Motion in limine. Clayton Superior Court. Before Judge Carbo, pro hac vice.
Gillis & Creasy, James K. Creasy, for appellant.
Strawinski & Stout, James S. Strawinski, Daniel G. Cheek, for appellee.
DOYLE, Presiding Judge. Miller and Dillard, JJ., concur.
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. 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.
This is the second appearance of this case. In the earlier appeal, Rivers v. K-Mart Corp. ( 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 [329 Ga.App. 496] 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.
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.
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."  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 [329 Ga.App. 497] ...