Johnson v. City of Fairbanks

OPINION

COATS, Judge.

William Johnson was convicted in a jury trial of concealment of merchandise in violation of Fairbanks Code of Ordinances § 6.303(a).1 He appeals to this court, arguing that the trial judge erred in allowing the city to impeach Johnson’s credibility as a witness, under Alaska Rule of Evidence 609, because he had formerly been convicted for “a crime of dishonesty.” We reverse Johnson’s conviction.

Prior to trial Johnson moved for a protective order and asked the trial judge to prohibit the prosecution from inquiring whether he had formerly been convicted of concealment of merchandise. Johnson had been convicted of this offense in 1983. The trial court ruled that the prosecution could show that Johnson had formerly been convicted of “a crime of dishonesty” but concluded that it would be unduly prejudicial to allow the jury to know that Johnson’s prior conviction was for the same crime for which he was on trial. Frankson v. State, 645 P.2d 225 (Alaska App.1982). Johnson testified at his trial and the prosecution established that Johnson had formerly been convicted of “a crime of dishonesty.”

Alaska Rule of Evidence 609 provides in relevant part:

Impeachment by Evidence of Conviction of Crime.
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is only admissible if the crime involved dishonesty or false statement.
(c) Admissibility. Before a witness may be impeached by evidence of a prior conviction, the court shall be advised of the existence of the conviction and shall rule if the witness may be impeached by proof of the conviction by weighing its probative value against its prejudicial effect.

The parties to this case have argued extensively about whether concealment of merchandise is a crime of “dishonesty or false statement.” We find it unnecessary to resolve this issue to decide this case. We conclude that, even if we assume that concealment of merchandise is a crime involving “dishonesty or false statement,” that the prejudicial effect of admitting Johnson’s prior conviction outweighed the probative value of that evidence. A.R.E. 609(c).

The danger of admitting evidence of pri- or convictions was discussed by the supreme court in Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980):

The danger inherent in informing a jury that a defendant has committed a prior criminal act is self-evident: it is all too likely that a determinative inference *444of present guilt will be drawn from the fact of the prior act, thus diluting the requirement that present guilt be proved beyond a reasonable doubt. [Footnote omitted.]

McCormick describes the problem in stronger terms:

If the accused is forced to admit that he has a “record” of past convictions, ... there is an obvious danger that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on [sic] charge, or even that he ought to be put away without too much concern with present guilt, than they will to the legitimate bearing of the past convictions on credibility. The accused, who has a “record” but who thinks he has a defense to the present charge, is thus placed in a grievous dilemma. If he stays off the stand, his silence alone will prompt the jury to believe him guilty. If he elects to testify, his “record” becomes provable to impeach him, and this again is likely to doom his defense.

E. Cleary, McCormick on Evidence, § 43, at 89 (2d ed. 1972).

Judge Crutchfield correctly reasoned that admitting a prior conviction for concealment of merchandise in a trial for concealment of merchandise would be unduly prejudicial. It is far too likely that the jury would draw the natural but prohibited conclusion that since Johnson had been convicted of concealment of merchandise before, he probably was guilty of concealment of merchandise this time. However, it also seems to us that allowing the prosecution to inform the jury that Johnson had formerly been convicted of “a crime of dishonesty” opens up a substantial possibility that the jury would conclude that Johnson’s prior conviction was for a crime much more serious than concealment of merchandise. We believe that the jury’s possible conclusion in this regard might very well have too great of an impact on the trial. We therefore conclude that Judge Crutch-field abused his discretion in allowing the prosecution to show Johnson’s former conviction.

The conviction is REVERSED.

. The ordinance provides:

(a) Concealment of Merchandise. It is unlawful for any person, without authority, wil-fully to conceal upon or about his person or the person of another any merchandise or thing of value upon the premises where such merchandise or thing of value is kept for the purposes of sale, barter or storage. Any merchandise or thing of value found concealed upon or about the person and which has not theretofore been purchased by the person is prima facie evidence of wilful concealment. It is not a violation of this section to cover up or conceal merchandise in any store-provided shopping cart or basket.