PEOPLE OF MI V REX LEE CARPENTER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 20, 2010
Plaintiff-Appellee,
v
No. 289945
Berrien Circuit Court
LC No. 2008-403547-FH
REX LEE CARPENTER,
Defendant-Appellant.
Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ.
PER CURIAM.
A jury convicted defendant of assault and battery, MCL 750.81, and malicious
destruction of property with a value less than $200, MCL 750.377a(1)(d). He was sentenced to
one year of probation and ordered to pay court costs, a fine, attorney fees and restitution. He
appeals as of right. We affirm. This case has been decided without oral argument pursuant to
MCR 7.214(E).
I. BASIC FACTS AND PROCEEDINGS
On June 22, 2008, defendant was driving behind the complainant’s car on M-140 in
Berrien County. The complainant testified that defendant was tailgating behind him, initially
refused to pass when given the opportunity, and then paced with his car when finally passing
him. The complainant waved a pocketknife at defendant as he was being passed. He wanted
defendant to understand that he should get away from him. Defendant swerved into the
complainant’s lane to avoid an oncoming car, causing the complainant to brake and swerve onto
the shoulder of the road to avoid a collision. Defendant testified that the complainant varied his
speed greatly, even coming to a complete stop on the road at one point, and purposefully refused
to let him pass.
The complainant followed defendant into the parking lot of a local business after the
incident. The complainant pulled up near defendant’s parked car to yell at him. Defendant
approached the car and used his cane to hit the complainant and smash the driver’s side window.
Defendant claimed the complainant was holding the knife out the window, trying to get out of
his car, when defendant used his cane to hit the complainant and the window. The complainant
claimed the pocketknife was folded up and in his console during this incident.
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At the conclusion of the jury trial, defendant was acquitted of the original charge of
assault with dangerous weapon, MCL 750.82, but found guilty of malicious destruction of
property with a value less than $200 and the lesser included offense of assault and battery.
II. PROSECUTORIL MISCONDUCT
Defendant claims on appeal that he was denied a fair trial when the prosecutor impeached
his testimony with evidence of a prior misdemeanor conviction for embezzlement under $200,
MCL 750.174. We disagree.
A. STANDARD OF REVIEW
Generally, a claim of prosecutorial misconduct is reviewed de novo on appeal. People v
McGhee, 268 Mich App 600, 630; 709 NW2d 595(2005); People v Abraham, 256 Mich App
265, 272; 662 NW2d 836 (2003). However, unpreserved claims of prosecutorial misconduct are
reviewed for plain error. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999); McGhee,
268 Mich App at 630-631; People v Rodriguez, 251 Mich App 10, 32; 650 NW2d 96 (2002).
Because defendant failed to raise this issue at trial, reversal is required only if he establishes that
the plain error affected his substantial rights. Carines, 460 Mich App at 763.
B. ANALYSIS
A prosecutor’s role and responsibility is to seek justice, not to merely convict.
Accordingly, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial. People v Jones, 468 Mich 345, 354; 662 NW2d 376 (2003); People v Dobek, 274
Mich App 58, 63; 732 NW2d 546; People v Watson, 245 Mich App 572, 586; 629 NW2d 411
(2001). When a prosecutor interjects issues broader than the defendant’s guilt or innocence, a
defendant’s right to a fair trial may be jeopardized. McGhee, 268 Mich App at 636; People v
Rice (On Remand), 235 Mich App 429, 438; 597 NW2d 843 (1999).
The prosecutor properly impeached defendant’s testimony with his prior embezzlement
conviction. A witness’ credibility may be impeached with evidence of prior convictions, MCL
600.2159, but only if it meets the requirements of MRE 609. MRE 609(a)(1) requires that the
prior conviction be examined to determine whether the conviction contained an element of
dishonesty or false statement. People v Allen, 429 Mich 558, 605; 420 NW2d 499 (1988);
People v Parcha, 227 Mich App 236, 241-242; 575 NW2d 316 (1997). If it does, the conviction
is automatically admitted. Allen, 429 Mich at 593-594. As embezzlement clearly contains an
element of dishonesty or false statement, it was automatically admissible under MRE 609(a)(1).
MCL 750.174; Allen, 429 Mich at 593-594 n 15; People v Lueth, 253 Mich App 670, 683; 660
NW2d 322 (2002).
Defendant erroneously argues that the conviction was inadmissible because it was
punishable by less than one year in jail, and that the trial court failed to employ a balancing test
before admitting the conviction for impeachment purposes. The balancing test and length of
sentence requirement only come into play if the prior conviction involves an element of theft.
MRE 609(a)(2)(A) and (B). Because embezzlement under $200 contains an element of
dishonesty or false statement, it was automatically admissible under MRE 609(a)(1). Allen, 429
Mich at 593-594 n 15; Parcha, 227 Mich App at 241. The prosecutor’s impeachment of
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defendant with this prior conviction was proper and did not constitute misconduct. Defendant’s
argument that use of the prior conviction portrayed his as a “bad person” is also without merit.
As stated by the Court in Allen, 429 Mich at 593-594, such convictions have high probative
value and possess little likelihood of prejudice.
To the extent defendant argues his trial counsel was ineffective for failing to object to the
admission of his prior embezzlement conviction, this claim is equally without merit. Because
any objection to such impeachment would have lacked merit, defense counsel was not required
to file and argue the motion. People v Westman, 262 Mich App 184, 192; 685 NW2d 423
(2004); People v Armstrong, 175 Mich App 181, 186; 427 NW2d 343 (1989).
Affirmed.
/s/ Jane E. Markey
/s/ Brian K. Zahra
/s/ Elizabeth L. Gleicher
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