THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Petitioner,

v.

Christopher Broadnax, Respondent.

Appellate Case No. 2013-000615

ON WRI T OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Richland County G. Thomas Cooper, Jr., Circuit Court Judge

Opinion No. 27545 Heard February 4, 2015 – Refiled July 29, 2015

REVERSED IN PART AND AFFIRMED IN PART

Attorney General Alan McCrory Wilson, Chief Deputy Assistant Attorney Genera l Julie Kate Kenney and Assistant Attorney Genera l Mary Shannon Williams, all of Columbia, for Petitioner.

Appellate Defender LaNelle Cantey DuRant, of Columbia, for Respondent.

CHIEF JUSTICE TOAL: The State of South Carolin a appeals the court of appeals' decision reversing Christopher Broadnax's (Respondent) convictions forarmed robbery and kidnapping, and remanding for a new trial. We reverse in part and affirm in part the decision of the court of appeals.

F ACTUAL /P ROCEDURAL H ISTORY

At 5:30 p.m. on May 24, 2009, a masked gunman entered Church's Chicken
on Two Notch Road in Columbia. He held one of the employees at gunpoint while the employee emptied the cash register s. Three other employees locked themselves in the kitchen. The gunman was wearing a striped shirt, had a distinctive "lazy eye," and ca rried a clear plastic bag.

After the employee filled the bag with money from the registers, the gunman calmly exited the store, climbed into a "g ray Dodge old model truck" driven by an accomplice, and left the s cene. One of the employees chased the gunman outside and saw him riding in the passenger seat of the gray truck as the driver pulled out of the parking lot onto Two Notch Road.

Police responded to the scen e within approximately th ree minutes, and based on the employees' descriptions of the geta way vehicle, stopped the driver a short
distance from the Church's Chicken on Two Notch Road. 1 When officers approached the vehicle, they found Res pondent crouched down on the floorboard of the passenger side. Officers immediately noticed that Respondent had a "lazy eye." The police officers found a gun a nd a bag full of money (matching the employees' descriptions) jammed under the truck's passenger seat, adjacent to Respondent. Further, one of the employees identified Respondent as the gunman in a "show-up" identification, and te stified that he recognized Respondent's distinctive facial features, build, and clothing. 2

Respondent was charged with one count of armed robbery and four counts of kidnapping. After the State rested, Respondent indicat ed that he would testify in his own defense. Consequently, the State move d to admit Respondent's prior criminal

1 A testifying officer stated that the tr uck was distinctive because it was in poor
condition and "had a number of de nts and pings and so forth."

2 Several of the employees also made in -court identifications of Respondent as the perpetrator of the crimes. Furthermore, Respondent's accomplice testified against
him at trial.record for purposes of impeachment. The trial court heard arguments and conducted an inquiry into which of Res pondent's prior convic tions should be admitted. Pursuant to Rule 609(a)(2), SC RE, and the court of appeals' opinion in
State v. Al–Amin , 353 S.C. 405, 578 S.E.2d 32 (Ct. App. 2003), the trial court admitted three of Respondent's four prior armed robbery convictions. 3

During his testimony, Respondent denied any involvement in the robbery. However, Respondent's couns el elicited testimony regarding Respondent's prior convictions for armed robbery. 4 The State likewise questioned Respondent about his prior convictions.

The trial judge then instructed the jury:

You've heard evidence that the de fendant was convicted of a crime
other than the one for which the defendant is now on trial. This evidence may be consider ed by you if you can conclude it is true only in deciding whether the defendant's testimony is believable and for no other purpose. You must not consider the defendant's prior record as any evidence of the defendant's guilt of the charge that we are trying here today.

The jury found Respondent guilty of armed robbery and four counts of kidnapping, and the trial judge senten ced Respondent to a mandatory minimum sentence of life imprisonment withou t the possibility of parole based on Respondent's prior armed robbery convictions.

On appeal to the court of appeals, Respondent argued, inter alia , that the trial court erred in admitting his prior armed robbery conviction for impeachment

purposes. See State v. Broadnax , 401 S.C. 238, 241, 736 S.E.2d 688, 689 (Ct. App. 2013). The court of appeals reversed and remanded the case to the trial court
for a new trial. Id. Specifically, the court of app eals found: (1) Respondent's prior armed robbery convictions, without more, di d not constitute crimes of dishonesty,

3 The trial court also admitted Respondent's prior convictions for transaction card theft, grand larceny, and petit larceny.

4 The trial court permitted Respondent's counsel to elicit the prior conviction testimony during his direct examination without waiving his objection to the admission of that testimony.and therefore, the trial court should ha ve conducted a balancing test prior to admitting testimony regarding Respondent's prior armed robbery convictions; and (2) such error was not harm less beyond a reasonable doubt. Id. at 244–48, 736
S.E.2d at 691–93.

I SSUES P RESENTED

I. Whether the court of appeals erred in finding that Respondent's prior armed robbery convictions were not crimes of dishonesty,
and were therefore inadmissibl e under Rule 609(a)(2), SCRE?

II. Whether the court of appeals er red in refusing to find any error in the admission of Respondent's pr ior criminal record harmless beyond a reasonable doubt?

S TANDARD OF R EVIEW

In criminal cases, the appellate court sits to review errors of law only. State

v. Baccus , 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). The admission or exclusion of evidence rests in the sound discretion of the trial judge, and will not be reversed on appeal absent an abuse of discretion. State v. Gaster , 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002) (citation omitted); see also State v. Kelly , 319 S.C. 173, 176, 460 S.E.2d 368, 370 ( 1995) ("A trial judge has considerable latitude in ruling on the admissibility of evidence and hi s rulings will not be disturbed absent a showing of probable prejudice." (citati on omitted)). "An abuse of discretion
occurs where the conclusions of the trial court either lack evidentiary support or are controlled by an error of law." State v. McDonald , 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000) (citation omitted).

L AW /A NALYSIS

I. Prior Armed Robbery Convictions

The State argues that the court of app eals erred in reversing the trial court because armed robbery is a "crime of dishone sty or false statement" such that it is automatically admissible under Rule 609(a)(2), SCRE. We disagree.

Rule 609(a), SCRE, provides:For the purpose of attacking th e credibility of a witness,

(1) evidence that a witness other th an an accused has been convicted of a crime shall be admitted, subj ect to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the
law under which the witness was c onvicted, and evidence that an
accused has been convicted of such a crime shall be admitted if the court determines that the probativ e value of admitti ng this evidence outweighs its prejudicial e ffect to the accused; and

(2) evidence that any witness has b een convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

In State v. Al-Amin , the court of appeals consid ered the question of whether the appellant was entitled to a new trial after the trial court admitted his prior armed robbery conviction without fi rst weighing the probative value and prejudicial effects of the admission. 353 S.C. at 408–09, 414, 578 S.E.2d at 34, 37. Noting that "[t]here is disagreement among federal circuit courts and state courts construing Rule 609(a)(2) as to which cr imes are included," the court of appeals explained that "[t]he disa greement revolves around whether convictions for theft crimes, such as larceny, robbery, and shop lifting, should be admitted under the rule as involving dishonesty or false statement." Id. at 415, 578 S.E.2d at 37. The court of appeals acknowledged that a majority of federal courts has adopted a narrow approach to the question, but declin ed to follow federal precedent, instead adopting an expansive approach to dete rmining what constitutes a "crime of dishonesty or false statement." Id. at 416, 578 S.E.2d at 38. The court of appeals
reasoned:

"An essential element of robbery is that the perpetrator of the offense steals the goods and chattels of another or, in the case of an attempt to commit robbery, intends to steal th e goods or chattels of the person assaulted. If this element is not pres ent, the crime is not robbery or an attempted robbery. Stealing is defi ned in law as la rceny. Larceny involves dishonesty. The fact that the perpetrator of the crime
manifests or declares his dishone sty by brazenly committing the crime does not make him an honest person."

Id. at 421, 578 S.E.2d at 40–41 (quoting State v. Goad

, 692 S.W.2d 32, 37 (Tenn.Crim. App. 1985)). Thus, the court of appeals concluded, "I t is the larcenous element of taking property of another which makes the action dishonest. Larceny is a lesser-included offense of armed robbery." Id. at 425, 578 S.E.2d at 43 (citations omitted). The court of appeal s, citing several dictionary definitions, found further,

To restrict the application of Rule 609(a)(2) only to those offenses
which evidence an element of affirmative misstatement or misrepresentation of fact would be to ignore the plain meaning of the word "dishonesty." "Dishonesty" is , by definition, a "'disposition to lie, cheat, or steal. '" "To be dishonest mean s to deceive, defraud or
steal. " "'In common human experien ce[,] acts of deceit, fraud, cheating, or stealing . . . are universally re garded as conduct which reflects adversely on a man' s honesty and integrity.'"

Id. (internal citations omitted).

More recently, however, we decided State v. Bryant , in which we held that the trial court erroneously admitted the pe titioner's prior firearms convictions under Rule 609 without weighing the probative va lue and prejudicial effects of their
admission because the firearms offenses were not crimes involving dishonesty. 369 S.C. 511, 517, 633 S.E.2d 152, 155–56 (2 006). In so holding, we stated:

Violations of narcotics laws are generally not probative of
truthfulness. See State v. Cheeseboro , 346 S.C. 526, 552 S.E.2d 300 (2001) (citing State v. Aleksey , 343 S.C. 20, 538 S.E.2d 248 (2000)). Furthermore, a conviction for robbe ry, burglary, theft, and drug possession, beyond the basic crime itself, is not probative of truthfulness. United States v. Smith , 181 F. Supp. 2d 904 (N.D. Ill. 2002). [5] Likewise, firearms violations also are not generally probative

5 In Smith , the court stated:

[E]vidence that any witness has b een convicted of a crime involving dishonesty or false statement is admissible without regard to its prejudicial effect. Fed. R. Evid. 609(a)(2). Smith's forgery conviction is admissible under Rule 609(a)(2). However, his convictions for robbery, burglary, theft, and drug possession convictions are not, as the government has not shown that any of them involved false statements or acts of deceit beyond the basic crime itself, and as to theof truthfulness. Accordingly, Petiti oner's prior firearms convictions do not involve dishonesty and their probative value should have been weighed against their prejudicial effect prior to their admission pursuant to Rule 609(a)(1).

Id. (emphasis added).

Here, the State argues that because Bryant involved convictions for firearms offenses, and not explicitly a prior arme d robbery conviction, the above language is merely dicta. Therefore, the Stat e relies on earlier precedents from our courts— namely Al-Amin —and points to other states' precedents to support its argument that armed robbery is a crime of dishonesty, such that no balancing test is required.

We take this opportunity to overrule Al-Amin , and reaffirm the rule as
formulated in Bryant that armed robbery is not a crime of dishonesty or false statement for purposes of impeachment under Rule 609(a)(2). While many states have adopted a broader interpretation of th e Rule, we find the analysis to be more nuanced than that undertaken by the Al-Amin court. 6 Under Al-Amin 's and the concurrence's rationale, the exception contained in Rule 609(a)(2), which permits
the automatic admission of cer tain prior convictions, swa llows the rule contained in Rule 609(a)(1), in which discretion re garding the admission of prior convictions rests with the trial judge. We think this interpretation is contrary to the intent of
the Rule.

theft convi ctions has not shown that it involved items of significant
value.

181 F. Supp. 2d at 909 (internal citations omitted).

6 See Stuart P. Green, Deceit and the Classification of Crimes: Federal Rule of Evidence 609(a)(2) and the Origins of Crimen Falsi, 90 J. Cr im. L. & Criminology 1087, 1119 (2000) ("The problem with [a broad reading of the term 'crime of dishonesty'] . . . is that it blurs the mora l distinction between stealing and lying. A person who steals is certainly dishonest; she rejects the idea of making an honest living; she cheats; she takes something to which she is not entitled; she disobeys the rules. But there is no particular reas on to think that she is deceitful. Indeed, what little empirical evidence there is indi cates that a prior conviction for larceny (stealing by stealth) says little or nothing about a witness'[s] propensity to lie." (footnote omitted)).Thus, we hold that for impeachment pur poses, crimes of "dishonesty or false
statement" are crimes in the nature of crimen falsi "that bear upon a witness's propensity to testify truthfully." Adams v. State , 644 S.E.2d 426, 431–32 (Ga. Ct. App. 2007) (footnote omitted) (surveying fede ral and state treatment of the issue, and adopting the more na rrow federal definition); see also United States v. Smith

, 551 F.2d 348, 362–63 (D.C. Cir. 1976) ("[I]n its broadest sense, the term 'crimen falsi ' has encompassed only those crimes char acterized by an element of deceit or
deliberate interference with a court's asce rtainment of truth." (emphasis added))

. Armed robbery, therefore, is not per se probative of truthfulness.

The Federal Rules of Evid ence specifically identify crimena falsi in Rule 609(a)(2), FRE, as crimes which by their very nature permit the impeachment of a
witness convicted of a crime of "d ishonesty or false statement." Green, supra note 6, at 1090. In fact,

[t]he original Conference Report makes the link between Rule 609(a)(2) and the crimena falsi explicit, defining the phrase "crimes involving dishonesty or false statem ent" as "crimes such as perjury, subornation of perjury, fals e statements, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi , the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully."

Id. at 1090–91 (emphasis added) (footnote omitted) (quoting H.R. Conf. Rep. No. 93-1037, at 9 (1975)). While the Stat e emphasizes that South Carolina did not adopt this explanatory language when it adopted Federal Rule 609, the notion of crimen falsi in the evidentiary context is long- established in the common law of
South Carolina. See, e.g.

, State v. Peterson , 35 S.C. 279, 282, 14 S.E. 617, 618 (1892) ("The old, well-settled rule was that one who had been convicted of a crime belonging to the class known as the ' crimen falsi ' was said to be infamous, and incompetent to testify."). Thus, the State's argument is unavailing. Cf. Williams v.
Condon , 347 S.C. 227, 247, 553 S.E. 2d 496, 507 (Ct. App. 2001) ("A strong presumption . . . exists that the Genera l Assembly does not intend to supplant common law principles when enacti ng legislation." (citations omitted)). 7

7 While the concurrence criticizes our relia nce on the federal interpretation of the Rules, we note that we routinely look to the federal interpreta tion of the Rules ofHere, the trial judge felt constrained by Al-Amin to forgo a balancing test, even though he noted that Al-Amin was a "significant departure" from what he understood the law to be, especially because the State sought to admit three prior
convictions identical to the one for whic h Respondent was currently on trial. We agree with the trial judge that the prejudi cial effect of admitting prior convictions for the exact same offense is often very high. See State v. Scriven , 339 S.C. 333, 343–44, 529 S.E.2d 71, 76–77 (Ct. App. 2000) (stating that because the prior
convictions were "similar or identical to charged offenses, . . . the likelihood of a high degree of prejudice to th e accused [was] inescapable"). For this reason, a rule that places discretion with the trial judge is even more desirable, and unlike the concurrence, we think the trial judge is the best arbiter of whether a very prejudicial piece of evidence should be adm itted in this situation—unless of course the prior crime specifically relates to a de fendant's penchant to tell the truth on the witness stand. Importantly, our holding today does not preclude the admission of prior convictions for armed robbery; rath er, it merely enables a trial judge to conduct a balancing test pursuant to Rule 609(a)(1) when the State seeks prior convictions for armed robbery to impe ach a criminal defendant's testimony.

Ultimately, the Rule is designed to help the jury discern the truth. It is not a tool for the State to bolster its case agains t the criminal defendant for the mere fact that the defendant has engage d in prior criminal activity . The balance we strike today cuts to the heart of our system's concep tions of fair trial and fair play.

Thus, we affirm the court of appeals' finding that armed robbery is not a crime of "dishonesty or false statement, " rendering it admissible pursuant to Rule 609(a)(2), SCRE.

II. Harmless Error

Evidence to guide us in our interpreta tion of our own Rules of Evidence. See, e.g.

, Auto-Owners Ins. Co. v. Rhodes , 405 S.C. 584, 594, 748 S.E.2d 781, 786 (2013) ("Because our appellate cour ts have not definitively a ddressed Rule 60(b)(5), we
have looked to the federal cour ts' interpretation as our rule is similar to the federal rule."); Laffitte v. Bridgestone Corp. , 381 S.C. 460, 474 n.10, 674 S.E.2d 154, 162
n.10 (2009) ("The language of Rule 26(c) , SCRCP, mirrors that of federal Rule 26(c). Because there is no South Carolina precedent construing this rule, federal interpretation of Rule 26(c) is pers uasive authority." (citation omitted)).Next, the State argues that any error in admitting the prior armed robbery convictions was harmless beyond a reasonable doubt. We agree.

While we agree with the court of appeals that in many instances, the admission of identical prior convictions for impeachment purposes enhances its prejudicial nature, it does not conclusively render the error so prejudicial that it is not subject to a harmless error analysis. Rather,

[w]hether the improper introduction of this evidence is harmless requires us to look at the other evid ence admitted at trial to determine whether the defendant's "guilt is conclusively proven by competent evidence, such that no other rationa l conclusion coul d be reached."

State v. Brooks , 341 S.C. 57, 62–63, 533 S. E.2d 325, 328 (2000) (quoting State v.
Parker , 315 S.C. 230, 234, 433 S. E.2d 831, 833 (1993)).

Here, t he other evidence implicating Respondent in these crimes was overwhelming. Respondent was positively identified by several employees who recalled Respondent's distinctive facial feat ures and clothing. Furthermore, one of the employees watched as Respondent's accomplice drove hi m away from the scene in a dented gray truc k, which the police stopped a only a short distance away within minutes after the employees repor ted the robbery. Inside the getaway vehicle, police found Respondent crouching in the floorboard area, sitting adjacent to a gun and a bag of money matchi ng the employees' descriptions.

Therefore, in spite of the error in admitting Respondent's prior convictions for armed robbery, we find such erro r was harmless beyond a reasonable doubt, and we reverse the part of the court of appeals' decision finding otherwise. See

, e.g. , State v. Mizzell

, 349 S.C. 326, 334, 563 S.E.2d 315, 319 (2002) ("'Harmless beyond a reasonable doubt' means the review ing court can conclude the error did
not contribute to the verd ict beyond a reasonable doubt."). 8

C ONCLUSION

For the foregoing reasons, the decision of the court of appeals is

8 The State also contends that the court of appeals erred in refusing to remand the case to the trial court, and in conducting th e Rule 609(a)(1) balancing test itself. Our harmless error analysis renders the remand issue moot.REVERSED IN PART AN D AFFIRMED IN PART

.

KITTREDGE and BEATTY, JJ., concur. HEARN, J., concurring in a separate opinion in which PLEICONES, J., concurs.

### JUSTICE HEARN : I concur in the result reached by the majority. However, I would reverse the court of appeals' opinion and hold the trial court did not err in admitting Broadnax's prior convictions because armed robbery is a crime involving dishonesty under Rule 609(a)(2) of the South
Carolina Rules of Evidence.

I appreciate the majority's discussion of the similar federal rule and its accompanying legislative history. As the majority correctly asserts, the federal rule has been interpreted to limit the application of Rule 609(a)(2), FRE to those prior convictions of cr imes whose central elements involve crimen falsi

. See United States v. Smith, 551 F.2d 348, 362–63 (D.C. Cir. 1976) ("[I]n its broadest sense, the term 'crimen falsi' has encompassed only those crimes characterized by an element of deceit or deliberate interference with a court's ascertainment of truth.")

. However, the majority's analysis ignores that neither our rule nor its commentary, both of which were prom ulgated by this Court, contain any
reference to crimen falsi

. Cf. Rule 609 note ("Subsection (a) does change the law in South Carolina."). Further, I disagree with the majority that the common law somehow contains and thus preserves the concept that crimen falsi is the operative standard. Curiously, the sole case the majority cites to support this proposition, State v. Peterson , 35 S.C. 279, 14 S.E. 617 (1892), affirmed the trial court's admission of a prior conviction for the exact crime at issue today: robbery. Id. at 281, 14 S. E. at 618.

Accordingly, this Court's interpreta tion of Rule 609(a)(2), SCRE must be limited to its plain language. The Rule states:

For the purpose of attacking th e credibility of a witness,

(1) evidence that a witness other th an an accused has been convicted of a crime shall be admitted, subj ect to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the
law under which the witness was c onvicted, and evidence that an
accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial e ffect to the accused; and

(2) evidence that any witness has been convicted of a crime shall beadmitted if it involved dishonesty or false statement, regardless of the punishment.



### Rule 609(a), SCRE (emphasis added). As our court of appeals succinctly
noted in State v. Al–Amin , 353 S.C. 405, 578 S.E. 2d 32 (Ct. App. 2003), the operative word for this analysis is "dishonesty." As elucidated by that court:

To restrict the application of Rule 609(a)(2) only to those
offenses which evidence an element of affirmative misstatement or misrepresentation of fact woul d be to ignore the plain meaning of the word "dishonesty." "Dishonesty" is, by definition, a "'disposition to lie, cheat, or steal. '" "To be dishonest means to deceive, defraud or steal. " "'In common human experience[,] acts of deceit, fraud, cheating, or stealing . . . are universally regarded as conduct which reflects adversely on a man's honesty and integrity.'"

Id. at 425, 578 S.E.2d at 43 (internal ci tations omitted). Restricting our analysis—as we must—to the plain language of 609(a)(2), SCRE there is no doubt armed robbery constitutes a crime involving dishonesty. Stealing, even more so when done at gunpoint, is essen tially the type of behavior reflecting adversely on one's character for truthfulness envisioned by Rule 609(a)(2).

Holding that armed robbery is a crime of dishonesty pursuant to Rule 609(a)(2) would avoid the perverse result the majority creates, where shoplifting is a crime of dishonesty pursuant to State v. Johnson , 334 S.C. 78, 87, 512 S.E.2d 795, 800 (1999), but armed robbery is not. 9 

### Further, it comports with the outcome a majority of states have reached on the same
issue. See Jane M. Draper, Annotation, What Constitutes Crime Involving “Dishonesty or False Statement” Under Rule 609(a)(2) of Uniform Rules of

9 I do not believe the result in this case is di ctated by stare decisis. As the majority points out, the Court's decision in State v. Bryant , 369 S.C. 511, 517, 633 S.E.2d 152, 155–56 (2006), dealt only with the question of whether prior firearm convictions involve dishonesty. Thus, the Court was not required to reach the same issue that is before us today. See generally State v. Austin , 306 S.C. 9, 19, 409 S.E.2d 811, 817 (Ct. A pp. 1991) (Sanders, C.J.) ("[A]ppellate courts in this state, like well-behaved children, do not speak unless spoken to and do not answer questions they are not asked.").

### Evidence or Similar State Rule—Crimes Involving Violence or Potential for
Violence , 83 A.L.R. 277 (2000) (com piling decisions from other jurisdictions); see, e.g. , Alexander v. State

, 611 P.2d 469, 476 n.18 (Alaska 1980) ("It is the larceny element of robbery which makes such a conviction admissible as impeachment of a witness.").

Accordingly, I would hold the trial court did not err by allowing in evidence of Broadnax's prior convictions pursuant to 609(a)(2) because armed robbery is a crime involving dishonesty, and would reverse the contrary decision of the court of appeals.

PLEICONES, J., concurs.