State v. Archer
State v. Archer
Opinion of the Court
Defendant is charged with the offense of driving while under the influence of intoxicants. ORS 813.010. Before trial, he moved in limine to exclude evidence about his prior conviction for driving while suspended (DWS). The trial court granted his motion, and the state appeals. ORS 138.060(3). We reverse.
The court’s order provides:
“ mt is
“HEREBY ORDERED THAT defendant’s motion in limine is granted. The Court holds that if the defendant is asked by his attorney if he has ever been convicted of a crime and if he admits to a conviction for Driving While Suspended, or if his attorney asks him if he has ever been convicted of the crime of Driving While Suspended and the defendant admits that he has, then the State may not ask the defendant on cross-examination if the crime was a felony nor may the State introduce his judgment of conviction as impeachment evidence.”
The state argues that the trial court’s ruling is contrary to OEC 609(1) and our holding in State v. Venegas, 124 Or App 253, 862 P2d 529 (1993), rev den 318 Or 351 (1994). OEC 609(1) provides:
“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or (b) involved false statement or dishonesty.”
Defendant’s prior conviction for driving while suspended was under ORS 811.182 and it is undisputed that the conviction was for a crime that was punishable by imprisonment for more than one year. The trial court based its ruling on its understanding of the holding in State v. Pratt, 316 Or 561, 853 P2d 827, cert den 510 US 969, 114 S Ct 452, 126 L Ed 2d 384 (1993). It reasoned that OEC 403 authorizes a trial court to exercise its discretion to exclude evidence offered
“I think the only reason that the state wants to bring out the fact that this particular crime was a felony would be to somehow encourage the jury to find that [defendant] must be guilty of this crime because he had been previously convicted not just of driving while suspended, but driving while suspended which was a felony * * *. I do find it is * * * unnecessarily cumulative and would be prejudicial!.]”
In Pratt, the court upheld the exclusion by the trial court of a proffered judgment of conviction as a proper exercise of discretion after the witness had admitted on direct examination that he had been convicted of several felonies. The defendant proposed to impeach the witness by demonstrating the witness’ probationary status as well as the existence of other dismissed charges from the judgments. The Supreme Court concluded that impeachment evidence offered under OEC 609 was not exempt from the impact of OEC 403, which permits a trial court to exclude needless and cumulative evidence. Here, the information that defendant’s conviction was a felony was not cumulative because it did not repeat information already elicited on direct examination or otherwise in the record.
In Venegas, we held that the trial court erred when it excluded evidence of the nature of the defendant’s prior felony conviction on the ground that it was prejudicial and without any probative value under OEC 403. The issue in that case was whether the trial court could limit the introduction
“In sum, OEC 609(1) requires evidence of a prior felony-conviction to be admitted in order to impeach a witness, provided that the conviction is not stale and has not been set aside, and subject to the witness’ right to explain the circumstances surrounding the conviction. The rule does not allow trial courts to engage in a process of weighing the probative value of the evidence against its prejudicial effect before admitting impeachment evidence of prior convictions.” (Citations omitted; emphasis in original.) 124 Or App at 256.
Our reasoning in Venegas is a reflection of the intention of the people of the state of Oregon who promulgated OEC 609 through the initiative process in 1986 with Ballot Measure 10. In State v. Dick, 91 Or App 294, 754 P2d 628 (1988), we examined the history of the rule and the purpose of the ballot measure. We noted that the ballot measure deleted language from the rule that permitted a trial court to weigh the probative value of a conviction offered into evidence for impeachment purposes against its prejudicial effect. We concluded:
“[I]t is clear that the voters intended to require trial courts to admit evidence of prior convictions for the purpose of impeaching a criminal defendant, without discretion.” Id. at 297. (Emphasis in original.)
In State v. King, 307 Or 332, 337, 768 P2d 391 (1989), the court said:
“We find the Court of Appeals’ analysis in Dick persuasive and adopt it as our own.”
Reversed and remanded.
The dissent’s reliance on Pratt is misplaced. The court’s ruling does not refer to the evidence to which the dissent alludes. Rather, the ruling says, “In this case, the trial court exercised its discretion to exclude documentary evidence of some of [the witness’s] prior convictions, because that evidence was cumulative of [his] own testimony regarding his criminal record. We find no abuse of discretion in that ruling.” 316 Or at 573. Here, the evidence, which the trial court excluded through its pretrial order, could not have been cumulative. It was the only evidence that defendant’s prior conviction was a felony.
ORS 811.175 provides that driving while suspended is a Class A infraction. The violation of ORS 811.182 is a Class C felony or a Class A misdemeanor, depending on the proscribed circumstances. Subsection (3) of the statute provides:
“The crime is a Class C felony if the suspension or revocation results from any of the following:
“(a) Habitual offender status under ORS 809.640.
“(b) Any degree of murder, manslaughter, criminally negligent homicide or assault resulting from the operation of a motor vehicle.
“(d) Failure to perform the duties of a driver under ORS 811.705.
“(e) Reckless driving under ORS 811.140.
“(f) Fleeing or attempting to elude a police officer under ORS 811.540.
“(g) Driving while under the influence of intoxicants under ORS 813.010.
“(h) Use of a commercial motor vehicle in the commission of a crime punishable as a felony.”
Dissenting Opinion
dissenting.
The issue presented in this case is whether, if defendant admitted that he had been convicted of the crime of driving while suspended, OEC 609(l)(a) required the trial court to permit the state, for impeachment purposes, to introduce evidence establishing that that crime was considered a felony in Oregon. The majority concludes that the “felony” status of defendant’s conviction is part of its nature and that, as a result, the trial court had to admit evidence that established that fact. 150 Or App at 510.1 dissent.
OEC 609 states the circumstances in which a witness’ credibility can be impeached by evidence of a prior criminal conviction. It provides:
“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or (b) involved false statement or dishonesty.”
(Emphasis supplied.) The rule states that the only evidence the trial court is required to admit under OEC 609(l)(a) is “evidence that the witness has been convicted of a crime.” In State v. Venegas, 124 Or App 253, 256, 862 P2d 529 (1993), rev den 318 Or 351 (1994), we concluded that that meant that a trial court had to admit, without discretion, not just the fact that a witness had been convicted of an admissible prior conviction, but also the nature of that conviction.
The majority does not dispute that conclusion, but concludes that the “felony” status of defendant’s conviction is an intrinsic part of its nature. It states, “the descriptive phrase that identifies the crime for which defendant was convicted is ‘felony driving-while-suspended.’ ” 150 Or App at 510. I disagree. The descriptive phrase that describes the crime for which defendant was convicted is its statutory name, “criminal driving while suspended.” ORS 811.182. Venegas, the case in which we established that a trial court was required under OEC 609(l)(a) to admit the “nature” of
“whether a trial court may, under OEC 609, limit the introduction of impeachment evidence regarding a witness’ prior felony conviction by allowing the state to prove the existence of a prior conviction, but preventing it from disclosing to the jury the name of the crime for which the witness was convicted.”
Id. at 255. The defendant had been charged with prostitution. The state sought to impeach his credibility as a witness by introducing evidence that he previously had been convicted of possession of a controlled substance. The trial court held that under OEC 609 the state could establish the existence or fact of the prior conviction, but not the name of the conviction. We reversed, stating that, “the trial court erred when it excluded evidence of the nature of defendant’s prior felony conviction.” Id. at 256. In that context, it is evident that by the “nature” of the crime, we meant its name, “possession of a controlled substance.” The crime’s felony status was not considered an aspect of its nature.
The state contends, however, that the felony status of the offense is the only relevant evidence for impeachment purposes. The majority agrees. It states:
“Informing the jury that the conviction was for felony driving while suspended identifies the crime as a felony, a crime more serious than misdemeanor driving while suspended crimes and DWS infractions.”
150 Or App at 510 (emphasis in original). While true, that statement does not support a conclusion that OEC 609(l)(a) requires the court to admit that information. As a threshold matter, to admit a prior criminal conviction for impeachment purposes, a party must establish that the crime fits under either OEC 609(l)(a) or (b). To qualify under OEC 609(l)(a), the party must show that the crime “was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted.” Nothing in the rule indicates, however, that the trial court must admit evidence that establishes that the threshold requirement has been met.
That the term felony is not an aspect of OEC 609 is underscored by the fact that convictions for misdemeanor offenses in other jurisdictions could be admissible under OEC 609. Because the term felony is a descriptive term, it may be used in other jurisdictions to describe a different set of criminal offenses from those treated as felonies in Oregon. It could describe crimes punishable by either more severe or more lenient sentences then the one-year imprisonment standard in OEC 609(l)(a). Nonetheless, in an Oregon court, if a witness has been convicted of a crime that is punishable by imprisonment in excess of one year, a party can impeach that witness by introducing evidence of that conviction. That is true even if the offense was considered a misdemeanor in the jurisdiction in which it occurred. Thus, even if a court were required under the rule to allow the admission of evidence establishing that the threshold requirement of OEC 609(l)(a) was met, evidence that the crime was considered a felony offense would not be required.
Because the trial court was not required to admit evidence that the crime for which defendant had been convicted was considered more serious than a misdemeanor, I turn to whether the trial court had authority under OEC
“The state objected to the admission of the documents on the grounds that they were cumulative and that they contained more information than the crime and date of conviction.”
Id. at 571 (emphasis supplied). The trial court sustained the state’s objection. The Supreme Court affirmed the trial court. It considered the language of OEC 609 and concluded that
“[n]othing in the 1986 amendment * * * demonstrates that the people intended that all evidence of prior convictions be admitted for impeachment purposes, even when that evidence is merely cumulative of other evidence already admitted.”
Id. at 573 (emphasis in original). Despite the fact that one of the documents contained evidence of an admissible criminal conviction that had not been introduced in to evidence at all, the Supreme Court held that
“a trial court, in exercise of its discretion under OEC 403, may exclude evidence offered under OEC 609 if the probative value of that evidence ‘is substantially outweighed by * * * considerations of * * * needless presentation of cumulative evidence.’ ”
Id. (quoting OEC 403).
Finally, the state notes that parties often introduce evidence about the felony status of offenses under OEC 609. That such evidence is frequently introduced, however, tells us nothing about the evidence that a court is required to admit. The trial court did not rule that the felony status of an offense is always inadmissible under OEC 609. Instead, it exercised its discretion to exclude that information if defendant offered certain testimony on direct examination. To the extent that defendant introduces the required evidence on direct examination, the trial court has discretion to exclude further evidence on that point as needlessly cumulative. That
In conclusion, OEC 609(l)(a) does not require trial courts to admit, without exception, evidence about the felony status of impeachable offenses. Instead, it requires the admission only of evidence establishing the fact and nature of a prior criminal conviction. Even then, the trial court has the discretion under OEC 403 to exclude needlessly cumulative evidence. Because the state’s sole argument on appeal is that the trial court was required under OEC 609(l)(a) to admit evidence that defendant’s prior conviction was for a felony offense, we should affirm the decision of the trial court. The majority errs when it concludes otherwise. Therefore, I respectfully dissent.
The trial court’s order stated that,
“if* * * defendant is asked by his attorney if he has ever been convicted of a crime and if he admits to a conviction for Driving While Suspended, or if his attorney asks him if he has ever been convicted of the crime of Driving While Suspended and * * * defendant admits that he has, then the State may not ask the defendant on cross-examination if the crime was a felony nor may the State introduce his judgment of conviction as impeachment evidence.”
(Emphasis supplied.) The judgment for defendant’s prior conviction for DWS stated that defendant was convicted for “Felony Driving While Suspended.”
The state notes that “[w]here proposed impeachment evidence is cumulative, this court reviews [rulings on the admission of that evidence] for abuse of discretion,” but it does not argue that the trial court abused its discretion in ruling as it did. Therefore, it would be inappropriate to address that issue.
The trial court properly noted that, if defendant explained the circumstances surrounding his prior conviction, under OEC 609(3) the state would have an opportunity to rebut that explanation. OEC 609(3).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.