STATE OF WASHINGTON v. JASON LATIMER (2011)

— Jason Latimer contends that the trial judge's decision to exclude testimony regarding a victim's prior felony conviction was improper under ER 404 and ER 609 and resulted in a violation of his rights guaranteed by the confrontation clause of the Sixth Amendment to the United States Constitution.   We hold that the trial court properly weighed the required factors and then concluded the evidence of the victim's prior felony conviction for unlawful possession of a firearm was inadmissible.   We also hold that exclusion did not violate the confrontation clause.   Accordingly, we affirm the convictions.

At trial, the State elicited evidence that the only gun recovered was from Ms. Cariveau's vehicle.   The gun was found in a pocket behind her seat wrapped in a white plastic bag.   Ms. Cariveau testified that this gun belonged to Mr. Latimer.   Since the bullet was never removed from Mr. Mendoza's abdomen, there is no evidence to link the gun found in the car with the gun used in assaulting Mr. Mendoza.

A bystander at the scene of the assault supported Mr. Mendoza's testimony that Mr. Latimer had a weapon.   The bystander testified that Mr. Latimer followed Ms. Cariveau's car, stopped it, and pounded on the car.   The bystander stated that Mr. Latimer returned to his own vehicle but then went back and pointed his hand at Mr. Mendoza.   Then the bystander heard a pop.

Prior to Mr. Mendoza's testimony, the court revisited the admissibility of his prior conviction for unlawful possession of a firearm.   The court ultimately concluded that the parties could inquire only as to whether Mr. Mendoza had been convicted of a crime which prevented him from lawfully owning a firearm.   Mr. Mendoza admitted such a conviction, but he denied having a gun in his possession on the date of the incident.

Mr. Latimer was convicted of first degree assault of Mr. Mendoza and second degree assault of Ms. Cariveau.   He was sentenced to 140 months with a firearm enhancement of an additional five years.   Mr. Latimer appeals.

ANALYSIS

ER 404.   The trial court here considered several factors before determining that the prior conviction was inadmissible under ER 404.   The court determined the date and nature of the prior conviction.   The court also discussed counsel's intention to use the evidence to show motive to lie.   And the court consulted Washington Practice's Courtroom Handbook on Evidence.   Ultimately, by weighing the probative value versus the potential prejudice, the court found the evidence to be inadmissible.   While a different trial court may reasonably have concluded otherwise, the court here properly interpreted the rule, so we review the decision for an abuse of discretion.

An abuse of discretion occurs when a decision is manifestly unreasonable.   State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).   Here, Mr. Latimer has not identified any facts that would meet this level of scrutiny.   Mr. Latimer has instead suggested reasons to disagree with the decision.   The trial court's ruling to exclude the evidence under ER 404 was not an abuse of discretion.

ER 609.  ER 609 allows the use of felony convictions involving dishonesty to impeach a witness's credibility.   The court's exclusion of evidence under this rule is reviewed for an abuse of discretion.  State v. Teal, 117 Wn.App. 831, 844, 73 P.3d 402 (2003), aff'd, 152 Wn.2d 333, 96 P.3d 974 (2004).   The court examined several factors including the remoteness of prior convictions, the similarity of a prior crime, and the circumstances surrounding the crime.   The court also examined several applicable cases.   Mr. Latimer had the burden to show that the evidence of Mr. Mendoza's conviction was more probative than prejudicial, and the court determined that Mr. Latimer had failed to do so.   The court held the evidence inadmissible under ER 609 because unlawful possession of a firearm is not a conviction involving dishonesty.   While Mr. Latimer has suggested reasons why he disagrees with this decision, he has provided no basis to support his contention that the court abused its discretion.   The court's decision to exclude the evidence under ER 609 was not error.

Confrontation Clause.   Mr. Latimer sought to introduce Mr. Mendoza's prior conviction to show that Mr. Mendoza had a reason to lie about whether the gun belonged to him.   Mr. Latimer argued that he did not bring the gun and that he was acting in self-defense.   Consequently, Mr. Mendoza's prior conviction for unlawful possession of a firearm was relevant.   But the State demonstrated a compelling interest in excluding the specifics of the conviction.   And the court did allow evidence that Mr. Mendoza was convicted of a crime preventing him from possessing a firearm.

Mr. Latimer argues that his case is analogous to State v. McDaniel, 83 Wn.App. 179, 920 P.2d 1218 (1996).   There, the court reversed a defendant's conviction based on the confrontation clause.   The court determined that a witness's probation status with conditions prohibiting drug use was relevant because it established a motive to lie about how recently she had used drugs:

Absent a compelling State interest in excluding the evidence that outweighs the fundamental constitutional right of confrontation, the defense was entitled to explore the possibility that, given [the witness's] admitted willingness to lie under oath when it suited her purposes before, she may have been doing it again in the criminal prosecution, for whatever reasons might serve her purposes there.

Id. at 186–87.   The court found that the State had a compelling interest to avoid an acquittal based on prejudice toward a witness, but that the witness's credibility had already been compromised, so the prejudice was minimal.  Id. at 187.

Here, Mr. Latimer sought to introduce evidence not only that Mr. Mendoza was a felon on notice that he could not own a firearm, but that he had, in fact, already been convicted of unlawfully possessing one.   The trial court did not abuse its discretion by limiting evidence to conviction of a crime preventing possession of a firearm.   This ruling allowed Mr. Latimer to adequately confront the witness.

We conclude that the court did not err.   Accordingly, we affirm the convictions.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

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Kulik, C.J.

WE CONCUR:

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Sweeney, J. Korsmo, J.

Kulik, C.J. FACTS After Arturo Mendoza was shot during an altercation with Jason Latimer, the State charged Mr. Latimer with assault in the first or second degree, alternatively.   The State also charged him with second degree assault for threatening Adel Cariveau, his girl friend, with a firearm.   Mr. Latimer saw Ms. Cariveau and Mr. Mendoza together in Ms. Cariveau's vehicle.   Mr. Latimer chased them in his van, stopped, and approached their car.   He claimed that he saw Mr. Mendoza with a gun.   Mr. Latimer also alleged that he was acting in self-defense when he tried to remove the gun from Mr. Mendoza's control but the gun fired.   Mr. Mendoza disputed this version of events.   He stated that Mr. Latimer brought the gun into the altercation and intentionally shot him.   Pretrial, Mr. Latimer sought to introduce evidence that Mr. Mendoza had been convicted for unlawfully possessing a firearm as a felon.   The evidence was offered under ER 404 and ER 609.   Mr. Latimer sought to introduce the evidence to show Mr. Mendoza's motive for denying ownership of the gun—that Mr. Mendoza was aware of the consequences he could face as a convicted felon if the gun belonged to him.   The trial court refused to allow evidence of the prior conviction under either rule, finding that it would be unduly prejudicial.   Mr. Latimer renewed his request to admit the prior conviction at trial.   He argued that under the Sixth Amendment, his right to effectively cross-examine Mr. Mendoza compelled the admission of this evidence unless the State established a compelling state interest justifying its exclusion.   Mr. Latimer asserted that without the evidence of Mr. Mendoza's prior conviction, he could not demonstrate to the jury that Mr. Mendoza had a motive to lie about possessing the firearm that was used in the incident.