from the Lake Superior Court. The Honorable William E. Davis,
Judge. Cause No. 45D05-1306-CT-107
ATTORNEY FOR APPELLANT Thomas Rosta Metzger Rosta, LLP
ATTORNEY FOR APPELLEES Adam J. Sedia Rubino, Ruman, Crosmer
& Polen Dyer, Indiana
Shepard, Senior Judge
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.
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.
and Procedural History
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.
Sims was travelling southbound on Broadway Avenue and entered
the left turn lane at the intersection of 109th Avenue.
Andrew Pappas was driving northbound on Broadway on his way
to work. Pappas approached the 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.
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. He was fined and sentenced.
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 chemical
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.
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.
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
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 reverse if that
error was clearly prejudicial. Morse v. Davis, 965
N.E.2d 148 (Ind.Ct.App. 2012), trans. denied.
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.