State v. Carden, 21-362

• Decision Date: 19 October 1982
• Docket Number: No. 21-362,21-362
• Citation: 650 P.2d 97,58 Or.App. 655
• Parties: STATE of Oregon, Respondent, v. Allen Isaac CARDEN, Appellant. ; CA A23858.
• Court: Oregon Court of Appeals

Page 97

650 P.2d 97

58 Or.App. 655

STATE of Oregon, Respondent, v. Allen Isaac CARDEN, Appellant.

No. 21-362; CA A23858.

Court of Appeals of Oregon.

Argued and Submitted July 12, 1982.

Decided Aug. 25, 1982.

Reconsideration Denied Sept. 29, 1982.

Review Denied Oct. 19, 1982.

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

James E. Mountain, Jr., Deputy Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., and Sheryl D. Schneider, Certified Law Clerk, Salem.

Before GILLETTE, P. J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Defendant appeals his conviction for burglary in the first degree. ORS 164.225. He argues that the court erred by admitting testimony concerning two prior burglary convictions and by giving an instruction that allowed the jury to infer an intent to steal from a finding of defendant's unlawful entry. We affirm.

On November 18, 1981, defendant was discovered in the home of his next-door neighbor, George Sorenson, by two of Sorenson's other neighbors-Dorothy Foland and J. E. McKinney. Sorenson had asked McKinney to check his home regularly during November while Sorenson was away.

At trial, McKinney testified that he saw the porch light on in the Sorenson home at about 4:30 p.m. and that he and Foland went to investigate. After knocking, he opened the door with a key and went in. They turned on the lights and searched the house. McKinney and Foland initially saw defendant in either the kitchen or the utility room; he was wearing socks or "karate gloves" on his hands that were pulled up to his elbows. Defendant also held a knife. Foland yelled, "What are you doing here?" Defendant responded, according to McKinney and Foland, "I give up. I give up." Defendant explained to the pair that he had seen a light come on in the Sorenson home and had entered to check on it. Foland told defendant to leave, and he did.

Defendant testified that he heard glass breaking and went to the Sorenson home to investigate. He said that he found the back door ajar and went in to see if someone was in the house. Inside, according to defendant, he heard someone talking, assumed it was a burglar, and hid in the closet. When defendant saw McKinney, whom he recognized, defendant left the closet and walked toward him. Defendant testified that he asked McKinney if he heard glass being broken. He also said that he put the knife he was holding on the table to avoid startling the two neighbors. Defendant denied saying, "I give up."

Before trial, the prosecutor informed the court that he intended to ask defendant about his prior convictions for burglary. He also stated that defendant's record included two misdemeanor larceny convictions and a conviction for assault, about which he did not intend to inquire. The defendant objected to questions concerning the prior burglaries. The court ruled as follows:

"THE COURT: I think that burglary is that kind of a crime that does relate to the credibility of a witness, for that is in that witness's past, whether as a witness in an automobile case or in a criminal case, because-not only does burglary, particularly in relation to theft, involve stealth, but it also involves dishonesty, and, of course, dishonesty weighs heavily on the issue of credibility, and that is what we are-because thievery is dishonesty, and that issue of thievery/dishonesty weighs heavily on the issue of credibility.

"I would find that the probative value of that dishonesty and issue of credibility-probative value of it outweighs the prejudicial effect upon the Defendant; although, I am sure everybody will agree that it has some prejudicial effect, but it has more probative value, and therefore, I will allow the State, if the Defendant chooses to take the stand, to use those three-two or three convictions, whatever they have available to them."

Defendant's first assignment of error attacks that ruling.

OEC 609(1) ¹ states:

" * * * (1) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime in other than a justice's court or a municipal court shall be admitted if elicited from the witness or established by public record, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (b) involved a false statement."

Determination whether the probative value of evidence outweighs its prejudicial effect is within the trial court's discretion. The commentary to the Oregon Evidence Code sets out four criteria to guide that discretion. They are (1) the nature of the prior crime, in terms of its bearing on defendant's credibility; (2) the date of the prior conviction, in terms of its proximity or remoteness to the present proceeding; (3) the similarity of the prior crime to the crime on trial, in terms of the tendency of the jury to treat the impeachment evidence as substantive proof; and (4) the importance of defendant's testimony in relation to the issues in the case at trial. See Sixty First Legislative Assembly, Oregon Evidence Code, Rule 609, Commentary, p. 123-24.

The trial court was entitled, under the first and second criteria, to admit evidence of the prior burglary convictions. Those convictions were clearly relevant to defendant's credibility, and they occurred within the time limit set out in the statute. See OEC 609(2)(a). The defendant's claim is that the final two criteria, applied to the facts of this case, weigh so heavily in favor of excluding the evidence that the trial court's ruling constituted an abuse of discretion. We discuss those two criteria in turn.

The commentary explains the similarity criterion as follows:

"Similarity to crime charged. This factor relates to prejudicial impact on the accused. If the elements of the prior conviction are similar to those of the crime charged, then analysis under this factor favors exclusion of the prior convictions. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those that are for the same or a similar crime. Inevitably there is pressure on lay jurors to use these as substantive evidence of guilt even though they are not admissible as such under ORS 404(3). As a general guide, these convictions should be used sparingly. See, e.g., United States v. (Bailey), 426 F.2d 1236 (D.C.Cir.1970) (excluding evidence of prior conviction for receiving stolen goods in trial for burglary."

The rule and the commentary reflect a legislative attempt to reconcile the use of prior crimes that are relevant to a defendant's credibility with the obvious danger that similar considered as substantive evidence of guilt. That is, there is a danger that a defendant, charged with crime A and impeached with prior convictions for crime A, will be convicted, not on the evidence, but because the jury believes that a person who once committed crime A would do so again. The commentary suggests that, where several different crimes are available for impeachment, the need to use any particular crime decreases, and thus the argument for precluding inquiry into crimes that are the same or similar becomes stronger. Yet, there is no absolute prohibition against the use of similar prior crimes. The weighing process requires a determination of whether a defendant's prior dissimilar crimes are sufficiently numerous and impeaching of credibility to justify exclusion of any similar crimes. The legislature chose to place that difficult balancing decision in the trial court's discretion.

The trial court exercised that discretion correctly here. ² The prosecutor represented to the court that defendant's criminal history consisted of felony convictions for assault and burglary and misdemeanor convictions for larceny. He declined to use the assault conviction, presumably because it had little bearing on credibility, and the larceny convictions, presumably because they were misdemeanors and...