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Integrity Properties of Oregon, LLC v. Elkins

Court of Appeals of Oregon

August 1, 2018

INTEGRITY PROPERTIES OF OREGON, LLC, Plaintiff-Respondent,
v.
Mitchell ELKINS, Defendant-Appellant.

          Submitted May 4, 2017

          Marion County Circuit Court 15LT13393 Audrey J. Broyles, Judge pro tempore.

          Harry D. Ainsworth filed the brief for appellant.

         No appearance for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals a judgment of restitution in a residential forcible entry and unlawful detainer (FED) proceeding. Defendant contends that the trial court plainly erred by admitting as evidence to impeach one of defendant's witnesses criminal convictions that were more than 15 years old, which violated OEC 609(3)(a). Held: The trial court plainly erred in admitting that evidence, and the Court of Appeals exercised its discretion to correct the error. Because all three plain-error conditions were satisfied, the trial court plainly erred by impeaching a witness with convictions that were older than 15 years. The court exercised its discretion to correct the error to further the ends of justice and because the witness raised the issue whether the age of the convictions affected their use as impeachment evidence, which gave the trial court the opportunity to consider that issue and thereby effectively served the policies underlying the preservation requirement.

         [293 Or.App. 153] ARMSTRONG, P. J.

         Defendant appeals a judgment of restitution in a residential forcible entry and unlawful detainer (FED) proceeding, raising 11 assignments of error. We address only defendant's fourth assignment, in which he contends that the trial court plainly erred by admitting as evidence to impeach one of defendant's witnesses criminal convictions that were more than 15 years old, which violated OEC 609(3)(a).[1] We conclude that the trial court plainly erred in admitting that evidence, and we exercise our discretion to correct the error. Accordingly, we reverse and remand.

         Plaintiff initiated this FED action to evict defendant from a residence. The parties had a trial to the court in which neither party was represented by counsel. Defendant called a witness, McKillop, who was living at the apartment complex where defendant lived. The trial court conducted McKillop's examination, as it did for all of the witnesses. McKillop testified that he had never seen defendant yell, scream, or act in an intimidating manner toward other residents. Rather, McKillop testified that the property manager, Boswell, and another of plaintiff's employees had bullied and intimidated residents. That testimony led to the following exchange:

"JUDGE: Okay. So, and you're currently facing an eviction out of the property?
"McKILLOP: That is true.
"JUDGE: Okay. And you've previously been convicted of crimes involving dishonesty, correct?
"McKILLOP: Uh, when was that ...

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