State v. Eugene

536 N.W.2d 692, 1995 N.D. LEXIS 149, 1995 WL 510597
CourtNorth Dakota Supreme Court
DecidedAugust 29, 1995
DocketCr. 950022
StatusPublished
Cited by16 cases

This text of 536 N.W.2d 692 (State v. Eugene) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Eugene, 536 N.W.2d 692, 1995 N.D. LEXIS 149, 1995 WL 510597 (N.D. 1995).

Opinions

NEUMANN, Justice.

Donald Eugene appealed from a judgment of conviction for delivering a controlled substance in violation of Sections 19-03.1-23,19-03.1-05(5)(s) and 12.1-32-01(3), N.D.C.C. We hold the court’s error in admitting two prior convictions to impeach Eugene’s testimony did not affect substantial rights of the defendant, and we affirm the judgment of conviction.

Before trial, Eugene filed a motion in li-mine to preclude the State from admitting evidence of two prior convictions, for felony escape and for possession of an imitation controlled substance with intent to deliver, to impeach Eugene’s testimony at the trial. The motion was denied. Eugene testified, and evidence of the prior convictions was introduced to the jury for impeachment purposes. On appeal, Eugene asserts the trial court erred in admitting this evidence.

Rule 609(a), N.D.R.Ev., governs the admissibility of evidence of prior convictions for impeachment purposes. At the time of Eugene’s trial, the rule provided:

“General Rule. For the purpose of attacking the credibility of a witness, (i) evidence that a witness other than an accused has been convicted of a crime must be admitted, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime must be admitted if the court determines that the probative value of admitting that evidence outweighs its prejudicial effect to the accused; and (ii) evidence that any witness has been convicted of a crime must be admitted if it involved dishonesty or false statement, regardless of the punishment.” 1

Under Rule 609(a)(ii), N.D.R.Ev., evidence of prior convictions involving dishonesty or false statement are automatically admissible to impeach the testimony of any witness, including the accused. State v. Eugene, 340 N.W.2d 18, 30 (N.D.1983). The State argues Eugene’s prior conviction for possession of an imitation controlled substance with intent to deliver was automatically admissible under this provision. We disagree.

To be admissible under Rule 609(a)(ii), N.D.R.Ev., the prior conviction must involve a crime that bears directly upon the accused’s propensity to testify truthfully. Eugene, supra, 340 N.W.2d at 31. The prior crime must involve deception or misrepresentation, or carry with it a tinge of falsification. State v. Bohe, 447 N.W.2d 277, 282 (N.D.1989). The crime of possession of an imitation controlled substance with intent to deliver does not necessarily involve dishonest conduct or false statement, because the defendant’s belief that the substance being delivered was actually a controlled substance, not an imitation, is no defense to the charge. Section 19-03.2-03(3), N.D.C.C. The State concedes the defendant’s knowledge that the substance being delivered was imitation is not an element of the crime. In those cases where the defendant believes he was dealing with real, not imitation, contraband, the defendant’s conduct, although unlawful, would not involve dishonesty or deception. The record in this case contains no particulars about the underlying circumstances of Eugene’s prior conviction for possessing an imitation controlled substance with intent to de[695]*695liver it. It is impossible, therefore, to determine if his conduct on that prior conviction involved false statement or dishonesty. Consequently, that prior conviction is not automatically admissible under Rule 609(a)(ii), N.D.R.Ev.

The State alternatively argues that both the prior conviction for felony escape and the conviction for possession of an imitation controlled substance with intent to deliver are admissible under Ride 609(a)(i), N.D.R.Ev. Admission of prior convictions under Rule 609(a)(i), N.D.R.Ev., requires the trial court to weigh the probative value of a prior conviction and its prejudicial effect. This court in State v. Anderson, 336 N.W.2d 123, 126 (N.D.1983), citing United States v. Mahone, 537 F.2d 922 (7th Cir.1976), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), listed the factors the judge should take into account in making its determination:

“ ‘(1) The impeachment value of the prior crime.
“ ‘(2) The point in time of the conviction and the witness’ subsequent history.
‘“(3) The similarity between the past crime and the charged crime.
“‘(4) The importance of the defendant’s testimony.
‘“(5) The centrality of the credibility issue.’ ”

The list does not exhaust the range of possible factors a trial court may consider, but it does outline the more basic concerns relevant to balancing the probative value and prejudicial effect of admitting a prior conviction into evidence for impeachment purposes. It is important for the trial court to explicitly articulate its balancing process so this court can determine whether the trial court followed the requirements of the rule in deciding to admit the evidence. Eugene, supra, 340 N.W.2d at 34. We review the trial court’s admission of evidence under this provision under the abuse of discretion standard. State v. Fuller, 379 N.W.2d 289 (N.D.1985).

In making its initial determination on Eugene’s motion to exclude the prior convictions, the court made the following statement:

“I would admit and would permit examination concerning the imitation controlled substance. We are dealing here with a charge involving controlled substances and I think there is a nexus there. The escape, it does deal with a question ... that very much is a question of credibility,2 and I would permit that examination also.”

When Eugene renewed his objection during the trial, the court merely stated its decision remained unchanged and that “I have made the balance.”

The record in this case does not show that the trial court meaningfully or appropriately considered the relevant factors in balancing the probative value of Eugene’s prior convictions to impeach his testimony against their prejudicial effect on the jury in reaching its verdict. The court’s statements provide very little information about its decision process. What little explanation the court did give suggests it inappropriately considered and weighed the similarity between the prior conviction for intent to deliver an imitation contraband and the current charge against Eugene in this case for delivery of a controlled substance.

The court said it was admitting the imitation controlled substance conviction because it was similar to the charged crime. However, similarity between a prior conviction and the crime charged militates against admitting the prior conviction under Rule 609(a)(i), N.D.R.Ev. Although a prior conviction is not inadmissible per se because it is similar to the offense for which the defendant is on trial, the court must be particularly careful about admitting such prior convictions because of the potential prejudice. State v. Bohe, 447 N.W.2d at 281-282.

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State v. Eugene
536 N.W.2d 692 (North Dakota Supreme Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
536 N.W.2d 692, 1995 N.D. LEXIS 149, 1995 WL 510597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-eugene-nd-1995.