        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                         IN AND FOR KENT COUNTY

ELIJAH N. PERKINS,              :
                                : C.A. No. K13C-05-020 WLW
            Plaintiff,          :
                                :
      v.                        :
                                :
TOWNE DOLLAR AND TOBACCO,:
LLC, trading as “The Hot Spot”, :
and WAIL AYOUB,                 :
                                :
            Defendants.         :

                          Submitted: December 2, 2014
                           Decided: December 4, 2014

                                    ORDER

               Upon Defendants’ Motion in Limine to Exclude any
                  Reference to Defendant Ayoub’s Past Acts.
                                   Denied.


R. Mark Taneyhill, Esquire of Schwartz and Schwartz, Dover, Delaware; attorney for
Plaintiff.

Nancy Chrissinger Cobb, Esquire of the Law Offices of Chrissinger & Baumberger,
Wilmington, Delaware; attorney for Defendants.




WITHAM, R.J.
Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.
C.A. No. K13C-05-020 WLW
December 4, 2014


      Upon Consideration of Defendants’ motion in limine to exclude reference to
Defendant’s past act, it appears that:
1.    The case at bar involves Wail Ayoub (hereinafter “Defendant”) and Elijah N.
Perkins (hereinafter “Plaintiff”). Defendant was an employee of Defendant Towne
Dollar and Tobacco LLC (hereinafter “Defendant-Employer”), and accused Plaintiff
of attempting to pass a counterfeit bill at the register. The Defendant and Plaintiff
were allegedly involved in a physical altercation, and Plaintiff now raises personal
injury claims for any harm suffered from Defendant’s negligent, reckless, and
intentional acts.
2.    On September 22, 2014, Defendant-Employer and Defendant filed a motion in
limine to exclude any reference to Defendant’s past acts. Defendant’s motion states
that in 2009 Defendant pled guilty to Disorderly Conduct arising from an incident
involving a patron that Defendant suspected was stealing from Defendant-Employer.
3.    Defendant moves to prevent any reference to Defendant’s past acts under
DURE 609, so that it may only be used for impeachment purposes. Defendant also
believes Plaintiff will attempt to introduce the prior conviction in order to prove
Defendant’s alleged violent interaction with the Plaintiff. Defendant further moves
to exclude any reference to the disorderly conduct conviction based on DURE 401
and 403.
4.    On October 13, 2014, Plaintiff filed a response opposing Defendant’s motion
to exclude past acts. On November 24, 2014, both parties submitted memorandum
pursuant to DURE 404(b) regarding the admissibility of the past acts. Plaintiff states

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Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.
C.A. No. K13C-05-020 WLW
December 4, 2014


it will not be offering evidence under DURE 609, but rather, under DURE 401 and
403 to support direct negligence claims against the Defendant-Employer. Plaintiff
states that Defendant’s prior conviction stems from an incident that occurred while
Defendant was employed with Defendant-Employer, and occurred after Defendant
accused a customer of stealing from the store. Plaintiff explicitly stated it plans to use
the past act to show that Defendant-Employer was negligent for retaining Defendant
as an employee, not to prove that the Defendant acted in conformity with any prior
behavior. Further, the Plaintiff is seeking punitive damages from the Defendant-
Employer only.
5.    DURE 609 of the Delaware Uniform Rules of Evidence provides that evidence
that a witness has been convicted of a crime is admissible for purposes of impeaching
the witness' credibility if: (1) the conviction was for a felony, and the Court
“determines that the probative value of admitting this evidence outweighs its
prejudicial effect”; or (2) the crime involved dishonesty or a false statement. No
balancing test is required if the underlying crime involves dishonesty or a false
statement. Disorderly Conduct is not a crime of dishonesty nor is it a felony. For this
reason, the past acts would not be admissible under DURE 609.
6.    Plaintiff contends that evidence of Defendant’s past acts should be introduced
to prove the Defendant-Employer’s negligent hiring of Defendant. The deciding
factor in whether an employer should have had knowledge of the necessity to exercise
control over its employee is whether the risk of harm from the employee was
reasonably foreseeable. (Matthews v. Booth, 2008 WL 2154391, at *3 (Del. Super.

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Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.
C.A. No. K13C-05-020 WLW
December 4, 2014


May 22, 2008). Plaintiff aims to prove the Defendant-Employer had knowledge of
Defendant’s dangerous behavior by introducing evidence of the Disorderly Conduct
conviction in 2009, while Defendant was working at Defendant-Employer’s business.
Plaintiff contends this conviction was sufficient for Defendant-Employer to have been
on notice as to Defendant’s capability of engaging in dangerous conduct with store
patrons.
7.    DURE 403 requires a court to assess the probative value of the proffered
evidence and to weigh that value against the negative consequences of admitting the
evidence, including the risk of unfair prejudice and jury confusion. In order for the
Plaintiff to prove that the Defendant’s behavior was reasonably foreseeable by the
Defendant-Employer, Defendant’s prior conviction of physical conduct with a patron
at the same business establishment involved in this litigation is highly probative.
Further, the Defendant’s past act is relevant under Rule 401, because it tends to make
the fact that the Defendant-Employer had notice of Defendant’s dangerous behavior
more likely than not.
8.    This Court feels it is necessary to complete a thorough analysis under Getz v.
State, 538 A.2d 726 (Del. 1988) in order to adequately resolve the issue. DURE
404(b) may be applied to civil cases.1 Under DURE 404(b) evidence of crimes,
wrongs, or bad acts may be admissible to show intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. The following six (6) factors must be


      1
        Mercedes Benz of N. Am. Inc. v. Norman Gershman's Things to Wear, Inc., 596 A.2d
1358, 1365 (Del. 1991).

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Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.
C.A. No. K13C-05-020 WLW
December 4, 2014


considered2:
      (A) The evidence must be material to the issue or ultimate fact in dispute;

     (B) The “evidence must be introduced for a purpose sanctioned by 404(b)” or
some other non-propensity purpose;

      (C) The evidence providing the prior bad act must be [plain], clear, and
conclusive;

      (D) The bad act must not be too remote in time from the charged offense;

      (E) The probative value of the evidence must not be outweighed by the danger
of unfair prejudice;

      (F) The Court must give the jury a limiting instruction.

(1) The Evidence Must be Material to the Issue or Ultimate Fact in Dispute
The evidence that Plaintiff seeks to introduce to the Court is material to the issue of
whether Defendant-Employer knew or should have known of Defendant’s prior
conviction in order to support the direct negligence claims against the Defendant-
Employer. This prong of the analysis favors the Plaintiff.
(2) The Evidence Must be Introduced for a Purpose Sanctioned by 404(b) or Some
Other Non–Propensity Purpose.
Defendant’s prior bad act, a conviction of disorderly conduct from 2009, occurred in



      2
          Getz v. State, 538 A.2d 726, 734 (Del. 1988).



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Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.
C.A. No. K13C-05-020 WLW
December 4, 2014


the same business establishment as the case at bar, while Defendant was employed
by Defendant-Employee. Introducing this conviction addresses whether Defendant-
Employer had knowledge of Defendant’s past conviction, which speaks to whether
Defendant-Employer was negligent in the retaining of Defendant as an employee.
This prong of analysis favors the Plaintiff.
(3) The Evidence of the Prior Bad Act Must be Plain, Clear and Conclusive.
The evidence of the bad act consists in a 2009 conviction, so the evidence is plain,
clear, and conclusive. This prong of the analysis favors the Plaintiff.
(4) The Bad Act Must Not be Too Remote in Time.
Defendant’s bad acts occurred five (5) years ago in 2009. Evidence is too remote in
time “only where there is no visible, plain, or necessary connection between it and the
proposition eventually to be proved.”3 In the past, the Supreme Court of Delaware has
defined a bad act to be “too remote” in time if it occurs more than ten (10) years
earlier from the litigation based on the time limit contained in Delaware Rule of
Evidence 609(b).4 This prong of the analysis favors the Plaintiff.
(5) The Probative Value of the Evidence Must Not Be Outweighed by the Danger of
Unfair Prejudice.
The probative value of the Defendant’s prior conviction is high. “Probative value is


       3
        Lloyd v. State, Del. Supr. No. 239, 1990 (citing N.L.R.B. v. Ed Chandler Ford, Inc. 718 F.2d
892, 893 (1083))
       4
        Kendall v. State, 726 A.2d 1191, 1196 (Del. 1999) (quoting Trowbridge v. State, 647 A.2d
1076, 1077 (Del. 1994).

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Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.
C.A. No. K13C-05-020 WLW
December 4, 2014


concerned with the tendency of the evidence to establish the proposition that it is
offered to prove.” 5 Defendant’s prior conviction speaks directly to the Defendant
Employer’s liability in this case. The Plaintiff seeks to prove that the employer had
or should have had knowledge of the necessity to exercise control over its own
employee, or put another way, it aids in determining if the actions of the Defendant
were foreseeable by the Defendant-Employer. This prong of the analysis favors the
Plaintiff.
(6) The Court Must Give the Jury a Limiting Instruction.
The Court will allow the parties to agree upon a jury instruction prior to trial.
       Therefore, the Court will not ban the introduction of Defendant’s prior bad act.
The Motion in Limine to Exclude Any Reference to Defendant Ayoub’s Past Acts is
denied.
       IT IS SO ORDERED.



                                       /s/ William L. Witham, Jr.
                                       Resident Judge

WLW/dmh




       5
           Getz v. State, 538 A.2d 726, 734 (Del. 1988).

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