675 N.E.2d 77 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *751 Becky Davidson Reed appeals from a judgment of conviction and sentence entered by the Meigs County Court of Common Pleas, after a jury trial, finding her guilty of theft of a credit card. She assigns the following error for our review:
"The court erred by sustaining the states [sic] objection to defendant's question of the witness Rachael Davidson as to why she had found living at her grandmother's unacceptable."
Appellant allegedly stole three credit cards from Pamela Roush, the receptionist at the dentist office where appellant had taken her daughter, Rachael Davidson, for an examination, and used two of the three credit cards to make purchases without Roush's permission. Appellant was arrested and indicted on one count of theft, in violation of R.C.
Rachael testified at trial that she saw the three credit cards bearing Roush's name on the seat of her mother's car when she and her mother drove home from her dentist appointment. She also testified that her mother induced Carly Lemaster to sign the credit card receipts, and then threw the cards in a trash can at the SuperAmerica on their way home from the mall. Rachael's trial testimony *752 conflicted with her first statement to the police, in which she implied that Carly Lemaster may have been the thief. Rachael testified she had originally lied to protect her mother.
On cross-examination, Rachael admitted that she had told the police that she had had disagreements with her mother and that she had been placed in her grandmother's custody after giving her second statement, which incriminated her mother, to the police. Appellant then attempted to question Rachael about why she found living with her grandmother unacceptable. The state objected to this line of questioning. Appellant argued that Rachael had a habit of making allegations against various people to get her moved from place to place. Appellant proffered evidence that Rachael did not want to live with her maternal grandparents because she said her stepgrandfather made sexual advances toward her. Appellant then alleged that these were false allegations. The trial court sustained the state's objection.
The jury found appellant guilty of theft of a credit card and she was sentenced to eighteen months at the Women's Reformatory at Marysville. Appellant filed a timely appeal.
In appellant's sole assignment of error, she argues that the trial court erroneously restricted her cross-examination of Rachael Davidson. Initially, we must determine our standard of review. Trial courts have broad discretion in the admission or exclusion of evidence. State v. Sage (1987),
The trial court sustained the state's objection prohibiting the testimony of Rachael Davidson as to why she found it unacceptable to live with her maternal grandparents. Appellant argues that the testimony is admissible pursuant to Evid.R. 406 and 608(B).
Evid.R. 406 provides:
"Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is *753 relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice."
Habit is to be distinguished from character. Ohio has recognized that distinction by admitting evidence of habit to establish the same conduct under like circumstances on the occasion in issue, while excluding evidence of a general disposition toward the conduct in issue. See Evid.R. 404(A) andState v. Hohman (1991),
Accordingly, we do not hesitate to conclude that the trial court properly excluded the proffered evidence in light of its more realistic classification as impermissible character evidence under Evid.R. 404(A). In sum, the proferred testimony did not rise to the level of habit, even if appellant's contention that Rachael was making a false allegation against her stepgrandfather was true. It was not a regular response to a repeated factually specific situation.
Appellant also argues that the testimony is admissible to impeach Rachael Davidson's credibility by showing she had made prior false accusations against other people. Under Evid.R. 608(B), particular instances of conduct may be inquired into on cross-examination.1 However, the power to discredit a witness is limited by the sound discretion of the trial court to determine whether the inquiry will lead to specific instances of conduct which are "clearly probative *754
of truthfulness or untruthfulness." State v. Williams (1981),
We conclude that it was not an abuse of discretion for the trial court to limit appellant's cross-examination. There was no evidence proffered indicating that Rachael Davidson had actually made false allegations against her stepgrandfather to a third party. The proffered evidence simply indicates that Rachael Davidson found it unacceptable to live with her stepgrandfather because he had made sexual advances towards her. The only reference given the trial court that this conduct would be "clearly probative of untruthfulness" is the assertion made by appellant's counsel that "those are false allegations." Based upon the proffered testimony, it was not an abuse of discretion for the trial court to conclude that the conduct was not clearly probative of Rachael Davidson's truthfulness. Accordingly, appellant's assignment of error is overruled. The judgment of the trial court is affirmed.
Judgment affirmed.
STEPHENSON and KLINE, JJ., concur.
"Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than conviction of crime as provided in Evid.R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." *755