State v. Phillips

The text of OEC 609(3)(a) suggests that the legislature intended the exception to function as a two-part inquiry... The first step is to determine ‘the date of the conviction' and the date of 'release of the witness from the confinement imposed for that conviction.’ The second step is to ask whether ‘[a] period of more than 15 years has elapsed since’ the later of those two dates. OEC 609(3)(a). If the answer to that second question is ‘no,’ then the conviction falls within the statutory window of admissibility.”

Defendant appealed the trial court’s decision to allow the state to admit evidence of a prior conviction for the purposes of witness impeachment. Defendant was first convicted in 1994 of second-degree assault. In 2007, while still serving time for the 1994 conviction, Defendant petitioned for post-conviction relief, and that was successful. On remand in 2008 he was convicted but the judge found that the sentence for that time was served. Defendant assigned error to in allowing the evidence of conviction because, under OEC, a witness credibility can be impeached “unless ‘[a] period of more than 15 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction,’ whichever is later.” Defendant argued that 15 years had passed as the conviction date was 1994, and the time served would have been 1996. “The text of OEC 609(3)(a) suggests that the legislature intended the exception to function as a two-part inquiry... The first step is to determine ‘the date of the conviction' and the date of 'release of the witness from the confinement imposed for that conviction.’ The second step is to ask whether ‘[a] period of more than 15 years has elapsed since’ the later of those two dates.  OEC  609(3)(a).  If the answer to that second question is ‘no,’ then the conviction falls within the statutory window of admissibility.” The Court found that neither the statutory text nor the legislative history shows that the legislature intended the approach advocated for by Defendant. The Court held that, to use Defendant’s reasoning, it would have to read an extra word in OEC 609 (original conviction as opposed to conviction), contradicting case law which says that only the legislature may alter OEC 609. Marshall v. Martinson, 268 Or 46, 51, 518 P2d 1312 (1974). The decision of the Court of Appeals and the judgment of the circuit court are affirmed.