State v. Schroeder

• Decision Date: 17 August 1992
• Docket Number: No. 13154-4-II,13154-4-II
• Parties: The STATE of Washington, Respondent, v. Robert D. SCHROEDER, Appellant.
• Court: Washington Court of Appeals

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.

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

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.

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 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. 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 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 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 ).

Trial in the present case occurred while Brown I appeared to represent the law of Washington. Brown I and Ray are essentially the same, and Ray remains in effect today. Defendant does not argue that the intervening decision in Brown II has any legal significance with respect to this case, and we do not perceive that it does. For convenience, then, we treat Ray as if it had been in effect at all times material to this case.

B.

If theft is a crime of dishonesty, second degree burglary performed with intent to commit theft is also. Theft contains the element of intent to deprive another of his or her property, RCW 9A.56.020(1), and that intent involves dishonesty. See State v. Ray, 116 Wash.2d at 545, 806 P.2d 1220, quoting Brown II, 113 Wash.2d at 551-52, 782 P.2d 1013 (Brown I ) ("Crimes of theft involve stealing, and are clearly encompassed within the term dishonest."); State v. Smith, 56 Wash.App. 909, 911, 786 P.2d 320 (1990) (UIBC contains element of intent to defraud, and that intent involves dishonesty). By hypothesis, second degree burglary performed with intent to commit theft contains the same intent. RCW 9A.52.030(1) (burglary requires intent to commit a "crime"); RCW 9A.56.020(1) (crime of theft requires intent to deprive). Therefore, burglary performed with intent to commit theft is a crime of dishonesty.

Although burglary performed with intent to commit theft is a crime of dishonesty, the same is not true of every burglary. For example, it may be assumed that a burglary performed with intent to commit assault or malicious mischief does not involve a dishonest intent and should not be categorized as a crime of dishonesty. Watkins, 61 Wash.App. at 556, 811 P.2d 953. As Division I has put it, "Not all second degree burglary convictions are per se admissible under ER 609(a)(2)." Watkins, 61 Wash.App. at 557, 811 P.2d 953.

C.

In general, a trial judge must determine whether a prior conviction falls under ER 609(a)(2) by examining the statutory elements of the crime for which the conviction was rendered. In State v. Newton, 109 Wash.2d 69, 71, 743 P.2d 254 (1987), the Supreme Court said:

The trial court's inquiry into the facts of a prior conviction for purposes of determining whether it may be admitted for impeachment purposes under ER 609(a)(2) shall be limited to the elements and date of the prior conviction, the type of crime, and the punishment imposed.

The conviction in issue was for theft, and the trial court had looked to the facts in deciding that the theft involved dishonesty. Thus, the Supreme Court reversed.

Before Ray, Newton's approach worked adequately for burglary. ⁴ The elements of burglary appear on the face of RCW 9A.52.030(1). ⁵ They include (1) entering or remaining unlawfully in a building other than a vehicle (2) with intent to commit a crime against a person or property therein. They do not make burglary crimen falsi. Thus, by looking at the statutory elements of burglary, a trial court could discern that...