State v. McKinsey

810 P.2d 907, 116 Wash. 2d 911, 1991 Wash. LEXIS 267

• Court: Washington Supreme Court
• Decided: May 16, 1991
• Docket: 57423-5
• Status: Published

Opinions

Brachtenbach, J.

At issue is whether a prior conviction for first degree possession of stolen property is per se admissible for impeachment purposes under ER 609(a)(2). We hold that it is, and affirm the courts below.

¡ Defendant David McKinsey was charged with first degree trafficking in stolen property and two counts of burglary. He was convicted of the lesser included offense of second degree trafficking in stolen property. Through a pretrial motion in limine, defendant sought to exclude evidence of prior convictions. In reliance upon State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988) (Brown I), the trial court denied the motion and admitted for impeachment purposes evidence of prior convictions for first degree stolen property, second degree theft, and unlawful issuance of a bank check. Defendant testified, thus preserving any claimed error in admitting the prior convictions for impeachment purposes. See State v. Brown, 113 Wn.2d 520, 540, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1989) (Brown II) (decided following a motion for reconsideration of Brown I).

Following his conviction, defendant appealed, assigning error to the trial court's admission of evidence of the prior conviction for first degree possession of stolen property. The Court of Appeals affirmed in an unpublished split opinion. State v. McKinsey, noted at 58 Wn. App. 1020 (1990). The Court of Appeals' majority relied upon the lead opinion in Brown II, which restated the ER 609 analysis from Brown I. Under that analysis, evidence of prior crimes of theft are per se admissible for impeachment purposes under ER 609(a)(2).

In a dissent, Judge Thompson reasoned that a majority of this court did not agree with this analysis in Brown II, and therefore it was not precedential.

Defendant thereafter petitioned for review.

The precedential value of the analysis in Brown II, key to defendant's challenge, has, during these proceedings, been conclusively resolved. In State v. Ray, 116 Wn.2d 531, 806 P.2d 1220 (1991), a clear majority of this court confirmed the reasoning in Brown II, and held that "crimes of theft involve dishonesty and are per se admissible for impeachment purposes under ER 609(a)(2)." Ray, at 545.

No purpose would be served by extensive repetition here of the reasoning in Brown II and Ray; reference is made to Brown II, at 545-54, and to Ray, at 543-46.

The remaining question is whether first degree possession of stolen property is within the Brown 11-Ray rule. We look to the statutory elements of the crime. State v. Newton, 109 Wn.2d 69, 743 P.2d 254 (1987). Under RCW 9A.56.140 and .150, first degree possession of stolen property involves knowingly receiving, retaining, possessing, concealing, or disposing of stolen property of a value in excess of $1,500 knowing that it has been stolen and withholding or appropriating the property to the use of anyone other than the true owner or person entitled to the property.

The Legislature has classified this crime in RCW 9A.56, "Theft and Robbery". See Laws of 1975, 1st Ex. Sess., ch. 260, ch. 9A.56, p. 841 ("Theft and Robbery" chapter title included as part of enacted legislation). The property involved is stolen property, known by defendant to be stolen property, which defendant knowingly receives, retains, possesses, conceals or disposes of. Defendant, with this knowledge, withholds this property or appropriates it to the use of someone other than the person entitled to it. The crime is encompassed by Brown II and Ray. It involves dishonesty: "The term 'dishonest' implies the act or practice of telling a lie, or of cheating, deceiving, and stealing." Ray, at 545 (quoting Brown II, at 552). '"[I]n common human experience acts of deceit, fraud, cheating, or stealing, . . . are universally regarded as conduct which reflects adversely on a man's honesty and integrity.'" Ray, at 545 (quoting Brown II, at 552 (quoting Gordon v. United States, 383 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 20 L. Ed. 2d 287, 88 S. Ct. 1421 (1968))).

The trial court properly ruled the prior conviction admissible.

By our holding in this case we necessarily overrule State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984) and State v. Zibell, 32 Wn. App. 158, 646 P.2d 154, review denied, 97 Wn.2d 1039 (1982), insofar as they held that evidence of a conviction for possession of stolen property was not admissible under ER 609(a)(2). Harris relied upon State v. Burton, 101 Wn.2d 1, 676 P.2d 975 (1984), which is now overruled. Ray, at 543-44. Burton approved Zibell.

In light of our decision, we need not reach defendant's second issue. He argues that if the prior conviction was erroneously ruled admissible under ER 609(a)(2), a constitutional harmless error standard should apply rather than a nonconstitutional harmless error standard. Although we do not reach this issue, we note that this matter has also been laid to rest in Ray, where the court said decisively that

[t]he same nonconstitutional harmless error standard that applies to ER 404 rulings also applies to ER 609(a) rulings. A ruling under ER 609 is not reversible error unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.

(Quotation marks and citations omitted.) Ray, at 546 (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980))).

Affirmed.

Dore, C.J., and Dolliver, Andersen, Durham, Smith, and Guy, JJ., concur.