                                                                          FILED
                                                                     Oct 13 2016, 5:33 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEES
      Thomas Rosta                                               Adam J. Sedia
      Metzger Rosta, LLP                                         Rubino, Ruman, Crosmer & Polen
      Noblesville, Indiana                                       Dyer, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Danny Sims,                                               October 13, 2016

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                45A03-1509-CT-1424
              v.                                                Appeal from the Lake Superior
                                                                Court.
                                                                The Honorable William E. Davis,
      Andrew Pappas and Melissa                                 Judge.
      Pappas,                                                   Cause No. 45D05-1306-CT-107
      Appellees-Plaintiffs.




      Shepard, Senior Judge

[1]   During a trial over damages caused by a drunk driver, the defendant

      acknowledged his intoxication and responsibility for the collision. He objected

      to admitting evidence about two decades-old convictions for alcohol-related

      offenses. The objection was overruled and the jury ultimately returned a

      verdict, mostly for compensatory damages.




      Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016             Page 1 of 16
[2]   While we do not embrace his proposal that prior convictions should be barred

      outright as they mostly would be in a criminal trial, we conclude that in this

      case they neither proved nor disproved any facts that were central to the main

      questions the jury decided – compensatory damages and loss of consortium. As

      they were not relevant to these issues and unfairly prejudicial (though probably

      not to the question of punitive damages), we reverse and order a new trial.


                                Facts and Procedural History
[3]   On May 17, 2013, after working an eight-hour shift, Danny Sims left work at

      7:30 a.m., played golf with friends, and then spent the afternoon and evening

      drinking with his son at a bar in Crown Point, Indiana. Sims consumed at least

      seven alcoholic beverages, including three beers and some alcoholic energy

      drinks. Sometime between 9 and 9:30 p.m., Sims was escorted out by two

      bouncers, because he fell asleep at the bar and fell when he tried to stand up

      from the bar stool. Sims struggled with the bouncers and accidentally struck his

      son in the mouth. The bouncers walked Sims to his vehicle, and Sims entered

      his vehicle and attempted to drive home.


[4]   Sims was travelling southbound on Broadway Avenue and entered the left turn

      lane at the intersection of 109th Avenue. Andrew Pappas was driving
                                                                     1
      northbound on Broadway on his way to work. Pappas approached the




      1
       The only issue before this Court on appeal does not involve Pappas’ wife, Melissa. Therefore, in this
      appeal, we use the name “Pappas” to refer to Andrew Pappas.

      Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016                     Page 2 of 16
      intersection of 109th Avenue and attempted to proceed through the

      intersection, as the traffic signal indicated a green light. Sims failed to yield the

      right-of-way and collided head-on with Pappas’ vehicle.


[5]   Pappas was severely injured in the collision. At the time of the accident, Sims’

      blood alcohol content measured .18. Sims admitted being at fault and to being

      intoxicated at the time of the accident. In the course of criminal charges, Sims

      pleaded guilty to operating while intoxicated, as a Class C misdemeanor. 2 He

      was fined and sentenced.


[6]   Pappas and his wife Melissa sued Sims for personal injuries and loss of

      consortium, alleging negligence, recklessness, and willful and wanton

      misconduct. At trial, over Sims’ objection, the court allowed testimony about

      Sims’ driving record, which included a 1983 conviction for operating while

      intoxicated, and a 1996 conviction for reckless driving (based on a failed
                            3
      chemical test).


[7]   On July 1, 2015, following a three-day trial, the jury awarded compensatory

      damages to Pappas and to his wife, and punitive damages to Pappas. The

      compensatory damages were more than ninety percent of the total.




      2
          See Ind. Code § 9-30-5-1 (2001).
      3
        In 1996, Sims failed a chemical test. He entered into a stipulated plea agreement and pled guilty to
      reckless driving. When the Pappases’ counsel attempted to enter Sims’ driving record into evidence,
      which included the 1983 and 1996 convictions, Sims’ counsel objected and the Pappases’ counsel
      withdrew the exhibit.

      Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016                       Page 3 of 16
[8]    After trial, Sims resisted entry of judgment on the verdict, arguing improper

       admission of evidence about his driving offenses, that the compensatory and

       punitive damages awards were excessive, and that the punitive award violated

       his due process rights. After a hearing, the trial court deemed Sims’ written

       objections a motion to correct error (under Indiana Trial Rule 59), denied the

       motion, and entered judgment for the Pappases. This appeal followed.


                                                       Issue
[9]    The dispositive issue is: Whether the trial court erred by admitting evidence of

       Sims’ decades-old prior criminal convictions for driving under the influence and

       reckless driving.


                                     Discussion and Decision
[10]   We evaluate challenges to admission of evidence under a standard that treats

       the decision to admit or exclude evidence as lying within the sound discretion

       of the trial court, one that is afforded great deference on appeal. Bacher v. State,

       686 N.E.2d 791 (Ind. 1997). We will not reverse that decision absent a showing

       of manifest abuse of that discretion. Strack and Van Til, Inc. v. Carter, 803

       N.E.2d 666 (Ind. Ct. App. 2004). Such an abuse occurs where the trial court’s

       decision is against the logic and effect of the facts and circumstances before it.

       Santelli v. Rahmatullah, 993 N.E.2d 167 (Ind. 2013). To determine whether

       reversal is required, the court considers the probable impact of the evidence

       upon the jury. Gibson v. Bojrab, 950 N.E.2d 347 (Ind. Ct. App. 2011). Even if

       we find inadmissible evidence was improperly placed before the jury, we only

       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016   Page 4 of 16
       reverse if that error was clearly prejudicial. Morse v. Davis, 965 N.E.2d 148 (Ind.

       Ct. App. 2012), trans. denied.


[11]   Sims argues the evidence in question is inadmissible under Indiana Evidence

       Rules 403 and 609(b). Pappas counters the trial court properly admitted the

       evidence because 1) the prior convictions were probative of the reprehensibility

       of Sims’ actions, which, according to Pappas, outweighed any prejudice; and 2)

       Indiana Evidence Rule 609 does not apply to the admission of the prior

       convictions, but instead applies only to the admissibility of certain evidence for

       purposes of impeaching a witness.


[12]   Evidence Rule 609 provides:

               (a) General Rule. For the purpose of attacking the credibility of a
               witness, evidence that the witness has been convicted of a crime
               or an attempt of a crime must be admitted but only if the crime
               committed or attempted is (1) murder, treason, rape, robbery,
               kidnapping, burglary, arson, or criminal confinement; or (2) a
               crime involving dishonesty or false statement, including perjury.
               (b) Limit on Using the Evidence After 10 Years. This subdivision
               (b) applies if more than ten (10) years have passed since the
               witness’s conviction or release from confinement for it,
               whichever is later. Evidence of the conviction is admissible only
               if:
                        (1) its probative value, supported by specific facts and
                        circumstances, substantially outweighs its prejudicial
                        effect; and
                        (2) the proponent gives an adverse party reasonable written
                        notice of the intent to use it so that the party has a fair
                        opportunity to contest its use.


       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016   Page 5 of 16
       Ind. Evidence Rule 609 (2014). Under the rule, evidence that a witness has

       been convicted of certain crimes or an attempt of those crimes is admissible for

       impeachment purposes. Under section (b) of the rule, evidence of convictions

       more than ten years old is admissible only upon advance written notice, and

       subject to a Rule 403 balancing test. Indiana Evidence Rule 403 provides that

       relevant evidence may be excluded if its probative value is substantially

       outweighed by the danger of unfair prejudice, confusion of the issues,

       misleading the jury, considerations of undue delay, or needless presentation of

       cumulative evidence.


[13]   Pappas admits the introduction of Sims’ prior convictions was prejudicial, but

       argues the evidence was not unfairly so. According to Pappas,

               Because Sims’s prior offenses had a direct bearing on the
               reprehensibility of his actions, they served as an entirely legitimate
               and proper means of persuasion on the issue of punitive damages.
               Also, because their temporal remoteness affected their weight
               rather than their admissibility, the [trial] court acted well within its
               discretion to admit evidence of them at trial.


       Appellees’ Br. p. 14.


[14]   Sims concedes that the evidence of his prior convictions was not used to

       impeach him, but nevertheless urges application of the ten-year time limitation

       in Rule 609(b) under the premise “that evidence of the prior convictions [is not]

       indicative of [Sims’] state of mind because they are far too remote in time.”

       Appellant’s Br. pp. 7-8. Specifically, he contends, “[t]he law sets a [ten-year]

       limitation on the use of such evidence for impeachment, and it is logical to
       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016   Page 6 of 16
                                                                                                            4
       apply the same limitation for [Sims’] state of mind at the time of the accident.”

       Sims further argues: “[j]ust as the passing of time impacts whether a prior

       criminal conviction is admissible for impeachment, it follows that the passing of

       time should impact admissibility of prior convictions regarding [Sims’] state of
                                5
       mind in this case.”


[15]   There is no direct authority for his premise, and indeed such case law that exists

       leans against it. Davidson v. Bailey, 826 N.E.2d 80 (Ind. Ct. App. 2005).


[16]   Davidson was a personal injury suit arising from a 1999 motor vehicle accident.

       David Davidson operated a vehicle with a blood alcohol content of over twice

       the (then) statutory limit of .10, and caused an accident. Evidence of his

       subsequent DUI convictions was excluded at trial, but evidence of his four prior

       DUI convictions, from 1990, 1991, 1993, and 1995, was admitted. A jury

       awarded compensatory and punitive damages against Davidson.


[17]   On appeal, Davidson argued (among other things) the trial court erred in

       admitting evidence of his prior DUI convictions. According to Davidson,

       evidence of the prior DUI convictions was unfairly prejudicial because when

       the jury heard the evidence, there was a danger that it would and did punish

       him for his past behavior rather than his conduct the night of the accident.




       4
        See Appellees’ App. p. 29 (Sims’ Memorandum of Law in Support of His Motion Objecting to Entry of
       Judgment on the Jury’s Verdict).
       5
           Id. at 29-30.


       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016                Page 7 of 16
[18]   In support of his argument, Davidson pointed to Wohlwend v. Edwards, 796

       N.E.2d 781 (Ind. Ct. App. 2003), in which a panel of this court reversed an

       award of punitive damages arising out of a motor vehicle accident. As an issue

       of first impression, the Wohlwend court held it was reversible error to admit

       evidence of defendant’s subsequent acts of drunk driving even if limited to the

       issue of punitive damages. In reaching this conclusion, the Wohlwend court

       engaged in an extensive discussion of State Farm Mut. Auto. Ins. Co. v. Campbell,
                                                                                     6
       538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003), as well as relevant

       case law from other jurisdictions, and expressed concern that admission of

       defendant’s subsequent bad acts created a danger that the jury would punish

       defendant for subsequent behavior rather than the conduct involving the

       plaintiffs. See Wohlwend v. Edwards, 796 N.E.2d 781.


[19]   The Davidson panel ultimately found that introduction of Davidson’s prior DUI

       convictions (and the fact that he was on probation for the fourth DUI

       conviction when the crash occurred) to show his state of mind at the time of the

       accident was prejudicial, but not unfairly so. See Davidson, 826 N.E.2d 80. It




       6
        In State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), the Court struck down an award of
       punitive damages, finding that the reprehensibility prong of the Gore test (found in BMW of No. Am., Inc. v.
       Gore, 517 U.S. 559 (1996)) was miscalculated due to the introduction of “perceived deficiencies of State
       Farm’s operations throughout the country,” much of which had little or no relation to the tort at issue and
       some of which was not proscribed by law where it occurred. Id. at 420.



       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016                        Page 8 of 16
       thus held that the trial court did not err in admitting evidence of Davidson’s

       prior DUI convictions.


[20]   Sims attempts to distinguish his case from Davidson by arguing that his past

       convictions for driving offenses “w[ere] highly prejudicial and sufficiently

       removed in time to have no relevance to [his] state of mind at the time of the

       accident;” and that “unlike [Davidson, Sims] was not on probation at the time

       of the accident.” Appellant’s Br. pp. 7, 8. Sims also emphasizes that Davidson

       had twice the number of convictions as Sims in one-third the time and that all

       of Davidson’s convictions were within ten years of the accident.


[21]   We think Sims’ proposal to apply the ten-year time limit of Evidence Rule 609

       is a bridge too far. As Pappas argues, for example, the principle of 609 and

       such case law as exists would seem to make evidence of prior DUI’s admissible

       on an issue like punitive damages. A recidivist is worthy of greater punishment

       than a one-time offender.


[22]   Nevertheless, we determine that unlike in Davidson, the prejudicial effect of the

       evidence of Sims’ prior alcohol-related driving offenses substantially outweighs

       its probative value. In this trial, those convictions had no relevance or

       probative value as respects the claims of compensatory damages which made up

       the great majority of the jury’s verdict.


[23]   Relevant evidence is defined as evidence having any tendency to make the

       existence of any pertinent fact more probable or less probable than it would be

       without the evidence. See Ind. Evidence Rule 401.                      To determine whether

       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016            Page 9 of 16
       evidence concerns a material fact, we look to the nature of the case and the

       issues being litigated, which are usually set out in the pleadings. State Farm

       Mut. Auto. Ins. Co. v. Earl, 33 N.E.3d 337 (Ind. 2015).


[24]   Still, even relevant evidence may be excluded if its probative value is

       substantially outweighed by the danger of unfair prejudice, confusion of the

       issues, misleading the jury, considerations of undue delay, or needless

       presentation of cumulative evidence. See Ind. Evidence Rule 403. Unfair

       prejudice addresses the way in which the jury is expected to respond to the

       evidence. Ingram v. State, 715 N.E.2d 405 (Ind. 1999). It looks to the capacity

       of the evidence to persuade by illegitimate means, or the tendency of the

       evidence to suggest a decision on an improper basis. Id.


[25]   The remoteness of prior misconduct tends to diminish the probative value of

       evidence and weigh against its admission. See, e.g., Spencer v. State, 703 N.E.2d

       1053 (Ind. 1999) (evidence of bad acts occurring more than three years before

       the charged incident had low probative value); see also, The Past Comes Back to

       Haunt You: Yeakley v. Doss, Prior Convictions as Admissible Evidence of Punitive

       Damages, 62 Ark. L. Rev. 153, 172-73 (“[A]dmission of prior convictions that

       are far back in a person’s past may also be unfair. For example, if a twenty-

       two-year-old college student was convicted for [driving while intoxicated], and

       then never had an encounter again until he was sixty years old, it is unfair to

       allow the jury to consider his first conviction from thirty-eight years ago.”).

       “Some proffered evidence may be irrelevant because it is too remote.” Hicks v.

       State, 690 N.E.2d 215, 220 (Ind. 1997). Still, there is no bright-line rule

       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016   Page 10 of 16
       concerning when prior misconduct becomes too old to have any probative

       value.


[26]   Just as the foregoing analysis suggested, in this case one of the offenses

       occurred thirty years before the collision with Pappas, when Sims was just

       eighteen years old. The other conviction was seventeen years in the past.

       While these offenses were likewise related to alcohol, their probative value on

       the issue of compensatory damages was not great. Whether they establish a

       pattern of reckless behavior on the part of Sims may be fairly debated, and if

       that were their only use at trial the decision to admit them might stand on
                           7
       firmer ground.


[27]   What is not really debatable is their relevance to the issue the jury found the

       most weighty – compensatory damages. After all, Sims admitted that he was

       responsible for the crash that injured Pappas and admitted that he was

       intoxicated at the time.


[28]   Furthermore, we cannot say that the jury was unaffected by this evidence.

       Pappas’ lawyer apparently regarded the evidence as influential, as he used final



       7
        Pappas turns this panel’s attention to Catt v. Skeans, 867 N.E.2d 582 (Ind. Ct. App. 2007), trans. denied,
       maintaining that “Catt held that admission of prior convictions for [the purpose of showing reprehensibility]
       was within the trial court’s discretion.” Appellees’ Br. p. 13. However, Catt does not so hold. In Catt, Catt
       operated his vehicle while intoxicated and collided with Skeans, who was driving a motorcycle. Catt
       eventually pleaded guilty to operating while intoxicated (OWI). It was his third conviction for the offense.
       Skeans sought damages, and following a jury trial was awarded compensatory damages and punitive
       damages. Catt appealed, but did not raise any issues on appeal regarding his prior OWI convictions. The
       panel in Catt held (among other things) the punitive damages award was not unconstitutionally excessive
       under the Due Process Clause, and evidence supported the compensatory damages award. Catt, 867 N.E.2d
       at 582.

       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016                     Page 11 of 16
       argument to declare that the jury should do more than the criminal justice

       system had done. Counsel argued at the close of trial that Sims received “light

       punishment” for the prior convictions. Regarding the 1996 reckless driving

       conviction, counsel argued: “In 1996, he was charged with DUI, [sic] he failed

       a [chemical] test. And then he got a lawyer and he got off, and he got it pled

       down to reckless driving. For them to stand here and say that, [y]ou know

       what[,] he’s just a human and he made a mistake, [sic] if it’s his first offense, I

       might see that, [sic] this is the third time he’s done it.” Tr. p. 472. Later in his

       closing argument, counsel argued: “The bottom line is, folks, this is no

       different than the other two criminal cases, [sic] it’s no different than the

       criminal case in this instance. They’re playing the system. And what they do is

       they come in here and they argue, [w]oe is me, woe is me . . . .” Tr. p. 474.


[29]   Pappas claims that, even if the evidence was erroneously admitted, the error

       was harmless and reversal is not required. Harmless error is error that does not

       affect the substantial rights of a party given the error’s likely impact on the jury

       in light of other evidence presented at trial. See Littler v. State, 871 N.E.2d 276

       (Ind. 2007) (citation and quotation omitted). In this case, the jury was exposed

       to Sims’ decades-old, alcohol-related convictions and the punishment he

       received for committing the offenses. The Pappases’ counsel encouraged the

       jury to take into account Sims’ plea agreements in determining the amount of

       damages to award the Pappases. Because the possibility exists here that the

       jury’s damages award punished Sims a second time for his past criminal




       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016   Page 12 of 16
       transgressions, we are unable to say that the trial court’s error in admitting the

       evidence was harmless.


[30]   We do not say that evidence of decades-old, alcohol-related offenses can never

       be admissible in civil actions for damages arising from motor vehicle accidents.

       But in this case, in light of Sims’ admissions of fault and to being intoxicated at

       the time of the accident, and taking into consideration the evidence regarding

       the circumstances of the accident that was presented at trial, and the inferences

       made by the Pappases’ counsel that Sims was not punished properly for the

       prior convictions, the prejudicial effect of evidence of a thirty-year-old

       conviction for OWI and a seventeen-year-old conviction for reckless driving

       outweighs any probative value the evidence can serve.


                                                 Conclusion
[31]   The trial court erroneously admitted evidence of Sims’ prior alcohol-related

       convictions from 1983 and 1996, and the error was not harmless. The trial

       court’s judgment entered on the jury verdict is reversed and this cause is

       remanded for retrial.


       Riley, J., concurs.


       Altice, J., dissenting with separate opinion.




       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016   Page 13 of 16
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Danny Sims,
       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  45A03-1509-CT-1424
               v.

       Andrew Pappas and Melissa
       Pappas,
       Appellees-Plaintiffs.




       Altice, Judge, dissenting.

[32]   I agree with the majority’s conclusion that the ten-year limit set out in Ind.

       Evidence Rule 609 does not apply in this context. I cannot agree, however,

       with the majority’s ultimate conclusion, based on an Ind. Evidence Rule 403

       analysis, that the trial court abused its discretion by admitting evidence of

       Sims’s 1983 and 1996 prior alcohol-related offenses.



       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016            Page 14 of 16
[33]   On more than one occasion, the majority observes that the prior convictions

       had no relevance or probative value with respect to the determination of

       compensatory damages. This is true but beside the point. A review of the

       record, especially closing arguments, 8 makes clear that the evidence of Sims’s

       prior offenses was admitted for the sole purpose of establishing punitive

       damages. The evidence had a direct bearing on the reprehensibility of Sims’s

       actions and his state of mind at the time of the accident. See Catt v. Skeans, 867

       N.E.2d 582, 587 (Ind. Ct. App. 2007) (“Catt had been convicted twice before of

       this same offense; thus, it was not an isolated incident. The degree of

       reprehensibility of Catt’s conduct, therefore, is rather significant.”), trans. denied;

       Davidson v. Bailey, 826 N.E.2d 80, 86 (Ind. Ct. App. 2005) (“evidence of

       Davidson’s four previous DUI convictions was clearly relevant to his state of

       mind at the time of the accident and whether his actions were willful and

       wanton justifying the imposition of punitive damages”).




       8
        Plaintiffs’ counsel carefully confined any discussion of the prior offenses to the issue of punitive damages.
       In closing argument, counsel discussed compensatory damages in depth with no mention of the prior offenses
       and then briefly addressed the wife’s loss of consortium claim. Counsel then turned to punitive damages:
             Punitive damages. We’ve asked for punitive damages and we think that clear and convincing
             evidence suggests that the Defendant was committing reprehensible behavior. And it is to
             punish, it is to punish. But, again, the reason it’s to punish and the reason it’s brought is to stop
             things like this from happening.
             And if you feel that’s there clear and convincing evidence that you need to send a message, you
             know, to Mr. Sims that this must stop. Three times is enough. What’s going to happen the
             fourth time? Totally your discretion. However much you feel is appropriate to send that
             message. That’s your decision….
       Transcript at 451-52. Defense counsel also addressed the prior offenses expressly in the context of punitive
       damages. In rebuttal, plaintiffs’ counsel discussed the prior offenses in a bit more depth, as quoted by the
       majority, but counsel qualified his statements: “Again, that goes to the punitive and that’s up to you guys.”
       Id. at 472.

       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016                         Page 15 of 16
[34]   Though relevant to the issue of punitive damages, the prior convictions’

       remoteness in time does tend to diminish their probative value. In my mind,

       however, this should go to the weight of the evidence 9 rather than its

       admissibility, and I cannot say that the trial court abused its discretion in this

       regard. See Spencer v. State, 703 N.E.2d 1053, 1056 (Ind. 1999) (even though

       remote crimes had low probative value and the Court was “inclined to think

       this evidence should not have been admitted”, the Court found no abuse of

       discretion in the trial court’s admission of the evidence). Accordingly, I

       respectfully dissent.




       9
         The majority places great emphasis on the jury’s verdict and the fact that the vast majority of the damages
       awarded were compensatory rather than punitive. To me, this indicates that the jury carefully weighed the
       evidence admitted regarding punitive damages and gave little weight to the prior convictions due to their
       remoteness in time.

       Court of Appeals of Indiana | Opinion 45A03-1509-CT-1424 | October 13, 2016                      Page 16 of 16
