MATHIAS, Judge.
William R.D. Britt ("Britt") was convicted in Allen Superior Court of Class B felony robbery, Class D felony criminal recklessness, and Class A misdemeanor carrying a handgun without a license. Britt appeals and argues that the trial court abused its discretion when it prevented Britt from introducing evidence of a defense witness's prior robbery conviction. We affirm.
On November 22, 2008, Andrea Simon ("Simon") was working as a manager at a store in Fort Wayne, Indiana. Simon's son, Benjamin Busbee ("Busbee") and his girlfriend Angela Day ("Day") were also in the store late in the afternoon when two men entered, one of whom was wearing a ski mask and the other with a hood pulled up over his head. The taller of the two men pulled out a rifle, the shorter of the two pulled out a handgun, and the pair ordered everyone in the store to lie down on the floor. The two men took money from the cash register and from Simon's purse. After taking the money, the robbers fled out the back door of the store. Simon activated the store's alarm, and the police responded to the scene.
The three victims spoke to the police and gave descriptions of the robbers. Simon thought the two robbers had been in the store a few days before the robbery, and Busbee thought he recognized the shorter robber as someone he had played sports with in high school. After further investigation, the police began to suspect defendant Britt and Julian Grady ("Grady")
On February 4, 2009, the State charged Britt as follows: Count I, class B felony robbery; Count II, Class C felony and Class A misdemeanor carrying a handgun without a license; Count III, Class D felony pointing a firearm; and Count IV, Class D felony criminal recklessness. Prior to the start of the trial, the parties discussed the State's motion in limine which sought to prevent the defense from questioning Britt's brother Brandon regarding Brandon's prior robbery conviction. The defense planned on calling Brandon as a witness, and the State indicated that it did not plan to impeach Brandon with his prior conviction. Therefore, the State argued that Britt should not be permitted to mention the prior conviction on direct examination. Britt's counsel indicated that the only reason he would question Brandon regarding his prior robbery conviction would be to "soften the blow" if the prosecution were to impeach Brandon's credibility by way of the prior conviction. Tr. p. 6. The trial court seemed inclined to allow impeachment by way of the prior conviction, but took the matter under advisement.
A jury trial was held on March 16, 2010. Prior to the presentation of Britt's case-in-chief, the parties again addressed the question of whether the defense could question Brandon regarding his prior robbery conviction. The prosecution repeated its position that it had no intention of impeaching Brandon's credibility and that, therefore, the defense should not be allowed to mention the robbery. Britt's counsel argued that Evidence Rule 609 contained mandatory language regarding impeachment by former convictions and that he should therefore not be limited in his questioning of Brandon. He also insisted that he was not calling Brandon solely to impeach his credibility with the prior conviction. Ultimately, the trial court concluded:
Tr. p. 193.
When called as a defense witness, Brandon testified that Britt was his younger brother and that Britt did not play sports in high school but had instead dropped out of school. Brandon further testified that he did play sports, specifically basketball, football, and track in high school. At the conclusion of the trial, the jury found Britt guilty as charged. The State subsequently
Britt claims that the trial court abused its discretion when it prohibited him from questioning Brandon regarding Brandon's prior conviction for robbery.
At issue here is Indiana Evidence Rule 609(a), which provides:
Britt argues that this rule is mandatory and that the trial court therefore had no discretion to exclude evidence of Brandon's prior robbery conviction. We agree with Britt that the language of Rule 609(a) is mandatory. See Jenkins v. State, 677 N.E.2d 624, 627 (Ind.Ct.App.1997) (noting that the admission of evidence under Evidence Rule 609(a), unlike its federal counterpart, is not subject to Evidence Rule 403, and therefore admission of such evidence is not subject to trial court discretion). But Evidence Rule 609(a) is expressly limited to those circumstances where the evidence of the prior conviction is being offered "[f]or the purpose of attacking the credibility of a witness." Evid. R. 609(a).
Had Britt wished to impeach his brother's credibility by introducing evidence that Brandon had a prior conviction for robbery, then the evidence of the robbery could have been admissible. But the trial court concluded that Britt was not attempting to impeach his brother's credibility but rather was attempting to show that, because Brandon had a prior conviction
Under the facts and circumstances of the instant case, we cannot say that the trial court abused its discretion in refusing to allow Britt's counsel to introduce evidence of Brandon's prior robbery conviction. Indeed, Britt used Brandon's testimony to show that Britt did not play sports in high school, thus calling into question Busbee's identification of the shorter robber as someone he had played sports with in high school.
Affirmed.
BAKER, C.J., and NAJAM, J., concur.