Case Information
*1 IN THE
S UPREME C OURT OF THE S TATE OF A RIZONA S TATE OF A RIZONA , Appellee,
v. D ARREN L EE W INEGARDNER , 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
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: Arizona Rule of Evidеnce 609(a)(2) provides that when a party seeks to attack “a witness’s character for truthfulness by evidence of *2 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. 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
,
II. Although we review a trial court’s decision regarding the
admission of evidence for abuse of discretion,
State v. Gill
,
A. 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 оr 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. 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). 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
,
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
,
language to resolve differences between House and Senate versions of the
rule.
United States v. Ortega
,
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.” *5 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. Because such a character trait is rеlevant 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
,
B. 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. *6 Under A.R.S. § 13-1805(A), a person commits shoplifting
when he or she knowingly obtains
mеrchandise . . . 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. 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
elеments 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
,
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 *7 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. 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
,
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
,
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
,
admitting impeachment evidence, noting that under the modern
evidentiary rules, a disсredited 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
*9
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
,
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 а 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. 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. Rule 609(a)(2) provides that admission of a conviction is only
proper “if the court can readily determine thаt 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 *10 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. 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. For the reasons stated, we vacate the opinion of the court of
appeals and affirm Winegardner’s conviction and sentence.
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: 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 undеr 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). 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
,
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
,
¶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 mаjority 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; imрroper 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
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 cаse 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
,
¶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 respeсtive 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
,
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).”
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 cоnviction. 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 expеrience” 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
,
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. 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 . . . .”). Because I would find that a shoplifting conviction is
¶37
automatically admissible under Rule 609(a)(2), I would vacаte 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
,