Opinion
Case No. 991053-CA.
Filed March 15, 2001. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable David S. Young.
Edward R. Montgomery, Salt Lake City, for Appellant.
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee.
Before Judges Greenwood, Jackson, and Davis.
MEMORANDUM DECISION
Defendant appeals his jury trial conviction of assault by a prisoner, a third degree felony, in violation of Utah Code Ann. § 76-5-102.5 (1999). Defendant contends the trial court erred in admitting his prior conviction of assault by a prisoner into evidence and allowing its use for an improper purpose. We agree and reverse.
Specifically, defendant cites testimony regarding his prior conviction elicited from him by the State during its cross examination and a comment made by the prosecutor during closing argument. During cross examination, the prosecutor asked defendant if he was in jail because of a prior conviction and defendant responded in the affirmative. The prosecutor began to further question defendant about the nature of the conviction when defense counsel asked for a sidebar. After the sidebar, the prosecutor elicited testimony from defendant that defendant had previously been convicted of assault by a prisoner for beating up someone while in jail. The prosecutor concluded his examination by asking the defendant to again admit to his prior conviction, emphasizing that the conviction was for assault by a prisoner.
In closing argument, the prosecutor argued to the jury: "You heard the defendant admit he's also a convicted felon, assault by a prisoner. He's predisposed to commit these crimes." Defense counsel objected, arguing that the evidence of the prior conviction could only be used for impeachment. The trial court sustained the objection, and told the prosecutor not to consider predisposition and to take that word out of his "direction." The trial court gave no limiting instruction.
Defendant argues that the prior conviction should have been excluded under Rules 402, 403, and 404(b) of the Utah Rules of Evidence. The State argues that Rule 609, which allows the use of prior convictions as impeachment evidence under certain conditions, controls in this case. The State concludes that under Rule 609 the evidence of the prior conviction was properly admitted and used. Although we agree with the State that the proper analysis requires an examination under Rule 609, we disagree with the State's conclusion.
We note that the evidence of defendant's prior conviction and its subsequent use would not have been proper under Rules 402, 403, and 404(b) of the Utah Rules of Evidence and that the only proper use in this case would have been for impeachment purposes under Rule 609(a)(1). See Utah R. Evid. 402, 403, 404(b), 609(a)(1).
Rule 609 provides, that for impeachment purposes, "evidence that an accused has been convicted of such a crime [punishable by death or imprisonment in excess of one year] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Utah R. Evid. 609(a)(1). In State v. Banner, 717 P.2d 1325 (Utah 1986), the supreme court outlined the factors to be considered when balancing the probative value and the prejudicial effect of admitting prior convictions under Rule 609(a)(1):
[1] the nature of the crime, as bearing on the character for veracity of the witness.
[2] the recentness or remoteness of the prior conviction. . . .
[3] the similarity of the prior crime to the charged crime, insofar as a close resemblance may lead the jury to punish the accused as a bad person.
[4] the importance of credibility issues in determining the truth in a prosecution tried without decisive nontestimonial evidence. . . .
[5] the importance of the accused's testimony, as perhaps warranting the exclusion of convictions probative of the accused's character for veracity. . . .
Id. at 1334 (citing 32B Am. Jur.2d Federal Rules of Evidence § 420 (1982) (footnote omitted)); see also State v. Betha, 957 P.2d 611, 617 (Utah Ct.App. 1998); State v. Wight, 765 P.2d 12, 19 (Utah Ct.App. 1988).
The record lacks any indication that the trial court conducted the required balancing test. The State argues that we can infer that the trial court balanced the factors during the sidebar and properly admitted the evidence. However, Banner indicates that the burden of demonstrating that the balancing test favors admission falls on the prosecution. See Banner, 717 P.2d at 1334; Wight, 765 P.2d at 19. Without evidence that the trial court examined the Banner factors, we hold that the trial court erred in admitting defendant's prior conviction. See Wight, 765 P.2d at 19.
We further conclude that defendant's prior conviction was inadmissible under the balancing process outlined in Banner. First, the nature of the prior conviction has no bearing on the defendant's character for veracity. Second, defendant's previous conviction was for the same crime for which he stood accused. See Banner, 717 P.2d at 1334 n. 44 (noting when prior conviction was for same crime, probative value will rarely outweigh confusion and prejudice). Finally, the credibility of the witness warranted exclusion as defendant's testimony was of primary import in this case and no decisive nontestimonial evidence was presented. Only the recentness of the prior conviction favored admission, and, standing alone, does not justify its admission.
Since there is some doubt whether his counsel objected to the admission of the conviction, defendant argues that the error meets the requirements of the plain error doctrine. To establish plain error, defendant must show that "`(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e. absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.'" State v. Vargas, 2001 UT 5, ¶ 39, 413 Utah Adv. Rep. 23 (quoting State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993)).
We have already indicated that the error exists. This error should have been obvious to the trial court. Rule 404(b) states: "Evidence of other crimes . . . is not admissible to prove the character of a person in order to show action in conformity therewith." Utah R. Evid. 404(b). Further, it is well established that one "may be convicted criminally only for his acts, not his general character" and "[this] principle is violated if a conviction is based on an inference that conviction is justified because of the defendant's criminal character or propensity to commit bad acts." State v. Saunders, 1999 UT 59, ¶ 15, 992 P.2d 951.
We also find that the error was harmful, requiring reversal in this case. Both the State and defendant agree the evidence centered on the testimonies of defendant and the State's lone witness. The prejudicial effect of the admission of a prior conviction for the same act discredited any weight the jury might have attached to defendant's testimony. Further, the remarks of the prosecutor during closing argument, although corrected in part by the trial judge, very possibly could have caused the jury to convict the defendant for his past behavior. Thus, we conclude that without the error there was a reasonable likelihood of a different outcome.
Defendant also argues this court should reverse because the county attorney's closing argument constituted prosecutorial misconduct. The State argues this issue was not properly raised and filed a motion with this court to strike this portion of defendant's argument. Because we reverse for the reasons above, we do not decide this issue and the State's motion is therefore moot.
Although we do not decide this issue, the prosecutor's comment that the defendant was "predisposed to commit these crimes" was clearly improper. We note the language of the supreme court in Saunders, 1999 UT 59, 992 P.2d 951:
Anchoring the principle that prior crime evidence is not admissible to show criminal propensity is the more fundamental principle that a prosecutor may never argue or suggest to the finder of fact, either directly or indirectly, that a defendant should be convicted because of his criminal character or that he was guilty of the crime charged because he acted in accord with a criminal propensity shown by such evidence. This is true regardless of whether that evidence was properly or erroneously admitted. A prosecutor who intentionally calls to jurors' attention matters that they should not consider in reaching a verdict is clearly guilty of misconduct, particularly when a prosecutor argues prior bad acts or prior criminal conduct as a basis for convicting.
Id. at ¶ 25 (emphasis added).
Accordingly, defendant's conviction is reversed.
Pamela T. Greenwood, Presiding Judge.
WE CONCUR: Norman H. Jackson, Associate Presiding Judge, James Z. Davis, Judge.