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Brown v. Dembow - 2/25/2020

Arizona Court of Appeals Division One holds that after a Class 6 felony is reduced to a misdemeanor upon completion of probation, the offense cannot be used as impeachment evidence under Rule 609.


An elderly man was walking his dog and crossed a street where there was no sidewalk.  A speeding driver hit the man and he died.  The man’s widow, adult children, and estate brought a wrongful death action.  During the jury trial focused on whether the driver was negligent, the superior court refused to allow the plaintiffs to impeach the driver with her unrelated pre-accident criminal conviction for a class six felony.  The conviction occurred in March 2015, the accident occurred in November 2015, the conviction was reduced to a misdemeanor in August 2016 after the driver completed probation, and trial occurred in October 2018.  The jury later entered judgment for the driver.  The plaintiffs appealed the exclusion of the impeachment evidence.

The Court of Appeals affirmed.  Rule 609 allows a party to “attack[] a witness’s character for truthfulness by evidence of a criminal conviction for conviction: (1) for a crime that in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year.”  Under Arizona law, a crime punishable by death or by imprisonment for more than one year is a felony, and all other offenses are misdemeanors.  Certain Class 6 felonies, however, can be reclassified as a misdemeanor by the sentencing court; the sentencing court may also refrain from judgment on reclassification until after probation is completed.  A.R.S. § 13-604.  If the sentencing court elects to refrain until probation is complete, the sentence is treated as a felony for all purposes.  Because the driver was only a felon between March 2015 and August 2016, she could not be impeached under Rule 609 through her criminal conviction in October 2018, even though she was a felon at the time of the accident.

Judge Thumma delivered the unanimous opinion of the court.  Judge Perkins and Judge McMurdie joined.

Posted by: Emma J. Cone-Roddy

Posted On: 4/6/2020