Klinker v. State

OPINION

BRETT, Judge:

Appellant, Jackie Denise Klinker, was charged with Forcible Entry and Detainer, in violation of 21 O.S.1981, § 1351, and Assault and Battery, in violation of 21 O.S. 1981, § 644, in Case No. CRM-86-116, in the District Court of Kay County. A jury convicted appellant of Forcible Entry and Detainer, but acquitted her of Assault and Battery. The jury set punishment at six (6) months imprisonment and a one hundred dollar ($100) fine, which the trial court imposed. From this Judgment and Sentence, appellant has perfected her appeal to this Court.

On the afternoon of February 27, 1986, appellant and her daughter went to the home of Sherri Coutre to collect some personal items, such as some tapes and appellant’s wedding ring. Ms. Coutre gave appellant the tapes, however the ring could not be located. Ms. Coutre told her that she would look for it and send it to appellant later, which she did. Upset about this, appellant, according to Ms. Coutre, yanked open the locked screen door and kicked in the front door and entered the house. A struggle ensued on the front porch between the two women and was finally broken up by a police officer who happened to be passing by at the time of the fight.

In her first proposition of error, appellant contends that the trial court erred by not allowing a defense witness to testify as to the truthfulness or veracity of the State’s main witness, Ms. Coutre. The trial court sustained the State’s objection to the testimony because the character of the State’s witness had not yet be attacked as required by 12 O.S.1981, § 2608(A)(2). Appellant argues that this testimony is admissible under section 2608(A)(1) and therefore the character of the State’s witness did not need to be attacked. We agree that the ruling by the trial court was erroneous and therefore reverse this case for a new trial.

The Oklahoma and Federal rules of evidence allow the credibility of a witness to be impeached by reputation and opinion evidence of his character for untruthfulness. However, in order to introduce evidence of a truthfulness, the witness’ character must first be attacked. In the case at bar, appellant’s witness was asked her opinion as to the truthfulness or veracity of the main State witness, as permitted by 12 O.S.1981, § 2608(A)(1). The trial court sustained the State’s objection to the question on the grounds that the character of the State’s witness had not yet been attacked. This ruling was clearly erroneous. By introducing this evidence appellant was attempting to attack that witness’ character. At that point, in rebuttal, the State would have been allowed to present evidence that the witness was truthful. Although this is a case of first impression out of this Court, we find that the trial court clearly erred in sustaining the State’s objection.

The State contends that if we find this to be error, that it is harmless. We disagree. The testimony of the witness, Sherri Coutre, was the case against appellant. Her credibility was crucial. It is reasonable that the result may have been different if this evidence was presented to the jury, especially since they acquitted appellant of the assault and battery charge. See U.S. v. Watson 669 F.2d 1374 (11th Cir.1982); U.S. v. Davis, 639 F.2d 239 (5th Cir.1981).

Since we find it necessary to reverse this case for a new trial, we will not address appellant’s final proposition. For the foregoing reasons, the judgment and sentence is REVERSED and REMANDED FOR A NEW TRIAL.

LANE, P.J., and PARKS and JOHNSON, JJ., concur. LUMPKIN, V.P.J., concurs in result.