IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 8, 2016 Session

DAVID W. ANDERSON V. EDWARD POLTORAK ET AL.

Appeal from the Circuit Court for Davidson County

No. 13-C382 Joseph P. Binkley, Jr., Judge

No. M2015-02512-COA-R3-CV – Filed January 17, 2017

This appeal arises from a civil action in which the jury returned a verdict in favor of 

Plaintiff for injuries sustained in a motor vehicle accident. Defendants appeal contending 

the trial court committed reversible error by limiting their impeachment of Plaintiff 

regarding three felony convictions. After applying the balancing test under Tennessee 

Rule of Evidence 403 to determine if the probative value of the evidence is substantially 

outweighed by the danger of unfair prejudice, the trial court allowed Defendants “to 

question the plaintiff about whether he has been convicted of three felonies” but barred 

any questions about “the details regarding the nature of the convictions, types of 

convictions or the facts and circumstances surrounding the convictions.” The dispositive 

issue is whether a party to a civil action has an absolute right under Tennessee Rule of 

Evidence 609 to impeach a witness with evidence of prior felony convictions including 

the details regarding the nature of his convictions, the types of convictions, or the facts 

and circumstances surrounding the convictions. Defendants contend the evidence was 

admissible as a matter of right under Tennessee Rule of Evidence 609; therefore, the trial 

court did not have the discretion to conduct a balancing test under Tennessee Rule of 

Evidence 403. Having determined that the trial judge had the discretion to conduct a 

balancing test under Tennessee Rule of Evidence 403 and that the court did not abuse its 

discretion in limiting the scope of Defendants‟ impeachment of Plaintiff, we affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which D. 

MICHAEL SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Alan M. Sowell and Michelle Denise Reid, Nashville, Tennessee, for the appellants,

Edward Poltorak and National Retail Systems, Inc.

Brian P. Dunigan, Goodlettsville, Tennessee, for the appellee, David W. Anderson.
- 2 -

OPINION

This litigation arose from an automobile accident that occurred on February 11, 

2012, involving David Anderson (“Plaintiff”) and Edward Poltorak, who was driving an 

18-wheeler at the time of the crash for National Retail Systems, Inc. d/b/a/ Keystone 

Freight Corporation. On January 28, 2013, Plaintiff filed suit against Mr. Poltorak and his 

employer (collectively “Defendants”) alleging that he received personal injuries and 

damages as a result of Mr. Poltorak‟s failure to yield the right of way at the intersection. 

Defendants denied liability and claimed that Plaintiff ran the light.

In preparation for trial, Defendants filed a motion in limine to impeach the 

credibility of Plaintiff by presenting evidence of his three prior felony convictions:

receipt of child pornography, possession of child pornography, and transporting obscene 

matter. In response to Defendants‟ motion, Plaintiff argued that the felony convictions 

would be of “very marginal relevance to credibility,” and should be excluded because the 

probative value of the convictions is substantially outweighed by the danger of unfair 

prejudice to Plaintiff.

Following a hearing on the motion, the trial court held that, although Plaintiff‟s

three felony convictions met the criteria for use of impeachment evidence, the probative 

value of the convictions would be substantially outweighed by the danger of unfair 

prejudice to Plaintiff because “a juror learning about the child pornography convictions 

would be unavoidably angry, offended and motivated to punish the plaintiff, irrespective 

of the facts of this case.” Based on these concerns, the trial court ruled that Defendants 

would be allowed “to question the plaintiff about whether he has been convicted of three 

felonies,” but barred any questions about “the details regarding the nature of the 

convictions, types of convictions or the facts and circumstances surrounding the 

convictions.” The trial court‟s order reads, in pertinent part, as follows: 

1. The plaintiff‟s three (3) felony convictions meet the two criteria set 

forth in Rule 609 [of the Tennessee Rules of Evidence] for use as 

impeachment evidence because the plaintiff was imprisoned for a total 

of 21 months (see Rule 609(a)(2) (“The crime must be punishable by 

death or imprisonment in excess of one year under the law under which 

the witness was convicted. . . [.]”)) and less than ten (10) years have 

elapsed between the date of release and commencement of this action 

(see Rule 609(b) (“Evidence of conviction under this rule is not 

admissible if a period of more than ten years has elapsed between the 

date of release from confinement and commencement of the action. . . 

[.]”)).

2. The balancing tests found in Rule 609 at sections (a)(3) and (b) do not 

apply to the circumstances of the plaintiff‟s convictions.
- 3 -

a. The Rule 609(a)(3) balancing test only applies to the accused in a 

criminal case. See Rule 609(a)(3) (“If the witness to be 

impeached is the accused in a criminal prosecution . . . the court 

upon request must determine that the conviction‟s probative 

value on credibility outweighs its unfair prejudicial effect on the 

substantive issues”) (emphasis added).

b. The Rule 609(b) balancing test only applies if the witness was 

not confined or more than 10 years have elapsed since the date of 

release. See Rule 609(b) (“Evidence of a conviction under this 

rule is not admissible if a period of more than ten years has 

elapsed between the date of release from confinement and 

commencement of the action or prosecution; if the witness was 

not confined, the ten-year period is measured from the date of 

conviction rather than release. Evidence of a conviction not 

qualifying under the preceding sentence is admissible if . . . the 

court determines in the interest of justice that the probative value 

of the conviction . . . substantially outweighs its prejudicial 

effect.”)).

3. The balancing test found in Rule 403 [of the Tennessee Rules of 

Evidence] applies to this case.

a. In making this finding, the Court relies on the Advisory 

Commission Comment to Rule 609 which states as follows: “For 

witnesses not covered by 609(a)(3), the balancing test is 

different. Rule 403 applies, and a conviction would be admissible 

to impeach unless „its probative value is substantially outweighed 

by the danger of unfair prejudice‟ or other criteria listed in that 

rule.” The only witness covered by Rule 609(a)(3) is “the 

accused in a criminal prosecution;” therefore, Rule 403 balancing 

necessarily applies to all witnesses who are not the accused in a 

criminal prosecution, including a witness in a civil case. See also

Neil P. Cohen et al., Tennessee Law of Evidence § 6.09[5][a] 

(“For impeachment of a witness in a civil case. . . the Tennessee 

rule [609] is silent. . . . [however] the Advisory‟s Commission‟s 

Comment to Tennessee Rule 609 states the correct test. The 

balancing test under Rule 403 is to be used”) (emphasis added).

b. In this case, the witness to be impeached with the three (3) felony 

convictions is a plaintiff in a civil case as opposed to the accused 
- 4 -

in a criminal prosecution; therefore, Rule 403 balancing applies 

to the plaintiff‟s convictions. 

4. Applying the balancing test found in Rule 403, the probative value of 

the three (3) felony convictions regarding child pornography are 

substantially outweighed by danger of unfair prejudice to the plaintiff.

a. There is very little probative value in the three felony convictions 

because they do not arise out of this case nor are they related in 

any way to this case. The convictions are being used for 

impeachment purposes only under Rule 609.

b. The Court further agrees with the plaintiff that a juror learning 

about the child pornography convictions would be unavoidably 

angry, offended and motivated to punish the plaintiff, 

irrespective of the facts of the present case.

c. The result is that the probative value is substantially outweighed 

by the danger of unfair prejudice to the plaintiff.

5. The Court, however, will allow the defendants to question the plaintiff 

about whether he has been convicted of three felonies. The defendant 

cannot question the plaintiff about the details regarding the nature of the 

convictions, types of convictions or the facts and circumstances 

surrounding the convictions. The Court finds this is an appropriate 

balance between outright exclusion of the convictions and the unfair 

prejudice suffered by the plaintiff if the circumstances of the 

convictions were presented to the jury. “One of the trial court‟s essential 

responsibilities is to control the flow of evidence to the jury by ruling on 

the admissibility of evidence, controlling the order of the proof, and 

determining the scope of examination of the witnesses. A trial court has 

a wide degree of latitude in making these decisions.” Overstreet v. 

Shoney’s Inc., 4. S.W.3d 694, 702 (Tenn. Ct. App. 1999).

It is therefore ORDERED that the defendants Motion in [L]imine is 

granted in part and denied in part.

(Emphasis in original).

Plaintiff admitted to having been convicted of three felonies during both direct and 

cross-examination. In accordance with the trial court‟s order, Plaintiff was not questioned 

as to the details regarding the nature of the convictions, types of convictions, or the facts 

and circumstances surrounding the convictions.
- 5 -

As to the automobile accident, Plaintiff testified that he observed the light as he 

approached the intersection and that he was “one hundred percent” sure he had the green 

light, and thus the right of way, when the 18-wheeler driven by Mr. Poltorak collided 

with his vehicle. In addition to Plaintiff‟s own testimony, he offered in-court testimony 

from witness Robert Carpenter and deposition testimony from Lanesha Brown, both of 

whom testified that Plaintiff had the right of way. Mr. Poltorak was barred from testifying 

during trial due to his refusal to participate in discovery. Defendants offered no other 

evidence to support their position that Mr. Poltorak had the green light instead of 

Plaintiff.

Plaintiff further testified as to injuries he suffered as a result of the collision, 

including lower-back problems, which Plaintiff stated continued to trouble him at the 

time of trial. Plaintiff also presented deposition testimony from Dr. Robert Landsberg, 

who testified as to Plaintiff‟s medical treatment, physical exam findings, and injuries 

caused by the collision. Dr. Landsberg testified that Plaintiff‟s lower-back injury was 

permanent and that Plaintiff would continue to suffer painful symptoms for the rest of his 

life. Dr. Landsberg also testified that Plaintiff had incurred charges for reasonable and 

necessary medical treatment totaling $15,153.

At the conclusion of trial, the jury returned a verdict finding Defendants 100% at 

fault and awarded Plaintiff damages in the amount of $30,533.00. Defendants filed a 

motion for a new trial on the grounds that Tennessee Rule of Evidence 609 required the 

trial court to admit evidence of Plaintiff‟s convictions in their entirety. The trial court 

denied the motion on November 16, 2015, and Defendants timely filed this appeal.

On appeal, Defendants do not dispute that the probative value of Plaintiff‟s 

convictions is substantially outweighed by the danger of unfair prejudice to Plaintiff and 

would be inadmissible pursuant to Tennessee Rule of Evidence 403.1Instead, Defendants 

argue that the trial court had no discretion to conduct a balancing test under Rule 403 to 

“override” Rule 609. Stated another way, Defendants insist that the trial court incorrectly 

interpreted Rule 609.

STANDARD OF REVIEW

Interpretation of the Tennessee Rules of Evidence is a question of law, which we 

review de novo with no presumption of correctness. Holder v. Westgate Resorts Ltd., 356 

S.W.3d 373, 379 (Tenn. 2011). Decisions regarding the admission or exclusion of 

evidence are generally entrusted to the sound discretion of the trial court, White v. Beeks, 

 

1

In fact, at the oral argument for this matter, Defendants‟ attorney acknowledged that the 

convictions are “highly prejudicial,” which is why they wanted the jury to hear the details.
- 6 -

469 S.W.3d 517, 527 (Tenn. 2015), and discretionary decisions are reviewed pursuant to 

the “abuse of discretion” standard of review. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 

524 (Tenn. 2010).

ANALYSIS

The dispositive issue is whether a party to a civil action has an absolute right 

under Tennessee Rule of Evidence 609 to impeach a witness with evidence of prior 

felony convictions, including the details regarding the nature of his convictions, the types 

of convictions, and the facts and circumstances surrounding the convictions, or whether 

the trial court has the discretion to conduct a balancing test under Tennessee Rule of 

Evidence 403 to determine whether the probative value of the evidence is substantially 

outweighed by the danger of unfair prejudice.

Tennessee Rule of Evidence 609 provides, in pertinent part, as follows:

(a) General Rule. For the purpose of attacking the credibility of a witness, 

evidence that the witness has been convicted of a crime may be admitted

if the following procedures and conditions are satisfied:

. . . 

(2) The crime must be punishable by death or imprisonment in excess of 

one year under the law under which the witness was convicted or, if 

not so punishable, the crime must have involved dishonesty or false 

statement. 

(3) If the witness to be impeached is the accused in a criminal 

prosecution, the State must give the accused reasonable written 

notice of the impeaching conviction before trial, and the court upon 

request must determine that the conviction‟s probative value on 

credibility outweighs its unfair prejudicial effect on the substantive 

issues. . . . 

(b) Time Limit. Evidence of a conviction under this rule is not admissible 

if a period of more than ten years has elapsed between the date of 

release from confinement and commencement of the action or 

prosecution; if the witness was not confined, the ten-year period is 

measured from the date of conviction rather than release. Evidence of a 

conviction not qualifying under the preceding sentence is admissible if 

the proponent gives to the adverse party sufficient advance notice of 

intent to use such evidence to provide the adverse party with a fair 

opportunity to contest the use of such evidence and the court determines 
- 7 -

in the interests of justice that the probative value of the conviction, 

supported by specific facts and circumstances, substantially outweighs 

its prejudicial effect.

Tenn. R. Evid. 609 (emphasis added). 

When called upon to construe a rule of evidence, our primary goal is to “effectuate 

the drafters‟ intent without broadening or restricting the intended scope of the rule.” Fair 

v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013). “We achieve this objective by examining 

the text, and if the language is unambiguous, we simply apply the plain meaning of the 

words used.” Id. (citing Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn. 2012)). We 

are to presume that every word has meaning and purpose and should be given full effect 

if the obvious intention of the General Assembly is not violated by so doing. In re Estate 

of Tanner, 295 S.W.3d 610, 614-15 (Tenn. 2009). When the language of the rule is clear, 

we apply the plain meaning without complicating the task. Id. at 615. However, when the 

statutory language is unclear, we may consider, among other things, the broader statutory 

scheme, the history and purpose of the legislation, public policy, historical facts 

preceding or contemporaneous with the enactment of the statute, earlier versions of the 

statute, the caption of the act, and the legislative history of the statute. Pickard v. 

Tennessee Water Quality Control Bd., 424 S.W.3d 511, 518 (Tenn. 2013).

Applying the foregoing principles, we conclude that Tennessee Rule of Evidence 

609 does not mandate the admission of crimes that come within the purview of Rule 609;

to the contrary, Rule 609 gives the trial court the discretion to conduct a balancing test 

when determining the admissibly of evidence of a witness‟s prior convictions for 

impeachment purposes.

The plain language of Tennessee Rule of Evidence 609 contemplates that the trial 

court is to exercise discretion when admitting evidence of a witness‟s prior convictions 

for impeachment purposes. Specifically, the plain language of Rule 609 states that “[f]or 

the purpose of attacking the credibility of a witness, evidence that the witness has been 

convicted of a crime may be admitted if the . . . procedures and conditions” of the rule are 

satisfied. Tenn. R. Evid. 609 (emphasis added). “The word „may‟ used in a statute 

ordinarily connotes discretion or permission and will not be treated as a word of 

command, unless there is something in the context of the subject matter of the statute 

under consideration to indicate that it was used in that sense.” Steppach v. Thomas, 346 

S.W.3d 488, 505 (Tenn. Ct. App. 2011) (quoting Williams v. McMinn Cnty., 352 S.W.2d 

430, 433 (Tenn. 1961)); see also Baker v. Seal, 694 S.W.2d 948, 951 (Tenn. Ct. App. 

1984) (“Words or phrases which are generally regarded as making a provision mandatory 

include „shall,‟ and „must.‟ On the other hand, a provision couched in permissive terms is 

generally regarded as directory or discretionary. This is true of the word „may,‟ or 

„authorizes,‟ . . . .”). There is nothing in the context of Rule 609 to indicate the word 

„may‟ was used other than in its ordinary meaning.
- 8 -

In addition to the rule‟s plain language, the history of Tennessee Rule of Evidence

609 supports our conclusion that the trial court retains discretion in admitting such 

evidence. The Tennessee Rules of Evidence became effective in 1990. State v. Evans, 

838 S.W.2d 185, 194 (Tenn. 1992). Prior to the adoption of the rules of evidence, the 

Tennessee Supreme Court adopted Rule 609 of the Federal Rules of Evidence as the 

standard for witness impeachment with prior convictions. State v. Morgan, 541 S.W.2d 

385, 38-39 (Tenn. 1976). Federal Rule of Evidence 609, as adopted by our Court,

provided in pertinent part:

For the purpose of attacking the credibility of a witness, evidence that he 

has been convicted of a crime shall be admitted if elicited from him or 

established by public record during cross-examination but only if the crime 

(1) was punishable by death or imprisonment in excess of one year under 

the law under which he was convicted, and the court determines that the 

probative value of admitting this evidence outweighs its prejudicial effect 

to the defendant, or (2) involved dishonesty or false statement, regardless of 

the punishment.

Id. (emphasis added). 

However, when the Tennessee Rules of Evidence became the law in Tennessee, 

Federal Rule of Evidence 609 was superseded by Tennessee Rule of Evidence 609. As a 

consequence, the federal rule‟s mandatory language, “shall be admitted,” was replaced by 

the Tennessee rule‟s discretionary language, “may be admitted.”

Having decided Tennessee Rule of Evidence 609 gives the trial court discretion,

we now consider whether the balancing test under Tennessee Rule of Evidence 403 is the

appropriate test to be used when determining the admissibly of such evidence with 

respect to a witness in a civil case.

Tennessee Rule of Evidence 609 unambiguously identifies the appropriate 

balancing test to be used in three instances. The first is when the witness‟s prior 

convictions fall outside of Rule 609‟s ten-year time frame. See Tenn. R. Evid. 609(b). 

The second is when the witness to be impeached is the accused in a criminal proceeding. 

See Tenn. R. Evid. 609(a)(3). The third is only applicable to evidence of juvenile 

adjudications. See Tenn. R. Evid. 609(d). With respect to a witness in a civil case or a 

witness other than the accused in a criminal case, Rule 609 is silent. Accordingly, we 

seek guidance from the Advisory Commission Comment, which unambiguously states:

For witnesses not covered by 609(a)(3), the balancing test is different. Rule 

403 applies, and a conviction would be admissible to impeach unless “its 
- 9 -

probative value is substantially outweighed by the danger of unfair 

prejudice” or other criteria listed in that rule.

Tenn. R. Evid. 609 advisory comm‟n cmt. (quoting Tenn. R. Evid. 403).

Despite the clarity of Tennessee Rule of Evidence 609 and its Advisory 

Commission Comment, Defendants assert that the judge had no discretion to conduct a 

balancing test under Rule 403 to “override” Rule 609. In support of their argument, 

Defendants rely on the United States Supreme Court‟s decision in Green v. Bock Laundry 

Machine Co., 490 U.S. 504, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989), which interprets

Rule 609 of the Federal Rules of Evidence. We find Defendants‟ reliance on Green

misplaced because that case preceded the adoption of the Tennessee Rules of Evidence

and, as we explained earlier, unlike the federal rule‟s mandatory language, Tennessee‟s 

rule states that evidence of convictions “may be admitted,” indicating that the trial court 

has discretion. See Williams, 352 S.W.2d at 433. 

Defendants further contend that the trial court erred by relying on the Advisory 

Commission Comment of Rule 609 because the comment is “simply wrong” and “there is 

no law authorizing a court to look to the [comment] to ascertain the intent of the 

legislature . . . .” We respectfully disagree with Defendants suggestion that there is no 

authority for a court to consider the comments of the Advisory Commission. To the 

contrary, “Advisory Commission comments have weight and can provide helpful 

guidance for construing rules when their text is unclear.” Covington v. Acuff, No. 01A01-

9605-CV-00236, 1997 WL 626872, at *2 (Tenn. Ct. App. 1997).

In this case, Defendants sought to attack the credibility of Plaintiff, a witness in a 

civil case, with evidence of his prior convictions for receipt of child pornography, 

possession of child pornography, and transporting obscene matter. The parties concede

that the prior convictions were felony convictions and that more than ten years had not

elapsed between the date of Plaintiff‟s release from confinement and commencement of 

this action; thus, the convictions met the criteria set forth in Tennessee Rule of Evidence 

609(a)(2) and 609(b). Accordingly, the convictions were eligible to be impeaching 

convictions subject to Tennessee Rule of Evidence 403. Tenn. R. Evid. 609 advisory 

comm‟n. cmt. However, as provided by Rule 403, if the trial court determines that the 

probative value of the impeaching convictions is substantially outweighed by its 

prejudicial effect, the evidence may be excluded. See Tenn. R. Evid. 403 (“Although 

relevant, evidence may be excluded if its probative value is substantially outweighed by 

the danger of unfair prejudice. . . .”); State v. James, 81 S.W.3d 751, 757 (Tenn. 2002). 

Therefore, it was within the discretion of the trial court to determine whether to admit or 

exclude evidence of Plaintiff‟s convictions for impeachment purposes. 

Having established that the trial court maintained discretion in the admission or 

exclusion of the convictions, the next question is whether the trial court abused its 
- 10 -

discretion in excluding “the details regarding the nature of the convictions, types of 

convictions or the facts and circumstances surrounding the convictions.”

In making a discretionary decision, the trial court is to make a conscientious 

judgment, consistent with the facts, and takes into account the applicable law. White, 469 

S.W.3d at 527 (citing Lee Med. Inc., 312 S.W.3d at 524).

We review a [trial] court‟s discretionary decision to determine (1) whether 

the factual basis for the decision is properly supported by evidence in the 

record, (2) whether the [trial] court properly identified and applied the most 

appropriate legal principles applicable to the decision, and (3) whether the 

[trial] court‟s decision was within the range of acceptable alternative 

dispositions. When called upon to review a [trial] court‟s discretionary 

decision, the reviewing court should review the underlying factual findings 

using the preponderance of the evidence standard contained in Tenn. R. 

App. P. 13(d) and should review the [trial] court‟s legal determinations de 

novo without any presumption of correctness. 

Id. at 524-25 (internal citations omitted).

Therefore, when reviewing a trial court‟s discretionary decision, it is our 

responsibility to determine, where applicable, whether there is a factual basis for the 

decision in the record, whether the court properly identified and applied the applicable 

legal principles, and whether the decision is within the range of acceptable alternative 

dispositions. Id. at 524. 

Following a thorough review of the record, we have determined that the trial court 

correctly identified the applicable legal principle, that being Rule 403, and properly 

applied that principle to the facts of this case to support its conclusion that the probative 

value of Plaintiff‟s convictions was substantially outweighed by the danger of unfair 

prejudice. Specifically, we agree with the trial court‟s conclusion that Plaintiff‟s child 

pornography convictions had very little probative value in an action seeking damages for 

personal injuries arising from an automobile accident. We also agree with the court‟s 

conclusion that a juror learning about the child pornography convictions would be 

unavoidably angry, offended, and motivated to punish Plaintiff, irrespective of the facts 

of the case. With the foregoing in mind, we find that the trial court did not abuse its 

discretion by permitting Defendants to ask Plaintiff if he had been convicted of three 

felonies, while prohibiting any questions about “the details regarding the nature of the 

convictions, types of convictions or the facts and circumstances surrounding the 

convictions.”

For the foregoing reasons, we affirm the decision of the trial court.
- 11 -

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against Defendants.

________________________________

 FRANK G. CLEMENT, JR., P.J., M.S.