Brown v. Dembow

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JUDITH V. BROWN, et al.,
Plaintiffs/Appellants/Cross-Appellees,

v.

PAUL DEMBOW,
Defendant/Appellee/Cross-Appellant.

_____________________________________________________

PAIGE DEMBOW,
Defendant/Appellee.

No. 1 CA-CV 19-0054
FILED 2-25-2020

Appeal from the Superior Court in Maricopa County
No. CV2016-012043
The Honorable Rosa Mroz, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Plaintiffs/Appellants/Cross-Appellees
Jones, Skelton & Hochuli, P.L.C., Phoenix
By Michael W. Halvorson, Justin M. Ackerman, Erica J. Spurlock
Counsel for Defendant/Appellee/Cross-Appellant Paul Dembow

Thomas Rubin & Kelley PC, Phoenix
By Brian D. Rubin, Kristen A. Briney
Counsel for Defendant/Appellee Paige Dembow

OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.

T H U M M A, Judge:

¶1 One Sunday afternoon in November 2015, Howard Brown
took his dog for a walk in Paradise Valley. It had been raining, the ground
was wet and the skies were overcast and dark. Brown, who was 77 years
old at the time, crossed Invergordon Road where there was no crosswalk.
At that same time, 20-year-old Paige Dembow was driving south on
Invergordon. She was speeding and hit Brown, who later died as a result.

¶2 Brown’s widow, adult children and estate (the Browns)
brought this wrongful death action against Paige Dembow, her father and
others.1 The trial, held in October 2018, turned on whether Dembow was
negligent. Testimony and other trial evidence conflicted, at times in
significant ways. The parties called many witnesses, including an
eyewitness, police officers, experts and Dembow. The court would not
allow the Browns to impeach Dembow with evidence of her unrelated, pre-
accident criminal conviction.

¶3 After an eight-day trial, the jury returned a defense verdict.
Following the entry of a final judgment, Ariz. R. Civ. P. 54(c) (2020),2 the
Browns filed a timely notice of appeal. This court has appellate jurisdiction

1 Although her father cross-appealed to address the family purpose
doctrine, based on the resolution of the case, that cross-appeal is moot. This
opinion refers to Paige Dembow simply as Dembow.

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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under Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Jurisdiction is Proper, and the Browns Did Not Waive Their Rule
609 Argument.

¶4 The Dembows argue appellate jurisdiction is lacking because
the Browns did not file a motion for new trial challenging the sufficiency of
the evidence. An appeal “shall not consider the sufficiency of the evidence
to sustain the verdict or judgment in an action tried before a jury unless a
motion for a new trial was made.” A.R.S. § 12-2102(C). The Browns’ reply
on appeal, however, disavows challenging the sufficiency of the evidence.
Thus, the failure to file a motion for new trial on that ground is not
dispositive.

¶5 The Dembows also argue the Browns waived their argument
that the superior court misapplied Arizona Rule of Evidence 609 in
prohibiting their attempt to impeach Dembow. The Browns, they claim, did
not raise the interrelationship between Rule 609 and A.R.S. § 13-604. The
Browns, however, raised Rule 609 at a pretrial conference, in a pretrial
motion and at trial. In opposition, the Dembows addressed both Rule 609
and A.R.S. § 13-604. These filings gave the court an adequate “opportunity
to correct any asserted defects before error may be raised on appeal.”
Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) (citations omitted). Thus, the
Browns did not waive the Rule 609 arguments they press on appeal.

II. The Superior Court Properly Applied Rule 609(a)(1)(A).

¶6 The Browns argue the superior court misapplied Rule 609,
causing reversible error, when it precluded their attempt to impeach
Dembow with her conviction. This court reviews evidentiary rulings for an
abuse of discretion, see Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506
(1996), reviewing questions of law, including the interpretation of rules, de
novo, see State v. Winegardner, 243 Ariz. 482, 484 ¶ 5 (2018). “The burden of
establishing admissibility lies with the proponent of the testimony” — here,
the Browns. State v. Haskie, 242 Ariz. 582, 586 ¶ 16 (2017).

¶7 In March 2015, Dembow pled guilty to possession of drug
paraphernalia, a Class 6 undesignated felony committed in September 2013.
She was placed on supervised probation for 18 months. In August 2016, at
the recommendation of her probation officer, the court designated the

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offense a misdemeanor. See A.R.S. § 13-604.3 The court discharged Dembow
from probation in September 2016.

¶8 In October 2018, Dembow testified at the trial in this wrongful
death case. The court, however, did not allow the Browns to impeach
Dembow with her conviction under Rule 609 because, by then, the
conviction had been designated a misdemeanor. Assessing the Browns’
argument that this was reversible error turns on limitations in the use of
character evidence at trial and the terms and history of Rule 609 and A.R.S.
§ 13-604.

¶9 Unless subject to an exception, “[e]vidence of a person’s
character or a trait of character is not admissible for the purposes of proving
action in conformity therewith on a particular occasion.” Ariz. R. Evid.
404(a); accord Morris K. Udall, Arizona Law of Evidence § 114 at 219 (1960)
(stating common-law rule that “evidence of the good or bad character or
reputation of a party is generally not admissible in a civil action”) (footnote
omitted). One such exception is that, under Rule 609, a party may

attack[] a witness’s character for truthfulness by
evidence of a criminal conviction:
(1) for a crime that, in the convicting
jurisdiction, was punishable by death or by
imprisonment for more than one year, the
evidence:
(A) must be admitted, subject to
Rule 403, in a civil case . . . .
Ariz. R. Evid. 609(a)(1)(A).4 Although Rule 609 does not use the term felony,
felony convictions under Arizona law are “punishable by death or by
imprisonment for more than one year,” while misdemeanors are not. Ariz.

3 The Browns ask this court to take judicial notice of documents they
submitted from the superior court’s file in Dembow’s criminal case. The
Dembows object and moved to strike. Denying the Dembows’ motion to
strike, the court grants the Browns’ request to take judicial notice. See Ariz.
R. Evid. 201.

4 There is no indication the court precluded impeachment under Rule 403.
Although not applicable here, different exceptions apply when the witness
is a defendant in a criminal case, Ariz. R. Evid. 609(a)(1)(B), or where a
conviction was “for any crime regardless of the punishment” requiring
proof of “a dishonest act or false statement,” Ariz. R. Evid. 609(a)(2).

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R. Evid. 609(a)(1); see State ex rel. Romley v. Martin, 205 Ariz. 279, 283 ¶ 16
(2003). Thus, and recognizing that “Rule 609(a) defines crimes by their
possible, rather than actual, punishments,” State v. Hatch, 225 Ariz. 409, 412
¶ 13 (App. 2010), the issue is whether Dembow could be impeached with
her conviction under Rule 609(a)(1)(A) when she testified in October 2018.5

¶10 A court may designate certain Class 6 undesignated felonies
as misdemeanors, either at or after sentencing:

Notwithstanding any other provision of
[Arizona’s Criminal Code], if a person is
convicted of any class 6 felony not involving a
dangerous offense and if the court, having
regard to the nature and circumstances of the
crime and to the history and character of the
defendant, is of the opinion that it would be
unduly harsh to sentence the defendant for a
felony, the court may enter judgment of
conviction for a class 1 misdemeanor and make
disposition accordingly or may place the
defendant on probation . . . and refrain from
designating the offense as a felony or
misdemeanor until the probation is terminated.
The offense shall be treated as a felony for all
purposes until such time as the court may
actually enter an order designating the offense
a misdemeanor.

A.R.S. § 13-604(A). Arizona’s appellate courts have not addressed whether
such a designation made after sentencing precludes later use of such a
conviction for impeachment under Rule 609(a)(1).6

5 From 1996 to 2002, under Proposition 200 (a voter initiative), Dembow
could not have been impeached with her conviction regardless of whether
it was reduced to a misdemeanor. See Martin, 205 Ariz. at 284 ¶ 19, 285 ¶ 24.
But Proposition 302, adopted by voter initiative in 2002, undid the central
holding in Martin. See Hatch, 225 Ariz. at 412 ¶¶ 13-14.

6 A few other states have provisions providing certain offenses may either
be deemed felonies or misdemeanors, sometimes called “wobblers.” See,
e.g., People v. Terry, 54 Cal. Rptr. 2d 769, 771 (Ct. App. 1996) (“In the case of

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¶11 The accident that led to this civil action occurred in November
2015, the conviction was reduced to a misdemeanor in August 2016 and
Dembow testified at trial in October 2018. The question, then, is whether
the Browns could impeach Dembow when she testified at the October 2018
trial.

¶12 If the court had designated the offense a misdemeanor when
Dembow pled guilty in March 2015, she would not have been subject to
“imprisonment for more than one year” and the conviction could not have
been used for impeachment under Rule 609(a)(1). See State v. Malloy, 131
Ariz. 125, 126-27 & n.1 (1981) (where jury verdict for Class 6 undesignated
felony was designated a misdemeanor at sentencing, “it is clear that the . . .
conviction does not come within Rule 609(a)(1)”). Malloy came to that
conclusion even though “Arizona law defines a conviction as a
determination of guilt by verdict . . . ; formal entry of judgment is not
required.” In re Lazcano, 223 Ariz. 280, 282 ¶ 7 (2010).

¶13 Unlike Malloy, however, the court did not designate
Dembow’s conviction a misdemeanor at sentencing, waiting instead to do
so as she was completing probation 18 months later. This means that, from
March 2015 when she pled guilty until the designation as a misdemeanor
in August 2016, Dembow faced a possible prison sentence for more than
one year. See A.R.S. § 13-702(D). For that 18-month period, Dembow could
have been impeached with the conviction under Rule 609(a)(1).

¶14 The common law provides the foundation for Rule 609(a),
which was adopted in 1977. See Winegardner, 243 Ariz. at 485 ¶ 8.

At common law a convicted felon was utterly
incompetent and could not be a witness. In
Arizona, as elsewhere, this former ground of
disability is now only a matter of impeachment,
and the mere fact that a witness is an ex-convict
does not, of itself, forbid his testimony from

wobblers, the characterization of the crime is dependent upon the actual
punishment imposed. When a defendant is sentenced to state prison, the
offense is a felony; when the defendant is sentenced to county jail, the
offense is a misdemeanor.”) (citations omitted); Leeth v. State, 868 N.E.2d 65,
67 (Ind. Ct. App. 2007) (discussing Ind. Code § 35-50-2-7); 21 Am. Jur. 2d
Criminal Law § 27, Westlaw (database updated Feb. 2020) (discussing
“wobblers” and designation statutes).

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being received. The credibility of a felon, like
that of any other witness, is for the jury. But any
witness who has testified may be impeached by
proof that he has been convicted of a felony.

Udall, supra § 67, at 102 (footnotes omitted). The Arizona common-law rule
was “that convictions for misdemeanors were not admissible for
impeachment.” Malloy, 131 Ariz. at 127 (citing State v. Daymus, 90 Ariz. 294,
302-03 (1961)); cf. State v. Harris, 73 Ariz. 138, 142 (1951) (“on cross-
examination specific acts of misconduct cannot be shown unless the witness
has been convicted of” a “felonious crime”) (citing cases).

¶15 This distinction reflected “the theory that a major crime” — a
felony in Arizona — “entails such an injury to and disregard of the rights
of other persons that it can reasonably be expected the witness will be
untruthful if it is to his advantage.” Malloy, 131 Ariz. at 127 (citing Fed. R.
Evid. 609 Advisory Committee Notes). By contrast, “[m]isdemeanors which
do not contain an element of deceit or falsification are not simply low in
probative value, but more often than not wholly lack such probative value.”
Id. at 127-28. Stated bluntly, the common law view was that felons were
prone to lie (and could be impeached with felony convictions), while
misdemeanants were not.

¶16 The Arizona Rules of Evidence largely retain this distinction.
The focus of impeachment turns on whether the witness, when testifying,
is a felon: a conviction for a crime “punishable by death or by imprisonment
for more than one year.” Ariz. R. Evid. 609(a)(1). When she testified at trial,
Dembow was not a felon. At common law, Dembow could not have been
impeached with her misdemeanor conviction when she testified. See, e.g.,
Malloy, 131 Ariz. at 127-28; Daymus, 90 Ariz. at 302-03; Harris, 73 Ariz. at
142. Rule 609(a) “traces its origins” to these same common-law rules:
“[c]onviction of a felony is material to a witness’s credibility,” while
impeachment with “misdemeanor-grade convictions” generally is not.
Hatch, 225 Ariz. at 411-12 ¶¶ 11-12 (citation omitted). The Browns have not
shown that Rule 609 changed that result. Because Dembow was not a felon
when she testified at trial, under Rule 609(a)(1)(A), the court properly found
she could not be impeached with her conviction.

¶17 The Browns argue Dembow’s conviction could be used for
impeachment unless it was “the subject of a pardon, annulment, certificate
of rehabilitation, or other equivalent procedure” based on a finding of
rehabilitation or innocence under Rule 609(c). In substance, the Browns
argue that Dembow’s conviction could be used for impeachment unless it

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fit a Rule 609(c) exception. Not so. Rule 609(c) is not the exclusive means for
limiting the use of criminal convictions for impeachment. Along with the
requirements of Rule 609(a), other parts of Rule 609 limit the use of
convictions or adjudications for impeachment. See Ariz. R. Evid. 609(b)
(limiting use based on age of the conviction); Ariz. R. Evid. 609(d) (limiting
use of juvenile adjudications). Similarly, although not mentioned in Rule
609, a conviction reversed on appeal is not admissible for impeachment. Cf.
United States v. Russell, 221 F.3d 615, 620 n.6 (4th Cir. 2000) (“[I]t is
elementary that once a conviction has been reversed, it cannot be used to
impeach the accused.”). Simply put, Rule 609(c) does not comprehensively
list the only bases for exclusion of a conviction offered for impeachment.

¶18 The Browns also cite State v. Tyler, 149 Ariz. 312 (App. 1986),
in arguing “that even if a felony conviction has been set aside or probation
has ended, Rule 609 permits use of the felony conviction.” Tyler concluded
that a felony conviction set aside under what is now A.R.S. § 13-905 could
qualify for impeachment under Rule 609. 149 Ariz. at 315. That statute,
however, provides that “[a] conviction that is set aside may be . . . [u]sed as
a conviction if the conviction would be admissible had it not been set aside.”
A.R.S. § 13-905(E)(1). There is no comparable directive when an offense is
designated a misdemeanor under A.R.S. § 13-604(A), as happened here.

¶19 An undesignated felony conviction “shall be treated as a
felony for all purposes until such time as the court may actually enter an
order designating the offense a misdemeanor.” A.R.S. § 13-604(A). Noting
the statute does not address how a conviction should be treated after such
a designation, the Browns argue precluding impeachment with a conviction
designated a misdemeanor would effectively rewrite Section 13-604. But
Section 13-604 is silent about how a conviction should be treated after it is
designated a misdemeanor. And the Browns concede that, under Section
13-604, a conviction can “be treated as a felony conviction for some
purposes and not for other purposes. That would depend on the wording
of other statutes and rules.” Thus, the Rule 609 analysis is not trumped by
Section 13-604.

¶20 Finally, the Browns state their position “is consistent with
caselaw from other jurisdictions,” citing State v. Skramstad, 433 N.W.2d 449
(Minn. App. 1988) (2-1 decision) and State v. Farzaneh, 468 N.W.2d 638 (N.D.
1991). The Skramstad majority applied a Minnesota statute, unknown to
Arizona law, stating a felony conviction automatically “is deemed to be . . .
a misdemeanor” if the defendant is discharged from probation without
serving prison time. 433 N.W.2d at 452 (citation omitted). It found a
conviction “deemed” a misdemeanor under that statute did not constitute

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a “finding of rehabilitation” under Minnesota’s Rule 609(c), adding that
“reference to felonies reduced to misdemeanor status is notably absent from
the comment to this rule.” Skramstad, 433 N.W.2d at 452. A concurring judge
disagreed, noting the majority’s analysis “is inconsistent with both the
statute’s language and its apparent purpose.” Skramstad, 433 N.W.2d at 455
(Leslie, J., concurring specially). Farzaneh found an order apparently
restoring the defendant’s civil rights for a Minnesota conviction was “not
enough to establish rehabilitation” under North Dakota’s Rule 609(c), and
in a footnote construed a North Dakota statute “similarly” to the Skramstad
majority’s view of Minnesota law. 468 N.W. 2d at 641 n.3.

¶21 These cases are not persuasive for several reasons. They
applied laws that differ from Arizona law and were not construing A.R.S.
§ 13-604 or a similar statute. Their primary focus was rehabilitation under
Rule 609(c). Here, by contrast, the issue is whether Dembow was a felon
when she testified at trial. Finally, to the extent that the Skramstad majority
found Minnesota’s Rule 609(a)(1) “addresses the maximum sentence
possible at the time of conviction” without regard to the later designation
of the offense, 433 N.W.2d at 453, such a finding would conflict with
binding Arizona precedent, Malloy, 131 Ariz. at 126-27.

¶22 Dembow was not a felon when she testified at trial here. As a
result, the superior court properly applied Rule 609(a)(1)(A) in prohibiting
the Browns from using her misdemeanor conviction for impeachment. Nor
was that conviction admissible under Rule 609(a)(1)(B). Thus, the Browns
have shown no error.

CONCLUSION

¶23 The judgment is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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