                              FOURTH DIVISION
                                DOYLE, P. J.,
                           MILLER and DILLARD, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                  November 7, 2014




In the Court of Appeals of Georgia
 A14A0752. RIVERS v. K-MART CORPORATION.                                     DO-039

      DOYLE, Presiding Judge.

      In an action for malicious prosecution and false imprisonment, Richard Rivers

appeals from the denial of his motion in limine to exclude evidence of his prior

arrests and convictions.1 He contends that the trial court abused its discretion by

finding that, with respect to only the damages portion of his claims, the evidence of

Rivers’s experience with the criminal justice system was not barred by OCGA § 24-4-

403. Because the trial court did not abuse its discretion, we affirm.




      1
         The ruling is directly appealable because it follows this Court’s remand “for
further proceedings after [the Court] previously allowed an interlocutory appeal on
this issue.” Rivers v. K-Mart Corp., 321 Ga. App. 788, 790 (743 SE2d 464) (2013).
      This is the second appearance of this case. In the earlier appeal, Rivers v. K-

Mart Corp.,2 (Rivers I) the Court provided the following background, which is

relevant here:

      [T]he record shows that in November 2008, Rivers was arrested and
      prosecuted for allegedly shoplifting at a K-Mart store in Jonesboro,
      Georgia. The charges against him were ultimately dismissed, and he
      instituted the present action against K-Mart for malicious prosecution.
      During discovery, Rivers disclosed his extensive criminal record,
      including several convictions for various offenses and numerous arrests
      which did not result in convictions. Rivers sought to exclude the
      evidence as prejudicial and irrelevant to the issues being tried, and
      K-Mart opposed the motion, arguing that the evidence was relevant on
      the issue of damages, specifically Rivers’[s] claim that he suffered
      emotional distress and anxiety as a result of his arrest and prosecution,
      and for purposes of impeachment. The trial court agreed with K-Mart
      and denied the motion, finding that it was relevant for the jury to
      consider the evidence of Rivers’[s] “exposure to the criminal justice
      system and its effect on him,” in evaluating Rivers’[s] claims for
      damages based on his emotional distress and anxiety. The trial court,
      however, did not make any findings concerning whether there was a
      danger that introduction of this evidence might prejudice Rivers’[s]
      claim or confuse or mislead the jury.3


      2
          Id.
      3
          (Footnotes and punctuation omitted.) Id. at 788-789.

                                          2
On appeal, this Court affirmed the trial court’s ruling as to relevancy but remanded

the case for consideration of the issue of undue prejudice and other factors in OCGA

§ 24-4-403.4

      On remand, the trial court analyzed the challenged evidence under OCGA § 24-

4-403 and deemed it admissible. The trial court acknowledged “that the presentation

of [Rivers’s] extensive criminal history might be misconstrued by a jury,” so the court

bifurcated the trial and allowed the challenged evidence in the damages portion of the

trial only. Rivers now appeals.

      1. “As a general rule, admission of evidence is a matter resting within the

sound discretion of the trial court, and appellate courts will not disturb the exercise

of that discretion absent evidence of its abuse.”5 OCGA § 24-4-403, which tracks the

language of Rule 403 of the Federal Rules of Evidence, was adopted as part of

Georgia’s new Evidence Code. “Given the similarity between Georgia’s new

[E]vidence [C]ode and the Federal Rules of Evidence, it is proper that we give




      4
          See id. at 790.
      5
        (Punctuation omitted.) Williams v. State, __ Ga. App. __ (1) (Case No.
A14A0986; decided Aug. 26, 2014). See also Rivers I, 321 Ga. App. at 790
(evidentiary ruling is an exercise of discretion by the trial court).

                                          3
consideration and great weight to constructions placed on the Federal Rules by the

federal courts.”6

      The balancing test under Federal Rule 403, as well as OCGA § 24-4-403,

      is a quintessentially fact-sensitive enterprise, and the trial judge is in the
      best position to make such factbound assessments. Recognizing that
      coign of vantage, we typically give the district court wide latitude when
      evaluating the delicate balance that Rule 403 requires. Only rarely – and
      in extraordinarily compelling circumstances – will we, from the vista of
      a cold appellate record, reverse a district court’s on-the-spot judgment
      concerning the relative weighing of probative value and unfair effect.7


      In this context, we discern no reversible error in the trial court’s ruling on

Rivers’s criminal history. With respect to his malicious prosecution claim, “[i]n

addition to the requirements that the criminal prosecution be carried on maliciously


      6
          (Citation and punctuation omitted.) Williams, ___ Ga. App. at ___ (1), n. 14.
      7
         Udemba v. Nicoli, 237 F3d 8, 15-16 (III) (A) (1st Cir. Mass. 2001). See also
2 Weinstein’s Federal Evidence § 403.02 (“If there is doubt about the existence of
unfair prejudice, confusion of issues, misleading, undue delay, waste of time, or
needless presentation of cumulative evidence, it is generally better practice to admit
the evidence, taking necessary precautions by way of contemporaneous instructions
to the jury followed by additional admonitions in the charge. . . Since the thrust of the
Federal Rules favors admissibility, the trial court will tend to view the probative force
of the evidence most favorably towards the proponent of the evidence, unless the
probative value of the evidence is so low as to warrant exclusion when prejudicial
factors are present.”) (endnotes omitted).

                                            4
and without probable cause, [Rivers] must also prove damage as an element of the

tort.”8 As this Court stated in Rivers I, “we recognize that the fact that Rivers has been

arrested and incarcerated on numerous occasions might have some probative value

on the issue of whether Rivers suffered emotional distress and anxiety when he was

arrested and incarcerated after being accused of shoplifting at K-Mart.”9 The trial

court had already concluded likewise and has now accounted for the risk of improper

influence on the jury by excluding the evidence during the phase of the trial when the

jury would decide whether K-Mart was liable to Rivers. Therefore, evidence of

Rivers’s criminal record will cause him no prejudice whatsoever during the liability

phase. During the damages portion, the jury can be instructed as to the proper use of

the evidence.10 Also, as noted by the trial court, citing United States v. Emeron Taken

Alive,11




       8
           Wal-Mart Stores v. Blackford, 264 Ga. 612, 614 (449 SE2d 293) (1994).
       9
           Rivers I, 321 Ga. App. at 789-790.
       10
       See, e.g, Taylor v. Racetrack Petroleum, Inc., 238 Ga. App. 761, 763 (1) (519
SE2d 282) (1999) (noting ameliorative effect of bifurcation).
       11
        262 F3d 711, 714-715 (8th Cir. 2001) (“There is a difference between
evidence that . . . hurts a party’s case and evidence that is unfairly prejudicial.”).

                                            5
      the issue is not whether the evidence is prejudicial in the sense that it
      may be detrimental to the Plaintiff’s case, but instead whether the
      probative value of the evidence is substantially outweighed by unfair
      prejudice. Evidence is unfairly prejudicial, as opposed to merely
      prejudicial, when it would influence the jury to decide a case on an
      improper basis and not merely [admissible] evidence that hurts a party’s
      case. . . .


In light of the facts of this case, we conclude that the trial court did not abuse its

discretion in ruling that the probative value, introduced during the damages stage

only, of Rivers’s criminal record was not substantially outweighed by the danger of

improper prejudice.12 We emphasize that such evidence may not be admissible in

every case, but the case before us presents no reversible abuse of the trial court’s

discretion.

      2. Rivers also challenges the trial court’s ruling, in a footnote, that the evidence

of his criminal record could be admissible at trial if “the door is opened by Defendant

to allow its admissibility.” Defendant K-Mart, as the proponent of the evidence,

would not be in a position to “open the door” to the evidence, so we assume the use


      12
        See Udemba, 237 F3d at 16 (III) (A) (in an action under 42 U.S.C. § 1983,
evidence of unrelated arrest for domestic violence deemed admissible under Federal
Rule 403 to delineate the extent of plaintiff’s humiliation caused by allegedly
wrongful arrest and excessive force).

                                           6
of the word “Defendant” was a misnomer referring to Rivers. Beyond that, the trial

court’s prospective statement in a footnote that Rivers’s future trial conduct could

somehow open the door to admissibility at trial does not present a reviewable ruling

at this time.13

       Judgment affirmed. Miller and Dillard, JJ., concur.




       13
        See Wellstar Health Sys., Inc. v. Sutton, 318 Ga. App. 802, 805 (3) (734
SE2d 764) (2012) (“Georgia appellate courts are not authorized to render advisory
opinions as to potential error.”).


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