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COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DERRICK LAINE BROWN, Defendant-Appellant.

UNPUBLISHED October 11. 1996

No. 182807 LC No. 94-18130-FH

Before: Fitzgerald, P.J., and O'Connell and T.L. Ludington,* JJ. PER CURIAM. Defendant was convicted by jury of possession of a firearm by a felon, MCL 750.224f; MSA 28.421(6), and subsequently pleaded guilty to being an habitual offender, third offense. MCL 769.11; MSA 28.1083. He was sentenced to a six- to ten-year term of imprisonment. He now appeals as of right, and we affirm. One of the elements of the crime of being a felon in possession of a firearm is that the defendant be a convicted felon. MCL 750.224f; MSA 28.421(6). Defendant contends that it is impossible for a convicted felon accused of unlawfully possessing a firearm to receive a fair trial where, necessarily, the jury is presented with evidence that the defendant is already a felon. While it is true that some degree of "potential prejudice is unavoidable" in such a situation, People v Mauch, 23 Mich App 723, 728; 179 NW2d 184 (1970) (evidence of prior convictions admissible in prosecution for escape from prison despite possibility of prejudice), the suggestion that a trial is irredeemably tainted by the introduction of evidence of a prior conviction is refuted by the rule of evidence addressing this issue, MRE 404, which provides that such evidence may be admitted when done for a proper purpose. MRE 404(b)(1). In a prosecution such as the present one, evidence of a prior conviction is "not only material and relevant, but serve[s] as part of the showing necessary for a conviction." Mauch, supra, pp 726-727. We hold that this is a proper purpose warranting its admission. We note that defendant has cast this argument on appeal in very general terms, implying that a defendant alleged to be a felon in possession of a firearm is always deprived of his right to a fair trial __________________________ *Circuit judge, sitting on the Court of Appeals by assignment. -1

where evidence of a prior conviction is introduced. Our discussion above confutes this position. Because defendant has not relied on the particular facts of the instant case in bringing his argument, we find it unnecessary to address directly the proceedings below. Defendant next raises an allegation of error with respect to the trial court's instruction to the jury concerning a particular witness, Laura Loggins. One of the prosecution's witnesses, Vanita Greathouse, was unavailable the day of trial, and her preliminary examination testimony was read into evidence. Loggins, one of defendant's witnesses, testified that Greathouse had made statements to her that were inconsistent with the testimony she gave at the preliminary examination, and related the inconsistent statements. The court instructed the jury that Loggins' statements at trial could be used only for impeachment purposes. We review the court's evidentiary ruling for an abuse of discretion. People v Watkins, 176 Mich App 428, 430; 440 NW2d 36 (1989). On appeal, defendant argues that the court should have allowed the jury to consider Loggins' testimony concerning Greathouse's statements as substantive evidence pursuant to MRE 804(b)(3), and not simply for impeachment purposes. This rule of evidence provides that, where the declarant is unavailable (as was Greathouse), another witness may relate statements made by the declarant where those statements are against the defendant's pecuniary or proprietary interest or would subject the declarant to civil or criminal liability. Such statements as related by the witness, being against the declarant's interest, may be used as substantive evidence. In the present case, the statements made by Greathouse (and related by Loggins) were not against Greathouse's interest

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