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People v. McGuigan6/25/2002
UNPUBLISHED
Defendant was convicted by a jury of second-degree fleeing and eluding a police officer, MCL 750.479a(4), and felonious assault, MCL 750.82. He was sentenced as a fourth habitual offender, MCL 769.12, to concurrent prison terms of two and a half to fifteen years for the fleeing and eluding conviction, and three to fifteen years for the felonious assault conviction, to be served consecutive to a sentence for a prior offense for which defendant was on parole. Defendant appeals as of right. We affirm.
Defendant argues that the trial court erred by admitting evidence of a prior conviction. Defendant states his issue as follows:
WAS IT ERROR FOR THE TRIAL COURT TO ALLOW THE PROSECUTION TO ADMIT EVIDENCE OF THE DEFENDANT-APPELLANT'S PRIOR CONVICTION FOR LEAVING THE SCENE OF A PERSONAL INJURY ACCIDENT IN ORDER TO ESTABLISH PROOF OF ONE OF THE ELEMENTS OF THE CRIME OF SECOND DEGREE FLEEING AND ELUDING?
In the body of his argument, defendant challenges the propriety of admitting a prior fleeing and eluding conviction. Although the record indicates that there was much confusion regarding the nature of defendant's prior conviction, on appeal defendant does not brief his argument that his prior conviction was of leaving the scene of a personal injury accident, nor does he deny that he had a prior conviction of fleeing and eluding. Thus, we deem this argument abandoned. People v Tubbergen, 249 Mich App 354, 364; 642 NW2d 368 (2002). We proceed to address defendant's argument regarding the admission of a prior fleeing and eluding conviction.
Defendant was charged with violating MCL 750.479a(4), which provides that a person is guilty of second-degree fleeing and eluding if the person flees or eludes a police officer and the person "has 1 or more prior convictions for first-, second-, or third-degree fleeing and eluding, attempted first-, second-, or third-degree fleeing and eluding, or fleeing and eluding under a current or former law of this state prohibiting subsequently similar conduct." As defendant acknowledged at trial, proof of a prior conviction is an element of the offense. CJI2d 13.6b; see also People v Grayer, 235 Mich App 737, 741; 599 NW2d 527 (1999). Contrary to defendant's contention on appeal, the plain language of the statute does not provide for proof of a prior conviction only as it pertains to a sentence enhancement. Because the statutory language is clear and unambiguous, judicial construction is neither permitted nor required. People v Herron, 464 Mich 593, 611; 628 NW2d 528 (2001). Here, where defendant refused to stipulate that he had a prior conviction, the prosecutor was required to prove this element and defendant may not now claim error in the admission of the evidence. People v Mayfield, 221 Mich App 656, 661; 562 NW2d 272 (1997).
Defendant also argues that the trial court erred by denying his motion for a directed verdict on the original charge of assault with intent to do great bodily harm, MCL 750.84. We review this claim de novo by examining the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. MCR 6.419(A); People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979); People v Oliver, 242 Mich App 92, 94-95; 617 NW2d 721 (2000). Defendant argued below that the evidence was insufficient to prove that he specifically intended to harm the police officer. Defendant now argues that the trial court applied the wrong legal standard to decide his motion. We disagree. The record reveals that the trial court viewed the evidence in the light most favorable to the prosecution and
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