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State v. Merrill3/15/2004
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
A jury found appellant Hannah Merrill guilty of aggravated assault with a deadly weapon or dangerous instrument, a class three felony. The trial court sentenced her to a mitigated prison term of five years. On appeal, Merrill argues that the trial court erred in excluding the victim's prior misdemeanor conviction for driving under the influence as impeachment evidence. She also asserts that the indictment was duplicitous, thereby depriving her of her rights to due process and a fair trial. For the reasons set forth below, we affirm.
Facts and Procedural History
We view the facts in the light most favorable to upholding the jury's verdict. State v. Morgan, 204 Ariz. 166, 61 P.3d 460 (App. 2002). After R. left work one evening, a young woman, later identified as Merrill, approached his open car window and asked him for a dollar. R. refused. As he turned away, Merrill lunged at him with a knife and threatened to cut his throat. He grabbed her wrist and they began to struggle. R. got out of the car, lost his balance, and landed on Merrill. She got up, lunged at R. with the knife again, and ran away. R. chased her into the parking lot of a nearby fast-food restaurant. After he caught her, R. struggled with Merrill, then restrained her on the ground, pushed the knife out of her reach, and asked bystanders to call the police.
Merrill was charged with attempted armed robbery and aggravated assault with a deadly weapon or dangerous instrument. After a two-day trial, the jury acquitted Merrill on the attempted armed robbery count but found her guilty of aggravated assault with a knife. This appeal followed.
Discussion
Merrill first argues that the trial court violated her due process and confrontation rights by not allowing her to impeach R. with evidence that he had a misdemeanor conviction for driving under the influence (DUI). We review a trial court's decision to admit or exclude impeachment evidence for abuse of discretion. State v. Thompson, 166 Ariz. 526, 803 P.2d 937 (App. 1990). Merrill contends that R.'s DUI conviction was relevant to his credibility because " runk driving is a crime of moral turpitude." This, however, is not the test for admitting impeachment evidence of a misdemeanor conviction.
Under Rule 609(a), Ariz. R. Evid., 17A A.R.S., a witness can be impeached by evidence of a misdemeanor conviction only "if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime... involved dishonesty or false statement, regardless of the punishment." Our supreme court has held that "the phrase 'dishonesty or false statement' should be construed narrowly to include only those crimes involving some element of deceit, untruthfulness, or falsification." State v. Malloy, 131 Ariz. 125, 127, 639 P.2d 315, 317 (1981); see also State v. Terrell, 156 Ariz. 499, 753 P.2d 189 (App. 1988). DUI clearly does not fall within that definition. Merrill's constitutional arguments also fail because trial judges may impose reasonable limits on the admission of impeachment evidence without violating a defendant's confrontation rights. State v. Cañez, 202 Ariz. 133, 42 P.3d 564 (2002). A trial court's order restricting cross-examination does not violate a defendant's confrontation rights absent a clear showing of prejudice. State v. Doody, 187 Ariz. 363, 930 P.2d 440 (App. 1996). Accordingly, the trial court did not abuse its discretion in excluding the evidence.
Merrill next argues that the aggravated assault charge was duplicitous, thereby depriving her of her right
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