State v. Archer , 150 Or. App. 505 ( 1997 )

EDMONDS, J.

Defendant is charged with the offense of driving while under the influence of intoxicants. ORS 813.010. Before trial, he moved in limine to exclude evidence about his prior conviction for driving while suspended (DWS). The trial court granted his motion, and the state appeals. ORS 138.060(3). We reverse.

The court’s order provides:

“ mt is

“HEREBY ORDERED THAT defendant’s motion in limine is granted. The Court holds that if the defendant is asked by his attorney if he has ever been convicted of a crime and if he admits to a conviction for Driving While Suspended, or if his attorney asks him if he has ever been convicted of the crime of Driving While Suspended and the defendant admits that he has, then the State may not ask the defendant on cross-examination if the crime was a felony nor may the State introduce his judgment of conviction as impeachment evidence.”

The state argues that the trial court’s ruling is contrary to OEC 609(1) and our holding in State v. Venegas, 124 Or App 253, 862 P2d 529 (1993), rev den 318 Or 351 (1994). OEC 609(1) provides:

“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime 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, or (b) involved false statement or dishonesty.”

Defendant’s prior conviction for driving while suspended was under ORS 811.182 and it is undisputed that the conviction was for a crime that was punishable by imprisonment for more than one year. The trial court based its ruling on its understanding of the holding in State v. Pratt, 316 Or 561, 853 P2d 827, cert den 510 US 969, 114 S Ct 452, 126 L Ed 2d 384 (1993). It reasoned that OEC 403 authorizes a trial court to exercise its discretion to exclude evidence offered under OEC 609 if the probative value of the evidence is substantially outweighed by the consideration of the needless presentation of cumulative evidence. It explained that to permit the state to establish that defendant’s prior conviction was a felony “run[s] the risk of creating unfair prejudice and misleading the jury, and/or at least it is unnecessarily cumulative.” The court concluded:

“I think the only reason that the state wants to bring out the fact that this particular crime was a felony would be to somehow encourage the jury to find that [defendant] must be guilty of this crime because he had been previously convicted not just of driving while suspended, but driving while suspended which was a felony * * *. I do find it is * * * unnecessarily cumulative and would be prejudicial!.]”

In Pratt, the court upheld the exclusion by the trial court of a proffered judgment of conviction as a proper exercise of discretion after the witness had admitted on direct examination that he had been convicted of several felonies. The defendant proposed to impeach the witness by demonstrating the witness’ probationary status as well as the existence of other dismissed charges from the judgments. The Supreme Court concluded that impeachment evidence offered under OEC 609 was not exempt from the impact of OEC 403, which permits a trial court to exclude needless and cumulative evidence. Here, the information that defendant’s conviction was a felony was not cumulative because it did not repeat information already elicited on direct examination or otherwise in the record.¹

In Venegas, we held that the trial court erred when it excluded evidence of the nature of the defendant’s prior felony conviction on the ground that it was prejudicial and without any probative value under OEC 403. The issue in that case was whether the trial court could limit the introduction of impeachment evidence regarding a witness’ prior felony conviction under OEC 609 by preventing the state from disclosing to the jury the name of the crime for which the witness was convicted. We held that the trial court could not limit evidence under OEC 609 to such an extent. In that case, the defendant was charged with prostitution. He moved to limit the introduction of evidence concerning his prior felony conviction for possession of a controlled substance. He requested that the jury not be told about the specific crime for which he had been convicted. The trial court concluded that the name of the crime of conviction was prejudicial and without any probative value. We reversed, ruling:

“In sum, OEC 609(1) requires evidence of a prior felony-conviction to be admitted in order to impeach a witness, provided that the conviction is not stale and has not been set aside, and subject to the witness’ right to explain the circumstances surrounding the conviction. The rule does not allow trial courts to engage in a process of weighing the probative value of the evidence against its prejudicial effect before admitting impeachment evidence of prior convictions.” (Citations omitted; emphasis in original.) 124 Or App at 256.

Our reasoning in Venegas is a reflection of the intention of the people of the state of Oregon who promulgated OEC 609 through the initiative process in 1986 with Ballot Measure 10. In State v. Dick, 91 Or App 294, 754 P2d 628 (1988), we examined the history of the rule and the purpose of the ballot measure. We noted that the ballot measure deleted language from the rule that permitted a trial court to weigh the probative value of a conviction offered into evidence for impeachment purposes against its prejudicial effect. We concluded:

“[I]t is clear that the voters intended to require trial courts to admit evidence of prior convictions for the purpose of impeaching a criminal defendant, without discretion.” Id. at 297. (Emphasis in original.)

In State v. King, 307 Or 332, 337, 768 P2d 391 (1989), the court said:

“We find the Court of Appeals’ analysis in Dick persuasive and adopt it as our own.”

This is not a case in which the offer of evidence went beyond the fact of the conviction itself, such as occurred in Pratt. Rather, this is a case wherein defendant seeks to sanitize the nature of his conviction for the purpose of limiting its impact on the jury. Informing the jury that the conviction was for felony driving while suspended identifies the crime as a felony, a crime more serious than misdemeanor driving while suspended crimes and DWS infractions.² The exclusion by the trial court of the fact that defendant’s prior conviction was for a felony prevents the jury from accurately understanding the nature of the conviction. The trial court sought to avoid what it perceived to be an unduly prejudicial effect of the word “felony.” However, the descriptive phrase that identifies the crime for which defendant was convicted is “felony driving while suspended.” Thus, the trial court’s ruling constituted an impermissible weighing of the probative value of the name of the crime against the name’s purported prejudicial effect, something that we held in Venegas that trial courts could not do. Under OEC 609, the state is entitled to inform the jury that defendant’s conviction for driving while suspended was a felony. The trial court erred when it prevented the state from demonstrating that the crime for which defendant was convicted was, in fact, a felony.

Reversed and remanded.

1 The dissent’s reliance on Pratt is misplaced. The court’s ruling does not refer to the evidence to which the dissent alludes. Rather, the ruling says, “In this case, the trial court exercised its discretion to exclude documentary evidence of some of [the witness’s] prior convictions, because that evidence was cumulative of [his] own testimony regarding his criminal record. We find no abuse of discretion in that ruling.” 316 Or at 573. Here, the evidence, which the trial court excluded through its pretrial order, could not have been cumulative. It was the only evidence that defendant’s prior conviction was a felony.

2 ORS 811.175 provides that driving while suspended is a Class A infraction. The violation of ORS 811.182 is a Class C felony or a Class A misdemeanor, depending on the proscribed circumstances. Subsection (3) of the statute provides:

“The crime is a Class C felony if the suspension or revocation results from any of the following:

“(a) Habitual offender status under ORS 809.640.

“(b) Any degree of murder, manslaughter, criminally negligent homicide or assault resulting from the operation of a motor vehicle.

“(d) Failure to perform the duties of a driver under ORS 811.705.

“(e) Reckless driving under ORS 811.140.

“(f) Fleeing or attempting to elude a police officer under ORS 811.540.

“(g) Driving while under the influence of intoxicants under ORS 813.010.

“(h) Use of a commercial motor vehicle in the commission of a crime punishable as a felony.”