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State v. Thomas

Court of Appeals of Oregon

August 7, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
HEATHER MARIE THOMAS, Defendant-Appellant.

Submitted on June 18, 2013.

Multnomah County Circuit Court 110646899, Leslie M. Roberts, Judge.

Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

SERCOMBE, J.

Defendant appeals a judgment of conviction for criminal mischief in the second degree, ORS 164.354. She contends that the trial court erred in refusing to admit certified copies of the Oregon Judicial Information Network (OJIN) register that she had offered to establish an adverse witness's alleged prior convictions for impeachment purposes. OEC 609(1) provides that "evidence that the witness has been convicted of [certain] crime[s] shall be admitted" to attack the "credibility of a witness" if the evidence is "elicited from the witness or established by public record." Defendant argues that the OJIN register was a "public record" that "established" the alleged convictions for purposes of OEC 609(1) and that the register was therefore admissible under that rule. We agree with defendant and, because the error was not harmless, reverse and remand.

The relevant facts are procedural and undisputed. Defendant was tried on one count of second-degree criminal mischief. That charge stemmed from an incident in which two car windows were smashed. The state's theory at trial was that defendant had smashed the windows. Defendant, however, argued that another person, West, had done so. As the state's primary witness, West testified that he had been convicted in 1998 or 1999 of one count of attempted second-degree robbery. Defense counsel sought to impeach him by introducing a certified OJIN register that, defense counsel apparently believed, indicated that West had in fact been convicted of two crimes. The trial court refused to admit the OJIN register, concluding that it was "not a certified copy of the judgment" and was unreliable ("I have seen enough errors in judgment print-outs like that * * *.").

Defendant appeals, arguing that the OJIN register was admissible as a matter of law under OEC 609(1). That rule 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 added.) OEC 609(4) allows the witness an opportunity to explain the circumstances of the conviction:

"When the credibility of a witness is attacked by evidence that the witness has been convicted of a crime, the witness shall be allowed to explain briefly the circumstances of the crime or former conviction; once the witness explains the circumstances, the opposing side shall have the opportunity to rebut the explanation."

Defendant argues that the ostensible second conviction was "established by public record" under OEC 609(1) because the OJIN register was a "public record" required to record the judgment of convictions. The state responds that, as the trial court found, the OJIN register was ...


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