State of Arizona v. Darren Lee Winegardner

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,

v.

DARREN LEE WINEGARDNER,
Appellant.

No. CR-17-0269-PR
Filed March 26, 2018

Appeal from the Superior Court in Pima County
The Honorable Howard J. Fell, Judge Pro Tempore
No. CR20144179-001
AFFIRMED

Opinion of the Court of Appeals, Division Two
242 Ariz. 430 (2017)
VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
Phoenix, Diane Leigh Hunt (argued), Assistant Attorney General, Tucson,
Attorneys for State of Arizona

Joel Feinman, Pima County Public Defender, Erin K. Sutherland (argued),
Assistant Public Defender, Tucson, Attorneys for Darren Lee Winegardner

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER and TIMMER
joined. JUSTICE LOPEZ, joined by JUSTICES BOLICK and GOULD,
dissented in part and concurred in the result.

CHIEF JUSTICE BALES, opinion of the Court:

¶1 Arizona Rule of Evidence 609(a)(2) provides that when a
party seeks to attack “a witness’s character for truthfulness by evidence of
 STATE V. WINEGARDNER
Opinion of the Court

a criminal conviction . . . , the evidence must be admitted if the court can
readily determine that establishing the elements of the crime required
proving - or the witness’s admitting - a dishonest act or false statement.”
We hold that a conviction for shoplifting, as codified in A.R.S. § 13-1805(A),
is not automatically admissible under Rule 609(a)(2) because the crime does
not necessarily require the prosecution to prove “a dishonest act or false
statement” within the meaning of the rule. Evidence of a shoplifting
conviction is admissible only when the court can readily determine that the
conviction turned on such proof.

I.

¶2 The State indicted Darren Winegardner on one count of
sexual conduct with a minor, alleging that he engaged in sexual intercourse
with his stepdaughter, L.B. At trial, the prosecution called L.B. to testify.
Winegardner told the court that he intended to impeach L.B. with a 2015
misdemeanor shoplifting conviction. He offered no details of the
conviction other than stating that it was a crime of moral turpitude. Finding
that the “probative value does not substantially outweigh the danger of
unfair prejudice,” the trial court refused to admit the impeachment
evidence. The jury found Winegardner guilty, and the court sentenced him
to a mitigated term of 3.5 years’ imprisonment.

¶3 Noting that Rule 609(a)(2) requires courts to admit evidence
of convictions involving dishonest acts or false statements, Winegardner
argued on appeal that the trial court committed reversible error by
precluding him from impeaching L.B. with evidence of the shoplifting
conviction. The court of appeals disagreed and rejected classifying
shoplifting as a “dishonest act or false statement” for purposes of Rule
609(a)(2). State v. Winegardner, 242 Ariz. 430, 434 ¶ 16 (App. 2017).

¶4 We granted review because the proper interpretation of Rule
609(a)(2) is of statewide importance. We have jurisdiction under article 6,
section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶5 Although we review a trial court’s decision regarding the
admission of evidence for abuse of discretion, State v. Gill, 242 Ariz. 1, 3 ¶ 7
(2017), we review the interpretation of court rules de novo, State v.

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Opinion of the Court

Fitzgerald, 232 Ariz. 208, 210 ¶ 10 (2013), and apply principles of statutory
construction when doing so, Spring v. Bradford, 243 Ariz. 167, 170 ¶ 12
(2017). “Under those principles, if a rule’s language is subject to only one
reasonable meaning, we apply that meaning. When the language can
reasonably be read more than one way, however, we may consider the
[rule]’s subject matter, legislative history, and purpose, as well as the effect
of different interpretations, to derive its meaning.” Id. (alteration in
original) (internal quotation marks omitted) (quoting Bell v. Indus. Comm’n,
236 Ariz. 478, 480 ¶ 7 (2015)).

A.

¶6 Arizona Rule of Evidence 609 governs impeachment by
evidence of a criminal conviction. Subsection (a)(1) provides that felony
convictions are generally admissible, subject to Rule 403 in civil cases or in
criminal cases in which the witness is not a defendant. Subsection (a)(2)
mandates the admission of evidence of any conviction “if the court can
readily determine that establishing the elements of the crime required
proving - or the witness’s admitting - a dishonest act or false statement.” In
contrast to (a)(1), subsection (a)(2) mandates the admission of evidence of a
prior conviction regardless of any consideration of its prejudicial effect
under Rule 403.

¶7 This case turns on whether a shoplifting conviction under
Arizona law necessarily requires proof of a “dishonest act” as that term is
used in Rule 609(a)(2). Although words in rules generally are to be
understood in their ordinary, everyday meanings, the context in which they
are used may indicate they bear a technical meaning. See In re Nelson,
207 Ariz. 318, 322 ¶ 17 (2004) (noting that “costs” is a term of art and
applying limited meaning consistent with caselaw); Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 69-77 (2012)
(discussing “ordinary meaning” rule and how context may affect its
application).

¶8 Adopted in 1977, Arizona’s evidentiary rules were modeled
on the federal rules. Supreme Court of Arizona, Admin. Order No. 2010-
42; see also State v. Malloy, 131 Ariz. 125, 126 (1981). In 2010, we created an
ad hoc committee on the rules of evidence to identify differences between
the federal and state rules and to consider changes to conform the state rules
to the federal rules. See Supreme Court of Arizona, Admin. Order No. 2010-

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Opinion of the Court

42. Since its amendment in 2012, Arizona Rule 609 has matched its federal
counterpart. Compare Ariz. R. Evid. 609, with Fed. R. Evid. 609. When an
Arizona evidentiary rule mirrors the corresponding federal rule, we look to
federal law for guidance. See Hernandez v. State, 203 Ariz. 196, 198 ¶ 10
(2002); see also Ariz. R. Evid. prefatory cmt. to 2012 amendments. Although
the federal courts’ interpretation of the Federal Rules of Evidence does not
control our interpretation of our own evidentiary rules, federal precedent
is particularly persuasive given that we have expressly sought to conform
our rules to the federal rules.

¶9 Given our rule’s origins and our desired conformity with the
federal rules, we consider the federal rule’s legislative history to see
whether its drafters intended to give the terms “dishonest act” and “false
statement” a particular meaning. “[W]here Congress borrows terms of art
in which are accumulated the legal tradition and meaning of centuries of
practice, it presumably knows and adopts the cluster of ideas that were
attached to each borrowed word . . . unless otherwise instructed.”
Morissette v. United States, 342 U.S. 246, 263 (1952); see also Sekhar v. United
States, 570 U.S. 729, 733 (2013) (“[A]s Justice Frankfurter colorfully put it, ‘if
a word is obviously transplanted from another legal source, whether the
common law or other legislation, it brings the old soil with it.’” (quoting
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.
Rev. 527, 537 (1947))).

¶10 A conference committee developed the federal rule’s final
language to resolve differences between House and Senate versions of the
rule. United States v. Ortega, 561 F.2d 803, 806 (9th Cir. 1977). The committee
explained that

the phrase “dishonesty and false statement” . . . means crimes
such as perjury or subornation of perjury, false statement,
criminal fraud, embezzlement, or false pretense, or any other
offenses in the nature of crimen falsi, the commission of which
involves some element of deceit, untruthfulness, or
falsification bearing on the accused’s propensity to testify
truthfully.

H.R. Rep. No. 93-1597, at 9 (1974) (Conf. Rep.); see also Ortega, 561 F.2d at
806. In light of this explanation, the rule’s drafters clearly intended a
specific legal meaning for the terms “dishonest act” and “false statement.”

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 STATE V. WINEGARDNER
Opinion of the Court

¶11 We considered Rule 609(a)(2)’s language in Malloy, when we
reviewed whether burglary was a crime of dishonesty for purposes of the
rule. 131 Ariz. at 127. We reasoned that, considering the purpose and
history of Rule 609, “the phrase ‘dishonesty or false statement’ should be
construed narrowly to include only those crimes involving some element
of deceit, untruthfulness, or falsification.” Id. In turn, examining the
language of A.R.S. § 13-1506, we found that “[t]he crime of burglary does
not necessarily involve an element of deceit or falsification and,
consequently, is not admissible under Rule 609(a)(2).” Id. at 128. Malloy
recognizes that although acts of theft and robbery evoke a common
connotation of dishonesty, Rule 609(a)(2) is concerned only with crimes that
“establish the trait of untruthfulness.” Id. at 127.

¶12 Because such a character trait is relevant to evaluating
credibility, convictions for criminal offenses that demonstrate the trait of
untruthfulness warrant mandatory admission under the rule. By contrast,
criminal offenses that primarily involve stealth, such as burglary, or force,
such as robbery or assault, do not inherently demonstrate a trait of
untruthfulness and should not be admitted under Rule 609(a)(2). See United
States v. Hayes, 553 F.2d 824, 827-28 (2d Cir. 1997). (Felony convictions for
such offenses, however, may be admissible under Rule 609(a)(1).)
Although any criminal offense arguably “evinces a lack of character and
disregard for all legal duties, . . . Congress has not accepted that expansive
theory . . . [and] has ‘narrowly defined’ the offenses comprehended by Rule
609(a)(2).” United States v. Millings, 535 F.2d 121, 123 (D.C. Cir. 1976). We
agree, and, as in Malloy, we hold that the phrase “dishonest act or false
statement” should be construed narrowly to include only those crimes that
involve deceit, untruthfulness, or falsification.

B.

¶13 Malloy instructs that determining whether a prior conviction
is admissible for impeachment purposes under Rule 609(a)(2) depends on
the statutory language of the underlying offense and whether the
conviction required proof of a dishonest act or false statement.
Winegardner argues that Arizona’s shoplifting statute contains elements of
deceit and fraud and therefore satisfies Rule 609(a)(2)’s standard for
admission.

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 STATE V. WINEGARDNER
Opinion of the Court

¶14 Under A.R.S. § 13-1805(A), a person commits shoplifting
when he or she knowingly obtains

merchandise . . . displayed for sale . . . with the intent to
deprive [another] of such goods by:

(1) Removing . . . the goods . . . without paying the purchase
price; or

(2) Charging . . . the goods to a fictitious person or any person
without that person’s authority; or

(3) Paying less than the purchase price of the goods by some
trick or artifice . . . ; or

(4) Transferring the goods from one container to another; or

(5) Concealment.

¶15 Although multiple subsections of the statute include elements
of dishonesty and false statement, others do not. Winegardner
unpersuasively contends that even subsection (1) of the statute includes
elements of deceit because the “shoplifter consciously misleads the true
owner and fails to reveal true ownership by taking the item from the store.”
Although purposefully leaving a store with an item without paying for it is
dishonest in layman’s terms, it does not meet Rule 609(a)(2)’s threshold of
establishing a trait of untruthfulness. See Malloy, 131 Ariz. at 128 (reaching
same conclusion with respect to attempted burglary). Likewise,
subsection (5) indicates an element of stealth but does not necessarily
establish a trait of untruthfulness. Subsections (2), (3), and (4), however,
might implicate dishonesty and false statement and could establish a basis
for admissibility under Rule 609(a)(2).

¶16 The State argues that when, as here, the record is devoid of
any details regarding a witness’s prior shoplifting conviction, the
conviction might have rested on any of the five enumerated subsections.
Because not all involve a dishonest act or false statement as contemplated
by Rule 609(a)(2), the State reasons, courts properly preclude prior
shoplifting convictions for impeachment purposes. Winegardner responds
that shoplifting, as codified in § 13-1805, is a unitary offense that may be

6
 STATE V. WINEGARDNER
Opinion of the Court

charged in the disjunctive, using “and/or” to allege conduct covered under
any of the statute’s subsections. Thus, any shoplifting conviction may
involve a dishonest act or false statement, even if the indictment, jury
instructions, or plea agreement do not list a specific subsection that itself
indicates a dishonest act or false statement. Accordingly, Winegardner
argues that shoplifting convictions should be per se admissible under the
rule. The correct approach lies somewhere between these two
all-or-nothing positions.

¶17 The shoplifting statute, § 13-1805, indicates that a conviction
may or may not involve elements of dishonesty or false statement.
Therefore, shoplifting is not like perjury or criminal fraud, which require
the state to prove a dishonest act or false statement before a defendant can
be convicted. Consequently, shoplifting is not a conviction that is per se
admissible under Rule 609(a)(2). This conclusion comports with federal
evidentiary law. See, e.g., United States v. Dunson, 142 F.3d 1213, 1215
(10th Cir. 1998) (finding that shoplifting is not “‘automatically’ a crime
involving ‘dishonesty or false statement’ within the meaning of Rule
609(a)(2)”); United States v. Amaechi, 991 F.2d 374, 379 (7th Cir. 1993) (“[W]e
agree with nine other circuits that to include shoplifting as a crime of
dishonesty would swallow the rule and allow any past crime to be admitted
for impeachment purposes.”); Ortega, 561 F.2d at 806 (finding that
“[h]uman experience does not justify an inference that a person will perjure
himself from proof that he was guilty of petty shoplifting” and the
“expressed intent of the draftsmen of Rule 609 [was to] limit[] the
‘dishonesty and false statement’ language to those crimes that involve some
element of misrepresentation or other indicium of a propensity to lie”).
Because we agree with the reasoning of cases like Amaechi and Ortega, we
reject the dissent’s conclusion that shoplifting inherently involves a
“dishonest act” for purposes of Rule 609(a)(2). Infra ¶¶ 30-32, 34.

¶18 Yet the statutory language shows that under certain
circumstances a shoplifting conviction may evidence a witness’s dishonest
act or false statement for purposes of Rule 609(a)(2). Therefore, shoplifting
is not like burglary, which is generally inadmissible because it involves no
such statutory element. See A.R.S. § 13-1506; see also Malloy, 131 Ariz. at 128-
29; State v. Johnson, 132 Ariz. 5, 8-9 (App. 1981). Instead, a trial court could
properly admit those shoplifting convictions that, based on the record
provided to the court, involve a dishonest act or false statement. Again, this
conclusion is consistent with federal evidentiary law. For example, the

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Opinion of the Court

United States Court of Appeals for the District of Columbia Circuit
concluded in United States v. Dorsey that “Rule 609(a)(2) applicability occurs
only if the prior offense is ‘characterized by an element of deceit or
deliberate interference with [the] ascertainment of truth’ . . . but [the rule]
may be operative if [a party] can show that, although the prior crime was
not characterized by an element of fraud or deceit, it nonetheless was
committed by such means.” 591 F.2d 922, 935 (D.C. Cir. 1978), superseded on
other grounds by statute as stated in United States v. Fennell, 53 F.3d 1296 (D.C.
Cir. 1995).

¶19 Thus, even when the legal elements of an offense do not
necessarily involve a dishonest act or false statement, a crime’s factual basis
may warrant admission of the conviction for impeachment purposes under
Rule 609(a)(2). See, e.g., United States v. Estrada, 430 F.3d 606, 614 (2d Cir.
2005) (stating that the Second Circuit “look[s] beyond the elements of the
offense to determine whether the conviction rested upon facts establishing
dishonesty or false statement” (internal quotation marks and citation
omitted)); United States v. Yeo, 739 F.2d 385, 388 (8th Cir. 1984) (finding that
“[s]everal courts have observed that although theft is not, of necessity, a
crime of dishonesty or false statement, it may nevertheless be admissible
under Rule 609(a)(2) if in fact the crime was committed by fraudulent or
deceitful means”); United States v. Smith, 551 F.2d 348, 364 n.28 (D.C. Cir.
1976) (noting that “if a statutory petty larceny offense is committed not by
stealth, but by fraudulent or deceitful means, e.g., taking by false pretenses,
it may qualify as a crime involving dishonesty or false statement”).

¶20 In such cases, the party seeking admission of the prior
conviction bears the burden of establishing the factual basis for its
admission. See id. (noting that “automatic admissibility under Rule
609(a)(2) will normally not be permitted, unless [the party seeking
admission] first demonstrates to the court, outside the jury’s hearing, that a
particular prior conviction rested on facts warranting the dishonesty or
false statement description”).

¶21 Winegardner advocates for a more permissive approach to
admitting impeachment evidence, noting that under the modern
evidentiary rules, a discredited witness has the opportunity to rehabilitate,
whereas under the common law, a prior conviction for crimen falsi resulted
in the absolute disqualification of a witness. But Rule 609(a)(2)’s language
counsels otherwise. Because the rule mandates the admission of

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 STATE V. WINEGARDNER
Opinion of the Court

convictions involving a dishonest act or false statement and thus precludes
a trial court from weighing a conviction’s prejudicial effect, it should be
narrowly construed. See United States v. Fearwell, 595 F.2d 771, 777 (D.C.
Cir. 1978) (concluding that “precisely because it involves no discretion on
the part of the trial court . . . Rule 609(a)(2) must be confined . . . to a ‘narrow
subset of crimes[,]’ those that bear directly upon the accused’s propensity
to testify truthfully” (quoting Smith, 551 F.2d at 362)).

¶22 Likewise, the dissent argues that because some jurors might
believe that a shoplifting conviction justifies an inference that a person will
perjure himself in future proceedings, the conviction’s mandatory
admission is warranted under Rule 609(a)(2). Infra ¶ 34. But the
admissibility of evidence is a question of law that is determined by court
rules and judges, not jurors. See, e.g., Ariz. R. Evid. 403; Ariz. R. Evid. 404;
Ariz. R. Evid. 802. Indeed, the evidentiary rules strictly confine the
admissibility of arguably material evidence that may be prejudicial. The
jury’s authority to weigh evidence only exists as to prior convictions that
are admissible, and a judge does not encroach that authority by
determining the admissibility of such a conviction. Given that Rule
609(a)(2) provides for mandatory admission of convictions and involves no
judicial discretion under Rule 403, only those convictions that are
inherently relevant to a witness’s tendency to perjure himself are properly
admitted under the rule.

¶23 Accordingly, we conclude that shoplifting does not
necessarily involve a dishonest act or false statement for purposes of Rule
609(a)(2) and therefore is not automatically admissible under the rule.

C.

¶24 Rule 609(a)(2) provides that admission of a conviction is only
proper “if the court can readily determine that establishing the elements of
the crime required proving - or the witness’s admitting - a dishonest act or
false statement.” Ariz. R. Evid. 609(a)(2) (emphasis added). In most
circumstances, the statutory elements of the offense will show whether a
conviction required proving or admitting a dishonest act or false statement.
However, in cases “[w]here the deceitful nature of the crime is not apparent
from the statute and the face of the judgment . . . a proponent may offer
information such as an indictment, a statement of admitted facts, or jury
instructions” to demonstrate that the conviction rested on the defendant

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 STATE V. WINEGARDNER
Opinion of the Court

admitting or the factfinder finding a dishonest act or false statement. Fed.
R. Evid. 609 advisory committee’s note to 2006 amendment. The rule does
not permit, however, a “trial within a trial” delving into the factual
circumstances of the conviction by scouring the record or calling witnesses.

¶25 Here, L.B.’s shoplifting conviction was not automatically
admissible under Rule 609(a)(2), and Winegardner provided the trial court
with no information showing that it involved a dishonest act or false
statement. The trial court, although mistakenly considering the
conviction’s prejudicial effect, ultimately did not abuse its discretion when
it precluded evidence regarding the conviction.

III.

¶26 For the reasons stated, we vacate the opinion of the court of
appeals and affirm Winegardner’s conviction and sentence.

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 STATE V. WINEGARDNER
JUSTICE LOPEZ, joined by JUSTICES BOLICK and GOULD, Dissenting
in Part and Concurring in the Result

LOPEZ, J., joined by BOLICK, J. and GOULD, J., dissenting in part and
concurring in the result:

¶27 The majority holds that a shoplifting conviction is not
automatically admissible under Rule 609(a)(2) because the crime “does not
necessarily require the prosecution to prove ‘a dishonest act or false
statement’ within the meaning of the rule.” Supra ¶ 1. Consequently, such
a conviction is not admissible for impeachment purposes unless the court
can readily determine that it involved “a dishonest act” as narrowly
construed under the Rule. Supra ¶ 1. I respectfully disagree and would
instead hold that shoplifting, as codified in A.R.S. § 13-1805(A), should be
automatically admissible because it clearly qualifies as a “dishonest act”
under Rule 609(a)(2).

¶28 I do not contest the majority’s analytical framework, as it is
familiar terrain. The majority correctly notes that Arizona Rule 609 mirrors
its federal counterpart, Federal Rule of Evidence 609, supra ¶ 8, that we look
to the federal approach for guidance, and that the federal rule’s legislative
history and its interpretation by federal courts support its holding, supra
¶¶ 9, 17. I disagree, however, that the federal guidance compels the
majority’s narrow interpretation and application of Rule 609(a)(2)’s
definition of “a dishonest act.” Although we consult the federal approach
for guidance, we are not bound to federal courts’ interpretations of the
Federal Rules of Evidence when considering similar provisions in the
Arizona Rules. State v. Bible, 175 Ariz. 549, 580 (1993) (“[W]e are not bound
by the United States Supreme Court’s non-constitutional construction of the
Federal Rules of Evidence when we construe the Arizona Rules of
Evidence.”). Because I find the federal authorities’ application of the Rule
artificially and unjustifiably constrained, I would decline to follow it here.

¶29 The plain language of the relevant part of Rule 609(a)(2)
renders a conviction admissible if it involves “a dishonest act.” As the
majority notes, a federal conference committee limited “a dishonest act” to
crimes “which involve[] some element of deceit, untruthfulness, or
falsification bearing on the accused’s propensity to testify truthfully.”
Supra ¶ 10. In State v. Malloy, we adopted the conference committee’s
definition of “dishonest act” and held that “the phrase ‘dishonesty or false
statement’ should be construed narrowly to include only those crimes
involving some element of deceit, untruthfulness, or falsification.” 131

11
 STATE V. WINEGARDNER
JUSTICE LOPEZ, joined by JUSTICES BOLICK and GOULD, Dissenting
in Part and Concurring in the Result

Ariz. 125, 127 (1981). In doing so, we glossed over the Rule’s plain language
to find a much narrower meaning in its legislative history. But our
decisions repeatedly emphasize that we should apply plain meaning before
resorting to secondary interpretation methods such as legislative history.
See, e.g., State v. Christian, 205 Ariz. 64, 66 ¶ 6 (2003) (“[T]he best and most
reliable index of a statute’s meaning is the plain text of the statute.”). A
“‘dishonest’ act” is one that is “[d]ishonorable,” “[c]haracterized by fraud,”
or “[w]anting in honesty or integrity.” See Dishonest, Webster’s Second
New International Dictionary 748 (1949). The majority tacitly concedes that
shoplifting is a dishonest act under a plain meaning interpretation of the
rule by acknowledging that shoplifting “is dishonest in layman’s terms.”
Supra ¶ 15. Shoplifting is a “dishonest act” within the plain meaning of the
phrase, and by the Rule’s terms, “deceit, untruthfulness, or falsification” are
not necessary prerequisites to its application.

¶30 We must apply the Rule, of course, to the specific statutory
language that Arizona uses to define shoplifting. Even under the federal
authorities’ narrow definition of “dishonest act,” adopted by Malloy,
shoplifting remains admissible under Rule 609(a)(2) because its
commission necessarily involves an element of “deceit.” The majority
concedes that subsections (2), (3), and (4) of A.R.S. § 13-1805(A) “might
implicate dishonesty and false statement,” but concludes that subsections
(1) and (5) do “not necessarily establish a trait of untruthfulness” sufficient
for admissibility under Rule 609(a)(2). Supra ¶ 15. I disagree with the
majority’s conclusion that subsections (1) and (5) do not necessarily
establish a trait of untruthfulness. Instead, I would find that those sections
qualify under the Rule because they, too, inherently involve deceit.

¶31 Subsection (5) requires knowingly obtaining goods belonging
to another by “[c]oncealment.” A.R.S. § 13-1805(A)(5). “Concealment” is
defined as the “practice or fact of concealing what ought to be revealed;
improper secrecy.” See Concealment, Webster’s Second New International
Dictionary 552 (1949). Shoplifting by “concealment” plainly connotes
“deceit” because the shoplifter removes a storekeeper’s property by exiting
the store while improperly hiding an unpurchased item. This is the essence
of deceit.

¶32 Subsection (1) presents a closer call. That provision defines
shoplifting as “[r]emoving . . . the goods . . . without paying the purchase

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 STATE V. WINEGARDNER
JUSTICE LOPEZ, joined by JUSTICES BOLICK and GOULD, Dissenting
in Part and Concurring in the Result

price.” A.R.S. § 13-1805(A)(1). The State argues that various methods of
shoplifting covered by subsection (1) do not involve deceit, such as brazenly
stealing a case of beer while under the watchful eye of employees or eating
grapes throughout the grocery store while shopping. But the State and the
majority ignore the fact that shoppers have only a limited license to enter a
store and it is premised on the understanding that the shopper will take
merchandise only after he purchases it. See Wright v. State, 549 S.W.2d 682,
684–85 (Tenn. 1977) (recognizing a storekeeper’s implied consent to
members of the public entering the premises to inspect and purchase
merchandise but noting that “[t]he instant one determines to purloin the
property the conversion is complete and trespass has occurred”); Thomas
M. Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise
Independently of Contract 322 (students’ ed. 1907) (explaining that “[e]very
retail dealer impliedly invites the public to enter his shop for the
examination of his goods, that they may purchase them if they see fit” but
that “the invitation is limited by the purpose” and a trespass occurs if one
abuses the implied license). A shoplifter violates this license when he
deceives a shopkeeper of his true purpose to knowingly remove property
from the store without paying for it. See Wright, 549 S.W.2d at 684–85. As
the majority notes, this distinguishes shoplifting from burglary, which
“primarily involve[s] stealth,” and robbery, which involves force. Supra
¶ 12; cf. State v. Robertson, 128 Ariz. 145, 146–47 (App. 1980) (distinguishing
theft from shoplifting because the latter involves theft of merchandise
displayed for sale in a business establishment). The fact that shoplifters,
while plying their trade, may violate the shoplifting statute by employing
varying degrees of deception toward shopkeepers does not alter
shoplifting’s fundamentally deceptive nature.

¶33 Other jurisdictions have declined to follow the federal courts’
narrow definition of “a dishonest act” and have held that shoplifting
convictions are admissible under their respective versions of Rule 609. See,
e.g., State v. Brown, 782 P.2d 1013, 1030–31 (Wash. 1989) (holding that
Washington Rule of Evidence 609, which mirrors the federal rule,
encompasses shoplifting as “[t]he act of taking property is positively
dishonest”); see also State v. Melendrez, 572 P.2d 1267, 1269 (N.M. Ct. App.
1977) (holding that shoplifting involves dishonesty or false statement); State
v. Gallant, 764 P.2d 920, 922–23 (Or. 1988) (holding that second-degree theft
by shoplifting is a crime involving dishonesty). These cases properly reject
Federal Rule 609 precedent concerning shoplifting convictions, and we

13
 STATE V. WINEGARDNER
JUSTICE LOPEZ, joined by JUSTICES BOLICK and GOULD, Dissenting
in Part and Concurring in the Result

should follow suit. This position does not disturb Malloy, which merely
held that a misdemeanor burglary conviction “does not necessarily involve
an element of deceit or falsification and, consequently, is not admissible
under Rule 609(a)(2).” 131 Ariz. at 128. Shoplifting is distinguishable from
burglary, robbery, and other forms of theft because it necessarily involves
deception.

¶34 Because shoplifting qualifies as a dishonest act, it is
admissible as a matter of law under Rule 609(a)(2). We should decline to
follow the federal authorities’ interpretation of Rule 609(a)(2) because it
unnaturally narrows the meaning of “a dishonest act.” This narrowing is
not without consequence: by rendering some shoplifting convictions
inadmissible for impeachment purposes, it needlessly curtails the
factfinder’s ability to determine the impeachment value, or weight, of a
witness’s shoplifting conviction. The majority reasons that “[a]lthough
purposefully leaving a store with an item without paying for it is dishonest
in layman’s terms, it does not meet Rule 609(a)(2)’s threshold of establishing
a trait for untruthfulness.” Supra ¶ 15 (emphasis added). The majority, like
the court of appeals, invokes Ortega’s oft-cited proclamation that “[h]uman
experience does not justify an inference that a person will perjure himself
from proof that he was guilty of petty shoplifting,” to support its legal
conclusion concerning a shoplifting conviction’s admissibility. Supra ¶ 17.
But Ortega supplants the common experience of judges for that of jurors (as
laymen) under the guise of “human experience” to bolster its legal
conclusion. While it may be the experience of some judges that a
demonstrably dishonest person, namely a shoplifter, is not more likely to
lie under oath than an honest person, we cannot know whether jurors share
this counterintuitive proposition. What “human experience” tells us about
a witness’s shoplifting conviction is better suited for a judgment about the
conviction’s weight, in context, than its categorical admissibility. See State
v. Fischer, 242 Ariz. 44, 50 ¶ 19 (2017) (“It is primarily the province of the
jury to determine the credibility of witnesses and to find the facts.”).

¶35 Despite the considerable value of conforming Arizona’s
evidentiary rules to the federal rules, supra ¶ 8, which I acknowledge, we
retain the prerogative to determine the scope of our rule. The federal
approach loses itself in its hyper-technicality and subtly chips away at the
truth-seeking purpose of our evidentiary rules. See Ariz. R. Evid. 102
(explaining the purpose of Arizona Rules of Evidence as the fair and

14
 STATE V. WINEGARDNER
JUSTICE LOPEZ, joined by JUSTICES BOLICK and GOULD, Dissenting
in Part and Concurring in the Result

efficient “development of evidence law, to the end of ascertaining the truth
and securing a just determination”). Although the majority quotes Justice
Frankfurter’s observation that “if a word is obviously transplanted from
another legal source . . . it brings the old soil with it,” supra ¶ 9, in this
unique context of interpreting our own rule we are free to shake the old soil
loose to give the words “dishonest act” truer purchase. In a close
admissibility case like this one, I respectfully submit that the better
approach is to allow jurors to determine, under the unique circumstances
of each case, the weight of a witness’s shoplifting conviction.

¶36 From a practical standpoint, the majority endeavors to
streamline its case-by-case approach for admissibility of shoplifting
convictions under Rule 609(a)(2) and cautions that the “rule does not permit
. . . a ‘trial within a trial’ delving into the factual circumstances of the
conviction by scouring the record or calling witnesses.” Supra ¶ 24. This
may prove easier said than done. Inevitably, the majority’s approach will
result in additional or prolonged contested trial court hearings for no
meaningful purpose. A per se rule of admissibility would be a more
efficient approach. See Ariz. R. Evid. 102 (“These rules should be construed
so as to administer every proceeding fairly, [and to] eliminate unjustifiable
expense and delay . . . .”).

¶37 Because I would find that a shoplifting conviction is
automatically admissible under Rule 609(a)(2), I would vacate the court of
appeals’ opinion. I would, however, affirm Winegardner’s conviction
because the trial court’s error in refusing to admit L.B.’s shoplifting
conviction for impeachment purposes was harmless beyond a reasonable
doubt. See State v. Valverde, 220 Ariz. 582, 585 ¶ 11 (2009) (“A reviewing
court will affirm a conviction despite the error if it is harmless, that is, if the
state, in light of all the evidence, can establish beyond a reasonable doubt
that the error did not contribute to or affect the verdict.” (internal quotation
marks omitted)). Considering the overwhelming evidence of
Winegardner’s guilt, including DNA evidence and L.B.’s impeachment by
her inconsistent testimony, any impeachment value of L.B.’s misdemeanor
shoplifting conviction would not have affected the jury’s verdict.

15