State v. Schroeder, No. 13154-4-II

CourtWashington Court of Appeals
Writing for the CourtMORGAN; PETRICH, C.J., and WORSWICK
Citation834 P.2d 105,67 Wn.App. 110
Docket NumberNo. 13154-4-II
Decision Date17 August 1992
PartiesThe STATE of Washington, Respondent, v. Robert D. SCHROEDER, Appellant.

Page 110

67 Wn.App. 110
834 P.2d 105
The STATE of Washington, Respondent,
v.
Robert D. SCHROEDER, Appellant.
No. 13154-4-II.
Court of Appeals of Washington,
Division 2.
Aug. 17, 1992.

[834 P.2d 106]

Page 111

William Henry and Henry & Allen (appointed on appeal), Port Townsend, for appellant.

Page 112

John F. Raymond, Pros. Atty., and Mark L. Huth, Deputy Pros. Atty., Port Townsend, for respondent.

MORGAN, Judge.

Robert D. Schroeder appeals his conviction for second degree possession of stolen property. We affirm.

On September 22, 1988, Jefferson County Sheriff's deputies conducted a valid search of the defendant's home and truck. They seized a large quantity of personal property, much of which had been stolen in 17 burglaries that had occurred near the defendant's home during the preceding month.

The seized property included three outboard motors. Two were immediately identified as stolen property, 1 but the third was not. The reason the third was not was that the police mistakenly recorded its serial number, and as a result, they did not receive a "hit" when they ran it through their computer. The third was stored in the sheriff's property room until released to the defendant in the manner described below.

The defendant confessed to 11 burglaries and admitted that various items found during the search were stolen property. He was charged with eight counts of second degree burglary and held in jail pending trial.

On November 9, 1988, defendant pled guilty to five counts of second degree burglary. He was released from jail pending sentencing.

[834 P.2d 107] On November 15, 1988, defendant went to the Jefferson County Sheriff's Office and asked for the return of "his" outboard motor--the third motor for which the police had recorded the wrong serial number. A sheriff's deputy once again ran the wrong serial number through the computer and did not receive a "hit". The deputy then released the motor to defendant.

The same day, defendant tried to sell the motor to a marine supplier. Naturally enough, the supplier became suspicious

Page 113

when he saw the sheriff's evidence tag still affixed to the motor. He called the sheriff's office and gave its correct serial number. Using that number, a deputy ran another computer check and discovered for the first time that the motor had been reported stolen in August, 1988. The following day, deputies recovered the motor from another marine store where defendant had succeeded in selling it.

The State charged defendant with second degree possession of stolen property occurring on or about November 15, 1988. Trial commenced July 24, 1989. 2

Indicating that he planned to testify, the defendant made a motion in limine to exclude his five burglary convictions. 3 The trial court ruled that the convictions would be admissible to impeach under ER 609(a)(2). It required, however, that the State refer to them as convictions for "felonies" rather than "burglaries". It ruled the convictions would not be admissible under ER 609(a)(1) or ER 404.

The defendant also made a motion in limine to exclude evidence that on September 22, 1988, he had been in possession of stolen property other than the third motor that was the subject of the present charge. The trial court ruled that evidence of defendant's possession of property stolen in the five burglaries to which he had pled guilty would be admissible to show knowledge that the third motor was stolen property, pursuant to ER 404(b). It ruled that evidence of other stolen property would be inadmissible.

The jury convicted, and defendant was sentenced to twelve months in jail. He now appeals, arguing that the trial court erred in making the rulings just described, as well as certain other rulings.

Page 114

ER 609(a)(2)

ER 609(a)(2) provides:

For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime ... (2) involved dishonesty or false statement, regardless of the punishment.

To apply ER 609(a)(2) to this case, we address three propositions. (1) Theft is a crime of dishonesty. (2) If theft is a crime of dishonesty, some but not all second degree burglaries are also. (3) A trial court is not precluded from ascertaining whether a prior conviction for second degree burglary involved dishonesty, and the trial court in this case did not err when it ruled that the defendant's convictions did.

A.

What constitutes a crime of dishonesty has a tortured history in Washington. State v. Burton, 101 Wash.2d 1, 676 P.2d 975 (1984), was decided February 2, 1984. The court said that a conviction was for a crime involving "dishonesty or false statement" if the crime was "perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi, the commission of which involves some element of untruthfulness, deceit or falsification bearing on the accused's propensity to testify truthfully." 101 Wash.2d at 6-7, 676 P.2d 975, quoting S.Rep. No. 1277, 93d Cong.2d Sess. (emphasis[834 P.2d 108] by the Burton court). The court held that theft was not such a crime. 101 Wash.2d at 7, 676 P.2d 975.

State v. Brown, 111 Wash.2d 124, 761 P.2d 588 (1988) (Brown I), was decided July 14, 1988. Repudiating Burton's crimen falsi test, a plurality of four justices said:

[W]e return to basics.... The term "dishonest" implies the act or practice of telling a lie, or of cheating, deceiving, and stealing. Crimes of theft involve stealing, and are clearly encompassed within the term dishonest.... The act of taking property is positively dishonest....

111 Wash.2d at 154, 761 P.2d 588. The plurality went on to say that "taking another's property by theft, including

Page 115

shoplifting, or by robbery involves dishonesty", and "these crimes are per se admissible for impeachment purposes under ER 609(a)(2)." 111 Wash.2d at 155, 761 P.2d 588. A fifth justice concurred in the plurality's result; thus, it appeared that Brown I's result, if not its reasoning, represented the law of Washington.

State v. Brown, 113 Wash.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989) (Brown II), was decided October 31, 1989. It resulted from the Supreme Court granting a motion to reconsider Brown I. By means of two concurring opinions, five justices adhered to or reverted to Burton.

State v. Ray, 116 Wash.2d 531, 806 P.2d 1220 (1991), was decided March 21, 1991. Adopting the reasoning and result of Brown I, 116 Wash.2d at 545, 761 P.2d 588, the court held that "crimes of theft involve dishonesty and are per se admissible for impeachment purposes under ER 609(a)(2)." 116 Wash.2d at 545, 761 P.2d 588. See also State v. McKinsey, 116 Wash.2d 911, 810 P.2d 907 (1991) (extending Ray and holding that first degree possession of stolen property is a crime of dishonesty or false statement); State v. Watkins, 61 Wash.App. 552, 555, 811 P.2d 953 (1991) (describing Ray ).

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25 practice notes
  • State v. Rivers, No. 63412-2
    • United States
    • United States State Supreme Court of Washington
    • October 24, 1996
    ...531, 545, 806 P.2d 1220 (1991) (crimes of theft involve dishonesty and are per se admissible); State v. Schroeder, 67 Wash.App. 110, 115, 834 P.2d 105 It is only the admission of the 1990 conviction for assault that is claimed to have constituted error in this case. Defendant Rivers claims ......
  • State v. Garcia, No. 88020–4.
    • United States
    • United States State Supreme Court of Washington
    • February 13, 2014
    ...to commit inside the unlawfully entered building and look to the elements of that crime. State v. Schroeder, 67 Wash.App. 110, 117, 834 P.2d 105 (1992). The trial judge's inquiry into the facts of the underlying conviction is for the limited purpose of determining the predicate crime for th......
  • State v. Dowdney, No. 59078-2-I (Wash. App. 8/10/2009), No. 59078-2-I
    • United States
    • Court of Appeals of Washington
    • August 10, 2009
    ...inclined to reason that having previously committed a crime, the accused is likely to have reoffended). 75. State v. Schroeder, 67 Wn. App. 110, 117, 834 P.2d 105 76. Id. at 118. 77. State v. Black, 86 Wn. App. 791, 794, 938 P.2d 362 (1997). 78. See ER 609 (permitting admission of evidence ......
  • State v. Strader, No. 32277-3-II (WA 12/13/2005), No. 32277-3-II
    • United States
    • United States State Supreme Court of Washington
    • December 13, 2005
    ...a witness's credibility. ER 609(a). Burglary, performed with an intent to commit theft, is a crime of dishonesty. State v. Schroeder, 67 Wn. App. 110, 116, 834 P.2d 105 (1992). But cross-examination on prior convictions under ER 609(a) is limited to facts contained in the record of the prio......
  • Request a trial to view additional results
25 cases
  • State v. Rivers, No. 63412-2
    • United States
    • United States State Supreme Court of Washington
    • October 24, 1996
    ...531, 545, 806 P.2d 1220 (1991) (crimes of theft involve dishonesty and are per se admissible); State v. Schroeder, 67 Wash.App. 110, 115, 834 P.2d 105 It is only the admission of the 1990 conviction for assault that is claimed to have constituted error in this case. Defendant Rivers claims ......
  • State v. Garcia, No. 88020–4.
    • United States
    • United States State Supreme Court of Washington
    • February 13, 2014
    ...to commit inside the unlawfully entered building and look to the elements of that crime. State v. Schroeder, 67 Wash.App. 110, 117, 834 P.2d 105 (1992). The trial judge's inquiry into the facts of the underlying conviction is for the limited purpose of determining the predicate crime for th......
  • State v. Dowdney, No. 59078-2-I (Wash. App. 8/10/2009), No. 59078-2-I
    • United States
    • Court of Appeals of Washington
    • August 10, 2009
    ...inclined to reason that having previously committed a crime, the accused is likely to have reoffended). 75. State v. Schroeder, 67 Wn. App. 110, 117, 834 P.2d 105 76. Id. at 118. 77. State v. Black, 86 Wn. App. 791, 794, 938 P.2d 362 (1997). 78. See ER 609 (permitting admission of evidence ......
  • State v. Strader, No. 32277-3-II (WA 12/13/2005), No. 32277-3-II
    • United States
    • United States State Supreme Court of Washington
    • December 13, 2005
    ...a witness's credibility. ER 609(a). Burglary, performed with an intent to commit theft, is a crime of dishonesty. State v. Schroeder, 67 Wn. App. 110, 116, 834 P.2d 105 (1992). But cross-examination on prior convictions under ER 609(a) is limited to facts contained in the record of the prio......
  • Request a trial to view additional results

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