State v. Newton

714 P.2d 684, 42 Wash. App. 718, 1986 Wash. App. LEXIS 2728

• Court: Court of Appeals of Washington
• Decided: January 30, 1986
• Docket: 6628-9-II
• Status: Published

Opinions

Reed, J.

—Donald J. Newton appeals his convictions of forgery and possessing stolen property in the second degree. We affirm.

On March 21, 1982, Newton registered at the Oakwood Motor Lodge in Tacoma under the name Eugene Kellen-benz; he presented a Visa charge card bearing Kellenbenz' name. When he checked out on April 5, 1982, Newton signed Kellenbenz' name to the Visa form. Thereafter, Newton traveled with another person in Kellenbenz' car to Minnesota, during which time Newton increased the Visa card debt to approximately $3,800.

Kellenbenz was reported missing on March 20, 1982. On April 12, 1982, Tacoma police found his badly decomposed body in his apartment. An autopsy determined the death to have been accidental.

During his trial, Newton admitted that he had used the credit card and vehicle, but insisted that Kellenbenz, a personal acquaintance, had given him permission to do so as repayment for a loan. Newton testified that he did not know of Kellenbenz' death until after he had been picked up by police in Minnesota. The jury returned a guilty verdict on one count of forgery and one count of possessing stolen property in the second degree. The court imposed two consecutive 5-year sentences.

The primary issue on appeal concerns the admission into evidence of Newton's prior conviction for third degree theft. Because that offense is punishable by imprisonment for less than 1 year and was offered for impeachment purposes, its admission is governed by ER 609(a)(2), which requires that the crime involve dishonesty or false statement. In the context of ER 609(a)(2), "dishonesty" is defined to "include only those crimes having elements in the nature of crimen falsi, the commission of which involves some element of deceit, fraud, untruthfulness or falsification bearing on the accused's propensity to testify truthfully." State v. Burton, 101 Wn.2d 1, 10, 676 P.2d 975 (1984).

The trial court admitted Newton's prior conviction after taking the matter under advisement and later reviewing the underlying circumstances of that crime and Newton's guilty plea conviction. Newton initially objected to the admission of the prior conviction; he did not object, however, to the trial court's review of the circumstances of that conviction, nor renew his objection to the court's eventual ruling.¹ Rather, Newton permitted the trial judge to review the entire file, including his statement on plea of guilty. In that statement, Newton admitted that he "did wrongfully obtain Russell Crockett's credit card and used it without his consent." Thus, although he was not specifically so charged in the information, Newton actually admitted his guilt of both credit card theft, a felony, RCW 9A.56-.040(1) (c), and third degree theft by color or aid of deception, RCW 9A.56.020(l)(b).² In our view it matters not that the information charged generally, in the words of RCW 9A.56.020(l)(a), that the theft was committed by wrongfully obtaining control over the property or services of another. In this we differ from the dissent.

The commission of credit card theft and the use of that stolen card involve dishonesty. See United States v. Crawford, 613 F.2d 1045, 1052 (D.C. Cir. 1979). The underlying circumstances of Newton's prior conviction for third degree theft reveal that Newton stole a credit card and assumed a false identity as the card's owner in order to obtain either goods or services through the owner's credit. With the facts of the conviction before him and with no definite authority precluding his use of these underlying facts, the trial judge acted properly in admitting Newton's prior conviction following his determination that the crime involved dishonesty.

Although State v. Burton³ may suggest that the trial court can consider only the statutory elements of the crime underlying the impeaching conviction, it does not clearly so hold. Indeed, justification for the trial court's actions in admitting Newton's prior conviction can be found in Burton. The Burton majority emphasized that, in adopting verbatim the federal version of ER 609, our Supreme Court "indicated our acceptance of the interpretation given to that rule by federal courts." Burton, 101 Wn.2d at 9; see Comment, ER 609, 91 Wn.2d 1150 (1978). An overwhelming majority of the federal circuits have permitted the type of inquiry that was conducted by the trial court here. Burton, 101 Wn.2d at 8. See United States v. Lipscomb, 702 F.2d 1049, 1064 (D.C. Cir. 1983); United States v. Grandmont, 680 F.2d 867, 871 (1st Cir. 1982); United States v. Hayes, 553 F.2d 824, 827-28 (2d Cir.), cert. denied, 434 U.S. 867, 54 L. Ed. 2d 143, 98 S. Ct. 204 (1977); Government of V.I. v. Toto, 529 F.2d 278, 281 (3d Cir. 1976); United States v. Cunningham, 638 F.2d 696, 699 (4th Cir. 1981); United States v. Barnes, 622 F.2d 107, 110 (5th Cir. 1980); United States v. Papia, 560 F.2d 827, 847 (7th Cir. 1977); United States v. Yeo, 739 F.2d 385, 388 (8th Cir. 1984); United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982); United States v. Whitman, 665 F.2d 313, 320 (10th Cir. 1981).

As stated in United States v. Hayes, 553 F.2d at 827:

If the title of an offense leaves room for doubt, a prosecutor desiring to take advantage of automatic admission of a conviction under [609(a)(2)] must demonstrate to the court "that a particular prior conviction rested on facts warranting the dishonesty or false statement description." United States v. Smith, [551 F.2d 348, 364 n.28 (1976)].

Also, as stated in United States v. Papia, 560 F.2d at 847:

Even the courts that reject the view that stealing, without more, involves "dishonesty" that bears on a witness's veracity recognize that modern theft statutes may encompass criminal conduct that does fall within the ambit of Rule 609(a)(2), for a theft conviction may well be based on fraudulent or deceitful conduct that would previously have been prosecuted as larceny by trick, embezzlement, or the taking of money or property by false pretenses, etc. Accordingly, these courts have adopted the rule that, when the statutory offense of which the witness was convicted does not require proof of fraud or deceit as an essential element of the crime, the prior conviction may yet be admitted under Rule 609(a)(2) if the proponent of the evidence bears the burden of showing that the conviction "rested on facts warranting the dishonesty or false statement description." United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977), quoting United States v. Smith, 551 F.2d 348, 364 n.28 (D.C. Cir. 1976); accord Government of Virgin Islands v. Toto, 529 F.2d 278, 281 n.3 (3d Cir. 1976).

Further justification for interpreting ER 609(a)(2) to allow this type of inquiry is found in the very language of the rule. The rule could have provided, but does not, that only those crimes having certain statutory elements are admissible. Rather, the rule permits admission of a prior conviction for a crime that "involved dishonesty or false statement..." (Italics ours.)

Consideration of the actual conduct involved in the commission of the crime underlying the conviction clearly is consistent with Burton's statement that "[t]he purpose of allowing impeachment by prior conviction evidence is to shed light on the defendant's credibility as a witness. Therefore, prior convictions admitted for impeachment purposes must have some relevance to the defendant's ability to tell the truth." Burton, 101 Wn.2d at 7. If the underlying circumstances of the crime demonstrate a disregard for truthfulness, then admission of evidence of that conviction fulfills the purpose of ER 609(a)(2).

We conclude, therefore, that the trial court did not err in admitting evidence of Newton's prior conviction for third degree theft under ER 609(a)(2), after inquiring into the circumstances of that conviction.

The next issue that Newton raises concerns the admission under ER 404(b) of Newton's two prior acts of misconduct. The trial court permitted Tawnee Lewis, the girl friend of the man who accompanied Newton to Minnesota, to testify that she received several telephone calls from someone purporting to be Eugene Kellenbenz and that she eventually recognized the voice of the caller as being Newton's. The trial court also permitted Sandra Needhamer, a desk clerk at Nendel's motel in Tacoma, to testify that Newton had registered at Nendel's under his own name on a previous occasion but that he had been locked out because of nonpayment.

The admission or refusal of evidence of other crimes or acts lies within the sound discretion of the trial court. State v. Laureano, 101 Wn.2d 745, 763-64, 682 P.2d 889 (1984). Under ER 404(b), evidence of other crimes, wrongs, or acts may be admissible for "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence of prior crimes, wrongs, or acts will be admitted only if it satisfies two criteria. First, the evidence must be shown to be logically relevant to a material issue before the jury. State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982). Second, if the evidence is relevant its probative value must be shown to outweigh its potential for prejudice. State v. Saltarelli, supra. The balancing of probative value versus prejudice must be done on the record. State v. Tharp, 96 Wn.2d 591, 597, 637 P.2d 961 (1981).

Tawnee Lewis's testimony was relevant for the purpose of proving identity—that Newton had assumed the identity of or pretended to be Kellenbenz. Sandra Needhamer's testimony was relevant to proving Newton's motive, that of his need for money with which to pay for his lodging at motels.

The remaining question is whether the trial court properly exercised its discretion by weighing the prejudice to the defendant of this testimony against the relevance of the testimony and whether it did so on the record. The record need only reflect adequate consideration of the potential for prejudice in light of the probative value. State v. Anderson, 41 Wn. App. 85, 101, 702 P.2d 481 (1985).

Though the trial court's consideration on the record was not expansive, it was sufficient to indicate that the court did engage in the required balancing of the factors of relevance and prejudice. The trial court found minimal prejudicial effect in the testimony of Tawnee Lewis and found greater relevance in her testimony owing to the unavailability of Kellenbenz as a witness. And, while the court did not, on the record, consider the prejudice of Needhamer's testimony when it made the determination to allow it, the record does reflect, in the court's ruling on Newton's motion for a mistrial, that the court had indeed weighed the prejudicial effect of all the testimony allowed over Newton's objection. Referring to that testimonial evidence, the trial judge stated:

[I]f [Kellenbenz] were here ... I would agree . . . that many of these matters would not be admissible because, again, weighing their potential prejudicial value against their probative value, it would be obvious that it would be superfluous. But [Kellenbenz] is not here ... to testify regarding consent to loan his credit card . . .

It seems to me the only fair way this case can be tried, is by letting the jury know all the circumstances, even though some of them may be, to some small degree, prejudicial. And I do not believe they are grossly prejudicial.

Thus, the record indicates to our satisfaction that the trial court properly exercised its discretion in admitting the testimony of Lewis and Needhamer with the competing values of relevance and prejudice in mind.

Newton also assigns error to the admission into evidence of his police "mug shot." The mug shot was admitted during the testimony of a police officer who had used it along with five other mug shots in a photographic lineup. Newton was identified through his mug shot by an employee at the Oakwood Motel as the person who used Kellenbenz' credit card and by a resident of Kellenbenz' apartment building as the person he saw approaching that building on March 21, the day after Kellenbenz was reported missing. At the time his mug shot was admitted along with the five others, Newton had not conceded that he had signed the credit card charge slip. The issue here concerns the prejudicial effect the police mug shot might have had despite the court's action of having the police identification numbers covered with tape.

Evidence of out-of-court identifications is admissible where the identity of the accused is in issue. State v. Gibson, 16 Wn. App. 119, 124, 553 P.2d 131 (1976). When that evidence is a mug shot, caution is warranted because of the extra potential for prejudice. It has been held that when identification numbers have been clipped off and the word "mug shot" is not used in the jury's presence, the use of such photographs is not prejudicial. State v. Tate, 74 Wn.2d 261, 267, 444 P.2d 150 (1968). However, it has also been conceded that an ordinary mug shot continues to look like a mug shot no matter how it is disguised. State v. Butler, 9 Wn. App. 347, 349, 513 P.2d 67 (1973).

After viewing the mug shots in question, we must agree with the Butler court that, even with the identification numbers taped over, they remain mug shots.⁴ They disclose the fact that Newton had a prior arrest because the motel employee who identified Newton from the mug shot did so prior to Newton's arrest for the crimes for which he was on trial.

Any error from the admission of the mug shots, however, does not require reversal. While their admission may not have been absolutely necessary, their relevance to establishing Newton as the person who used Kellenbenz' card and represented himself to be Kellenbenz is undeniable. Moreover, any prejudicial impact from their admission was slight in view of the fact that the jury later became aware of Newton's record by the admission of evidence of his prior conviction. The outcome of the trial would not, within reasonable probabilities, have been different had they not been admitted. State v. Ferguson, 100 Wn.2d 131, 667 P.2d 68 (1983).

Finally, Newton raises a double jeopardy issue in his pro se brief. His primary contention is that once he was found guilty of forgery, he automatically was guilty of possession of stolen property in the second degree. Hence, he should be sentenced only once.

Double jeopardy exists only if the offenses charged are identical or if one is a "constituent element" of the other. State v. Roybal, 82 Wn.2d 577, 581-82, 512 P.2d 718 (1973). Credit card theft and credit card forgery are not identical crimes. State v. Jefferson, 11 Wn. App. 745, 747-48, 524 P.2d 924 (1974). Similarly, credit card forgery and possession of a stolen credit card are not identical crimes. RCW 9A.56.160(l)(c) requires only possession of a stolen credit card. RCW 9A.60.020 requires an intent to injure or defraud, plus either falsely making a written instrument or possessing a forged written instrument. There was no error in imposing separate, consecutive sentences.

The convictions and sentences are affirmed.

Worswick, C.J., concurs.

1 We do not address the possibility that the failure to object to the inquiry itself waived any objection.

2 RCW 9A.56.040(1)(c) provides:

"Theft in the second degree. (1) A person is guilty of theft in the second degree if he commits theft of:

"(c) A credit card; ..."

RCW 9A.56.020(l)(b) provides:

"Theft—Definition, defense. (1) 'Theft' means:

" (b) By color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him of such property or services;..."

3 State v. Burton had not yet been decided when this trial took place.

4 That they remain so is particularly apparent in this case because they are so inartfully disguised. They would not pass muster under Tate because we cannot say that the State took every precaution to avoid conveying Newton's police record to the jury. Tate, 74 Wn.2d at 267.

We do not suggest that disguised mug shots may never be used. For example, when such photographs are the only means by which initial pre-arrest identification can be made, and in-court proof of that identification is needed to prove the case against the defendant, their probative value may outweigh any prejudice to the defendant from their admission. This presupposes, of course, that the mug shots are competently disguised and that they are introduced in a manner that does not unduly call attention to their original character. See, e.g., United States v. Fosher, 568 F.2d 207, 214 (1st Cir. 1978); United State v. Harrington, 490 F.2d 487, 494 (2d Cir. 1973).