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01-3393 State v. Gary M.B.

By: dmc-admin//March 10, 2003//

01-3393 State v. Gary M.B.

By: dmc-admin//March 10, 2003//

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“Because the trial court did not weigh the probative value of the three oldest convictions against the danger of unfair prejudice after Gary objected to their admission, we conclude that it did not engage in a proper exercise of discretion. … Had it done so, the court might have concluded that Gary’s three 25-year-old convictions for relatively minor offenses were not sufficiently probative of his credibility to merit mention at trial. …

“The question before us, therefore, is whether there is a reasonable possibility that Gary’s testifying to five prior convictions instead of only two contributed to his conviction. We are satisfied that it did not-our confidence in the outcome of the trial is not undermined by any error relating to the admission of Gary’s three oldest convictions for impeachment purposes.

“Gary did not challenge the admissibility of his two 1991 convictions for impeachment purposes. The jury would therefore have been informed that he had two criminal convictions, and accordingly, jurors would have had reason to question his credibility on the basis of his past criminal conduct. …[T]his appeal involves the difference between two convictions and five convictions, a difference that we conclude was too slight to have contributed to the jury’s verdict.”

Affirmed.

DISSENTING, Dykman, J. “Evidence that a witness has been convicted of a crime is strong medicine. Especially when a complainant testifies, ‘The defendant did it,’ and the defendant testifies, ‘No, I didn’t,’ and there are no other witnesses who saw the crime alleged. With only, ‘You did it,’ and, ‘No, I didn’t,’ a jury naturally casts about for reasons to believe one witness or the other. Evidence that the complainant or the defendant has been convicted of a crime is often the only difference between those witnesses, and it therefore can tip the scale one way or the other.”

Dist IV, Grant County, Vandehey, J., Deininger, J.

Attorneys:

For Appellant: T. Christopher Kelly, Madison

For Respondent: Emil T. Everix, Lancaster; Sally L. Wellman, Madison

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