State v. Winegardner, 2 CA-CR 2016-0110

• Decision Date: 31 May 2017
• Docket Number: No. 2 CA-CR 2016-0110,2 CA-CR 2016-0110
• Citation: 397 P.3d 363
• Parties: The STATE of Arizona, Appellee, v. Darren Lee WINEGARDNER, Appellant.
• Court: Arizona Court of Appeals

397 P.3d 363

The STATE of Arizona, Appellee,

v.Darren Lee WINEGARDNER, Appellant.

No. 2 CA-CR 2016-0110

Court of Appeals of Arizona, Division 2.

Filed May 31, 2017

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, Phoenix, By Diane Leigh Hunt, Assistant Attorney General, Tucson, Counsel for Appellee

Joel Feinman, Pima County Public Defender, By Erin K. Sutherland, Assistant Public Defender, Tucson, Counsel for Appellant

Presiding Judge Staring authored the opinion of the Court, in which Judge Miller and Judge Espinosa concurred.

OPINION

STARING, Presiding Judge:

¶ 1 Darren Winegardner appeals his conviction for sexual conduct with his minor stepdaughter, contending the trial court erred by precluding him from impeaching the victim with evidence of her prior misdemeanor shoplifting conviction. Because we conclude the trial court did not err, we affirm Winegardner's conviction and sentence.

Factual and Procedural Background

¶ 2 We view the evidence in the light most favorable to sustaining Winegardner's conviction. State v. Foshay , 239 Ariz. 271, ¶ 2, 370 P.3d 618, 620 (App. 2016). One night in October 2012, Winegardner argued with his wife, Rachel, whose fifteen-year-old daughter, L.B., was present in the home. Rachel left the house, taking L.B.'s younger siblings with her. L.B., however, stayed behind with Winegardner.

¶ 3 After Rachel had left, Winegardner and L.B. began drinking, and she became intoxicated. Winegardner told L.B. it was "really common for stepdads and daughters to engage in sexual activities," and asked if she wanted to have sex with him. They then engaged in intercourse.

¶ 4 The next day, after L.B. told her mother what had occurred, Rachel contacted the police, who had L.B. taken to the Child Advocacy Center (CAC), where she underwent a forensic interview and a medical examination. The examining physician obtained swabs for a DNA¹ analysis, and an external genital swab subsequently revealed sperm matching Winegardner's DNA profile.

¶ 5 The state indicted Winegardner on one count of sexual conduct with a minor. He was convicted after a jury trial, and the trial court sentenced him to a mitigated term of 3.5 years' imprisonment. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033.

Discussion

¶ 6 Prior to L.B.'s trial testimony, Winegardner informed the trial court he intended to impeach her with a 2015 shoplifting conviction² because it was a "crime of moral turpitude." The court precluded him from doing so. After her direct examination, he again sought to introduce evidence of the prior conviction, and, again, the court refused.

¶ 7 Winegardner challenges the trial court's preclusion rulings on two bases: Rule 609, Ariz. R. Evid., required the court to permit evidence of the prior conviction because shoplifting involves "deceit or false presentation"; and the court's refusal to allow impeachment with the conviction violated his rights to due process and confrontation. "When reviewing a ruling on the admissibility of prior convictions, this court will overturn the trial court's determination only if it proves to have been a clear abuse of discretion." State v. Green , 200 Ariz. 496, ¶ 7, 29 P.3d 271, 273 (2001). "An error of law constitutes an abuse of discretion." State v. Bernstein , 237 Ariz. 226, ¶ 9, 349 P.3d 200, 202 (2015). We review constitutional issues de novo. Foshay , 239 Ariz. 271, ¶ 34, 370 P.3d at 625.

Rule 609

¶ 8 Rule 609(a)(2) provides that a party may impeach a witness's character for truthfulness with "any crime regardless of punishment ... if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement." Winegardner asserts the misdemeanor offense of shoplifting "necessarily involves some sort of deceit or false presentation" and, thus, the trial court was required to admit evidence of the conviction. We disagree.

¶ 9 The parties do not cite, and we have not located, any published Arizona opinion directly addressing whether Rule 609(a)(2) permits a misdemeanor shoplifting conviction to be used for impeachment. Our rules of evidence, however, were adopted from the Federal Rules of Evidence. State v. Johnson , 132 Ariz. 5, 8, 643 P.2d 708, 711 (App. 1981). For that reason, "[w]hen interpreting an evidentiary rule that predominantly echoes its federal counterpart, we often look to the latter for guidance." Green , 200 Ariz. 496, ¶ 10, 29 P.3d at 273 ; see also Johnson , 132 Ariz. at 8, 643 P.2d at 711 ("in the absence of Arizona precedent as a guide to interpreting our [Rules of Evidence], we will look to the federal courts"). The language of Rule 609(a)(2), Ariz. R. Evid., follows that of Rule 609(a)(2), Fed. R. Evid., and the historical underpinnings of the federal rule, federal case law interpreting it, as well as our own precedent, support the conclusion that shoplifting is not a "dishonest act or false statement" within the meaning of Rule 609(a)(2), Ariz. R. Evid.

¶ 10 At common law, conviction for an "infamous crime" rendered a person "completely incompetent as a witness." 1 McCormick on Evidence § 42, at 184–85 (Kenneth S. Broun ed., 6th ed. 2006). Generally, an infamous crime was an offense "implying such a dereliction of moral principle, as carries with it a conclusion of a total disregard to the obligation of an oath." 2 John Henry Wigmore, Evidence in Trials at Common Law § 520, at 729 (rev. Chadbourn 1979), quoting Simon Greenleaf, Evidence § 373 (1842). Infamous offenses typically included treason and almost every felony, because they were punishable by death, and crimes "deemed of so grave a character as to render the offender unworthy to live, [were] considered as rendering him unworthy of belief in a Court of Justice." Id. at 729–30.

¶ 11 Historically, convictions for crimes considered crimen falsi also disqualified a witness from testifying. Id. at 729. Such crimes involved not only "the charge of falsehood," but also those "which may injuriously affect the administration of justice, by the introduction of falsehood and fraud." Id. at 730. Crimen falsi crimes included "forgery, perjury, subornation of perjury, suppression of testimony by bribery, or conspiracy to procure the absence of a witness, or other conspiracy, to accuse one of a crime, and barratry." Id. (footnotes omitted); accord Ex Parte Wilson , 114 U.S. 417, 423, 5 S.Ct. 935, 29 L.Ed. 89 (1885).

¶ 12 The enactment of Rule 601, Fed. R. Evid.,³ ended the use of the prior common law grounds for disqualification in federal courts and converted issues of witness competency "into questions of witness credibility to be decided by the jury." 27 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6002, at 17 (1990). Specifically, "[c]onviction of crime as a ground of impeachment [became] subject [to] Rule 609." Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 51 F.R.D. 315, 384 (1971).

¶ 13 Rule 609(a)(2), Fed. R. Evid., permits a party to attack "a witness's character for truthfulness by evidence of a criminal conviction ... if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement." Since the rule's enactment, the Advisory Committee has maintained that offenses to which the rule applies are:

[C]rimes such as perjury or subornation of 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.

Fed. R. Evid. 609 advisory committee notes, 1974 enactment; see also id. 1990 amends., 2006 amends. Rule 609, Fed. R. Evid., therefore, did not enlarge the common law category of infamous crimes. See Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, 46 F.R.D. 161, 297 (1969) ("common law grounds of disqualification transposed into grounds of impeachment").

¶ 14 In State v. Malloy , our supreme court determined the "phrase ‘dishonesty or false statement’ " contained in the contemporaneous version of Rule 609(a)(2), Ariz. R. Evid., "should be construed narrowly to include only those crimes involving some element of deceit, untruthfulness, or falsification." 131 Ariz. 125, 127, 639 P.2d 315, 317 (1981). The rule requires a misdemeanor offense to "necessarily involve" one of those elements in order for it to be admissible; it is irrelevant that the underlying facts of a particular conviction might have involved a dishonest act or false statement. Id. at 128, 639 P.2d at 318. The court also noted that narrow construction of the rule has "the advantage of being in conformity with the current federal practice" and that the Arizona Rules of Evidence "were modeled after the Federal Rules with the hope that evidence practices would be similar in state and federal court and that federal case law would be useful in Arizona." Id. at 128 & n.3, 639 P.2d at 318 & n.3 ; see also State v. Hatch , 225 Ariz. 409, ¶ 11, 239 P.3d 432, 434 (App. 2010) ("Like its federal counterpart, Rule 609(a) traces its origins to the common law's total prohibition on the testimony of those previously convicted of ‘crimes of infamy’: treason, felonies, and crimen falsi."). The Malloy court also concluded Rule 609 did not permit impeachment with evidence of a prior conviction for misdemeanor attempted burglary, and that, while "[c]riminal acts such as theft and robbery commonly carry a connotation of dishonesty," they do not necessarily "establish the trait of untruthfulness," which is the primary concern behind Rule 609. 131 Ariz. at 127–28, 639 P.2d at 317–18.

¶ 15 Likewise, in Johnson , 132 Ariz. at 8, 643 P.2d at 711, we concluded a "misdemeanor conviction for...