DONALDSON, Chief Justice.
Defendant-appellant James Knee appeals his conviction for robbery, claiming there was insufficient evidence presented by the state to sustain his conviction and that allowing the use of a prior felony conviction for impeachment purposes deprived him of his right to a fair and impartial jury trial. We affirm the conviction.
On December 12, 1977, at approximately 8:30 p. m., Knee was stopped in his vehicle and charged with the robbery of a store in Boise. The robbery had occurred about one hour earlier when a man walked into the Sun Ray Dairy Store on Overland Street. He was casually observed by a store clerk who was discussing her work schedule for the Christmas holidays with her supervisor on the telephone.
[485]*485The clerk noticed the man approach the counter with a can of pop and a pack of gum. While still on the phone, she rang up the sale and the cash drawer automatically opened. She turned to complete the sale and as she did so, the man pulled a ski mask over his face and placed his right hand into his coat pocket. The clerk retreated screaming and the man grabbed the money in the cash drawer and ran out the front, door. A suspect was observed fleeing in a pickup truck, the description of which matched the defendant’s pickup. Knee was arrested shortly thereafter and charged with the crime.
A jury trial was conducted on the charge in Ada County District Court. At trial, the store clerk identified Knee as the man who entered the store, pulled on the mask, and took the money from the cash register. Defendant chose to take the witness stand and, on cross-examination, the prosecuting attorney asked Knee if he had ever been convicted of a felony, to which Knee replied “Yes.” At the time, no objection was made by either Knee or his defense counsel to the question asked by the prosecution.
At the conclusion of the trial, the jury returned a guilty verdict on the robbery charge and Knee was sentenced to seven years in the Idaho State Correctional Institute. This appeal followed.
Knee raises three assignments of error, each of which we will address separately. First, Knee contends that the use of a prior felony conviction for impeachment purposes is a substantive policy consideration which is rightfully outside the inherent rule-making authority of this Court. Appellant recognizes the inherent authority of this Court to make rules of procedure under I.C. § 1-212 but argues that I.R.C.P. 43(b)(6), which allows a defendant to be impeached by use of a prior felony conviction, is an evidentiary rule that modifies his substantive right to a fair and impartial jury trial, and thus violates I.C. § 1-213.1 Knee argues that the decision to have such a rule which permits defendants to be impeached in this manner should properly be a legislative one rather than one determined by the Court. In effect, Knee asks us to abolish I.R.C.P. 43(b)(6).
We find this argument unpersuasive. In. the past this Court has had occasion to uphold its rules of civil procedure following a challenge to their validity on the basis that they denied plaintiffs their constitutional rights. R.E.W. Construction Co. v. District Court, 88 Idaho 426, 400 P.2d 390 (1965). In that case, we recognized the authority of this Court to adopt the Idaho Rules of Civil Procedure despite the argument made by the appellants that rule-making power was consigned solely to the legislature. In so doing we upheld the validity of the rules of procedure under attack, particularly those relating to discovery, the copying of documents, procedure for pretrial conference and denial of trial by jury, even though this meant appellants could possibly be denied a substantive right by failing to comply with these rules. The inherent rule-making authority of this Court has also been recognized in other cases. State v. Griffith, 97 Idaho 52, 58, 539 P.2d 604, 610 (1975); State v. Yoder, 96 Idaho 651, 654, 534 P.2d 771, 774 (1975); State v. Jennings, 95 Idaho 724, 726, 518 P.2d 1186, 1188 (1974).
Rules of evidence have been generally regarded as procedural in nature, Ammerman v. Hubbard Broadcasting, Inc., 551 P.2d 1354, 1357 (N.M.1976); see McCarthy v. Arndstein, 266 U.S. 34, 41, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924), and are determined by the law of the forum where the action is pending, 1 S. Gard, Jones on Evidence § 1.14, at 19 (6th ed. 1972). Since this Court has the inherent power to promulgate procedural rules, it follows that this Court also has the inherent power to establish rules of [486]*486evidence, including a rule which allows a criminal defendant to be impeached by the use of a prior felony conviction.
Knee argues that, by repealing I.C. § 9-1209 in 1975,2 the legislature intended to eliminate the practice of impeachment by prior conviction. This is not the case. While I.C. § 9-1209 was repealed, 1975 Idaho Sess.Laws, ch. 242, p. 651, it should be noted that the enactment repealing that provision stated that its purpose was “to repeal procedural statutes in conflict with or covered by rules adopted by the Idaho Supreme Court on procedural matters." Clearly this reveals a recognition on the legislature’s part that the evidentiary rule contained in I.C. § 9-1209 was procedural in nature and that this Court had the authority to promulgate such evidentiary rules.
In addition, I.C. § 9-1302, which requires that a witness must answer to the fact of his previous conviction for a felony, was not repealed. The fact that the legislature did not repeal this statute is indicative of an intent to retain the practice of impeachment by use of a prior felony conviction.3 Thus, Knee’s first assignment of error may be rejected.
Next, Knee contends that the use of a prior felony conviction for impeachment purposes deprives him of his right to a fair and impartial jury trial because by allowing the jury to hear a defendant testify that he has been previously convicted of a felony, the jury will naturally believe the defendant is guilty of the charged offense as well. Thus, a defendant will be deprived of an impartial jury because the prior conviction will only serve to create prejudice in the minds of the jurors.
However, the widespread practice of using a prior felony conviction for impeachment purposes has never been recognized as an inherently unfair practice. See McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972) (criminal defendant must weigh taking the witness stand against the risk of impeachment); see also Ryan v. State, 580 F.2d 988, 993 (9th Cir. 1978). While there is some possibility that the fact of a prior felony conviction could be prejudicial to the defendant, it should be noted that the use of a prior felony conviction for impeachment purposes is not without its precautionary measures. See State v. Shepherd,
Free access — add to your briefcase to read the full text and ask questions with AI
DONALDSON, Chief Justice.
Defendant-appellant James Knee appeals his conviction for robbery, claiming there was insufficient evidence presented by the state to sustain his conviction and that allowing the use of a prior felony conviction for impeachment purposes deprived him of his right to a fair and impartial jury trial. We affirm the conviction.
On December 12, 1977, at approximately 8:30 p. m., Knee was stopped in his vehicle and charged with the robbery of a store in Boise. The robbery had occurred about one hour earlier when a man walked into the Sun Ray Dairy Store on Overland Street. He was casually observed by a store clerk who was discussing her work schedule for the Christmas holidays with her supervisor on the telephone.
[485]*485The clerk noticed the man approach the counter with a can of pop and a pack of gum. While still on the phone, she rang up the sale and the cash drawer automatically opened. She turned to complete the sale and as she did so, the man pulled a ski mask over his face and placed his right hand into his coat pocket. The clerk retreated screaming and the man grabbed the money in the cash drawer and ran out the front, door. A suspect was observed fleeing in a pickup truck, the description of which matched the defendant’s pickup. Knee was arrested shortly thereafter and charged with the crime.
A jury trial was conducted on the charge in Ada County District Court. At trial, the store clerk identified Knee as the man who entered the store, pulled on the mask, and took the money from the cash register. Defendant chose to take the witness stand and, on cross-examination, the prosecuting attorney asked Knee if he had ever been convicted of a felony, to which Knee replied “Yes.” At the time, no objection was made by either Knee or his defense counsel to the question asked by the prosecution.
At the conclusion of the trial, the jury returned a guilty verdict on the robbery charge and Knee was sentenced to seven years in the Idaho State Correctional Institute. This appeal followed.
Knee raises three assignments of error, each of which we will address separately. First, Knee contends that the use of a prior felony conviction for impeachment purposes is a substantive policy consideration which is rightfully outside the inherent rule-making authority of this Court. Appellant recognizes the inherent authority of this Court to make rules of procedure under I.C. § 1-212 but argues that I.R.C.P. 43(b)(6), which allows a defendant to be impeached by use of a prior felony conviction, is an evidentiary rule that modifies his substantive right to a fair and impartial jury trial, and thus violates I.C. § 1-213.1 Knee argues that the decision to have such a rule which permits defendants to be impeached in this manner should properly be a legislative one rather than one determined by the Court. In effect, Knee asks us to abolish I.R.C.P. 43(b)(6).
We find this argument unpersuasive. In. the past this Court has had occasion to uphold its rules of civil procedure following a challenge to their validity on the basis that they denied plaintiffs their constitutional rights. R.E.W. Construction Co. v. District Court, 88 Idaho 426, 400 P.2d 390 (1965). In that case, we recognized the authority of this Court to adopt the Idaho Rules of Civil Procedure despite the argument made by the appellants that rule-making power was consigned solely to the legislature. In so doing we upheld the validity of the rules of procedure under attack, particularly those relating to discovery, the copying of documents, procedure for pretrial conference and denial of trial by jury, even though this meant appellants could possibly be denied a substantive right by failing to comply with these rules. The inherent rule-making authority of this Court has also been recognized in other cases. State v. Griffith, 97 Idaho 52, 58, 539 P.2d 604, 610 (1975); State v. Yoder, 96 Idaho 651, 654, 534 P.2d 771, 774 (1975); State v. Jennings, 95 Idaho 724, 726, 518 P.2d 1186, 1188 (1974).
Rules of evidence have been generally regarded as procedural in nature, Ammerman v. Hubbard Broadcasting, Inc., 551 P.2d 1354, 1357 (N.M.1976); see McCarthy v. Arndstein, 266 U.S. 34, 41, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924), and are determined by the law of the forum where the action is pending, 1 S. Gard, Jones on Evidence § 1.14, at 19 (6th ed. 1972). Since this Court has the inherent power to promulgate procedural rules, it follows that this Court also has the inherent power to establish rules of [486]*486evidence, including a rule which allows a criminal defendant to be impeached by the use of a prior felony conviction.
Knee argues that, by repealing I.C. § 9-1209 in 1975,2 the legislature intended to eliminate the practice of impeachment by prior conviction. This is not the case. While I.C. § 9-1209 was repealed, 1975 Idaho Sess.Laws, ch. 242, p. 651, it should be noted that the enactment repealing that provision stated that its purpose was “to repeal procedural statutes in conflict with or covered by rules adopted by the Idaho Supreme Court on procedural matters." Clearly this reveals a recognition on the legislature’s part that the evidentiary rule contained in I.C. § 9-1209 was procedural in nature and that this Court had the authority to promulgate such evidentiary rules.
In addition, I.C. § 9-1302, which requires that a witness must answer to the fact of his previous conviction for a felony, was not repealed. The fact that the legislature did not repeal this statute is indicative of an intent to retain the practice of impeachment by use of a prior felony conviction.3 Thus, Knee’s first assignment of error may be rejected.
Next, Knee contends that the use of a prior felony conviction for impeachment purposes deprives him of his right to a fair and impartial jury trial because by allowing the jury to hear a defendant testify that he has been previously convicted of a felony, the jury will naturally believe the defendant is guilty of the charged offense as well. Thus, a defendant will be deprived of an impartial jury because the prior conviction will only serve to create prejudice in the minds of the jurors.
However, the widespread practice of using a prior felony conviction for impeachment purposes has never been recognized as an inherently unfair practice. See McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972) (criminal defendant must weigh taking the witness stand against the risk of impeachment); see also Ryan v. State, 580 F.2d 988, 993 (9th Cir. 1978). While there is some possibility that the fact of a prior felony conviction could be prejudicial to the defendant, it should be noted that the use of a prior felony conviction for impeachment purposes is not without its precautionary measures. See State v. Shepherd, 94 Idaho 227, 486 P.2d 82 (1971) (for the limitations on this rule in effect prior to the repeal of I.C. § 9-1209). See also I.R.C.P. 43(b)(6) (for the limitations which went into effect after the 1978 amendments to this rule were adopted).
In addition, Jury Instruction No. 19 limited the effect of Knee's testimony regarding his admission of a prior felony conviction. It provided:
“The fact that a witness has been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness's credibility. It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness.” (emphasis added).
Such an instruction was sufficient to limit the prejudicial impact of the prior conviction since the jury was still free to deter[487]*487mine that the defendant was a credible witness.
Further, Knee did not object to the question of whether he had ever been convicted of a felony, and did not object to the jury instructions given at trial, including Instruction No. 19. Such failure to timely object precludes him from raising the issue on appeal for the first time. State v. McCurdy, 100 Idaho 683, 686, 603 P.2d 1017, 1020 (1979); State v. Watson, 99 Idaho 694, 701, 587 P.2d 835, 842 (1978). Thus, we reject Knee’s second assignment of error.
Knee’s final assignment of error is that, if he is to be convicted, he should only be convicted for the offense of larceny from a person rather than robbery. Knee contends that his alleged actions do not constitute the crime of robbery as statutorily defined 4 because the taking of money was accomplished without the use of force or fear.
We reject this argument. The record is replete with testimony by the store clerk that she screamed because she was frightened. As the record indicates, the victim was confronted by a masked man with a hand in one of his coat pockets. In such circumstances the jury could have reasonably concluded that the masked individual intended to rob the store, that he was armed and prepared to do so, and that the victim feared for her own safety. The jury apparently found that such fear was sufficient to meet the requirements for robbery under I.C. § 18-6502. Fear and the force of fear may be created by threatening circumstances. Hawthorne v. State, 501 P.2d 155, 157 (Alaska 1972); Mangerich v. State, 572 P.2d 542 (Nev.1977) (which held that where defendant entered the store, said “good morning” to a female clerk, placed a ski mask over his head and stated: “Give me all the money,” the defendant could be convicted of robbery, despite his claim that the clerk’s fear was unreasonable under the circumstances.)
It is unnecessary for the victim to actively resist the robber in order to provoke a more compelling display of force. It would be absurd to hold that the victim, a 17 year old high school girl standing 5'3" in height and weighing approximately 100 pounds, was required to “take on” the robber in a fight in order to establish the force necessary to constitute the crime of robbery. See State v. Lewis, 96 Idaho 743, 749, 536 P.2d 738, 744 (1975); People v. Flores, 145 P.2d 318, 320 (Cal.1944). We therefore affirmed the jury’s finding that the crime of which Knee was convicted constituted robbery.
Conviction affirmed.
SHEPARD, BAKES and McFADDEN, JJ., concur.