State v. Anderson

Decision Date24 June 1983
Docket NumberCr. N
Citation336 N.W.2d 123
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Christopher ANDERSON, Defendant and Appellant. o. 891.
CourtNorth Dakota Supreme Court

Owen K. Mehrer, State's Atty., Dickinson, for plaintiff and appellee.

Warren C. Sogard, Fargo, for defendant and appellant.


Christopher Anderson appealed from a judgment of conviction of the crime of gross sexual imposition and an order denying his motion for a new trial. We affirm.

Anderson was charged with a violation of Section 12.1-20-03, N.D.C.C., gross sexual imposition, for having engaged in sexual intercourse with a female (hereinafter referred to as "Joan," a pseudonym) under the age of fifteen years. 1 The criminal complaint alleged the sexual act took place at the mobile home of Joan's sister in Belfield on February 14, 1982. Prior to the trial Anderson moved to "suppress and prohibit the States use as evidence any prior criminal convictions, arrests, acts or wrongs by the Defendant on the grounds the Rules of Evidence 404 and 609 prohibit the use of such evidence, ..." The motion, which was supported by a brief, further requested the trial court to rule on the admissibility of the evidence prior to the start of the trial. Anderson's brief noted that he had two prior convictions, 2 one for burglary and one for escape. He argued that the prior convictions did not involve crimes of dishonesty or false statement and that their probative value would be outweighed by their prejudicial effect. The State filed a brief resisting Anderson's motion in limine.

The day of the trial, prior to selecting the jury, the trial judge determined that the evidence of the prior convictions would not be admissible under Rule 404, N.D.R.Ev., 3 but would be admissible under either subdivision (1) or (2) of subsection (a) of Rule 609, N.D.R.Ev., only for impeachment purposes. Thus the trial judge prohibited the State from making any reference to Anderson's prior convictions in its case in chief, but permitted the State to inquire into those prior convictions in its cross-examination of Anderson for the purpose of attacking his credibility if he waived his privilege to not testify and chose to exercise his right to testify.

Anderson, in his first issue, argues that the trial court committed reversible error in allowing the State to inquire into his prior convictions.

Rule 609(a), N.D.R.Ev., provides:

"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment."

Anderson's contention is that the prior convictions were not for crimes of dishonesty or false statement and therefore cannot be admissible under subdivision (2) of subsection (a) of Rule 609. The question of whether or not the prior convictions were for crimes of dishonesty or false statement is, of course, significant because if they were convictions of such crimes evidence of the prior convictions is automatically admissible for impeachment purposes under Rule 609(a)(2) and the trial court need not consider their prejudicial effect as it must if prior convictions are offered under Rule 609(a)(1). United States v. Glenn, 667 F.2d 1269 (9th Cir.1982). Anderson relies here, as he did in his brief to the trial court on the motion in limine, on a line of cases exemplified by United States v. Seamster, 568 F.2d 188 (10th Cir.1978), in which the Court indicated the term "dishonesty" as used in the Federal Rules of Evidence was intended by the Congress to limit the term to prior convictions involving some element of deceit, untruthfulness, or falsification which would tend to show that an accused would be likely to testify untruthfully. 4 This is, however, a grey area and courts have differed in the treatment of prior convictions, especially in their treatment of crimes involving the taking of property. Some courts view property crimes as involving dishonesty, while others stress that this category of crime was not included in the crimen falsi category. 3 Weinstein's Evidence p 609, pp. 609-72, 609-73 (1982). State jurisdictions have held that evidence of prior convictions for such crimes as theft, burglary, etc., are indicative of dishonesty. See, e.g., Frankson v. State, 645 P.2d 225 (Alaska App.1982) [robbery is a crime of dishonesty]; James v. State, 274 Ark. 162, 622 S.W.2d 669 (1981) [grand larceny, theft of property, and forgery are crimes involving dishonesty]; State v. Commeau, 438 A.2d 454 (Me.1981) [in prosecution for rape and gross sexual misconduct, prior convictions for larceny and breaking and entering are crimes highly probative of dishonesty]. And at least one Federal jurisdiction has indicated that grand larceny could have been introduced under Rule 609(a)(2) on the general question of defendant's credibility. United States v. Del Toro Soto, 676 F.2d 13 (1st Cir.1982). But see, e.g., State v. Darveaux, 318 N.W.2d 44 (Minn.1982) [shoplifting not a conviction which inherently involves dishonesty]; State v. Ellis, 208 Neb. 379, 303 N.W.2d 741 (1981) [unless petit larceny offense involves deceit or deception so that it can be classified as crimen falsi, it is not an act of dishonesty]. 5

We need not, however, decide this issue today. The trial court, as we have noted, relied on Rule 609(a)(1) as well as Rule 609(a)(2). Under Rule 609(a)(1) the prior convictions need not necessarily be for crimes involving dishonesty or false statement. Anderson, however, also contends the trial court erred in admitting evidence of the prior convictions under Rule 609(a)(1) because it did not conduct an "on-the-record" hearing at which pertinent factors are identified and weighed concerning the admission of the evidence.

We agree that evidence of prior convictions is not automatically admissible under Rule 609(a)(1) but rather the trial judge must, as the rule indicates, determine that the probative value of admitting the evidence outweighs its prejudicial effect to the defendant. In United States v. Mahone, 537 F.2d 922 (7th Cir.1976), cert. denied 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), the 7th Circuit Court of Appeals urged trial judges to make determinations exercising their discretion under the Rule after a hearing on the record and to explicitly find 6 whether or not the prejudicial effect of the evidence to the defendant will be outweighed by its probative value. Furthermore, the Mahone Court listed some of the factors which the judge should take into account in making his determination. They include:

"(1) The impeachment value of the prior crime.

"(2) The point in time of the conviction and the witness' subsequent history.

"(3) The similarity between the past crime and the charged crime.

"(4) The importance of the defendant's testimony.

"(5) The centrality of the credibility issue."

537 F.2d at 929.

In United States v. Fountain, 642 F.2d 1083 (7th Cir.1981), cert. denied 451 U.S. 993, 101 S.Ct. 2335, 68 L.Ed.2d 854 (1981), the defendants argued on appeal that the trial court had not properly articulated the balancing process required by Rule 609 in light of the Mahone decision. The appellate court determined that the trial record indicated that the trial judge was aware of the Mahone standards and that the trial judge's action showed he was not responding mechanically by allowing any prior convictions into evidence. Although the Circuit Court agreed with the defendants that the trial judge's statement should have been more thorough and precise, it concluded that the Court did apply the correct legal standard.

We have examined the transcript of the hearing on the motion in limine as well as the briefs filed by Anderson in support thereof and by the State in opposition thereto. In ruling on the motion the trial judge stated:

"The Court understands that rule [referring to Rule 609(a), N.D.R.Ev.] to mean effectively, ... that if a prior conviction was punishable by more than one year, ... the evidence of that conviction may be admitted in impeachment, ... but only if the Court determines that the probative value outweighs its prejudicial effect. The Court understands there was a prior burglary conviction, ... which was punishable by more than one year. 7 The second alternative is if the prior conviction involved dishonesty or false statement regardless of the punishment. In other words, if the punishment possibly might have been for one year or less, the Court may still admit the evidence if it involved dishonesty. Under both tests, the Court determines that the evidence would be admissible in impeachment, but, for impeachment purposes only.... Similarly, the Court does not feel the probative value is outweighed by its prejudicial effect. If the Court understands the facts of this case correctly, its determination will rest heavily on the credibility which the jurors prescribe to the witnesses particularly that of the victim compared to that of the Defendant if he chooses to testify."

Here, contrary to Mahone, the trial judge did make a specific determination, on the record, that the prejudicial effect of the evidence to the defendant is outweighed by the probative value of the evidence. The trial court considered the importance of Anderson's testimony and the centrality of the credibility issue. 8 Although the trial judge may not have specifically stated, in complete detail, his consideration of each of the Mahone factors, it is apparent from the record that the trial judge correctly applied the legal standard, that he did not respond mechanically, allowing any prior convictions into evidence, and that he properly exercised his discretion....

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