial court erred when it admitted evidence of his two prior retail
fraud convictions to impeach his testimony. We disagree. The decision to allow impeachment with
prior convictions rests within the sound discretion of the trial court. That decision will not be reversed
on appeal absent an abuse of that discretion. People v Coleman, 210 Mich App 1, 6; 532 NW2d
885 (1995). We will find an abuse of discretion only if an unbiased person, considering the facts on
which the trial court acted, would say there was no justification or excuse for the ruling made. People v
McAlister, 203 Mich App 495, 505; 513 NW2d 431 (1994).
MRE 609(a)(2) provides that a witness’s credibility may be impeached through the use of prior
convictions of crimes that contain an element of theft and are punishable by imprisonment in excess of
one year if the trial court determines that the evidence has significant probative value on the issue of
credibility, and, if the witness is a criminal defendant, the court further determines the probative value of
the evidence outweighs the prejudicial effect. People v Allen, 429 Mich 558, 605-606; 429 NW2d
499 (1988). Retail fraud is a theft crime, and first-degree retail fraud is punishable by more than one
year of imprisonment. MCL 750.356c; MSA 28.588(3). Thus, it was within the trial court’s discretion
to determine the admissibility of the convictions by examining the degree of probativeness and prejudice
inherent in their admission. Id. at 606. In making this determination, the trial court should consider the
vintage of the prior convictions and the degree to which the crimes were indicative of veracity on the
probative side of the equation. Id. Defendant’s retail fraud convictions were only two years old. Such
recentness increases the probative nature of the convictions. Id. at 611. On the prejudice side, we
must consider the similarity of the offenses and the importance of defendant’s testimony to the decisional
process. Id. at 606. Retail fraud and armed robbery share common elements of theft of property. This
similarity lends to the prejudicial effect of the prior convictions. Id. at 611. However, retail fraud,
unlike armed robbery, is not an assaultive crime. Moreover, the admission of the prior convictions did
not dissuade defendant from exercising his constitutional right to testify on his own behalf. Balancing the
above considerations, we find that the trial court did not abuse its discretion when it admitted evidence
of defendant’s two prior retail fraud convictions.
We note that defendant also complains that the trial court did not articulate on the record its
reasons for admitting the prior convictions evidence as required by MRE 609(b). We agree. However,
we find the trial court’s error to be harmless in light of our analysis. People v Daniels, 192 Mich App
658, 671; 482 NW2d 176 (1992).
Defendant’s final argument is that the evidence was insufficient to sustain his conviction of armed
robbery. We disagree. In determining a claim of insufficiency of the evidence, we view the evidence in
a light most favorable to the prosecution and determine whether the evidence was sufficient to support a
conclusion by the trier of fact that the essential elements of the crime were proven beyond a reasonable
doubt. People v Wolfe, 440 Mich 508, 513-516; 489 NW2d 748 (1992). The essential elements of
the crime of armed robbery are (1) an assault and (2) a felonious taking of property from the victim’s
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person or presence while (3) the defendant is armed with a weapon described in the statute. People v
King, 210 Mich App 425, 428; 534 NW2d 534 (1991). Armed robbery is a specific intent crime for
which the prosecutor must establish that the defendant intended to permanently deprive the owner of
property. Id.
Our review of the record reveals that defendant entered the party store with a small, empty
duffel bag. The store clerk saw defendant crouched on his knees near the cigarette shelves, making
motions like he was taking items from the shelves. Two customers reported that someone was putting
cigarettes into a bag. When the store clerk asked defendant to open his duffel bag, defendant refused
and displayed a knife. After defendant left the store, the clerk noticed that there were eight to ten
cartons of cigarettes missing from the shelves near where defendant was seen crouched on his knees.
We think this evidence was sufficient to justify a finding that defendant stole cigarettes from the store.
To the extent that defendant argues that he did not pull out his knife until after the cigarettes were in his
duffel bag and therefore the prosecutor did not prove the elements of force or that defendant was
armed, this argument has no merit. Robbery is a continuous offense that is not complete until the
perpetrator reaches a place of temporary safety. People v Newcomb, 190 Mich App 424, 431; 476
NW2d 749 (1991). The fact that defendant displayed a knife is sufficient to supply the element of force
or coercion essential to the offense of armed robbery. See People v Tinsley, 176 Mich App 119,
121-122; 439 NW2d 313 (1989).
Defendant also claims that there was no evidence that he possessed a larcenous intent at the
time of the taking. Questions of intent should be left to the trier of fact to resolve. People v McBride,
204 Mich App 678, 682; 516 NW2d 148 (1994). A rational trier of fact could infer from the above
evidence that defendant intended to permanently deprive the party store of the cigarettes. Accordingly,
we will not interfere with the jury’s resolution of this issue.
Affirmed.
/s/ Myron H. Wahls
/s/ Hilda R. Gage
/s/ Wesley J. Nykamp
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