               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              September 8, 2016 Session

           DAVID W. ANDERSON V. EDWARD POLTORAK ET AL.

                 Appeal from the Circuit Court for Davidson County
                   No. 13-C382      Joseph P. Binkley, Jr., Judge


               No. M2015-02512-COA-R3-CV – Filed January 17, 2017


This appeal arises from a civil action in which the jury returned a verdict in favor of
Plaintiff for injuries sustained in a motor vehicle accident. Defendants appeal contending
the trial court committed reversible error by limiting their impeachment of Plaintiff
regarding three felony convictions. After applying the balancing test under Tennessee
Rule of Evidence 403 to determine if the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice, the trial court allowed Defendants “to
question the plaintiff about whether he has been convicted of three felonies” but barred
any questions about “the details regarding the nature of the convictions, types of
convictions or the facts and circumstances surrounding the convictions.” The dispositive
issue is whether a party to a civil action has an absolute right under Tennessee Rule of
Evidence 609 to impeach a witness with evidence of prior felony convictions including
the details regarding the nature of his convictions, the types of convictions, or the facts
and circumstances surrounding the convictions. Defendants contend the evidence was
admissible as a matter of right under Tennessee Rule of Evidence 609; therefore, the trial
court did not have the discretion to conduct a balancing test under Tennessee Rule of
Evidence 403. Having determined that the trial judge had the discretion to conduct a
balancing test under Tennessee Rule of Evidence 403 and that the court did not abuse its
discretion in limiting the scope of Defendants‟ impeachment of Plaintiff, we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which D.
MICHAEL SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Alan M. Sowell and Michelle Denise Reid, Nashville, Tennessee, for the appellants,
Edward Poltorak and National Retail Systems, Inc.

Brian P. Dunigan, Goodlettsville, Tennessee, for the appellee, David W. Anderson.
                                        OPINION

       This litigation arose from an automobile accident that occurred on February 11,
2012, involving David Anderson (“Plaintiff”) and Edward Poltorak, who was driving an
18-wheeler at the time of the crash for National Retail Systems, Inc. d/b/a/ Keystone
Freight Corporation. On January 28, 2013, Plaintiff filed suit against Mr. Poltorak and his
employer (collectively “Defendants”) alleging that he received personal injuries and
damages as a result of Mr. Poltorak‟s failure to yield the right of way at the intersection.
Defendants denied liability and claimed that Plaintiff ran the light.

       In preparation for trial, Defendants filed a motion in limine to impeach the
credibility of Plaintiff by presenting evidence of his three prior felony convictions:
receipt of child pornography, possession of child pornography, and transporting obscene
matter. In response to Defendants‟ motion, Plaintiff argued that the felony convictions
would be of “very marginal relevance to credibility,” and should be excluded because the
probative value of the convictions is substantially outweighed by the danger of unfair
prejudice to Plaintiff.

       Following a hearing on the motion, the trial court held that, although Plaintiff‟s
three felony convictions met the criteria for use of impeachment evidence, the probative
value of the convictions would be substantially outweighed by the danger of unfair
prejudice to Plaintiff because “a juror learning about the child pornography convictions
would be unavoidably angry, offended and motivated to punish the plaintiff, irrespective
of the facts of this case.” Based on these concerns, the trial court ruled that Defendants
would be allowed “to question the plaintiff about whether he has been convicted of three
felonies,” but barred any questions about “the details regarding the nature of the
convictions, types of convictions or the facts and circumstances surrounding the
convictions.” The trial court‟s order reads, in pertinent part, as follows:

       1. The plaintiff‟s three (3) felony convictions meet the two criteria set
          forth in Rule 609 [of the Tennessee Rules of Evidence] for use as
          impeachment evidence because the plaintiff was imprisoned for a total
          of 21 months (see Rule 609(a)(2) (“The crime must be punishable by
          death or imprisonment in excess of one year under the law under which
          the witness was convicted. . . [.]”)) and less than ten (10) years have
          elapsed between the date of release and commencement of this action
          (see Rule 609(b) (“Evidence of conviction under this rule is not
          admissible if a period of more than ten years has elapsed between the
          date of release from confinement and commencement of the action. . .
          [.]”)).

       2. The balancing tests found in Rule 609 at sections (a)(3) and (b) do not
          apply to the circumstances of the plaintiff‟s convictions.

                                           -2-
      a. The Rule 609(a)(3) balancing test only applies to the accused in a
         criminal case. See Rule 609(a)(3) (“If the witness to be
         impeached is the accused in a criminal prosecution . . . the court
         upon request must determine that the conviction‟s probative
         value on credibility outweighs its unfair prejudicial effect on the
         substantive issues”) (emphasis added).

      b. The Rule 609(b) balancing test only applies if the witness was
         not confined or more than 10 years have elapsed since the date of
         release. See Rule 609(b) (“Evidence of a conviction under this
         rule is not admissible if a period of more than ten years has
         elapsed between the date of release from confinement and
         commencement of the action or prosecution; if the witness was
         not confined, the ten-year period is measured from the date of
         conviction rather than release. Evidence of a conviction not
         qualifying under the preceding sentence is admissible if . . . the
         court determines in the interest of justice that the probative value
         of the conviction . . . substantially outweighs its prejudicial
         effect.”)).

3. The balancing test found in Rule 403 [of the Tennessee Rules of
   Evidence] applies to this case.

      a. In making this finding, the Court relies on the Advisory
         Commission Comment to Rule 609 which states as follows: “For
         witnesses not covered by 609(a)(3), the balancing test is
         different. Rule 403 applies, and a conviction would be admissible
         to impeach unless „its probative value is substantially outweighed
         by the danger of unfair prejudice‟ or other criteria listed in that
         rule.” The only witness covered by Rule 609(a)(3) is “the
         accused in a criminal prosecution;” therefore, Rule 403 balancing
         necessarily applies to all witnesses who are not the accused in a
         criminal prosecution, including a witness in a civil case. See also
         Neil P. Cohen et al., Tennessee Law of Evidence § 6.09[5][a]
         (“For impeachment of a witness in a civil case. . . the Tennessee
         rule [609] is silent. . . . [however] the Advisory‟s Commission‟s
         Comment to Tennessee Rule 609 states the correct test. The
         balancing test under Rule 403 is to be used”) (emphasis added).

      b. In this case, the witness to be impeached with the three (3) felony
         convictions is a plaintiff in a civil case as opposed to the accused


                                   -3-
                 in a criminal prosecution; therefore, Rule 403 balancing applies
                 to the plaintiff‟s convictions.

       4. Applying the balancing test found in Rule 403, the probative value of
          the three (3) felony convictions regarding child pornography are
          substantially outweighed by danger of unfair prejudice to the plaintiff.

              a. There is very little probative value in the three felony convictions
                 because they do not arise out of this case nor are they related in
                 any way to this case. The convictions are being used for
                 impeachment purposes only under Rule 609.

              b. The Court further agrees with the plaintiff that a juror learning
                 about the child pornography convictions would be unavoidably
                 angry, offended and motivated to punish the plaintiff,
                 irrespective of the facts of the present case.

              c. The result is that the probative value is substantially outweighed
                 by the danger of unfair prejudice to the plaintiff.

       5. The Court, however, will allow the defendants to question the plaintiff
          about whether he has been convicted of three felonies. The defendant
          cannot question the plaintiff about the details regarding the nature of the
          convictions, types of convictions or the facts and circumstances
          surrounding the convictions. The Court finds this is an appropriate
          balance between outright exclusion of the convictions and the unfair
          prejudice suffered by the plaintiff if the circumstances of the
          convictions were presented to the jury. “One of the trial court‟s essential
          responsibilities is to control the flow of evidence to the jury by ruling on
          the admissibility of evidence, controlling the order of the proof, and
          determining the scope of examination of the witnesses. A trial court has
          a wide degree of latitude in making these decisions.” Overstreet v.
          Shoney’s Inc., 4. S.W.3d 694, 702 (Tenn. Ct. App. 1999).

              It is therefore ORDERED that the defendants Motion in [L]imine is
       granted in part and denied in part.

(Emphasis in original).

        Plaintiff admitted to having been convicted of three felonies during both direct and
cross-examination. In accordance with the trial court‟s order, Plaintiff was not questioned
as to the details regarding the nature of the convictions, types of convictions, or the facts
and circumstances surrounding the convictions.

                                            -4-
        As to the automobile accident, Plaintiff testified that he observed the light as he
approached the intersection and that he was “one hundred percent” sure he had the green
light, and thus the right of way, when the 18-wheeler driven by Mr. Poltorak collided
with his vehicle. In addition to Plaintiff‟s own testimony, he offered in-court testimony
from witness Robert Carpenter and deposition testimony from Lanesha Brown, both of
whom testified that Plaintiff had the right of way. Mr. Poltorak was barred from testifying
during trial due to his refusal to participate in discovery. Defendants offered no other
evidence to support their position that Mr. Poltorak had the green light instead of
Plaintiff.

       Plaintiff further testified as to injuries he suffered as a result of the collision,
including lower-back problems, which Plaintiff stated continued to trouble him at the
time of trial. Plaintiff also presented deposition testimony from Dr. Robert Landsberg,
who testified as to Plaintiff‟s medical treatment, physical exam findings, and injuries
caused by the collision. Dr. Landsberg testified that Plaintiff‟s lower-back injury was
permanent and that Plaintiff would continue to suffer painful symptoms for the rest of his
life. Dr. Landsberg also testified that Plaintiff had incurred charges for reasonable and
necessary medical treatment totaling $15,153.

        At the conclusion of trial, the jury returned a verdict finding Defendants 100% at
fault and awarded Plaintiff damages in the amount of $30,533.00. Defendants filed a
motion for a new trial on the grounds that Tennessee Rule of Evidence 609 required the
trial court to admit evidence of Plaintiff‟s convictions in their entirety. The trial court
denied the motion on November 16, 2015, and Defendants timely filed this appeal.

       On appeal, Defendants do not dispute that the probative value of Plaintiff‟s
convictions is substantially outweighed by the danger of unfair prejudice to Plaintiff and
would be inadmissible pursuant to Tennessee Rule of Evidence 403.1 Instead, Defendants
argue that the trial court had no discretion to conduct a balancing test under Rule 403 to
“override” Rule 609. Stated another way, Defendants insist that the trial court incorrectly
interpreted Rule 609.

                                    STANDARD OF REVIEW

      Interpretation of the Tennessee Rules of Evidence is a question of law, which we
review de novo with no presumption of correctness. Holder v. Westgate Resorts Ltd., 356
S.W.3d 373, 379 (Tenn. 2011). Decisions regarding the admission or exclusion of
evidence are generally entrusted to the sound discretion of the trial court, White v. Beeks,

       1
          In fact, at the oral argument for this matter, Defendants‟ attorney acknowledged that the
convictions are “highly prejudicial,” which is why they wanted the jury to hear the details.


                                               -5-
469 S.W.3d 517, 527 (Tenn. 2015), and discretionary decisions are reviewed pursuant to
the “abuse of discretion” standard of review. Lee Med., Inc. v. Beecher, 312 S.W.3d 515,
524 (Tenn. 2010).

                                        ANALYSIS

        The dispositive issue is whether a party to a civil action has an absolute right
under Tennessee Rule of Evidence 609 to impeach a witness with evidence of prior
felony convictions, including the details regarding the nature of his convictions, the types
of convictions, and the facts and circumstances surrounding the convictions, or whether
the trial court has the discretion to conduct a balancing test under Tennessee Rule of
Evidence 403 to determine whether the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice.

       Tennessee Rule of Evidence 609 provides, in pertinent part, as follows:

       (a) General Rule. For the purpose of attacking the credibility of a witness,
           evidence that the witness has been convicted of a crime may be admitted
           if the following procedures and conditions are satisfied:

              ...

          (2) The crime must be punishable by death or imprisonment in excess of
              one year under the law under which the witness was convicted or, if
              not so punishable, the crime must have involved dishonesty or false
              statement.

          (3) If the witness to be impeached is the accused in a criminal
              prosecution, the State must give the accused reasonable written
              notice of the impeaching conviction before trial, and the court upon
              request must determine that the conviction‟s probative value on
              credibility outweighs its unfair prejudicial effect on the substantive
              issues. . . .

       (b) Time Limit. Evidence of a conviction under this rule is not admissible
           if a period of more than ten years has elapsed between the date of
           release from confinement and commencement of the action or
           prosecution; if the witness was not confined, the ten-year period is
           measured from the date of conviction rather than release. Evidence of a
           conviction not qualifying under the preceding sentence is admissible if
           the proponent gives to the adverse party sufficient advance notice of
           intent to use such evidence to provide the adverse party with a fair
           opportunity to contest the use of such evidence and the court determines

                                           -6-
          in the interests of justice that the probative value of the conviction,
          supported by specific facts and circumstances, substantially outweighs
          its prejudicial effect.

Tenn. R. Evid. 609 (emphasis added).

        When called upon to construe a rule of evidence, our primary goal is to “effectuate
the drafters‟ intent without broadening or restricting the intended scope of the rule.” Fair
v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013). “We achieve this objective by examining
the text, and if the language is unambiguous, we simply apply the plain meaning of the
words used.” Id. (citing Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn. 2012)). We
are to presume that every word has meaning and purpose and should be given full effect
if the obvious intention of the General Assembly is not violated by so doing. In re Estate
of Tanner, 295 S.W.3d 610, 614-15 (Tenn. 2009). When the language of the rule is clear,
we apply the plain meaning without complicating the task. Id. at 615. However, when the
statutory language is unclear, we may consider, among other things, the broader statutory
scheme, the history and purpose of the legislation, public policy, historical facts
preceding or contemporaneous with the enactment of the statute, earlier versions of the
statute, the caption of the act, and the legislative history of the statute. Pickard v.
Tennessee Water Quality Control Bd., 424 S.W.3d 511, 518 (Tenn. 2013).

       Applying the foregoing principles, we conclude that Tennessee Rule of Evidence
609 does not mandate the admission of crimes that come within the purview of Rule 609;
to the contrary, Rule 609 gives the trial court the discretion to conduct a balancing test
when determining the admissibly of evidence of a witness‟s prior convictions for
impeachment purposes.

        The plain language of Tennessee Rule of Evidence 609 contemplates that the trial
court is to exercise discretion when admitting evidence of a witness‟s prior convictions
for impeachment purposes. Specifically, the plain language of Rule 609 states that “[f]or
the purpose of attacking the credibility of a witness, evidence that the witness has been
convicted of a crime may be admitted if the . . . procedures and conditions” of the rule are
satisfied. Tenn. R. Evid. 609 (emphasis added). “The word „may‟ used in a statute
ordinarily connotes discretion or permission and will not be treated as a word of
command, unless there is something in the context of the subject matter of the statute
under consideration to indicate that it was used in that sense.” Steppach v. Thomas, 346
S.W.3d 488, 505 (Tenn. Ct. App. 2011) (quoting Williams v. McMinn Cnty., 352 S.W.2d
430, 433 (Tenn. 1961)); see also Baker v. Seal, 694 S.W.2d 948, 951 (Tenn. Ct. App.
1984) (“Words or phrases which are generally regarded as making a provision mandatory
include „shall,‟ and „must.‟ On the other hand, a provision couched in permissive terms is
generally regarded as directory or discretionary. This is true of the word „may,‟ or
„authorizes,‟ . . . .”). There is nothing in the context of Rule 609 to indicate the word
„may‟ was used other than in its ordinary meaning.

                                           -7-
       In addition to the rule‟s plain language, the history of Tennessee Rule of Evidence
609 supports our conclusion that the trial court retains discretion in admitting such
evidence. The Tennessee Rules of Evidence became effective in 1990. State v. Evans,
838 S.W.2d 185, 194 (Tenn. 1992). Prior to the adoption of the rules of evidence, the
Tennessee Supreme Court adopted Rule 609 of the Federal Rules of Evidence as the
standard for witness impeachment with prior convictions. State v. Morgan, 541 S.W.2d
385, 38-39 (Tenn. 1976). Federal Rule of Evidence 609, as adopted by our Court,
provided in pertinent part:

      For the purpose of attacking the credibility of a witness, evidence that he
      has been convicted of a crime shall be admitted if elicited from him or
      established by public record during cross-examination but only if the crime
      (1) was punishable by death or imprisonment in excess of one year under
      the law under which he was convicted, and the court determines that the
      probative value of admitting this evidence outweighs its prejudicial effect
      to the defendant, or (2) involved dishonesty or false statement, regardless of
      the punishment.

Id. (emphasis added).

       However, when the Tennessee Rules of Evidence became the law in Tennessee,
Federal Rule of Evidence 609 was superseded by Tennessee Rule of Evidence 609. As a
consequence, the federal rule‟s mandatory language, “shall be admitted,” was replaced by
the Tennessee rule‟s discretionary language, “may be admitted.”

       Having decided Tennessee Rule of Evidence 609 gives the trial court discretion,
we now consider whether the balancing test under Tennessee Rule of Evidence 403 is the
appropriate test to be used when determining the admissibly of such evidence with
respect to a witness in a civil case.

       Tennessee Rule of Evidence 609 unambiguously identifies the appropriate
balancing test to be used in three instances. The first is when the witness‟s prior
convictions fall outside of Rule 609‟s ten-year time frame. See Tenn. R. Evid. 609(b).
The second is when the witness to be impeached is the accused in a criminal proceeding.
See Tenn. R. Evid. 609(a)(3). The third is only applicable to evidence of juvenile
adjudications. See Tenn. R. Evid. 609(d). With respect to a witness in a civil case or a
witness other than the accused in a criminal case, Rule 609 is silent. Accordingly, we
seek guidance from the Advisory Commission Comment, which unambiguously states:

      For witnesses not covered by 609(a)(3), the balancing test is different. Rule
      403 applies, and a conviction would be admissible to impeach unless “its


                                          -8-
       probative value is substantially outweighed by the danger of unfair
       prejudice” or other criteria listed in that rule.

Tenn. R. Evid. 609 advisory comm‟n cmt. (quoting Tenn. R. Evid. 403).

        Despite the clarity of Tennessee Rule of Evidence 609 and its Advisory
Commission Comment, Defendants assert that the judge had no discretion to conduct a
balancing test under Rule 403 to “override” Rule 609. In support of their argument,
Defendants rely on the United States Supreme Court‟s decision in Green v. Bock Laundry
Machine Co., 490 U.S. 504, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989), which interprets
Rule 609 of the Federal Rules of Evidence. We find Defendants‟ reliance on Green
misplaced because that case preceded the adoption of the Tennessee Rules of Evidence
and, as we explained earlier, unlike the federal rule‟s mandatory language, Tennessee‟s
rule states that evidence of convictions “may be admitted,” indicating that the trial court
has discretion. See Williams, 352 S.W.2d at 433.

        Defendants further contend that the trial court erred by relying on the Advisory
Commission Comment of Rule 609 because the comment is “simply wrong” and “there is
no law authorizing a court to look to the [comment] to ascertain the intent of the
legislature . . . .” We respectfully disagree with Defendants suggestion that there is no
authority for a court to consider the comments of the Advisory Commission. To the
contrary, “Advisory Commission comments have weight and can provide helpful
guidance for construing rules when their text is unclear.” Covington v. Acuff, No. 01A01-
9605-CV-00236, 1997 WL 626872, at *2 (Tenn. Ct. App. 1997).

        In this case, Defendants sought to attack the credibility of Plaintiff, a witness in a
civil case, with evidence of his prior convictions for receipt of child pornography,
possession of child pornography, and transporting obscene matter. The parties concede
that the prior convictions were felony convictions and that more than ten years had not
elapsed between the date of Plaintiff‟s release from confinement and commencement of
this action; thus, the convictions met the criteria set forth in Tennessee Rule of Evidence
609(a)(2) and 609(b). Accordingly, the convictions were eligible to be impeaching
convictions subject to Tennessee Rule of Evidence 403. Tenn. R. Evid. 609 advisory
comm‟n. cmt. However, as provided by Rule 403, if the trial court determines that the
probative value of the impeaching convictions is substantially outweighed by its
prejudicial effect, the evidence may be excluded. See Tenn. R. Evid. 403 (“Although
relevant, evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice. . . .”); State v. James, 81 S.W.3d 751, 757 (Tenn. 2002).
Therefore, it was within the discretion of the trial court to determine whether to admit or
exclude evidence of Plaintiff‟s convictions for impeachment purposes.

       Having established that the trial court maintained discretion in the admission or
exclusion of the convictions, the next question is whether the trial court abused its

                                            -9-
discretion in excluding “the details regarding the nature of the convictions, types of
convictions or the facts and circumstances surrounding the convictions.”

      In making a discretionary decision, the trial court is to make a conscientious
judgment, consistent with the facts, and takes into account the applicable law. White, 469
S.W.3d at 527 (citing Lee Med. Inc., 312 S.W.3d at 524).

       We review a [trial] court‟s discretionary decision to determine (1) whether
       the factual basis for the decision is properly supported by evidence in the
       record, (2) whether the [trial] court properly identified and applied the most
       appropriate legal principles applicable to the decision, and (3) whether the
       [trial] court‟s decision was within the range of acceptable alternative
       dispositions. When called upon to review a [trial] court‟s discretionary
       decision, the reviewing court should review the underlying factual findings
       using the preponderance of the evidence standard contained in Tenn. R.
       App. P. 13(d) and should review the [trial] court‟s legal determinations de
       novo without any presumption of correctness.

Id. at 524-25 (internal citations omitted).

       Therefore, when reviewing a trial court‟s discretionary decision, it is our
responsibility to determine, where applicable, whether there is a factual basis for the
decision in the record, whether the court properly identified and applied the applicable
legal principles, and whether the decision is within the range of acceptable alternative
dispositions. Id. at 524.

       Following a thorough review of the record, we have determined that the trial court
correctly identified the applicable legal principle, that being Rule 403, and properly
applied that principle to the facts of this case to support its conclusion that the probative
value of Plaintiff‟s convictions was substantially outweighed by the danger of unfair
prejudice. Specifically, we agree with the trial court‟s conclusion that Plaintiff‟s child
pornography convictions had very little probative value in an action seeking damages for
personal injuries arising from an automobile accident. We also agree with the court‟s
conclusion that a juror learning about the child pornography convictions would be
unavoidably angry, offended, and motivated to punish Plaintiff, irrespective of the facts
of the case. With the foregoing in mind, we find that the trial court did not abuse its
discretion by permitting Defendants to ask Plaintiff if he had been convicted of three
felonies, while prohibiting any questions about “the details regarding the nature of the
convictions, types of convictions or the facts and circumstances surrounding the
convictions.”

       For the foregoing reasons, we affirm the decision of the trial court.


                                              - 10 -
                                    IN CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against Defendants.


                                                   ________________________________
                                                   FRANK G. CLEMENT, JR., P.J., M.S.




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