                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  February 21, 2006 Session

              GORDON C. COLLINS v. BARRY L. ARNOLD ET AL.

                     Appeal from the Circuit Court for Davidson County
                      No. 02C-807     Hamilton V. Gayden, Jr., Judge


                  No. M2004-02513-COA-R3-CV - Filed November 20, 2007



WILLIAM C. KOCH , JR., P.J., M.S., with whom FRANK G. CLEMENT , JR., J., joins, concurring.


        I am in complete agreement with the court’s conclusions that the judgment in this case must
be reversed because the trial court refused to give an instruction warranted by the facts and that the
evidence does not warrant an award of punitive damages against either Graham Brothers
Entertainment of Nashville or Tennessee Protection Agency. Because this case must be retried, I
write separately with regard to the admissibility of the evidence regarding Mr. Gangwer’s prior
conviction.

         Counsel for Mr. Collins sought to undermine Mr. Gangwer’s credibility by proving that he
had lied on his application to the Tennessee Alcoholic Beverage Commission by stating that he had
never been convicted of a crime involving moral turpitude. The conviction upon which counsel
relied was a thirteen-year-old conviction in Florida. Despite the plain requirements of Tenn. R. Evid.
609(b), counsel purposefully did not provide his adversary with reasonable written notice prior to
trial of his intent to impeach Mr. Gangwer with this conviction. As a result, the jury was permitted
to hear not only that Mr. Gangwer had, in fact, been convicted of a crime involving moral turpitude
but also what that crime was.

         The court has correctly concluded that the fact that Mr. Gangwer had been convicted of a
crime involving moral turpitude was relevant to his credibility in light of his false answer on the
Alcoholic Beverage Commission application. It has also correctly concluded that the nature of Mr.
Gangwer’s conviction was not probative of Mr. Gangwer’s truthfulness and that the prejudicial effect
of this evidence substantially outweighed its probative value. However, I cannot agree with the
court’s conclusion that the admission of the evidence regarding the nature of Mr. Gangwer’s
conviction was harmless error. Given society’s aversion to sexual predation of minors, I am not
prepared to hold that the evidence that Mr. Gangwer had been convicted of “lascivious assault on
a child under the age of 14” did not affect the judgment.


                                                      ________________________________
                                                      WILLIAM C. KOCH, JR., P.J., M.S.
