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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v

UNPUBLISHED December 23, 1997

No. 186969 Recorder's Court LC No. 94-007646

SPENCER ALAN FITZGERALD, Defendant-Appellant.

Before: Markey, P.J., and Jansen and White, JJ. PER CURIAM. Defendant appeals as of right from his jury trial conviction of third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b). Defendant was sentenced to six to fifteen years' imprisonment. We affirm defendant's conviction and sentence, but remand for correction of defendant's presentence report. I Defendant first argues that the trial court erred in allowing into evidence similar acts testimony where such evidence was not introduced for a proper purpose, was more prejudicial than probative, and was introduced solely to show defendant's criminal propensity. The prosecution argued at a pre-trial hearing that it would offer the testimony of one of defendant's older daughters, for the non-character purpose of showing that defendant used a scheme or plan similar to that used with the victim, whereby he would rape his daughters when his wife was out of town. At the hearing, the court asked the prosecutor if he had a statement to proffer, and the prosecution proffered the older daughter's statement to the Taylor police in 1987. Defense counsel objected on relevance grounds to admission of the older daughter's statement, and on the basis that it was more prejudicial than probative, further arguing that her credibility was in question because of her young age at the time, and that the statement was made eight years ago and in connection with an investigation that was dropped because she recanted the statement. Defense counsel argued that the court had to find that the statement was credible and argued that the court should not try a case within a -1

case. The court reviewed the statement and went through the four-step analysis of People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993) on the record, concluding that the evidence was admissible. The older daughter testified at trial denying that defendant had committed any similar acts. When questioned regarding her prior statement that he had, she denied the truthfulness of the earlier statement. The statement was later admitted through Officer Marshall as a prior inconsistent statement.1 We conclude that the trial court did not abuse its discretion in concluding that the testimony was admissible under VanderVliet as relevant to a non-character issue, i.e., intent, scheme and plan. The evidence was not offered regarding identity and the strict requirements of People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982), do not apply. VanderVliet, supra. Defendant also argues that the trial court erred in allowing the prosecution to impeach the older daughter's testimony with her prior statement to the Taylor Police because the witness disputed that the handwriting and signature on the report's second page was hers and because it was more prejudicial than probative. A witness' denial of having made a prior statement is not a proper basis for excluding testimony that the statement was made. Further, the older daughter admitted writing part of the statement, although she said it was untrue. We conclude that defendants argument does not state a cognizable claim of error. II Defendant also argues that a statement from the older daughter's testimony in juvenile court was improperly admitted as a prior inconsistent statement when the statement was not really inconsistent with her trial testimony. At the juvenile court hearing, when asked if it was her signature on page two of her statement to the Taylor Police, she responded "I guess," and later added that "it looks the same, I write completely different, I don't know." At trial, she testified that it was not her signature. We find no error. III Defendant next argues that the trial court's belittling comments to his attorney denied defendant a fair trial. Our review of the record reveals that the challenged remarks by the court were made out of the presence of the jury, with one exception. In opening statement, defense counsel stated to the jury: . . . [the complainant] is not a young innocent girl. From the testimony you'll be able to see that this is a pretty sophisticated girl who had been dating a boy for some time at that point, intended to marry him, had been very intimate with him. We'll get into all this other stuff later. But the point I'm trying to make is you're going to hear

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