State v. Jenkins

666 P.2d 869, 63 Or. App. 858, 1983 Ore. App. LEXIS 3165
CourtCourt of Appeals of Oregon
DecidedJuly 13, 1983
DocketMC 82-56; CA A25474
StatusPublished
Cited by4 cases

This text of 666 P.2d 869 (State v. Jenkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jenkins, 666 P.2d 869, 63 Or. App. 858, 1983 Ore. App. LEXIS 3165 (Or. Ct. App. 1983).

Opinion

ROSSMAN, J.

In this case, a prosecutor attempted to impeach an unrepresented defendant by introducing inadmissible evidence of prior convictions. Because the trial court1 failed to declare a mistrial on its own motion, we reverse and remand.2

Defendant was charged with first degree criminal trespass, ORS 164.255, and second degree sexual abuse. ORS 163.415. Before trial, the prosecutor sought a ruling on the admissibility for impeachment purposes of certain prior convictions. OEC 609.3 He stated that, according to his records (a criminal history printout), defendant had been convicted of “strongarm rape” in August, 1972, and the “felony” of third degree assault in 1977. Defendant objected, denying the “strongarm rape” conviction. On inquiry by the court, the prosecutor admitted that he did not have certified copies of any conviction orders. The trial court explained to defendant that the prosecutor could ask whether he had been convicted of the offenses and if defendant answered “yes,” that would end the discussion. However, if defendant answered “no,” the state would be free to prove otherwise. The court admonished defendant that, if he denied a conviction that was later proven, “that’s perjury.” The court reserved its ruling on the admissibility of the convictions until trial.

[861]*861At trial, defendant represented himself and testified in his own behalf. The thrust of his defense was consent. In the presence of the jury, the following questions and answers were asked and given during defendant’s cross-examination:

“[PROSECUTOR]: Okay. Now, Mr. Jenkins, is it true that in 1977 you were convicted of Assault In The Third Degree, a felony?
“[DEFENDANT]: It’s true, yes.
“[PROSECUTOR]: Aggressive behavior, assault. Is it true in 1972 you were convicted ofstrongarm rape?
“[DEFENDANT]: No, it’s not true.
“[PROSECUTOR]: That’s not true?
“[DEFENDANT]: It’s not true.
“[PROSECUTOR]: Were you convicted of a sex crime in 1972?
“[DEFENDANT]: I’ll stand on the Fifth Amendment on that.” (Emphasis supplied.)

The judge excused the jury and a discussion ensued, during which the prosecutor stated:

“[M]y records indicate that he does have a conviction for strongarm rape in 1972. He denies that, well, and also he has told me that, wait a minute, that really wasn’t strongarm rape, it was something to do with sexual delinquency of a minor, or something to that effect. I’ll settle for that if that’s in fact the case, that’s all I’m getting at.”

Because the state had no rebuttal to defendant’s denial, the court ruled that he could not pursue the matter. The court gave no curative instruction at the time, and the jury never learned of the exact nature of the 1972 conviction, whatever it may have been.

Defendant was convicted of both charges. At the sentencing hearing, defendant was represented by an attorney who produced a certified copy of defendant’s 1972 conviction. Defendant, in fact, had been convicted of contributing to the sexual delinquency of a minor, a misdemeanor. With respect to the 1977 assault conviction, the state concedes that assault in the third degree did not become a felony until 1978 and that, at the time of defendant’s conviction, the offense was merely a [862]*862Class A misdemeanor and not available for impeachment purposes. See Or Laws 1977, ch 297, § 3.

The issue is whether, under these circumstances, the trial court committed reversible error in failing to declare a mistrial on its own motion.

The state argues that the “threshold problem” is that defendant did not move for a mistrial. Defendant contends that this is a case of “plain error” and, therefore, he is not precluded from asserting this matter for the first time on appeal. While it is true that, except in rare instances, unpreserved error is not subject to appellate review, see State v. Evans, 290 Or 707, 713, 625 P2d 1300 (1981), the rule does not bar review when this court, “upon an examination of the entire record, can say that the error is manifest and that the ends of justice will not otherwise be satisfied.” See State v. Gaines, 27 Or App 69, 72, 555 P2d 469 (1976), rev den 277 Or 1, cert den 431 US 916 (1977) (quoting State v. Avent, 209 Or 181, 183, 302 P2d 549 (1956)). The test is satisfied here. Although it may be argued that the trial court’s failure to declare a mistrial involved the exercise of its discretion, we conclude that under these circumstances the court had no discretion and that intervention was required. The trial court tolerated uninvited prejudice, of which it was forewarned, with the effect that unfair advantage was taken of an unrepresented defendant. See State v. Stanley, 30 Or App 33, 36, 566 P2d 193, rev den 280 Or 1 (1977).

For the purpose of impeachment, OEC 609 requires that evidence of a prior criminal conviction be “elicited from the witness or established by public record” and permits such inquiry only as to convictions for felonies and crimes involving “false statement.” Defendant’s 1972 conviction was not for rape but for contributing to the sexual delinquency of a minor, a Class A misdemeanor, ORS 163.435, and did not involve “false statement.” Before trial, the prosecutor and the court knew that defendant would deny the “strongarm rape” conviction. They also were well aware that the prosecutor lacked the legally sufficient documentation to back up his questioning, namely, a certified copy of the conviction. When the court and the parties discussed the matter out of the presence of the jury, the prosecutor admitted that defendant had told him that the [863]*863conviction was for the misdemeanor and that that’s what he was “getting at” and would “settle for.”

The prosecutor’s question concerning the “strongarm rape” and his question about “a sex crime in 1972” were plainly improper under OEC 609. Furthermore, we cannot overlook the obvious prejudice resulting from the prosecutor’s use of the word “strongarm” to characterize the rape. There is no such offense. Use of the term served only to increase the prejudicial effect of the inquiry and is not different in result or in the rebuke it merits from a reference to a “bloody” assault or a “conniving” forgery. Impeachment by reference to a prior conviction may not be used as a subterfuge to blacken the character of a defendant by insinuating prior convictions that cannot be proved. See State v. Gustafson, 248 Or 1, 5, 432 P2d 323 (1967). This is particularly true where, as here, the crimes for which a defendant allegedly has been convicted are similar to those for which he is being tried. As the court stated in State v. Rollo, 221 Or 428, 437-38, 351 P2d 422 (1960) (also involving an attempt to impeach by proof of prior convictions):

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Bluebook (online)
666 P.2d 869, 63 Or. App. 858, 1983 Ore. App. LEXIS 3165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jenkins-orctapp-1983.