State v. O'Neill , 58 Wash. App. 367 ( 1990 )

Scholfield, J. —

The State appeals from the decision on RALJ appeal which reversed O'Neill's conviction and remanded the case to Federal Way District Court for further proceedings. The State contends that the Superior Court erred in reversing the District Court's order which suppressed evidence that O'Neill had not been convicted before. We agree and reverse the Superior Court.

O'Neill was charged with driving while under the influence. During trial in Federal Way District Court, the court suppressed O'Neill's testimony that he did not have a prior conviction. O'Neill was convicted and filed a RALJ appeal. The Superior Court hearing the appeal reversed the judgment and sentence on the basis that O'Neill's testimony should have been admitted.

The State contends that the proffered testimony was not relevant to any trial issue, nor was it admissible reputation evidence. It contends that the District Court had a tenable reason for excluding the testimony and that reversal of the judgment and sentence was error.

The Rules of Evidence on admission of character evidence are ER 404 and 405. ER 404 provides, in pertinent part, as follows:

(a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

ER 405 provides:

(a) Reputation. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

An accused may introduce character evidence so long as the evidence tends to prove a character trait which is pertinent to rebut the nature of the charge. See Comment, ER 404; 56 A.L.R.4th 402 (1987); State v. Jackson, 46 Wn. App. 360, 365, 730 P.2d 1361 (1986); State v. Harper, 35 Wn. App. 855, 859-60, 670 P.2d 296 (1983).

A defendant offers evidence of a pertinent trait of character to show that he or she acted in conformity with that character. Character witnesses offered by an accused typically testify that the defendant has a reputation for being a good, honest, law-abiding and/or peaceful person. From such testimony, the defendant generally seeks to have the jury conclude that one of such character would not have committed the crime charged.

(Citations omitted.) State v. Kelly, 102 Wn.2d 188, 195, 685 P.2d 564 (1984). See United States v. Angelini, 678 F.2d 380 (1st Cir. 1982); 2 J. Weinstein & M. Berger, Evidence ¶ 404[05] (1989).

O'Neill argues that his purpose in offering the fact he had no prior convictions was to persuade the jury he was a person of good character. O'Neill argues it supported his credibility. The State contends the absence of an arrest or conviction record is not a trait pertinent to the charge of driving while intoxicated,

Whether the absence of prior convictions was admissible or not, the offer made by O'Neill did not meet the requirements of ER 405(a) that proof be made by testimony as to reputation. Rather than offering testimony from a witness that he was a law-abiding citizen, O'Neill attempted to testify himself to this absence of an arrest record. A character trait of being a law-abiding citizen is not an essential element of a DWI charge. The rule requires, therefore, the proof be by evidence of reputation.

The trial court's action was based on the clear requirement of ER 405(a); therefore, it did not abuse its discretion by suppressing O'Neill's testimony that he had not been convicted. Since the trial court committed no error of law, the Superior Court committed reversible error when it reversed the judgment. RALJ 9.1(a).

O'Neill's judgment and sentence are hereby reinstated and affirmed.

Baker, J., concurs.