Opinion of the Court by Justice NOBLE.
The Appellant, Gabriella S. Allen, was convicted of perjury for lying in a criminal complaint and theft by deception for obtaining the discharge of a vehicle loan by lying to the finance company about whether her name had been forged on the loan documents. On appeal, she claims entitlement
Gabriella Allen was a Louisville Metro Police Officer who had a short romantic relationship with Curtis Wayne Weaver in late 2004 and early 2005. During that relationship, Weaver obtained a 2002 Ford F-150 pick-up truck from Oxmoor Toyota in Louisville, Kentucky. The truck was financed through a separate company, Toyota Motor Credit Corporation.
Weaver needed a co-signer on the loan to complete the purchase. Allen's signature was included on the loan documents as the co-signer, though she disputes that she actually signed the documents and claims her signature was forged, which lies at the core of the criminal charges against her in this case. The transaction was completed on January 25, 2005. Weaver had the truck for two years, and made the payments until he was injured at work. As a result, the truck was repossessed.
In December 2006, Allen went to the Jefferson County Attorney's office and swore under oath on a notarized criminal complaint that Weaver had forged her signature on the loan documents. About a week later, Allen sent various documents to Toyota Motor Credit, which held the loan on the truck, alleging that Weaver had forged her signature on the loan documents, which included some of the financing documents, an affidavit of identity theft, and proof of her residence and identification. Toyota's fraud department investigated the matter and concluded that Allen had been the victim of fraud. As a result, Toyota forgave the debt against her and closed her account. The discharged debt totaled $7,487.84.
In February 2007, Weaver was arrested on the complaint. The charges against him, however, were eventually dismissed. He claimed this was because he convinced the prosecutor that Allen had actually signed the documents.
In March 2008, Allen and Weaver had a verbal altercation outside Club Cedar, a nightclub in Louisville. Weaver claimed that Allen threatened to kill him or have him killed.
As a result, Weaver filed a complaint with the Louisville Metro Police Department. The matter was investigated by the Public Integrity Unit. As part of the investigation, the unit interviewed Allen, who claimed that Weaver had forged her name on aforementioned loan documents. Her story, however, included inconsistencies about the nature of her relationship with Weaver, and whether she had ever gone to Oxmoor Toyota with him and whether she had signed anything on his behalf.
At trial, Allen was acquitted of terroristic threatening but found guilty of the other two charges. She was sentenced to three and a half years in prison, which was probated for five years.
On appeal, Allen challenged her conviction on three grounds. First, she claimed the trial court erred in not allowing evidence of the specific nature of Weaver's prior convictions, which consisted of multiple instances of felony criminal possession of a forged instrument and misdemeanor giving a false name to a peace officer. Second, she claimed that the trial court should have granted a directed verdict on the theft charge because the Commonwealth presented insufficient proof that she obtained any property. Third, she claimed the trial court erred in not granting her motion for a new trial or a verdict of acquittal after trial. The Court of Appeals was not convinced by these claims and affirmed.
This Court granted discretionary review to decide whether Allen was properly convicted of theft by deception and whether she was entitled to introduce specific evidence of Weaver's convictions.
Allen has pursued the same three issues on discretionary review to this Court. Because the directed verdict issue, if decided in Allen's favor, would render the other issues moot, it must be addressed first.
On appeal, a claim of entitlement to a directed verdict is evaluated under the long-standing standard of Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991). Under that case, the evidence must be viewed in the light most favorable to the Commonwealth, with the Commonwealth's proof assumed true and questions of credibility and weight left to the jury. Id. at 187. When the case is on appeal, the defendant must show that "under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id. "[O]nly then the defendant is entitled to a directed verdict of acquittal." Id.
Allen claims to have satisfied this standard with respect to her theft conviction.
Allen argues that she obtained no property or services because no one ever tried to collect the debt from her; there was no
Before turning to what the proof at trial showed, it is necessary to first establish exactly what the law requires for a conviction of theft by deception. Theft by deception is defined in KRS 514.040. The essential elements of the offense require that "the person obtain[] property or services of another by deception with intent to deprive the person thereof." KRS 514.040(1). Because Allen has not challenged whether she deceived Toyota,
The arguments in the brief and at oral argument focused on the common understanding of property, i.e., that the word includes only things like money or physical property. But "property" is a statutorily defined term. Under KRS 514.010(6), "`Property' means anything of value, including real estate, tangible and intangible personal property, contract rights, documents, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink." This definition has not been cited in any of the briefs submitted to this court, nor was it mentioned at oral argument.
Yet it is illuminating, since it shows that the legislature intended the theft statute to cover a broader range of "property" than the ordinary meaning by itself might suggest. Indeed, the commentary notes that "[t]he definition of `property' is indicative of the all-inclusive scope of theft offenses under the Code." KRS 514.010 Kentucky Crime Comm'n/LRC Cmt. (1974) (emphasis added).
Assuming the Commonwealth proved that Allen actually signed the loan documents and thus entered into an agreement with Toyota, of which there is ample proof,
This leads to the question whether Allen "obtained" the property in question, the contractual right. "Obtain," as it relates to theft, is also a statutorily defined term; it means, "[i]n relation to property, to bring about a transfer or purported transfer from another person of a legal interest in the property, whether to the obtainer or another." KRS 514.010(4)(a). While Allen undoubtedly deprived Toyota of property, she argues she obtained nothing, since the discharge simply deleted the debt and thus extinguished the contractual right, which was not literally transferred to Allen. When she caused Toyota to write off her loan, she did not receive intangible property, like a promissory note or commercial paper, which was assigned to her and which gave her contractual rights that she could enforce against another person. But Toyota's contractual right to receive payment on the debt was effectively transferred to Allen. The contractual right to be paid on the debt was an asset to Toyota, and the resulting contractual obligation to pay was a liability for Allen. Placed on a balance sheet for Toyota and a balance sheet for Allen, the contractual right and corresponding obligation would be the only asset and liability present. On Toyota's
As a result of Allen's deception, Toyota discharged the debt, effectively deleting it from its balance sheet. By doing so, Toyota gave up an asset, moving from a positive balance to a zero balance for a net loss. On the other hand, Allen was relieved of a liability, moving her negative balance also to a zero balance for a net gain. Thus, Toyota suffered a loss, and Allen enjoyed a gain, all in the course of a zero sum transaction. There can be no question that relief from the debt was personally valuable to Allen.
The contractual right to collect on the debt is unquestionably a thing of value. Toyota could have sold the debt to another entity, a common practice in many industries, or sought to enforce the agreement itself. Toyota's right to be paid on the debt became Allen's freedom not to pay the debt. But unlike legitimate contractual agreements that are entered into voluntarily, Allen caused the transfer through fraud.
At first blush, it appears that Toyota voluntarily gave up its right to collect on the debt, and thereby evinced a belief that the debt was not a thing of value because it was invalid. But a voluntary transfer, because of deceit, is what happens in every instance of fraud, in every con game or scam or grift. By means of the deceit, sometimes by convincing the victim that the property has no value, the fraudster induces the victim to give over property voluntarily.
Yet such voluntary transfers are criminalized, specifically as theft by deception under KRS 514.040. Inducing a voluntary transfer is the essence of fraud and is what differentiates it from simple theft. Thus, in Elliott v. Commonwealth, 75 Ky. 176, 179 (1876), the court noted that obtaining the "right to property," as opposed to "possession only," by "trick or artifice" is the distinction between obtaining goods by false pretenses, the precursor to the modern theft by deception, and larceny, the precursor to the modern theft by unlawful taking.
A swindle is no less a swindle because the mark thinks he got a good deal. Otherwise, the law rewards a con man for being a better con man than the next guy.
At oral argument, the Commonwealth was asked whether Allen still owed the debt and, if so, whether she obtained any property since she still had the obligation. In responding to the questions, the Commonwealth admitted that because Allen had actually signed the loan documents, she still technically owed the debt. But while this might be true in some metaphysical or moral sense, it was not true in a legal sense after the debt was discharged. At the time of trial, Toyota had given up its right to collect the debt from Allen. Thus, at that time, she was under no legal obligation to pay the debt. At best, Toyota could institute a legal action or enter into negotiations to make Allen liable. But absent Toyota taking those steps and obtaining a court judgment or agreement, Allen had no legal obligation to pay the debt.
A related question is whether the fact that Allen might possibly be made liable on the debt, either civilly or as restitution, in the future is a possible ground for why she did not obtain any property. Her potential liability on the debt in the future, however, does not change whether she committed a crime in the past. From the time of the discharge until at least the end of trial, Toyota had been deprived of its right to enforce the debt against Allen. Thus, while Allen was legally obligated to
The requirement that the property be "obtained" does not mean that the victim is permanently deprived of the property. A temporary deprivation is enough. The simple theft statute, KRS 514.030, which criminalizes the taking of or exercising of control over another's property, illustrates that the victim can get the property back, either through restitution or a civil suit, yet this does not mean the defendant was innocent of theft. Indeed, a person can be guilty of theft "even though the [person] unequivocally intends to return the property," if the person "withhold[s] [the] property for so extended a period as to appropriate a major portion of its economic value." KRS 514.010 Kentucky Crime Comm'n/LRC Cmt. (1974).
By analogy, under the theft-by-deception statute, so long as the defendant deprives the owner of the property, even if only for a period of time, by deceptive means, the defendant has committed theft by deception. It does not matter whether the victim could get the property back by a civil conversion action or that the defendant had a change of heart and returned the property. Otherwise, the civil justice system would supplant the criminal law of theft by deception, and any thief could avoid a charge by simply returning the stolen property. Such remedial action does not undo the theft, nor does the possibility of such remedial action.
Finally, Allen suggests that Toyota was not deprived of any property because Weaver was still an obligor on the debt, meaning Toyota could recover from him. This claim does not require a directed verdict.
First, it is not clear from the record whether Weaver was still responsible for the debt. At trial, Shannon Hamblin, the representative from Toyota Financial Services, testified about how Allen obtained the discharge of her debt. When asked on cross-examination whether Weaver still owed the debt, since he also signed on the loan, she testified that she assumed his debt had also been discharged, even though she did not have his file or information and he had filed no identity-theft claim. When pressed on this question, she admitted that she did not know whether the debt had been discharged against Weaver, but she noted that according to her documents the debt had been "charged off," which is done when the company takes a loss on the debt.
More importantly, however, even if Weaver were still obligated to pay, Allen's deception still deprived Toyota of a thing of value, namely, the right to proceed against her for the debt. Clearly, that right was valuable to Toyota, since Weaver's credit was bad enough to require a co-signer in the first place. Allen had a steady, respected job and, apparently, good credit, and it was her signature on the loan that made it worth issuing in the first place.
This Court concludes that based on the proof at trial, when viewed as a whole and
Allen also argues that she did not commit theft by means of deception because Toyota discharged the debt based on its own internal investigation, not any claim that she made. This Court has held that reliance by the victim on the thief's deception or false impression is "a necessary element under KRS 514.040." Brown v. Commonwealth, 656 S.W.2d 727, 728 (Ky.1983); Commonwealth v. Burnette, 875 S.W.2d 865, 868 (Ky.1994).
Allen's claim that Toyota relied only on its own investigation, however, is belied by the testimony at trial. Shannon Hamblin, the Toyota Financial Services representative, did testify that Toyota investigated Allen's claim of identity charges and discharged the debt because it concluded that the signature on the loan documents did not match Allen's and that Allen had never lived at the address listed on the loan documents. However, when pressed on cross-examination to state that the discharge was only the result of the in-house fraud investigation, Hamblin stated that the identity-theft affidavit filed by Allen was also "absolutely" part of the reason for the discharge. This makes sense, of course, since Toyota never would have looked into the account but for Allen's claim of identity theft. Her claim, which some proof showed was false, set the entire course of events in motion. Thus, even if Toyota relied in part on its own investigation, it necessarily also relied on Allen's false statements. From this, the jury could have reasonably believed that Toyota relied on Allen's deception. Thus, Allen was not entitled to a directed verdict on this issue.
During cross-examination of Weaver, Allen's counsel sought to inquire about the specific conduct that led to Weaver's prior convictions. Specifically, he wanted to ask about conduct underlying convictions related to an incident in which Weaver was found with counterfeit money in his car and gave a false name to the arresting officer twice. Because of this incident, Weaver was charged with and in 2002 pleaded guilty to 25 felony counts of first-degree criminal possession of a forged instrument (KRS 516.050), and two misdemeanor counts of giving a false name to a peace officer (KRS 523.110).
Allen claims that proof of this conduct was admissible as impeaching character evidence. She specifically argues that she should at least have been allowed to ask about Weaver's criminal acts on cross-examination under KRE 608(b). She also argues in the alternative that if the Rules of Evidence do not allow this inquiry, then her constitutional due process right to present a defense should trump the rule. Given the preference for
Allen notes in her brief that her "trial counsel sought merely to cross-examine Weaver about the nature of the prior acts for which he was convicted, because such acts were highly probative of his character for truthfulness." However, during the avowal, Allen's trial counsel confronted Weaver with copies of his various convictions and read parts of them out loud, though these documents were not added to the record for appeal.
Generally speaking, reputation evidence is admitted in the form of opinion or general reputation. See KRE 608(a). Indeed, before 2003, such evidence could "refer only to general reputation in the community." KRE 608 (1992) (emphasis added). And ordinarily, a person's other crimes or bad acts, other than those that the trial is about, are inadmissible, with some limited exception. See KRE 404(b).
But in 2003, KRE 608 was substantially amended to track the federal version of the rule. See Supreme Court Order 2003-3 (April 23, 2003). Now, under KRE 608(b), specific instances of bad conduct reflecting on the witness's dishonesty may be inquired about. The rule provides:
KRE 608(b). Of particular importance, the rule does not allow proof of specific instances of conduct by extrinsic evidence. Instead, counsel is limited to asking the witness about the specific instance of conduct on cross-examination and is stuck with whatever answer is given. KRE 608(b) distinguishes general instances of behavior from convictions, which it states can be proven only under KRE 609, which does allow proof by extrinsic evidence in the event the witness denies a bona fide conviction, and which deals only with felony convictions.
In 2010, this Court held that KRE 608 did not apply to conduct that had resulted in a criminal conviction, which instead is covered by KRE 609. See Childers v. Commonwealth, 332 S.W.3d 64 (Ky.2010). This Court stated: "KRE 608(b) permits impeachment only by specific instances of conduct that have not resulted in a conviction while evidence relating to impeachment by criminal conviction is governed
In so holding, this Court rejected the exact proposition that Allen now urges, and instead adopted the federal approach as to which subjects are covered by KRE 608 and 609. Id. at 69-70. Thus, under Childers, where the acts in question result in a criminal conviction, they are admissible for character purposes only when KRE 609 allows it. Id.
Under Childers, the acts Allen sought to ask about resulted in convictions and thus are covered only by KRE 609, which only allows inquiry into whether the witness is a convicted felon. If the witness admits the felony conviction, then that is the end of the inquiry; if the witness denies the conviction, then extrinsic proof of the conviction may be admitted. Unlike the federal rule, KRE 609 does not allow proof that the witness was convicted of a non-felony (usually a misdemeanor) involving dishonesty or reflecting on character for dishonesty.
But the inability to inquire in any way about misdemeanor convictions reflecting on dishonesty illustrates a substantial hole in the present KRE 608-609 regime. Though it was not necessary to the holding, Childers sought to fill that hole by stating in a footnote that "under Rule 609, evidence of a misdemeanor conviction can never be admitted." 332 S.W.3d at 71 n. 2. Allen urges that this rule should not apply to Weaver's misdemeanor convictions, in part because Childers was concerned only with felony convictions, if we are not inclined to overrule. Allen's claim is driven by the assumption that evidence of criminal dishonesty should be admissible, even (and perhaps especially) when it results in a conviction.
This Court agrees that such a result seems to be simply unfair. Childers allows the absurd result that misdemeanor-level dishonest conduct is admissible under KRE 608(b) if a person were simply lucky enough not to have been convicted (whether because the crime was never charged or the charge was dismissed), but that a person who has actually been convicted of a misdemeanor involving a crime of dishonesty could avoid impeachment.
This, then, requires a closer examination of Childers and its reading of the interplay between KRE 608 and 609. In choosing to reexamine Childers, we are mindful of the constraints of stare decisis and the call that changes to the law of evidence "should occur only after a judicious Darwinian process." Fisher v. Duckworth, 738 S.W.2d 810, 813 (Ky.1987). But it is worth noting that Childers was decided by a divided Court. And while the author of this decision joined the majority in that case, we are also mindful that "the doctrine of stare decisis does not commit us to the sanctification of ancient or relatively recent fallacy." Matheney v. Commonwealth, 191 S.W.3d 599, 604 (Ky.2006) (quoting Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky.2002)). As we noted in Morrow, "respect for precedent demands proper reconsideration when we find sound legal reasons to question the correctness of our prior analysis." 77 S.W.3d at 559.
The question, then, is whether we agree that the analysis in Childers was correct. After substantial reflection, we conclude that it was not completely so.
Nothing in the language of KRE 608 suggests that so long as a proponent does not attempt to prove the conduct involved in a misdemeanor conviction by
We held in Childers that this exception to the extrinsic-evidence limit meant that evidence of conduct resulting in a conviction could only be admissible — if at all — under KRE 609. Of course, KRE 609 only allows evidence of felonies, not misdemeanors, and even then only when the witness denies the conviction. We adopted this approach because it follows the model of the federal rules, which our current KRE 608 tracks.
Our KRE 609 differs substantially from its federal counterpart, however, which allows proof of misdemeanor convictions reflecting dishonesty and does not require a denial by the witness before extrinsic evidence of the conviction is admissible. We avoided this discrepancy in Childers by stating that our rules "are significantly similar to their federal counterparts" and that "the discrepancies which exist do not affect our analysis here" because "the thrust of the rules, especially as it concerns this issue, is the same." Childers, 332 S.W.3d at 81 n. 1. This was accurate in regard to convictions, but not as to conduct.
This case illustrates that the federal scheme differs substantially from our rules. The federal 608 and 609 offer a complete system for addressing specific conduct reflecting on dishonesty in a manner that avoids collateral matters while also allowing inquiry into a subject that is very probative of a witness's truthfulness or dishonesty.
Federal Rule 609 allows extrinsic evidence of any criminal conviction where "establishing the elements of the crime required proving — or the witness's admitting — a dishonest act or false statement." Fed.R.Evid. 609. Extrinsic proof of the conviction is allowed because it is the conclusive proof that the witness committed the dishonest act or said the false statement. It works as a sort of collateral estoppel on the issue of the witness's dishonesty.
Federal Rule 608, like KRE 608, allows inquiry on cross-examination about specific instances of dishonest conduct. It avoids getting into collateral matters by not allowing impeachment by extrinsic evidence after the witness answers. Under this scheme, it makes sense to completely divide conduct that led to a conviction and conduct that did not, because it takes into account the whole of dishonest conduct.
But, as the federal advisory committee noted, "[e]ffective cross-examination demands that some allowance be made for going into matters of this kind." Fed. R.Evid. 608 Adv. Comm. Notes to Proposed Rules (1972). The only concern is avoiding the substantial possibilities of abuse presented by such collateral matters, which the limits on use of extrinsic evidence are intended to accomplish. Id. But when this Court bars any evidence of misdemeanor conduct that led to a conviction — even when it conclusively proves dishonest conduct — the ability to effectively cross-examine a witness is undermined.
And, it should be noted that this case has both prior felonies and misdemeanors that reflect dishonesty. The misdemeanors — giving a false name to a police officer — are arguably even more convincing than the felony crimes of possession of forged instruments.
Part of the problem is that it is tempting to conflate the conduct reflecting on dishonesty with a conviction for that conduct. But a conviction is not conduct, at least not by the witness who engaged in the conduct. Rather, the conviction is proof of the conduct, which in turn reflects on the person's character for truthfulness. The conviction is allowed in some cases because it is the best proof that the person actually engaged in the dishonest conduct, such as when a felon denies he was convicted under KRE 609.
But the ultimate fact to be proved when dishonesty is the issue is the person's character, which is shown directly by the conduct, which, in turn, is shown indirectly by the conviction. It is a chain of proof, which is allowed because it is relevant, probative, and avoids collateral matter, since the conviction cannot be challenged.
There is no reason, however, that the dishonest conduct that led to the conviction should not also be admissible in some form. Indeed, the conduct itself is closer in the chain of proof to the ultimate fact (the person's dishonest character) than the conviction. As noted above, the only concern with proving dishonest conduct by means other than a conviction is the danger of over-collateralizing matters, not because the conduct is irrelevant or not probative.
Courts rightfully avoid what amounts to a mini-trial within the trial about whether the person actually committed the dishonest act by carefully scrutinizing collateral evidence, a decision that is well within a trial court's experience and purview. Rule 608 recognizes the trial court's exercise of discretion, and substantially limits the inquiry with two safeguards: (1) no extrinsic evidence is allowed, and (2) the inquiry is limited to asking the witness (inquiry) about the conduct on cross-examination. (The inquiry is further limited to conduct that is "probative of truthfulness or untruthfulness." KRE 608(b).)
Yet, the purpose of KRE 608(b) is to avoid over-collateralizing trials, not to prohibit proper impeachment or effective cross-examination. Thus, the better reading of KRE 608 and 609 would allow some inquiry as to the conduct underlying a criminal conviction, so long as the conduct is probative of truthfulness or untruthfulness.
KRE 608 lays out a substantive limit: the conduct must be probative of truthfulness or untruthfulness. As long as the conduct in question is so probative, whether it resulted in a criminal conviction or not, the court may, in its discretion, allow inquiry into it but not extrinsic proof of the conviction itself. KRE 608 also lays out two procedural safeguards: the conduct cannot be proved with extrinsic evidence, and may only be inquired into on cross-examination.
This could suggest a conflict between the intent of KRE 608 and 609. For example, a defendant could ask a witness like the one in this case whether he had been convicted of a felony under KRE 609, to which he says "yes," with the very next question being about the conduct involved in that felony under KRE 608 (for example, possession of counterfeit money). This would lead to the inference that the felony conviction was for possession of counterfeit money, thereby impliedly disclosing that the witness has been convicted of that offense in violation of KRE 609.
While this use of the rules shows how KRE 608 could be used to inquire into a subject that may not be inquired into under KRE 609, this does not mean that the inquiry is forbidden or unfair. The simple fact is that KRE 608 allows inquiry on cross-examination as to bad acts — with the limit being that the questioner is stuck with the answer, whatever it is. That such an inquiry may follow on the heels of a KRE 609 inquiry into whether the witness has a felony conviction, thereby leading the jury to believe that the bad act asked about was the basis for the felony conviction, is not barred by the rules. If this could mislead the jury — for example, if the bad act asked about under KRE 608 was not the basis for the conviction asked about under KRE 609 — then a well-timed objection will allow the trial court to exercise its discretion to require handling the evidence in a fair and truthful manner.
On the other hand, if the witness denied the conviction when asked about it under KRE 609, and the defendant offered extrinsic proof of it, then KRE 608's proscription on extrinsic proof would appear to be violated. But this concern is illusory, since KRE 608 specifically excepts proof of a conviction under KRE 609, which in turn allows proof of a felony conviction with extrinsic evidence, if the witness denies the conviction's existence.
Ultimately, the scope of any inquiry under KRE 608 and 609 remains within the trial court's discretion, subject of course to limits imposed by other rules, such as KRE 403. The trial court is always empowered to prevent misuse of these rules when necessary, possibly by separating the inquiries, clearly showing what is being asked about, or, if necessary, instructing the jury how it may consider the evidence. This is not an uncommon task for trial courts and counsel.
The final question is how this applies to Allen's case. Allen was able to introduce the fact that Weaver had been convicted of a felony (the 25 counts of possession of a forged instrument). However, she was not allowed the choice to instead ask about the conduct that led to those convictions.
More importantly, Weaver's other convictions at issue in this case were misdemeanors (two counts of giving a false name to police), and no proof of those was allowed. The conduct underlying those convictions tends to show that he had previous acts of deception — direct lies to police. That conduct was subject to inquiry under KRE 608(b), though not to proof by extrinsic evidence; the fact of the misdemeanor convictions themselves was not admissible
This error, however, does not automatically require reversal. Like all evidentiary errors, it is subject to the harmless error rule, RCr 9.24. The test for harmlessness is whether the error substantially swayed the verdict. Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009). "The inquiry is not simply `whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.'" Id. (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (alteration in original). We cannot say that the error in this case did not have a substantial influence on the verdict and, at the very least, we are left in grave doubt.
Allen's primary defense was that Weaver forged her signature on the loan documents and lied about her involvement. The proof Allen sought to introduce went to the core of her defense and would have impeached the character and credibility of the Commonwealth's star witness. While Weaver's testimony was buttressed by the testimony of another witness, Ralph Dawkins, that witness was Weaver's cousin by marriage and thus was arguably biased. In addition, if Dawkins had not agreed with Weaver, his testimony would tend to make him a party to the deception and potentially criminally responsible. Weaver's prior dishonest, criminal acts are directly relevant to his character for truthfulness or untruthfulness.
Toyota, in its internal investigation, exonerated Allen. Allen never exercised any control over the vehicle, and Weaver made all the payments. This investigation was begun because of a quarrel between Weaver and Allen, and escalated into a criminal investigation of an entirely different matter. It is clearly not unduly speculative that Weaver found himself between a rock and a hard place when the criminal charges came down: admit he forged Allen's name on the loan papers or blame her.
Given that Weaver's testimony coupled with his relative's support was the only definitive evidence in the case, his credibility — or the lack thereof — was the only defense Allen had. And the lack of the evidence no doubt had an effect on the jury; or conversely, its presence likely would have made a substantially different case. The jury ultimately had to decide a close case. As such, it cannot be said that disallowing the proof as to Weaver's prior dishonest conduct was harmless.
Allen also claims she was entitled to admit evidence of Weaver's prior crimes under KRE 404(b). She also claims she was entitled to show his probationary status under the rule, and that evidence of his prior bad acts was necessary to properly cross-examine the investigating officer, Sergeant Marthet.
Before turning to the merits this claim, a preliminary matter must be addressed. Since Allen's convictions are reversed for other reasons, some aspects of this claim should be only addressed because the issue it raises is likely to recur if she is retried. Terry v. Commonwealth, 153 S.W.3d 794, 797 (Ky.2005). Additionally, the decision above allowing a criminal defendant in some circumstances to inquire about specific acts reflecting on truthfulness and for which the witness was convicted of a criminal act does not completely render this claim moot. The type of evidence covered by the decision above is pure character evidence, offered solely to assail the credibility of the witness. Such evidence has a limited use. Evidence of other crimes or bad acts offered for other purposes, as under KRE 404(b), "is called character for substantive use." Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.20[2], at 299 n. 1 (4th ed.2003). Such evidence may be used differently and has fewer limitations on how it may be introduced than pure character evidence. Moreover, KRE 404(b) can be an alternative route for admitting evidence that is not admissible under other rules like KRE 608. See Blair v. Commonwealth, 144 S.W.3d 801, 810 (Ky.2004).
The essence of Allen's claim is that evidence of Weaver's prior convictions was admissible as substantive evidence under KRE 404(b).
As Allen notes, when a criminal defendant seeks to prove a witness's prior bad acts, so-called reverse 404(b) evidence, the standards that ordinarily require exclusion are relaxed. Frequently, 404(b) questions, especially when modus operandi is invoked, turn on the similarity between the prior bad act and the newly alleged one. This Court has noted that "a lower standard of similarity should govern `reverse 404(b)' evidence because prejudice to the defendant is not a factor." Blair v. Commonwealth, 144 S.W.3d 801, 810 (Ky. 2004) (quoting United States v. Stevens, 935 F.2d 1380, 1404 (3rd Cir.1991)). Thus, a defendant can frequently admit evidence defensively that "would not satisfy the high standard of admissibility established for KRE 404(b) evidence offered against an accused." Id.
The question as to the possession-of-forged-instruments convictions, then, is whether they are similar enough under this looser standard to the forgery that Allen alleges Weaver committed against her. Allen suggests that the forgery charges are similar enough to the new alleged forgery to be admissible to show that Weaver actually forged her signature in this case. This, she claims, would support her defense that she did not commit fraud or any deception when she claimed Weaver stole her identity. This Court concludes the crimes are not similar enough for the prior crimes to be admitted for substantive use under KRE 404(b).
In Blair, the prior bad act was a theft of a VCR from the evidence room. Id. Though the officer in question did not steal the VCR, he allowed his supervisor to do so and was thus charged with official misconduct, which led to his discharge from the police force. The newly alleged act was theft of money from a crime scene. Id. The defendant was accused of stealing the money (to show an aggravating factor for a capital crime), but he claimed that the police officer took it. This Court concluded that the thefts were sufficiently similar that the defendant could introduce the earlier theft because they were both thefts, the Commonwealth raised the issue about the missing money (to prove the existence of an aggravating factor), the officers were the only people with access to the scene other than the defendant, and the officer with the earlier charge was the one who collected the purse from which the money was missing.
Allen's case, however, differs substantially from Blair. While the name of the crime — possession of a forged instrument — sounds similar enough, the theory falls apart when the crime Walker actually committed is examined. First, he was not convicted of forgery, but possession of a forged instrument, whereas here Allen claims he actually forged her name. Yet the criminal law distinguishes between committing forgery, see KRS 516.020-.040, and possessing the product of a forgery, see KRS 516.050-.070. Second, he had in his possession counterfeit money, not a forged loan document. Forging United
This may seem in tension with the decision above allowing use of the forgery charge as evidence of character under KRE 608, but it is not. The distinction is that the evidence would be used for a different purpose here. The decision above would allow use of the forgery convictions as proof of character for truthfulness. Here, Allen seeks to use the convictions to show modus operandi, which in turn would show the identity of the person she claims actually signed for the truck (and committed forgery in the process). As just noted, the modus operandi rules require a great deal of specificity, whereas when we are concerned only with the issue of a witness's credibility, the proof need only touch directly and substantially on credibility. Unlike modus operandi, this can be shown by crimes that are substantially different from what the witness is presently accused of. Indeed, when the prior crime is used solely to show character, there may not even be a current accusation against the witness other than that he is not telling the truth on the witness stand.
As to the claim that Weaver's prior convictions for lying to police officers were admissible to show that he lied to the officers who investigated Allen, it suffices to say that such a showing is irrelevant. Whether Weaver lied in the course of the investigation was not at the core of Allen's defense. She was more concerned with whether he lied on the stand at trial. But use of his prior bad acts to show that is not a substantive use; that is pure character evidence, which is not controlled by KRE 404(b), but by KRE 608 and 609 (and the decision above). Thus, Allen was not entitled to admit proof of those acts for substantive use under KRE 404(b).
Allen also argues that she should have been able to use proof of Weaver's bad acts to effectively cross-examine the investigating officer, Sergeant Marthet. Her trial counsel tried to raise this issue during cross-examination of the officer, but the trial court would not allow it. Allen claims the evidence was relevant to show that Sgt. Marthet's belief of Weaver's version of events was unreasonable. Again, this is more of a form of pure character evidence, not KRE 404(b) evidence, and is thus not admissible under that rule.
Allen also argues that she should have been able to offer evidence that Weaver was a probationer under KRE 404(b). Allen has not shown that this evidence was admissible. Though Allen discusses it as going to credibility, which is not what KRE 404(b) is aimed at, she also claims that it showed Weaver's motive to fabricate charges against her and that he had received a light sentence in the past, which showed he had made deals with law enforcement in the past. The Commonwealth states that Weaver's probation would have been completed when he filed his complaint against Allen. And Weaver denied making any deals with regard to his prior conviction or the identity-theft charge was later dismissed. The theory that Weaver had reason to fabricate charges against Allen was speculative at
Finally, Allen claims that the trial court should have granted a motion for a new trial because "a reasonable finder of fact could not have found Allen guilty, and the trial error were of such a nature as to warrant a new trial." The decision above holding that Allen was not entitled to a directed verdict resolves her claim of entitlement to an acquittal. Thus, Allen may still be retried. The other vague claim need not be addressed, in part because it references arguments made only in the motion for a new trial and not in the brief, but also because Allen's convictions are being reversed for evidentiary errors, as described above.
Because Allen was entitled to cross-examine Curtis Weaver about his prior convictions involving dishonest acts under KRE 608(b), and the trial court disallowed the inquiry, her convictions are reversed.
MINTON, C.J.; ABRAMSON, CUNNINGHAM, SCOTT AND VENTERS, JJ., sitting. CUNNINGHAM, SCOTT AND VENTERS, JJ., concur. MINTON, C.J., concurs in result by separate opinion in which ABRAMSON, J., joins.
MINTON, C.J., Concurring in result only:
I concur with the majority in result only because I disagree with the majority's interpretation of Kentucky Rules of Evidence (KRE) 608(b) and 609. But because application of KRE 608(b) and 609 to this case violates Allen's due process right to present a defense, I concur in the majority's result — remanding the case for a new trial.
Respectfully, I disagree with that portion of the majority's opinion in effect amending KRE 608 and 609. I would read the rules consistent with this Court's recent opinion in Childers v. Commonwealth.
While I share the majority's frustration with those rules, they were deliberately chosen; and if they are to be amended, the amendments should be the product of the full rule-amending process. As cumbersome and as time-consuming as that process can be, its allowance for the airing of complexities and divergent points of view is nowhere more necessary than with respect to the rules governing the impeachment of witnesses with criminal convictions and prior bad acts. A brief consideration of how we arrived at our current rules will, I hope, make this clear.
To begin, it is helpful to note that in evidence-rules parlance, Kentucky is what is known as a "mere-fact" state. Under our KRE 609, that is, a witness may be impeached with the "mere fact" of a prior felony conviction, without the felony being identified, without mention of the witness's sentence, and without any evidence of the conduct that gave rise to the conviction. Of the states that have addressed the issue, it appears that a substantial majority permit, in some circumstances at least, this sort of "mere-fact" impeachment.
Three Kentucky cases provided the principal stepping stones to KRE 609. The first was Cowan v. Commonwealth.
Four years later, the court returned to the issue of witness impeachment and, while acknowledging the concerns about undue prejudice expressed in Cowan, opined nevertheless that "it is proper to impeach a witness, even one who may be an accused defendant who chooses to be a witness for himself, by proof of background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses."
Following Cotton, the Court took the third step toward KRE 609 in Commonwealth v. Richardson.
Richardson was decided in 1984. Six years later, its strict mere-fact approach to prior-conviction impeachment was codified in the new KRE 609, including expressly its disallowance of any "identification of the prior offense."
Today, the pendulum swings back toward Cotton. For reasons much like the ones offered in Cotton, the Court now "construes" KRE 608 and 609 to allow a cross-examiner to ask a previously convicted witness about the facts underlying the prior conviction, provided those facts are deemed relevant to the witness's credibility. This is simply Cotton with the caveat that the questioner must now choose between asking whether the witness was convicted and asking what he did. Under the Court's new rule, the jury may now hear that the witness has engaged in felonious conduct — even conduct like that of which he is accused — without hearing that he has been punished for it. The risk of prejudice in that scenario is arguably even greater than that posed by the Cotton approach without the caveat. For witnesses with multiple prior felony convictions, moreover, the difference between the Court's new rule and Cotton would seem to be negligible, as presumably the witness could be asked about the fact of conviction A and about the facts underlying conviction B.
Even if I were not convinced that the Court's new rule is simply the resurrection of an approach to impeachment, the rejection of which is expressly embodied in KRE 609, I could not go along with it because as I read our rules, KRE 608 does not contemplate or allow for the right of
All of that said, I hasten to add that I share, fully, the majority's willingness to revisit our strict mere-fact approach to witness impeachment. As today's case illustrates, whatever may be the virtues of simplicity, the failure of our KRE 609 to make any distinction between testifying defendants and non-defendant witnesses; to make any distinction between crimes of dishonesty and other crimes; to address expressly misdemeanor convictions; or to indicate clearly how the two rules, KRE 608 and KRE 609, are to work together can have the ironic effect of significantly hampering the very defendant the rule's strict simplicity was designed to protect. This is a problem, and there is no easy solution. The interests involved crisscross in complicated ways, as the contentious history of the federal rules, the wide diversity of state approaches, and our own seesawing back and forth between Cowan and Cotton would suggest. While caution is appropriate in the face of such complexity, KRE 609 has not been amended for over twenty years. I agree with the Court that a reassessment of our practice is in order; but I firmly believe that it should be carried out with the benefit of the full rule-making process, not by straining current rules beyond their intent.
While I disagree with the majority that Allen should have been allowed to ask about Weaver's criminal acts on cross-examination under KRE 608(b) and 609, I would hold that Allen's due-process right to present a defense should trump the rules in this particular case. So I concur in the majority's result remanding the case for retrial.
The analysis does not stop with the conclusion that the evidence rules prevent the introduction of a particular piece of evidence, which the defendant claims is essential to her defense. When the rules of evidence exclude evidence, the question becomes whether the evidence excluded "amounts to either an arbitrary or a disproportionate
This Court recently explained the appropriate analysis in McPherson v. Commonwealth
The Supreme Court has established a balancing test to evaluate, on a case-by-case basis, constitutional challenges to the exclusion of evidence.
I would hold here that Allen's due process right to present a defense trumps the application of KRE 608(b) and 609. Weaver, the prosecution's key witness, pleaded guilty to twenty-five felony counts of first-degree criminal possession of a forged instrument and two misdemeanor counts of giving a false name to a peace officer. Allen sought to inquire about the specific conduct underlying the convictions. Namely, that Weaver was found with counterfeit money in his car and gave a false name to the arresting officer twice.
As stated by the majority in its conclusion that exclusion of the evidence was not harmless, Allen's primary defense was that Weaver forged her signature on the loan documents and lied about her involvement. The proof Allen sought to introduce went to the core of her defense and would have impeached the character and credibility of the Commonwealth's star witness. Weaver's credibility, or lack thereof, was Allen's only defense. In this case, the probative value of the excluded evidence outweighs the prejudicial effects the rule was designed to guard against.
So while I disagree with the majority's reading of KRE 608(b) and 609, I would hold that Allen's due process right to present a defense trumps the rules in this particular case. Accordingly, I concur in the majority's result remanding Allen's case for a new trial.
ABRAMSON, J., joins.
Moreover, proof in the record indicates that Allen did engage in deception and lied about Weaver forging her signature. Not only did two witnesses testify to seeing her sign the documents, her story when interviewed by police changed repeatedly. She initially claimed that she never set foot on Oxmoor Toyota's property, but later in the same interview admitted to going there with Weaver on one occasion. She also denied signing any documents for Weaver, but just a few minutes later admitted to signing some type of document. She claimed this document was only so that a credit check could be run but still denied "signing any paper for him to get a vehicle." The jury could conclude from the testimony and her own shifting story to the police that she signed the paperwork and that she lied.