Ohio Evid. R. 609 allows a witness to be impeached with proof of a
conviction of a crime. Subsection A of
Evid. R. 609 states what it terms the "General rule." That subsection
reads as follows:
(A) General rule. For the purpose of
attacking the credibility of a witness:
(1) Subject
to Evid.R. 403, evidence that a
witness other than the accused has been convicted
of a crime is admissible if the crime
was punishable by death or imprisonment in excess of one year pursuant to the
law under which the witness was convicted.
(2)
Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that the accused has been convicted of a crime is admissible if
the crime was punishable by death
or imprisonment in excess of one year pursuant to the law under which the
accused was convicted and if the court determines that the probative value of
the evidence outweighs the
danger of unfair prejudice, of confusion of the issues, or of misleading the
jury.
(3)
Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that any witness, including
an accused, has been convicted of a
crime is admissible if the crime
involved dishonesty or false statement, regardless of the punishment and
whether based upon state or federal statute or local ordinance.
An examination of the above shows that the Rule is setting forth two
requirements regarding the type of
criminal conviction that may be used for impeachment. The first is found
in Subsection (A) (1) and that is that the crime "was punishable by death
or imprisonment in excess of one year pursuant to the law under which the
witness was convicted. The second is found in Subsection (A) (3) which states
regardless of the punishment evidence of a conviction is admissible if the
"crime involved dishonesty or false statement."
Up until the passage of Senate Bill 2 in 1996 all felonies were
punishable by a prison sentence in excess of one year. This was because the
prison for a fourth degree felony, which prior to the passage of Senate Bill 2
was the lowest degree of felony that could be committed, carried a prison range
of 6 months to 18 months. Thus every felony in year, regardless of the type of
felony, could be used for impeachment.
That all changed, however, when the General Assembly passed Senate Bill
2. That bill established a new degree of felony, the fifth degree felony, which
was punishable by a prison sentence of 6 months to 12 months, a sentence that
is not in excess of one year. Under the language of the Rule the prison term
has to be in excess of one year which means that if a litigant was attempting
to impeach a witness with conviction of a fifth degree felony then the mere
fact that the crime was a felony wouldn't end the analysis. The trial court
would then have to decide whether the offense was one that involved dishonesty
or false statement.
Not all felonies are going to be considered such crimes. This was shown
in the case of State v. Chambers, (12th Dist.), 2011 Ohio 1187. In that case
the Court of Appeals for the 12th Appellate District faced the issue of whether
a defendant was properly impeached in a trial in which he was accused of
harboring a "vicious dog" under state law. In the trial it came out
that the defendant had been convicted of three offenses. One conviction was for
receiving stolen property. The 12th District Court of Appeals found that the
crime of receiving stolen property was a crime that involved "dishonesty
or false statement" and therefore impeachment was proper. See P43 of the
opinion.
The other two crimes, however, for importuning and attempted unlawful
sexual conduct with a minor, both fifth degree felonies. The Court of Appeals
held that those two convictions could not be used to impeach because both fifth
degree felonies were not punishable by death or imprisonment in excess of one
year, such convictions "were inadmissible pursuant to Evid.R.
609(A)(2). See State v. Sledge, Trumball App. No. 2001-T-0123, 2003
Ohio 4100, ¶24; see, also, State v. Brown, 100 Ohio St. 3d 51, 2003
Ohio 5059, ¶26-27, 796 N.E.2d 506." See P44.
Now in analyzing whether a fifth degree felony can be used to impeach a
witness you must consider the nature of the offense. If the fifth degree felony
is, for example, a theft offense, then it will most likely be considered an
offense of "dishonesty or false statement" and such impeachment will
be allowed. If, however, the offense is one that courts do not consider to be a
crime of "dishonesty or false statement" then the fifth degree felony
should not be allowed as an impeachment device.
Where this issue could become a problem for the State is in a drug
possession trial. There are a fair number of drug possession charges that are
fifth degree felonies. R.C. 2925.11, which deals with drug possession offenses,
makes possession of drugs a fifth degree felony then goes on to classify drug
possession offenses as greater than fifth degree felonies depending on the
nature of the drug and the amount of the drug. Thus in a trial for a second offense
drug possession case where the defendant had a prior fifth degree felony
conviction for drug possession the State might not be able to get such a prior
conviction into evidence.
In summary when you a trying a case and you wish to use a prior criminal
offense for impeachment don't assume that you can use any felony offense for
impeachment. Make sure that it fits the requirements of Evid. R. 609 (A).
