(dissenting)—The primary issue in this appeal is the scope of the factual inquiry the trial court makes to determine that a crime involves dishonesty, so as to admit the criminal conviction for impeachment purposes under ER 609(a)(2). The majority extends the inquiry beyond the elements of the offense itself to the circumstances surrounding its commission. The majority concludes that, if the surrounding circumstances of the crime establish dishonest behavior, the offense contains the requisite elements to require admission of the conviction for impeachment. I disagree and must therefore dissent.
The prior crime which the prosecution used to impeach Newton's credibility was a conviction on his plea of guilty to the crime of third degree theft in that he "did then and there . . . wrongfully obtained property of a value of less than $250 belonging to Russell Crockett, with intent to deprive said owner of said property ..." These acts satisfy the elements of theft as specified in RCW 9A.56.020(l)(a). Because the value of the property did not exceed $250, the offense was theft in the third degree. RCW 9A.56.050.5
As the majority points out, dishonesty under the rule is narrowly "defined to include only those crimes having ele-*729merits 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." (Some italics mine.) State v. Burton, 101 Wn.2d 1, 10, 676 P.2d 975 (1984). The Burton court concluded that the crimes of theft in general do not contain the requisite element of untruthfulness and are inadmissible under ER 609(a)(2) absent some element of fraud or deceit. The Burton court did not elaborate on whether the elements of fraud or deceit must inhere in the elements of the crime itself or whether the court could evaluate the particular conduct of the accused that may have precipitated the charge. The court did, however, confine its inquiry to "crimes of theft in general" and statutory definitions of crimes. State v. Burton, 101 Wn.2d at 10. It is clear to me that the fraud or deceit must inhere in the elements of the crime itself.
The majority adopts a broader reading of the federal cases than is warranted. The cases do generally support a factual inquiry into the nature of the offense when the required element of dishonesty is not apparent from the name or title of the offense. United States v. Cunningham, 638 F.2d 696, 698-99 (4th Cir. 1981); United States v. Hayes, 553 F.2d 824, 827-28, cert. denied, 434 U.S. 867 (2d Cir. 1977). The courts in cases cited by the majority have considered the manner and means by which a crime is committed to determine whether it is crimen falsi, but with one exception, they have not indicated that the inquiry should extend beyond the elements of the crime of which the witness stands convicted. 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); Government of V.I. v. Toto, 529 F.2d 278, 281 n.3 (3d Cir. 1976); United States v. Barnes, 622 F.2d 107, 110 (5th Cir. 1980); United States v. Yeo, 739 F.2d 385, 388 (8th Cir. 1984); United States v. Glenn, 667 F.2d 1269, 1272-73 (9th Cir. 1982); United States v. Whitman, 665 F.2d 313, 320 (10th Cir. 1981).
*730United States v. Papia, 560 F.2d 827 (7th Cir. 1977) did permit the court to examine specific facts resulting in a prior conviction for theft, interpreting United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976) as allowing an inquiry into the underlying circumstances of the crime.
Such an extension of Smith is not warranted. Smith noted that when the formal title of an offense leaves room for doubt, the prosecution must demonstrate that the particular prior conviction rested on facts warranting such a description of dishonesty or false statement. United States v. Smith, 551 F.2d at 364 n.28. A later case from the same court, United States v. Lipscomb, supra, noted that federal courts have interpreted footnote 28 in Smith to permit an inquiry into the surrounding circumstances of the crime. However, the court in Lipscomb also noted that the District of Columbia Circuit Court of Appeals in United States v. Lewis, 626 F.2d 940 (D.C. Cir. 1980), following the Smith decision, interpreted the scope of inquiry narrowly to require the trial court to confine itself to the elements of the crime. In United States v. Lewis, the court stated the following at page 946:
Contrary to the Government's construction, we do not perceive that it is the manner in which the offense is committed that determines its admissibility. Rather we interpret Rule 609(a)(2) to require that the crime "involved dishonesty or false statement" as an element of the statutory offense.
I believe the Lewis court's interpretation of the rule established by its own court in Smith to be persuasive.
I have no quarrel with permitting a factual inquiry into the nature of the offense when the required element of dishonesty is not apparent from the name or title of the offense.6 If Newton's theft conviction had been based on obtaining control over property of another by color or aid of *731deception, with intent to deprive that other person of such property, a statutory alternative under RCW 9A.56.020-(l)(b), the conviction could properly have been used for impeachment purposes. The necessary elements of dishonesty would thus inhere in the crime as charged even though those elements may not be apparent from the name of the crime as third degree theft.
There are two additional reasons why the trial court's inquiry should be limited to the elements of the offense. First, a broad inquiry as allowed by the majority may be cumbersome and time consuming. The trial court would necessarily be involved in resolving issues collateral to the fact of conviction. 5 K. Tegland, Wash. Prac. § 238, at 511-12 (1982). I am persuaded by the logic propounded in 3 J. Weinstein & M. Berger, Evidence ¶ 609(04), at 609-75 to -76 (1981), as follows:
But it is a mistake for the trial court to have to go behind the conviction to determine its details. The statutory definition should control. In this area convenience requires a rather mechanical rule. It is better to rather arbitrarily classify crimes one way or the other and not get into details of a particular conviction, such as whether the witness testified at the prior trial and was not believed or whether the particular assault was based on a dishonest trick luring the victim into an alley.
(Footnotes omitted.) Moreover, this reasoning is consistent with the rule governing the admission of prior convictions for impeachment purposes. The jury is only presented with the fact of conviction, the type of crime, and the punishment, not the underlying circumstances. State v. Coe, 101 Wn.2d 772, 684 P.2d 668 (1984); State v. Gibson, 32 Wn. App. 217, 220-21, 646 P.2d 786, review denied, 97 Wn.2d 1040 (1982).
Second, the majority's approach would broaden the narrow class of crimes contemplated by ER 609(a)(2). See United States v. Smith, 551 F.2d at 362; State v. Burton, 101 Wn.2d at 8. The majority would permit the use of a conviction for impeachment purposes even though the essential elements of the crime do not involve dishonesty or *732deceit so long as the trial court is satisfied that the manner of its commission involves deceitful or dishonest conduct. The practical effect of this ruling is to permit, perhaps even to compel,7 the use of individual acts of dishonesty to impeach the defendant. Such a rule is unwise.
In my view it was error to permit the introduction in evidence of the prior conviction for impeachment purposes. Such error is of constitutional magnitude since it impinges on the defendant's right to testify in his own defense. State v. Harris, 102 Wn.2d 148, 157, 685 P.2d 584 (1984). In order to find such error harmless the appellate court must be satisfied that the error is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065 (1967).
The test to determine harmlessness of an error of constitutional proportion is the overwhelming evidence test. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985). Under this test the appellate court looks only at the untainted evidence to determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. Here, Newton's sole defense was that Kellenbenz consented to his using the credit card and automobile. Kel-lenbenz could not testify as to his consent due to his untimely demise. Newton's testimony was the only direct evidence on this issue and his credibility was critical to his defense. The remaining evidence on this issue was not so overwhelming that it necessarily leads to a finding of guilt.
I would reverse and grant a new trial.
Review granted by Supreme Court May 6, 1986.
Relying on Newton's statement on plea of guilty, that he "did wrongfully obtain Russell Crockett's credit card and used it without his consent," the majority concludes he admitted his guilt of both credit card theft and theft by color or aid or deception. Such a conclusion is unwarranted. The statement by itself does not include one essential element of each crime namely that the acts were done with intent to deprive the owner of his property. When read together with the elements of the offense as charged in the information and to which he pleaded guilty, theft by color or aid of deception might well be inferred. However, Newton did not plead guilty to, nor was he convicted of, theft by color or aid of deception.
In her separate opinion in Burton, Justice Dimmick criticizes the majority not for its holding but for its suggestion that prior convictions can be categorized as crimes of dishonesty or false statement merely by looking at the name of the crime.
"While ER 609(a)(1) grants discretionary authority to admit prior felony convictions, ER 609(a)(2) requires the admission of all prior convictions, felony or misdemeanor, which involve a crime of 'dishonesty or false statement." State v. Burton, 101 Wn.2d at 4.