               IN THE SUPREME COURT OF IOWA
                              No. 08–2030

                           Filed June 3, 2011


STATE OF IOWA,

      Appellee,

vs.

WENDELL KARL HARRINGTON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Robert A.

Hutchison, Judge.



      The defendant seeks further review of the court of appeals decision

affirming his criminal convictions. DECISION OF COURT OF APPEALS

AND JUDGMENT OF DISTRICT COURT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa Wilson,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Linda Hines, Assistant

Attorney General, John P. Sarcone, County Attorney, and Jim Ward,

Assistant County Attorney, for appellee.
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ZAGER, Justice.

      Wendell Harrington seeks further review of his convictions,

sentences, and judgment for ongoing criminal conduct, first-degree theft,

second-degree theft, and three counts of second-degree burglary, all

enhanced as a habitual offender.         The court of appeals reversed

Harrington’s conviction for ongoing criminal conduct, affirmed his

remaining convictions, and preserved his ineffective-assistance claim for

postconviction relief.   We granted further review to consider a single

issue: whether the district court erred in admitting Harrington’s prior

theft and burglary convictions under Iowa Rule of Evidence 5.609. See

State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010) (electing to review only

one of three issues raised on appeal and leaving the court of appeals

decision as final on remaining two issues); State v. Johnson, 784 N.W.2d

192, 193 (Iowa 2010) (considering only two of the defendant’s claims on

further review).

      Harrington relies on State v. Axiotis, 569 N.W.2d 813, 816 (Iowa

1997), to claim the district court erred in admitting his prior convictions

because the court did not balance the probative and prejudicial nature of

his prior convictions. The court of appeals concluded the district court

had no duty to apply a balancing test as Harrington’s prior theft and

burglary convictions involved dishonesty and were therefore admissible

under rule 5.609(a)(2). We agree. Axiotis is overruled to the extent it

suggests the balancing test articulated in rule 5.609(a)(1) applies to prior

convictions that involve dishonesty or false statement under rule

5.609(a)(2). Accordingly, we affirm the court of appeals decision as to

this issue, and we affirm the district court’s admission of Harrington’s

prior convictions for impeachment purposes.         The court of appeals

decision remains the final disposition of Harrington’s other claims.
                                      3

      I. Background Facts and Proceedings.

      The State charged Wendell Harrington by trial information with

eluding, first and second-degree theft, three counts of burglary, and

ongoing criminal conduct, all enhanced as a habitual offender.             The

charges stemmed from a series of home burglaries that occurred in the

early morning hours of June 14, 2008. Harrington pleaded not guilty.

      Prior to trial, Harrington filed a motion in limine seeking to prevent

the State from admitting his prior theft and burglary convictions at trial.

The district court conducted a hearing on the motion in limine.            The

court first confirmed the State was not intending to use Harrington’s

prior convictions in its case in chief. The district court next addressed

the State’s ability to use Harrington’s prior convictions to impeach

Harrington in the event he elected to testify at trial. Without ruling on

each specific prior conviction, the district court distinguished between

prior felony convictions and those prior convictions involving dishonesty.

The district court stated, “[I]n general, what I allow the state to do if we’re

talking about a crime that does not involve dishonesty . . . [is to impeach

with the conviction but not specify the crime] . . . [and] if we’re talking

about a crime of dishonesty, then I do allow [the State] to tell the jury

what the crime was.” The matter proceeded to a jury trial.

      At the close of the State’s case in chief, and shortly before

Harrington testified, the district court reiterated that the State could

impeach Harrington with his prior convictions if the convictions were for

crimes of dishonesty. The State received confirmation from the district

court that Harrington’s prior convictions for burglary and theft were

crimes of dishonesty. The district court performed no balancing analysis

in making its decision to admit Harrington’s prior convictions for

impeachment purposes. Harrington elected to testify, and in his direct
                                         4

examination he disclosed he had been previously convicted of some

felonies.   On cross-examination, the State clarified that Harrington’s

prior felonies were for theft and burglary.

      The jury found Harrington guilty on all charges. The district court

sentenced Harrington to twenty-five years for ongoing criminal conduct,

and fifteen years for each of the remaining six convictions.                    The

sentences were to be served consecutively.             Harrington timely filed a

notice of appeal. The appeal was transferred to the court of appeals. The

court of appeals reversed Harrington’s conviction for ongoing criminal

conduct, affirmed his other convictions, and preserved his ineffective-

assistance claim for postconviction relief.            Harrington petitioned for

further review. We granted further review solely to consider whether the

district court properly admitted Harrington’s prior convictions under

Iowa Rule of Evidence 5.609.

      II. Standard of Review and Error Preservation.

      We generally review evidentiary claims for an abuse of discretion.

State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008). A court abuses its

discretion when its discretion is based upon erroneous application of the

law or not supported by substantial evidence. Graber v. City of Ankeny,

616 N.W.2d 633, 638 (Iowa 2000).             Harrington preserved error on the

district court’s in limine ruling by disclosing his prior convictions in his

direct examination.    State v. Daly, 623 N.W.2d 799, 801 (Iowa 2001)

(holding a defendant preserves error to appeal a district court’s in limine

ruling allowing the impeachment use of prior convictions when the

defendant    affirmatively   discloses       his   prior   convictions   on   direct

examination).
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      III. Application of Iowa Rule of Evidence 5.609.

      Iowa Rule of Evidence 5.609 controls the admissibility of prior

convictions for impeachment purposes. The rule states:
            a. General rule.      For the purpose of attacking the
      credibility of a witness:
            (1) Evidence that a witness other than the accused has
      been convicted of a crime shall be admitted, subject to rule
      5.403, if the crime was punishable by death or imprisonment
      in excess of one year pursuant to the law under which the
      witness was convicted, 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 effect to the accused; and
            (2) Evidence that any witness has been convicted of a
      crime shall be admitted if it involved dishonesty or false
      statement, regardless of the punishment.

Iowa R. Evid. 5.609. Harrington alleges the district court must always

perform the balancing described in rule 5.609(a)(1), regardless of

whether the prior conviction falls within the scope of rule 5.609(a)(1) or

(a)(2). Thus, Harrington contends the district court abused its discretion

when it failed to make a record of its balancing of the prejudicial and
probative effect of Harrington’s prior convictions. The State argues the

district court is not required to apply the balancing test articulated in

rule 5.609(a)(1) to crimes within the scope of rule 5.609(a)(2), and that

Harrington’s prior theft and burglary convictions come within the scope

of rule 5.609(a)(2). We set out to resolve this dispute.

      A. Admissibility Under Rule 5.609(a)(2).             We have reviewed

whether “the trial court properly balanced the probative value of

admitting [a prior conviction] against its prejudicial effect, as required by

Iowa rule of evidence [5.]609(a)(1)” even when the prior conviction came

within rule 5.609(a)(2), creating the impression that the balancing test

articulated in rule 5.609(a)(1) applies to prior convictions that involve

dishonesty or false statement under rule 5.609(a)(2). Axiotis, 569 N.W.2d
                                          6

at 816.        In Axiotis, the defendant tried to prevent the State from

impeaching him with his prior conviction for false use of a financial

instrument. 569 N.W.2d at 815. False use of financial instruments is a

crime that involves “dishonesty or false statement” and comes within the

scope of rule 5.609(a)(2). See Fed. R. Evid. 609 note to subdivision (a)

(1974). (“By the phrase ‘dishonesty and false statement’ the Conference

means crimes such as perjury or subornation of perjury, false statement,

criminal fraud, embezzlement, or false pretense, or any other offense in

the nature of crimen falsi . . . .”). 1 In resolving the dispute in Axiotis, we

applied the balancing test articulated in rule 5.609(a)(1) to determine if

the defendant’s rule 5.609(a)(2) prior conviction was admissible.                569

N.W.2d at 816.       Thus, Axiotis creates a framework where the district

court must always balance the probative and prejudicial value of a

witness’s prior conviction before admitting the prior conviction for

impeachment purposes. Axiotis’ framework, however, is incorrect.

       The plain language, policy, and legislative history of rule 5.609(a)

all demonstrate the balancing test articulated in rule 5.609(a)(1) does not

apply to convictions that are within the scope of rule 5.609(a)(2). First,

rule 5.609(a)(2) is phrased as a mandatory command: “Evidence that any

witness has been convicted of a crime shall be admitted if it involved

dishonesty or false statement.”          Iowa R. Evid. 5.609(a)(2) (emphasis

added).    On its face, the rule’s language leaves the district court no

discretion. In contrast, rule 5.609(a)(1) contains discretionary balancing
__________________________________
       1Iowa  R. of Evid. official comment (1983) (“Since many of the Iowa Rules here
recommended are modeled after the Federal Rules of Evidence, it is contemplated that
judges and lawyers will look for guidance to the United States Supreme Court Advisory
Committee Notes.”); see also State v. Paredes, 775 N.W.2d 554, 561 (Iowa 2009)
(holding when our rule of evidence is identical in all relevant aspects to its federal
counterpart, “interpretations of the federal rule are often persuasive authority for
interpretations of our state rule”).
                                      7

language, but does not limit the scope of its application to crimes that

involve dishonesty or false statement. Thus, the plain language of rule

5.609(a) creates a two-prong analysis for prior convictions: (a)(1) governs

felony crimes generally and vests the district court with discretion in

admitting prior convictions, while (a)(2) applies only to crimes involving

dishonesty or false statement and requires the automatic admissibility of

these prior convictions for impeachment purposes.

      Second,   this    two-prong    approach    is   supported    by   policies

underlying rule 5.609(a).     In allowing the use of prior convictions for

impeachment purposes, rule 5.609 attempts to balance competing

interests.    Prior    convictions   may   be   relevant   to   determine   the

truthfulness of a witness’s testimony; however, prior convictions also

create potential for prejudice to the defendant. See State v. Parker, 747

N.W.2d 196, 205–06 (Iowa 2008) (noting that prior convictions “cast light

on the probability for truthfulness” while also creating prejudicial

danger). For example, prejudice occurs if the fact finder affords undue

significance to a witness’s prior convictions that are nonserious, dated,

or remote. The accused also faces the acute prejudicial risk that if he is

impeached with a similar prior conviction, then the jury may assume the

defendant’s guilt because he previously committed a similar crime. See

State v. Hackney, 397 N.W.2d 723, 726 (Iowa 1986). Thus, the balancing

test articulated in rule 5.609(a)(1) vests the district court with discretion

to ensure a witness’s prior conviction has sufficient impeachment value

to merit its potential prejudicial risks to the accused. The plain language

of rule 5.609(a)(2), however, leaves the district court no similar

discretion. Rule 5.609(a)(2) reflects the judgment that prior convictions

involving dishonesty or false statement are always sufficiently relevant to
                                           8

the truthfulness of the witness’s testimony that protections against jury

misuse of the prior-conviction evidence is not necessary. 2

        The legislative history accompanying the original Federal Rule of

Evidence 609 confirms the above reading is proper.
        The admission of prior convictions involving dishonesty and
        false statement is not within the discretion of the Court.
        Such convictions are peculiarly probative of credibility and,
        under this rule, are always to be admitted. Thus, judicial
        discretion granted with respect to the admissibility of other
        prior convictions is not applicable to those involving
        dishonesty or false statement.

Fed. R. Evid. 609 note to subdivision (a) (1974); see also Iowa R. Evid.
official comment (1983) (stating it is appropriate for court to consider

federal advisory notes for guidance).            Moreover, federal courts do not

apply     probative-versus-prejudice           balancing    to    crimes     involving

dishonesty or false statement under federal rule 609, a rule nearly

identical to rule 5.609. Instead, convictions involving dishonesty or false

statement are automatically admissible.               See, e.g., United States v.

Estrada, 430 F.3d 606, 614, 621 (2d Cir. 2005); Walker v. Horn, 385 F.3d

321, 333 (3d Cir. 2004); United States v. Tracy, 36 F.3d 187, 192 (1st

Cir. 1994); State v. Morrow, 977 F.2d 222, 228 (6th Cir. 1992).


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        2Iowa  Rule of Evidence 5.403 states “evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice.” The original
version of the Federal Rule of Evidence 609 left it unclear whether the Federal Rule 403
balancing applied to crimes of dishonesty or false statement. 4 Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Federal Evidence § 609.04[(1)], at 609–21 (Joseph M.
McLaughlin ed., 2d ed. 2009) [hereinafter Weinstein]. Most courts held Rule 403 was
inapposite to crimes of dishonesty or false statement under Rule 609. See, e.g., Green
v. Bock Laundry Mach. Co., 490 U.S. 504, 525–26, 109 S. Ct. 1981, 1993, 104 L. Ed. 2d
557, 573 (1989). Congress amended Rule 609(a) in 1990 to refer to Rule 403 in
subpart (a)(1), but not in subpart (a)(2), thereby endorsing the judicial determination
that Rule 403 did not apply to crimes of dishonesty or false statement. Weinstein
§ 609.04[(1)], at 609–22. Similarly, in 1995 we amended rule 5.609(a) to mirror the
then-existing Federal Rule. Our amendment clarified that rule 5.403 did not apply to
crimes of dishonesty or false statement within the scope of rule 5.609(a)(2).
                                           9

       For the reasons stated above, we hold Iowa Rule of Evidence
5.609(a)(2) gives the district court no discretion to exclude a witness’s
prior conviction if it involves dishonesty or false statement.                    Prior
convictions that involve dishonesty or false statement are automatically
admissible for impeachment purposes. 3 To the extent Axiotis suggests
otherwise, it is overruled.
       B. Crimes Within the Scope of 5.609(a)(2). If Harrington’s theft
and burglary crimes are within the scope of rule 5.609(a)(2), then the
district court did not err by admitting his prior convictions for
impeachment purposes without performing any balancing analysis. Our
common law cases have repeatedly held theft and burglary with the
intent to commit theft are crimes of dishonesty.                 See, e.g., State v.
Latham, 366 N.W.2d 181, 184 (Iowa 1985); State v. Willard, 351 N.W.2d
516, 518 (Iowa 1984); State v. Zaehringer, 325 N.W.2d 754, 756 (Iowa
1982); State v. Miller, 229 N.W.2d 762, 769–70 (Iowa 1975).                         We
originally reasoned that theft falls within the plain meaning of the term
dishonesty, and we quoted former Chief Justice Burger, then on the
United States Court of Appeals for the District of Columbia Circuit, in
observing “ ‘[i]n common human experience acts of deceit, fraud,
cheating, or stealing, for example, are universally regarded as conduct
which reflects adversely on a man’s honesty and integrity.’ ” Miller, 229
N.W.2d at 769 (quoting Gordon v. United States, 383 F.2d 936, 940 (D.C.
Cir. 1967)) (emphasis added). It has been settled law in this state that
convictions for theft and burglary with intent to commit theft are crimes
of dishonesty. 4     Harrington makes no contention his prior theft and
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       3The   district court still may consider valid and legitimate objections to the
admissibility of crimes of dishonesty or false statements that are unrelated to the rule
5.609(a) probative-versus-prejudice determination.
       4We  are aware that our longstanding construction of the term “dishonesty” is
derived from common law cases predating our adoption of the Iowa Rules of Evidence in
                                            10

burglary convictions are not crimes of dishonesty or false statement
under rule 5.609(a)(2). Thus, we find Harrington’s prior convictions fall
within the scope of rule 5.609(a)(2).
       IV. Disposition.

       Because Harrington’s prior convictions fall within the scope of rule

5.609(a)(2),     the     convictions       are    automatically        admissible       for

impeachment purposes. The district court had no discretion to deny the

use of Harrington’s prior convictions for impeachment, and thus the

district court had no duty to apply the balancing test articulated in rule

5.609(a)(1). The district court did not abuse its discretion in permitting

the State to impeach Harrington with his prior convictions for theft and

burglary with the intent to commit theft. We therefore affirm both the

court of appeals decision and the district court ruling.

       DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

       All justices concur except Mansfield, J., who takes no part.
_________________________________
1983. We also recognize that the legislative history associated with Federal Rule of
Evidence 609, states the term “dishonesty or false statement”
       means crimes such as perjury or subornation of perjury, false statement,
       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.
Fed. R. Evid. 609 note to subdivision (a) (1974). Many federal and state courts have
wrestled with and reached different results as to whether theft and burglary convictions
are crimes that per se “involve dishonesty or false statement” under the framework of
Federal Rule of Evidence 609 and corresponding state rules. Compare United States v.
Estrada, 430 F.3d 606, 614 (2d Cir. 2005) (“While much successful crime [such as
theft] includes some quantum of stealth, all such conduct does not, as a result,
constitute crime of dishonesty or false statement . . . .”); United States v. Mejia-Alacron,
995 F.2d 982, 989 (10th Cir. 1993) (holding felony theft is not automatically a rule
609(a)(2) crime), with State v. Page, 449 So. 2d 813, 816 (Fla. 1984) (holding theft is per
se a crime that involves “dishonesty or false statement”); People v. Spates, 395 N.E.2d
563, 568 (Ill. 1979) (same). We reserve this potential issue for a case where it is
properly argued.
