Jones v. State

¶1OPINION

¶2Appellant, William Manual Jones (Jones), appeals his convictions for Operating a Motor Vehicle While his Driving Privileges were Forfeited for Life, a Class C felony,1 and False Informing, a Class B misdemeanor.2

¶3We reverse and remand for a new trial.

¶4On March 18, 1997, Police Officer Jon Bonar (Bonar), of the Fort Wayne Police Department, stopped a vehicle in which Jones was a passenger. At that time, Jones gave Bonar his correct identifying information, and he was not charged with any criminal activity. Approximately two hours later, Bo-nar stopped a different vehicle that he observed run a stop sign and make a turn without signaling. This time, Jones was the driver of the car, and gave Bonar a fake name, birthdate, and social security number. However, Bonar recalled speaking to Jones earlier that evening, and he then arrested Jones and took him to the police station to determine his true identity. Through fingerprint and police photo matching, Jones was identified.

¶5During trial, the prosecution was required to prove beyond a reasonable doubt that Jones’ driver’s license had been suspended for life as of March 18, 1997, and that Jones operated a vehicle on that date. Jones’ trial counsel sought only to dispute the first element. In an effort to prove the lifetime suspension of Jones’ license, the prosecutor introduced, through witness Bonar, Jones’ Bureau of Motor Vehicles record (BMV rec*39ord). Included -within the BMV record, was the Indiana Abstract of -Court Record from Noble County (abstract), dated December 11, 1989, which stated that Jones had been convicted as an habitual traffic offender and that, therefore, his driving privileges were to be suspended for life. On cross-examination, Jones’ counsel questioned Bonar about the conviction upon which the lifetime suspension was based. Bonar acknowledged that a lifetime suspension of driving privileges must be based upon a felony conviction. Also, Bonar testified that the cause number of the conviction listed on the abstract indicated that it was a misdemeanor rather than a felony conviction.

¶6On redirect, in order to show that the suspension was based upon a felony conviction, the prosecutor sought to place in evidence the entire set of findings of the Noble County trial court (findings) which permanently suspended Jones’ driving privileges.3 The trial court admitted the findings over Jones’ objections and allowed Bonar to read them in their entirety to the jury. The findings included fourteen prior convictions, beyond the conviction upon which the lifetime suspension was based. More than half of these convictions were not traffic related. Jones requested a mistrial at the close of evidence, which request was denied because the trial court believed the findings to be material and relevant, and that Jones was not put in great peril by the admission of the evidence.

¶7Waiver

¶8At trial, Jones made contemporaneous objections, on several bases including relevancy, to the admission of the findings. However, Jones never specifically made an Ind. Evidence Rule 404(b)4 objection to the evidence. The government argues, therefore, that Jones has waived his Evid. R. 404(b) argument on appeal. We disagree that a relevancy argument is not enough to preserve a 404(b) argument upon appeal, where the evidence offered by the state is that of a defendant’s prior convictions. An objection is sufficient to preserve an issue for appeal where it “alert[s] the trial judge fully to the legal issue being raised.” Gaudy v. State (1997) Ind., 689 N.E.2d 686, 692, reh’g. denied. An Evid. R. 404(b) objection is simply a specific form of a relevancy objection. But see Williams v. State (1997) Ind., 690 N.E.2d 162, 173 (holding that despite the fact that the defendant objected to an exhibit on the basis of relevance, he did not specifically object based upon 404(b), and thus, did not preserve the issue for appeal). However, we conclude that this case differs from Williams, in that the court in that case discussed evidence of gang membership rather than prior convictions as in this case. Evid. R. 404(b) is implicated anytime a prosecutor attempts to introduce evidence of a defendant’s prior conviction. Thus, where the defense objects to evidence of prior convictions on the basis of relevancy, a trial court should be alerted to Evid. R. 404(b) concerns.

¶9The state argues that under a 404(b) analysis, the trial court correctly overruled Jones’ objection because he “opened the door” by questioning whether his lifetime suspension was premised upon a felony conviction as required by I.C. 9-30-10-16(b), rather than by a misdemeanor conviction, as the cause number on the abstract indicated. It has been held that when a defendant goes beyond merely denying the charge and affirmatively presents a claim contrary to the charge, e.g., that the defendant’s suspension was not for a felony and therefore could not have resulted in a lifetime suspension, the State may respond by offering evidence of prior offenses, but only to the extent that it is relevant to an issue of genuine dispute other than “character,” and not in order to show defendant’s propensity to act unlawfully. See Reynolds v. State (1995) Ind.App., 651 N.E.2d 313; Bolin v. State (1994) Ind. *40App., 634 N.E.2d 546. However, this premise has been called into question. See Hicks v. State (1997) Ind., 690 N.E.2d 215, 222. In Hicks, the Court noted that Wickizer v. State (1993) Ind., 626 N.E.2d 795, upon which Reynoldsand Bolinrelied, was restricted to the 404(b) exception relating to intent.

¶10Be that as it may, even if it were proper to admit evidence of a prior offense because Jones went beyond merely denying that his driving privileges had earlier been suspended for life, such evidence would be necessarily restricted to the particular issue in question, i.e., whether he was convicted of the earlier Habitual Traffic Offender charge as a felony or as a misdemeanor. We, therefore, necessarily turn to the question regarding the inclusion of the litany of prior offenses read to the jury, rather than merely the Habitual Traffic Offender conviction.

¶11Even if prior crimes evidence is admissible, its probative value must still be weighed against the unfair prejudice.against a defendant that its admission may cause. Evid. R. 403.5 This is a difficult burden because “[ejvidenee of a prior conviction is as prejudicial as evidence can get, and [thus,] requires a strong showing of probative value.” Thompson v. State (1997) Ind., 690 N.E.2d 224, 235. Furthermore, as noted by our Supreme Court in Thompson, “[i]n its effort to prove guilt, the State may not ‘flood the courtroom’ with unnecessary and prejudicial details of prior criminal conduct merely because some of that evidence is relevant and admissible.” Thompson, supraat 236 (quoting United States v. Smith (1996) 7th Cir., 80 F.3d 1188, 1193). The Court continued, stating that “evidence of prior crimes, is presumptively prejudicial. Even where a prior criminal act is relevant to a material fact, the potential for unfair prejudice dictates that the evidence of the prior misconduct be limited to that necessary to prove the disputed fact.” Id.It is obvious to this panel that none of the other fourteen convictions in the state’s exhibit had any relevance to the elements in this case. The absence of probative value, therefore, emphasizes the substantial prejudicial effect upon Jones.6 Furthermore, it would have been a simple matter for the prosecutor to show evidence of the Driving as a Habitual Traffic Violator felony conviction, and the sentence which Jones received for such, without bringing the rest of the convictions to light.

¶12Finally, having determined that the evidence was erroneously admitted, we must determine whether, as the state urges, this error in the admission of Jones’ prior convictions is harmless error in light of the overwhelming evidence against Jones. In making this determination, we will only disregard an error in the admission of evidence where its admission does not affect the substantial rights of a party. Bacher v. State (1997) Ind., 686 N.E.2d 791. The dangers of exposing the jury to the prior convictions of a defendant are abundant. Two such dangers were described in Williams v. State (1997) Ind.App., 677 N.E.2d 1077, 1081. The first is that the evidence may have resulted in Jones being convicted based upon his character rather than for the acts he committed in connection with the charges for which he was being tried. Id.(citing Swain v. State (1995) Ind.App., 647 N.E.2d 23, 24, trans. denied). Secondly, the “admission of evidence of criminal activity beyond that specifically charged [may have] ‘intolerably enlarge[d]’ the burden on the defense and ‘effectively negate[d]’ the due process presumption of innocence accorded to [Williams].” Id.(citations omitted). We hold that the admission into evi*41dence of a laundry list of Jones’ prior convictions and the reading of such to the jury was simply too prejudicial, and added too heavily to the burden on the defense for us to allow the convictions in this case to stand.7 To do so would be to condone actions which clearly violated Jones’ constitutional right to a fair trial.

¶13We reverse and remand for a new trial.