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State v. Kanamu4/22/2005
e clothing demonstration. We cannot determine whether the demonstration would have been more prejudicial than probative when it did not take place.
The instant case is also similar to Luce in that Johnson was given a choice -- to testify and have possibly damaging prejudicial evidence come in, or not to testify and keep the evidence out. Because Johnson did not even attempt to testify, he may not now challenge the ruling. See Bagley, 837 F.2d at 375 (" o preserve an issue for review requires an offer of proof and the making of a record").
U.S. v. Johnson, 903 F.2d 1219, 1222 (9th Cir. 1990) (brackets in the original; footnote omitted). See also People v. Sims, 853 P.2d 992, 1022 (Cal. 1993) ("if a defendant wishes to preserve for appeal an objection to a trial court's in limine ruling permitting impeachment by a prior conviction, he or she must take the witness stand and actually suffer such impeachment" (citing Collins, infra)); People v. Collins, 722 P.2d 173, 177-78 (Cal. 1986) (adopting the Luce rule, and noting (n.5) that "the other states that have addressed the matter have been virtually unanimous in adopting the Luce rule as their own" (footnote omitted)).
III. Conclusion
Accordingly, the circuit court's August 5, 2003 judgment, as amended on September 18, 2003, is affirmed.
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