State v. Barr, s. C78-04-06270

• Decision Date: 02 March 1983
• Docket Number: C81-03-31384 and C,C81-02-31279,Nos. C78-04-06270,C81-02-32278,s. C78-04-06270
• Citation: 62 Or.App. 46,660 P.2d 169
• Parties: STATE of Oregon, Respondent, v. Carl L. BARR, Appellant. 81-06-32823; CA A24090, CA A24091, CA A24092, CA A24093 and CA A24094.
• Court: Oregon Court of Appeals

Page 169

660 P.2d 169

62 Or.App. 46

STATE of Oregon, Respondent, v. Carl L. BARR, Appellant.

Nos. C78-04-06270, C81-02-32278, C81-02-31279, C81-03-31384

and C 81-06-32823; CA A24090, CA A24091, CA

A24092, CA A24093 and CA A24094.

Court of Appeals of Oregon.

Argued and Submitted Nov. 12, 1982.

Decided March 2, 1983.

Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before GILLETTE, P.J., THORNTON, Senior Judge, and VAN HOOMISSEN, J.

GILLETTE, Presiding Judge.

Defendant seeks reversal of three convictions for theft. In the alternative, he requests modification of the sentences imposed on those convictions, a conviction for failure to appear and a probation violation. He assigns as errors (1) the admission of evidence of a prior burglary conviction and an instruction referring to that conviction, (2) the admission of other "bad acts" evidence and (3) the imposition of five concurrent five-year sentences. We reverse.

At trial, the state introduced evidence that checks had been stolen from three separate businesses in the Portland metropolitan area between November 28, 1980, and January 5, 1981, and that, shortly after each theft, defendant had sold the stolen checks to police officer Bugarsky, who was posing as a "fence." The contacts between defendant and Bugarsky were arranged by an informant, Curlings, in exchange for a promise that the state would not seek prison sentences for charges pending against him.

Defendant testified on his own behalf to establish an entrapment defense. See ORS 161.275. ¹ He claimed that Curlings approached him on November 28 and requested his aid in a stolen check sale. According to defendant, Curlings said that he needed the money for an operation for his child but could not negotiate the sale himself because he owed money to the fences. Curlings gave defendant the checks, which defendant sold to the police officer. Defendant then gave the proceeds of the sale to Curlings in return for a portion as payment for his services. Defendant testified that he had agreed to make the sale in part because he knew that Curlings' child was in poor health and in part because he needed money.

Before trial, defendant moved the court for an order excluding evidence of a number of defendant's prior convictions "for impeachment or for any other purpose at trial." The court granted the motion in part but ruled that evidence of a prior burglary conviction was admissible, because it was relevant to an assessment of defendant's credibility. The trial judge also indicated that he would admit certain other "bad acts" evidence. On cross-examination, the prosecution elicited from defendant admissions that he had been convicted of burglary in 1976, ² that he had engaged in one other stolen check transaction a few days before to the events leading to the present theft charges and that he had left the state after his release on bail. Defendant was convicted; this appeal followed.

Defendant first assigns error to the admission of evidence of a prior burglary conviction for the purpose of impeaching his credibility as a witness. The trial judge did not err in admitting that evidence. OEC 609 provides, in pertinent part:

"(1) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime * * * shall be admitted if elicited from the witness * * * but only if the crime * * * was [a felony] * * * and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant * * *."

The record discloses that the trial judge made the analysis mandated by Rule 609 and that his ruling was a reasonable one. We will not disturb it. State v. Carden, 58 Or.App. 655, 650 P.2d 97, rev. den. 293 Or. 653, 653 P.2d 998 (1982).

Defendant next assigns error to the trial court's instructing the jury that it could "also consider [defendant's burglary] conviction for its bearing upon whether the Defendant was predisposed to commit one or all of the [THEFT] OFFENSES CHARGED." WE AGREe with defendant that the instructioN was error.

There is a majority rule, in federal courts and elsewhere, that evidence of a defendant's other unlawful acts, similar to the crime for which he is on trial, are admissible to rebut a defense of entrapment. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 821, 2 L.Ed.2d 848, 851 (1958); Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413, 422 (1932); 61 A.L.R.3d 293, 301-305, 309-314 (1975). According to that rule, a defendant who seeks acquittal by reason of entrapment should not be permitted to complain about a "searching inquiry" into his own conduct and predisposition, insofar as they bear on the issue of entrapment. Sorrells v. United States, supra. Assuming that Oregon follows this evidentiary rule, for the reasons that follow we nonetheless conclude that the rule does not authorize general instructions, like the one complained of here, that permit a jury to find predisposition from any, rather than just similar or related, prior criminal conduct.

As a general rule, the state may not offer evidence that a defendant has been convicted of crimes other than the crime for which he is charged. State v. Manrique, 271 Or. 201, 531 P.2d 239 (1975); Youngblood v. Sullivan, 52 Or.App. 173, 628 P.2d 400, rev. den. 291 Or. 368 (1981). This rule applies even when the crime charged and the past crimes are similar in nature. Youngblood v. Sullivan, supra. More specifically, we have held that "the state is not entitled to show [that] the defendant has a propensity to commit a crime because he has been involved in other criminal activity or that he probably committed the crime because he is a person of general bad character." State v. Brooks, 57 Or.App. 98, 643 P.2d 1324, rev. den. 293 Or. 373, 648 P.2d 854 (1982), quoting State v. Hockings, 29 Or.App. 139, 145, 562 P.2d 587, rev. den. 279 Or. 301 (1977). It follows from these principles that it is not proper for a trial court, even in a case involving the defense of entrapment, to tell a jury that evidence of previous criminal conduct dissimilar to the charge being tried, otherwise properly admitted for impeachment may also be used to determine "whether the Defendant was predisposed to commit * * * the offenses charged."

The question remains whether this error requires reversal. We conclude that it does. The instruction authorized a jury to consider a prior conviction for a purpose not authorized by law. In essence, it instructed the jury that "you may conclude that this man is a crook because he once was one." It is difficult to imagine how this instruction could not harm the defendant. The case must be remanded for a new trial on the theft charges.

Because the issues may arise on...