State v. Newton

• Decision Date: 30 January 1986
• Docket Number: No. 6628-9-II,6628-9-II
• Citation: 714 P.2d 684,42 Wn.App. 718
• Parties: The STATE of Washington, Respondent, v. Donald J. NEWTON, Appellant.
• Court: Washington Court of Appeals

Page 718

42 Wn.App. 718

714 P.2d 684

The STATE of Washington, Respondent, v. Donald J. NEWTON, Appellant.

No. 6628-9-II.

Court of Appeals of Washington Division 2.

Jan. 30, 1986.

Review Granted May 6, 1985.

Stewart A. Johnston, Dept. of Assigned Counsel, Tacoma, (Court-appointed), for appellant.

Barbara L. Corey-Boulet, Deputy Pros. Atty., Tacoma, for respondent.

REED, Judge.

Donald J. Newton appeals his convictions of forgery and possessing stolen property in the second degree. We affirm.

On March 21, 1982, Newton registered at the Oakwood Motor Lodge in Tacoma under the name Eugene Kellenbenz; he presented a VISA charge card bearing Kellenbenz' name. When he checked out on April 5, 1982, Newton signed Kellenbenz' name to the VISA form. Thereafter, Newton traveled with another person in Kellenbenz' car to Minnesota, during which time Newton increased the VISA card debt to approximately $3,800.

Kellenbenz was reported missing on March 20, 1982. On April 12, 1982, Tacoma police found his badly decomposed body in his apartment. An autopsy determined the death to have been accidental.

During his trial, Newton admitted that he had used the credit card and vehicle, but insisted that Kellenbenz, a personal acquaintance, had given him permission to do so as repayment for a loan. Newton testified that he did not know of Kellenbenz' death until after he had been picked up by police in Minnesota. The jury returned a guilty verdict on one count of forgery and one count of possessing stolen property in the second degree. The court imposed two consecutive five year sentences.

The primary issue on appeal concerns the admission into evidence of Newton's prior conviction for third degree theft. Because that offense is punishable by imprisonment for less than one year and was offered for impeachment purposes, its admission is governed by ER 609(a)(2), which requires that the crime involve dishonesty or false statement. In the context of ER 609(a)(2), "dishonesty" is defined to "include only those crimes having elements in the nature of crimen falsi, the commission of which involves some element of deceit, fraud, untruthfulness or falsification bearing on the accused's propensity to testify truthfully." State v. Burton, 101 Wash.2d 1, 10, 676 P.2d 975 (1984).

The trial court admitted Newton's prior conviction after taking the matter under advisement and later reviewing the underlying circumstances of that crime and Newton's guilty plea conviction. Newton initially objected to the admission of the prior conviction; he did not object, however, to the trial court's review of the circumstances of that conviction, nor renew his objection to the court's eventual ruling. ¹ Rather, Newton permitted the trial judge to review the entire file, including his Statement on Plea of Guilty. In that statement, Newton admitted that he "did wrongfully obtain Russell Crockett's credit card and used it without his consent." Thus, although he was not specifically so charged in the information, Newton actually admitted his guilt of both credit card theft, a felony, RCW 9A.56.040(1)(c), and third degree theft by color or aid of deception. RCW 9A.56.020(1)(b). ² In our view it matters not that the information charged generally, in the words of RCW 9A.56.020(1)(a), that the theft was committed by wrongfully obtaining control over the property or services of another. In this we differ from the dissent.

The commission of credit card theft and the use of that stolen card involve dishonesty. See United States v. Crawford, 613 F.2d 1045, 1052 (D.C.Cir.1979). The underlying circumstances of Newton's prior conviction for third degree theft reveal that Newton stole a credit card and assumed a false identity as the card's owner in order to obtain either goods or services through the owner's credit. With the facts of the conviction before him and with no definite authority precluding his use of these underlying facts, the trial judge acted properly in admitting Newton's prior conviction following his determination that the crime involved dishonesty.

Although State v. Burton ³ may suggest that the trial court can consider only the statutory elements of the crime underlying the impeaching conviction, it does not clearly so hold. Indeed, justification for the trial court's actions in admitting Newton's prior conviction can be found in Burton. The Burton majority emphasized that, in adopting verbatim the federal version of ER 609, our Supreme Court "indicated our acceptance of the interpretation given to that rule by federal courts." Burton, 101 Wash.2d at 9, 676 P.2d 975; See Comment, ER 609, 91 Wash.2d 1150 (1978). An overwhelming majority of the federal circuits have permitted the type of inquiry that was conducted by the trial court here. Burton, 101 Wash.2d at 8, 676 P.2d 975. See United States v. Lipscomb, 702 F.2d 1049, 1064 (D.C.Cir.1983); United States v. Grandmont, 680 F.2d 867, 871 (1st Cir.1982); United States v. Hayes, 553 F.2d 824, 827-28 (2d Cir.), cert. denied, 434 U.S. 867, 54 L.Ed.2d 143, 98 S.Ct. 204 (1977); Government of the Virgin Islands v. Toto, 529 F.2d 278, 281 (3d Cir.1976); United States v. Cunningham, 638 F.2d 696, 699 (4th Cir.1981); United States v. Barnes, 622 F.2d 107, 110 (5th Cir.1980); United States v. Papia, 560 F.2d 827, 847 (7th Cir.1977); United States v. Yeo, 739 F.2d 385, 388 (8th Cir.1984); United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir.1982); United States v. Whitman, 665 F.2d 313, 320 (10th Cir.1982).

As stated in United States v. Hayes, 553 F.2d at 827:

If the title of an offense leaves room for doubt, a prosecutor desiring to take advantage of automatic admission of a conviction under [609(a)(2) ] must demonstrate to the court "that a particular prior conviction rested on facts warranting the dishonesty or false statement description." United States v. Smith, supra at 364 n. 28.

Also, as stated in United States v. Papia, 560 F.2d at 847:

Even the courts that reject the view that stealing, without more, involves "dishonesty" that bears on a witness's veracity recognize that modern theft statutes may encompass criminal conduct that does fall within the ambit of Rule 609(a)(2), for a theft conviction may well be based on fraudulent or deceitful conduct that would previously have been prosecuted as larceny by trick, embezzlement, or the taking of money or property by false pretenses, etc. Accordingly, these courts have adopted the rule that, when the statutory offense of which the witness was convicted does not require proof of fraud or deceit as an essential element of the crime, the prior conviction may yet be admitted under Rule 609(a)(2) if the proponent of the evidence bears the burden of showing that the conviction "rested on facts warranting the dishonesty or false statement description." United States v. Hayes, 553 F.2d 824, 827 (2d Cir.1977), quoting United States v. Smith, 551 F.2d 348, 364 n. 28 (D.C.Cir.1976); accord Government of Virgin Islands v. Toto, 529 F.2d 278, 281 n. 3 (3d Cir.1976).

Further justification for interpreting ER 609(a)(2) to allow this type of inquiry is found in the very language of the rule. The rule could have provided, but does not, that only those crimes having certain statutory elements are admissible. Rather, the rule permits admission of a prior conviction for a crime that "involved dishonesty or false statement ..." (Italics ours.)

Consideration of the actual conduct involved in the commission of the crime underlying the conviction clearly is consistent with Burton's statement that "[t]he purpose of allowing impeachment by prior conviction evidence is to shed light on the defendant's credibility as a witness. Therefore, prior convictions admitted for impeachment purposes must have some relevance to the defendant's ability to tell the truth." Burton, 101 Wash.2d at 7, 676 P.2d 975. If the underlying circumstances of the crime demonstrate a disregard for truthfulness, then admission of evidence of that conviction fulfills the purpose of ER 609(a)(2).

We conclude, therefore, that the trial court did not err in admitting evidence of Newton's prior conviction for third degree theft under ER 609(a)(2), after inquiring into the circumstances of that conviction.

The next issue that Newton raises concerns the admission under ER 404(b) of Newton's two prior acts of misconduct. The trial court permitted Tawnee Lewis, the girlfriend of the man who accompanied Newton to Minnesota, to testify that she received several telephone calls from someone purporting to be Eugene Kellenbenz and that she eventually recognized the voice of the caller as being Newton's. The trial court also permitted Sandra Needhamer, a desk clerk at Nendel's motel in Tacoma, to testify that Newton had registered at Nendel's under his own name on a previous occasion but that he had been locked out because of nonpayment.

The admission or refusal of evidence of other crimes or acts lies within the sound discretion of the trial court. State v. Laureano, 101 Wash.2d 745, 763-64, 682 P.2d 889 (1984). Under ER 404(b), evidence of other crimes, wrongs, or acts may be admissible for "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Evidence of prior crimes, wrongs, or acts will be admitted only if it satisfies two criteria. First, the evidence must be shown to be logically relevant to a material issue before the jury. State v. Saltarelli, 98 Wash.2d 358, 362, 655 P.2d 697 (1982). Second, if the evidence is relevant its probative value must be shown to outweigh its potential for prejudice. State v. Saltarelli, supra. The balancing of probative value versus prejudice must be done on the record. State v. Tharp, 96 Wash.2d 591, 597, 637 P.2d 961 (1981).

Tawnee Lewis's testimony was relevant for the purpose of proving identity--that Newton had assumed the identity of or pretended to be Kellenbenz. Sandra Needhamer's testimony was...