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State v. Finkes3/28/2002
of the case was that defendant was cheating on her taxes, that Coyan threatened to expose defendant's actions, and that defendant lured Coyan to the store's upstairs bedroom on May 1, 2000, in a calculated effort to silence him, we conclude, upon review of the entire record, that the prosecution questioned defendant about her alleged tax violations under Evid.R. 608(B) and 611(B), rather than Evid.R. 404(B). Under Evid.R. 608(B), an examiner may inquire about specific instances of misconduct if relevant to credibility. State v. Jurek (1989), 55 Ohio App.3d 70, 73. It is sufficient that the examiner has a good-faith belief that a factual predicate for the inquiry exists. State v. Gillard (1988), 40 Ohio St.3d 226, paragraph one of the syllabus. Further, Evid.R. 608(B) provides, in relevant part, that: " pecific instances of the conduct of a witness * in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness *." The testimony of Jones and Martin that defendant paid them in cash provided a good-faith basis for the prosecution's cross-examination inquiry into defendant's payment of applicable employment taxes. As noted previously, defendant admitted that she did not pay applicable employment taxes. Failing to report income or to pay taxes for employees is evidence of dishonesty. State v. Coleman (July 31, 1992), Delaware App. No. 91-CA-34, unreported. Accordingly, questions regarding defendant's alleged tax violations were clearly probative of her credibility. Our finding that the prosecution's inquiry into defendant's alleged tax violation was made under Evid.R. 608(B) and 611(B), rather than Evid.R. 404(B), is further bolstered by the prosecution's comments in closing argument. The prosecution clearly argued that defendant's practice of failing to withhold applicable taxes on her employees' wages was evidence of her untruthfulness. As noted previously, the prosecution may aver that the evidence supports the conclusion that the defendant is not telling the truth, is scheming, or has ulterior motives for not telling the truth. Draughn, supra. Similarly, we find that the prosecution's questions regarding defendant describing herself as an "unmarried woman" in several mortgage applications were also proper under Evid.R. 608(B) and 611(B). The prosecution asked defendant whether there was some monetary benefit in not putting Schlotterer's name on the mortgage applications. Defendant answered in the negative. Other testimony established that defendant was regularly making her mortgage payments. Defendant contends that the prosecution "offered no good faith basis for [the prosecution] to believe that any lender was being defrauded *." (Defendant-appellant's brief at 27.) Upon review of the record, we cannot agree with defendant's contention that the prosecution's questions were aimed at establishing that defendant was defrauding financial lenders. To the contrary, we conclude that, like the questions regarding the alleged tax violations, the prosecution was attempting to establish defendant's lack of credibility. Further, a party is not required to offer evidence of a good- faith basis for cross-examination questions unless the opposing party questions whether a good-faith basis exists. In Gillard, supra, the court stated " ince the prosecutor's good-faith basis for asking these questions was never challenged, we presume she had one. *" Id. at 231. In the instant case, the prosecution had a good-faith basis for inquiring as to why defendant described herself as an "unmarried woman" on mortgage applications when defendant testified that she was married. As with the allegations of
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Ohio Personal Injury Attorneys
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