CAN THE STATE USE AN EXPUNGED CASE AGAINST ME IN A NEW CASE?

State v. Riedel, 752 P.2d 115 (Kan. 1988).

This case explored the issue of whether the State could us an expunged case against the defendant in a new case. In exploring this issue, the court concluded that an expunged conviction could be used in a new case if the prior expunged conviction was a statutory element of the charge in the new case. Id. at 116. In short, the court would allow an expunged conviction to be brought into a new case if the expunged conviction was necessary to convict the defendant of the new crime.

In this case, the defendant was charged with one count of felony theft and one count of altering a vehicle ID number. Id. at 116. As a result, the State filed a motion seeking to allow evidence of a prior crime committed by the defendant. Id. at 117. The prior crime occurred in 1970 and the defendant was convicted of receiving stolen property while a student at the University of Kansas. Id. However, in 1981, the defendant received an order from the court expunging the 1970 conviction. Id. Nevertheless, the State argued the facts underlying the 1970 expunged conviction should be allowed in the new case “for the purpose of showing intent, knowledge, and absence of mistake.” Id. In response, the defendant argued that evidence regarding the expunged 1970 conviction could not be allowed in the new case. Id. After review, the trial court judge granted the State’s motion to allow the 1970 expunged prior conviction to be brought into the new case. Id. The trial court judge did this on the ground that a Kansas law permitted disclosure of the expunged prior conviction. Id. The Kansas law stated, “A conviction that has been expunged . . . may be disclosed in a [new] prosecution when the prior expunged conviction was a statutory element of the charge in the subsequent prosecution.” Id. In making this decision, the judge reasoned that the prior conviction was being offered to prove knowledge, intent, or absence of mistake; that these constituted “an element of this case”; and although the prior conviction was expunged, it was allowed because of the Kansas law. Id.

The court noted that the trial judge’s reasoning was in error. Id. In doing so, the court identified examples of situations where the court could introduce expunged convictions into a new case. Id. These included offenses such as habitually promoting prostitution, habitually giving worthless checks, or possession of a firearm by a felon. Id. In order for a court to convict an individual for these offenses, evidence of prior convictions were necessary. Id. For example, a court could not convict an individual of habitually giving worthless check with evidence of only one instance of the individual giving a worthless check. Id. The court would need evidence of the individual giving out many worthless checks to convict him or her of habitually giving worthless checks. Id. So, if the individual had an expunged conviction of giving a worthless check, the court could bring that evidence into the new case in order to convict the individual of habitually giving worthless checks. Id. In this case, the defendant was being prosecuted for crimes which did not include a prior conviction as an element of the offenses. In short, the defendant’s 1970 conviction for receiving stolen goods had no relation to his felony theft and altering vehicle ID number charges. Had the 1970 conviction been necessary for the defendant to be convicted of his present charges, the court could have brought in the expunged conviction.

Because of the trial court judge’s error, the case was reassigned to a different judge who ruled that the 1970 expunged conviction was prohibited from being introduced into the new case. The judge determined the prior conviction itself was not necessary to convict the defendant of the new charges.