Chapman v. State, No. 19A-CR-1636, __ N.E.3d __ (Ind. Ct. App., Jan. 31, 2020).

Pyle, J.

Delta Chapman (“Chapman”) appeals, following a jury trial, his conviction and sentence for Level 6 felony sexual battery.  Chapman argues that the trial court abused its discretion in its admission of evidence regarding his prior conviction for false informing, which was more than ten years old. Concluding that the trial court abused its discretion when it admitted evidence of Chapman’s prior conviction in violation of Indiana Evidence Rule 609(b), we reverse his conviction and remand with instructions for a new trial.

We reverse and remand.

….

On appeal, Chapman argues that the trial court erred when it admitted evidence of his prior misdemeanor false informing conviction as a form of impeachment evidence. Specifically, Chapman contends that his time on unsupervised probation is not the same as “confinement” as provided in Evidence Rule 609(b), thus taking the prior conviction outside ten-year time period mandating admission.

Initially, we recognize that Evidence Rule 609(b) does not define “confinement,” and that Indiana appellate courts have not specifically addressed whether probation qualifies as confinement under Rule 609(b). However, Black’s Law Dictionary defines “confinement” as “[t]he act of imprisoning or restraining someone; the quality, state, or condition of being imprisoned or restrained.” Confinement, BLACK’S LAW DICTIONARY (10th ed. 2014). The term “probation” is defined as “[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison[.]” Probation, BLACK’S LAW DICTIONARY (10th ed. 2014); see also Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006) (“Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment.”). Although Chapman was subjected to conditions of probation, we conclude that he was not confined because he was not actually imprisoned.

The unambiguous language of Indiana Evidence Rule 609(b) does not mention probation. Thus, the plain language of Evidence Rule 609(b) neither supports the trial court’s nor the State’s interpretation that the ten-year time period began at the end of Chapman’s probation. Therefore, the beginning point for the ten-year period of Evidence Rule 609 was when Chapman was convicted in 2008. As a result, his conviction was over ten years old and presumptively inadmissible under Evidence Rule 609(b). See Scalissi, 759 N.E.2d at 624 (“Rule 609(b) . . . is a rule that presumes the exclusion of convictions more than ten years old.”). The trial court erred in determining that Chapman’s prior conviction fell within the ten-year period set forth in Evidence Rule 609(b).

Nevertheless, a conviction older than ten years may be admitted for impeachment purposes if: (1) the trial court determines that the probative value supported by specific facts and circumstances substantially outweighs the prejudicial effect; and (2) the proponent provides “reasonable written notice” as required under Rule 609(b). See Evid. R. 609(b); see also Whiteside, 853 N.E.2d at 1029. Here, the trial court did not engage in such a balancing test and the State failed to provide reasonable written notice. It was error to admit Chapman’s prior conviction under these circumstances. Accordingly, the trial court abused its discretion by admitting the evidence of Chapman’s prior conviction in violation of Evidence Rule 609. [19] Nevertheless, the State argues that “even if the trial court improperly admitted the evidence of [Chapman’s] prior conviction, any error in its admission was harmless.” (State’s Br. 16). Where the trial court has erred in the admission of evidence, we will not reverse the conviction if that error was harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011). Generally, errors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party. Id. at 1059. In analyzing the effect of the evidentiary ruling on a defendant’s substantial rights, we look to the probable impact on the fact-finder. Id. The improper admission is harmless error if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing court that there is no substantial likelihood the challenged evidence contributed to the conviction. Id. Reversal may be compelled if the record as a whole discloses that the erroneously admitted evidence was likely to have had a prejudicial impact on the fact-finder, thereby contributing to the judgment. Bradford v. State, 960 N.E.2d 871, 877 (Ind. Ct. App. 2012) (quotation and citation omitted).

We cannot say that the erroneous admission of Chapman’s prior conviction was harmless. Here, the evidence presented at trial was entirely testimonial. As such, witness credibility was central to each side’s position. Both J.H. and Chapman provided conflicting testimony regarding the events of December 24, 2017. Moreover, during closing arguments, the State argued that Chapman was not credible because he had a prior conviction for false informing. Because this case turned largely on the credibility of J.H. and Chapman, and the State relied on the prior conviction during closing argument, we conclude that the evidence of Chapman’s prior conviction had a prejudicial impact on the factfinder and contributed to the judgment.

Accordingly, we reverse Chapman’s conviction and remand for retrial consistent with this opinion.

Reversed and remanded.

May, J., concurs.

Crone, J., concurs in result with opinion

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