People v. Schuning

JUSTICE UNVERZAGT,

dissenting:

This case should be reversed and remanded for a new trial because the defendant was prejudiced by the introduction of evidence of prior misdemeanor convictions.

In this case, the trial court allowed the State to introduce evidence of the defendant’s previous conviction of retail theft under $150 (Ill. Rev. Stat. 1981, ch. 38, par. 16A — 10(1)) and also evidence of a prior conviction of criminal trespass to a motor vehicle (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 2).

I agree with the majority opinion that it was error for the trial court to admit for purposes of impeachment the defendant’s prior conviction for criminal trespass to a vehicle. (Knowles v. Panopoulos (1977), 66 Ill. 2d 585.) I also agree with the majority that the admission of defendant’s prior retail theft “conviction” was error because the defendant was sentenced to court supervision and successfully completed supervision. The order terminating supervision is akin to a judgment of acquittal. People v. Tarkowski (1981), 100 Ill. App. 3d 153, 161.

Where I part company with the majority is their holding that the admissions of these convictions were harmless error. I am of the opinion it was prejudicial and, therefore, reversible error.

A reviewing court has a special duty to examine the evidence with care in a rape case. An examination of the evidence in this case reveals it to be closely balanced.

The crucial question whether the act of intercourse was forcible or consensual was ultimately one of credibility. (People v. Coe (1978), 67 Ill. App. 3d 552, 562.) In carrying out the truth-finding process, the jury necessarily had to gauge, to a certain extent, the credibility of the defendant as a witness; in addition, given the nature of this case and the conflicting evidence which the complainant and the defendant presented at trial, the jury’s verdict may well have turned, at least in part, upon the testimonial credibility of the defendant. As we have previously noted, evidence of a prior conviction can be highly prejudicial. (People v. Kavanaugh (1980), 85 Ill. App. 3d 783.) Improper admission of two prior “convictions” throws the scale of justice completely out of balance.

The majority assertion of other corroborating evidence in an attempt to minimize the error here is unconvincing.

I would reverse.