Isabelle MacKenzie v. C&B Logging and Charles Brandon Barr ( 2022 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Isabelle MacKenzie, Appellant/Respondent,
v.
C&B Logging and Charles Brandon Barr,
Respondents/Appellants.
Appellate Case No. 2018-001016
Appeal From Florence County
D. Craig Brown, Circuit Court Judge
Opinion No. 5893
Heard December 8, 2020 – Filed February 9, 2022
AFFIRMED
J. Camden Hodge, Eric M. Poulin, and Roy T. Willey,
IV, all of Anastopoulo Law Firm, LLC, of Charleston,
for Appellant/Respondent.
Robert D. Moseley, Jr., and Megan M. Early-Soppa, both
of Moseley Marcinak Law Group LLP, of Greenville, for
Respondents/Appellants.
GEATHERS, J.: In this negligence case, Isabelle MacKenzie (MacKenzie) argues
that she should have been allowed to introduce into evidence certain prior charges
and criminal convictions of a driver whose alleged negligence led to her injuries.
On cross-appeal, C&B Logging and Charles Brandon Barr argue that if this court
reverses the circuit court, it should then enter a directed verdict on MacKenzie's
employment-related claims because Barr was acting within the scope of his
employment at the time of the accident. We affirm.1
FACTS/PROCEDURAL HISTORY
Charles Brandon Barr (Barr) was driving a company truck for C&B Logging
(C&B) on the night of April 23, 2016, when he began wondering if the truck's
progressively flattening tire would be able to last until he reached his destination.
Deciding not to risk it, Barr stopped near a friend's home, pulling across the road to
the left side. Barr testified that he believed the friend could help reinflate the tire,
but the friend was not at home.
As Barr was pulling back onto the highway, Arthur Lee Gregg (Gregg)2 was
coming from the opposite direction and about to round a curve a short distance away
from Barr. Gregg rounded the curve before Barr could completely cross from the
left lane of the highway into the correct lane. Gregg smashed into one of the rig's
axles, then skidded to a stop a short distance away.
Following Gregg was MacKenzie, driving her motorcycle. With little time to
react, MacKenzie slalomed her motorcycle between the two vehicles and went to the
ground. MacKenzie did not hit either truck.3
1
Because we affirm the circuit court on MacKenzie's appeal, we do not consider the
cross-appeal. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598,
613, 518 S.E.2d 591, 598 (1999) (stating that the "appellate court need not address
remaining issues when disposition of prior issue is dispositive" (citing Whiteside v.
Cherokee Cnty. Sch. Dist. No. One, 311 S.C. 335, 428 S.E.2d 886 (1993))).
2
Gregg is identified only as "Mr. Gregg" in the record. His full name was pulled
from MacKenzie's brief.
3
MacKenzie claims in her brief that "[i]t is [MacKenzie's] allegation and the
testimony of the independent eye-witness that she then collided with the logging
truck operated by Mr. Barr as the logging truck attempted to move into the correct
lane." We do not find testimony in the record to support this statement. The witness
to which MacKenzie appears to be referring said:
Mr. Gregg hit the log truck as it was coming across, the
back axle I believe. You can see in the pictures on the
floor. He hit the back axle as it was coming across the
road. The log truck was trying to get into the northbound
lane as we were traveling southbound. He struck it, his
MacKenzie filed suit against Barr and C&B for negligence on multiple
grounds, including that C&B was liable for "negligently hiring, employing and/or
retaining in employment . . . Barr," as well as for inadequately supervising and
training him.
At trial, MacKenzie attempted to introduce into evidence a laundry list of
former moving violations and drug-related charges and convictions against Barr to
prove negligent hiring, training, supervision, retention, and entrustment by C&B.4
MacKenzie argued that the drug-related charges and convictions were admissible on
multiple grounds. First, MacKenzie sought to show that Barr did not stop in search
of air for his tire, but instead stopped for drug-related purposes.5 Second,
MacKenzie relied on Green v. Hewett6 to argue that the drug-related charges and
convictions were admissible because they demonstrated "a breach of duty to society
truck veered to the right, but it somewhat came to a stop.
And [MacKenzie] had to swerve between them, between
the log truck and the pickup truck.
For her part, MacKenzie's testimony during cross-examination included this
exchange:
Q: So everything you know about the accident was told
to you?
A: Correct.
Q: How did you know there was a truck involved?
A: I was told.
4
Among the drug-related evidence that MacKenzie attempted to admit were: a 2011
indictment for possession with intent to distribute cocaine base (for an offense from
2010); a 2012 indictment for conspiracy (same offense date as the 2011 indictment);
a 2013 indictment for possession with intent to distribute marijuana; a guilty plea to
criminal conspiracy as a result of the 2012 indictment; and a guilty plea to possession
of a controlled substance as a result of the 2013 indictment.
5
MacKenzie told the court: "And in this case, it's our allegation that the stop was a
result of drug seeking." Because of the circuit court's rulings, we have little more
than comments from counsel to indicate what evidence might have supported that
theory. For its part, the circuit court indicated it found counsel's arguments on this
point speculative.
6
305 S.C. 238, 407 S.E.2d 651 (1991).
as a whole"7 and "a history of bad decision making" relevant to whether C&B acted
negligently in employing Barr. Finally, MacKenzie contended the charges and
convictions themselves could be used for impeachment purposes if Barr lied about
the convictions on the stand.8
Barr and C&B argued that the charges and convictions related to drug
possession were substantially more prejudicial than probative. The circuit court
ruled that MacKenzie could introduce the traffic violations, but excluded the drug-
related charges and convictions. The circuit court "d[id] not believe that they [were]
probative, and any probative value [was] certainly outweighed by the potential
prejudicial effect in this case."
The jury found in favor of MacKenzie and awarded her $179,678.49 in actual
damages. The jury also apportioned the blame between Barr and C&B, holding Barr
liable for sixty percent of the damages and the company liable for the remaining
forty percent. The jury did not award punitive damages to MacKenzie. These cross-
appeals followed.
ISSUE ON APPEAL
Did the circuit court err in declining to admit evidence of Barr's drug-related
charges and convictions for the purposes of the negligent hiring and retention claim
and the request for punitive damages against C&B?
STANDARD OF REVIEW
An appellate court's review of the circuit court's admission or exclusion of
potentially relevant evidence is considered under a deferential standard.
The court's ruling to admit or exclude evidence will only
be reversed if it constitutes an abuse of discretion
7
This language closely mirrors that of the Green court, which was considering
"whether the commission of such a crime is egregious enough such that it may be
viewed as a breach of respondent's duty to his fellow man and society as a whole."
Id. at 241, 407 S.E.2d at 652.
8
MacKenzie also argued in her trial memorandum on the issue that the convictions
could be used independently to impeach Barr because they were "crimes of moral
turpitude." However, she appeared to not advance that argument at trial, and the
circuit court said "[i]t's been argued throughout that this is not for purposes of
impeachment."
amounting to an error of law. . . . The trial court's decision
will not be reversed on appeal unless it appears the trial
court clearly abused its discretion and the objecting party
was prejudiced by the decision.
Proctor v. Dep't of Health & Envtl. Control, 368 S.C. 279, 313, 628 S.E.2d 496, 514
(Ct. App. 2006) (citations omitted).
LAW/ANALYSIS
MacKenzie argues that the circuit court erred in excluding portions of Barr's
criminal record that MacKenzie asserts supported her employment-related claims
against C&B and her request for punitive damages.9 Specifically, MacKenzie
contends that the circuit court was wrong to exclude, under Rule 403, SCRE,
evidence of Barr's drug-related charges and convictions. We disagree and find that
the circuit court acted within its discretion in ruling as it did.
"Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Rule 403, SCRE.
According to MacKenzie, because of the circuit court's exclusion of the drug-
related charges and convictions, "the jury was [allowed] to hear only part of the
story" about Barr's criminal history. MacKenzie notes that the "offenses were not
so remote in time, but instead occurred in 2011 and 2012, and during the period in
which [Barr] was employed by C&B Logging, LLC." Admitting the convictions, in
MacKenzie's view, "could have led to the imposition of punitive damages."
However, allowing only part of the story is precisely the point of Rule 403: If
the rest of the story is found by the court to be substantially more unfairly prejudicial
than probative, it is to be excluded. See Rule 403, SCRE ("Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice . . . ." (emphasis added)).
The traffic violations allowed by the circuit court were proper for admission
because the jury could view them as probative of a reason for caution on C&B's part
when it came to employing Barr. See Doe v. ATC, Inc., 367 S.C. 199, 206, 624
9
Appellant prevailed on the issue of liability below, but is nonetheless asking for a
new trial.
S.E.2d 447, 450 (Ct. App. 2005) ("Our review of negligent hiring and retention cases
from other jurisdictions leads us to conclude that such cases generally turn on two
fundamental elements—knowledge of the employer and foreseeability of harm to
third parties. . . . From a practical standpoint, these elements are analyzed in terms
of the number and nature of prior acts of wrongdoing by the employee, and the nexus
or similarity between the prior acts and the ultimate harm caused." (emphasis
added) (citation omitted)). Clearly, an employer could anticipate that someone who
had previously improperly operated a motor vehicle could potentially cause harm
when operating a motor vehicle in the scope of his employment.
However, the same is not true of the drug-related charges and convictions. As
the circuit court found, the probative value of the evidence of Barr's drug-related
charges and convictions was virtually non-existent. For example, none of the
charges or convictions MacKenzie sought to introduce involved operating a motor
vehicle while under the influence of drugs or alcohol.10 Furthermore, even if they
had, a trooper at the scene of the accident testified that he had no reason to believe
that Barr was under the influence of drugs or alcohol at the time of the incident.
Simply showing that Barr had a criminal record is not sufficient to admit the
evidence without some showing that it was related to the ultimate issue in the case
that is now on appeal—namely, whether C&B's decision to hire and retain Barr
justified an award of punitive damages to MacKenzie.
The issue was not why Barr pulled over to the side of the road, but his conduct
as and after he did so—and whether C&B was negligent for the purposes of actual
damages, and more culpable for the purposes of punitive damages, in employing him
based on the risk that he would not operate his truck properly. See Doe, 367 S.C. at
206, 624 S.E.2d at 450 ("Our review of negligent hiring and retention cases from
other jurisdictions leads us to conclude that such cases generally turn on two
fundamental elements—knowledge of the employer and foreseeability of harm to
third parties. . . . From a practical standpoint, these elements are analyzed in terms
of the number and nature of prior acts of wrongdoing by the employee, and the nexus
10
Two of the incidents did involve drugs being found in Barr's vehicle, and one was
subsequent to a traffic stop. But neither arrest warrant states that Barr was under the
influence of any substance at the time. It does appear from the record that Barr might
have been charged with driving under the influence at another point. During
proffered testimony, MacKenzie's counsel asked: "So you believe that you have been
charged with driving under the influence only one time?" Barr replied: "Yes, sir."
Based on the record and the briefs of the parties, that charge is not at issue in this
appeal.
or similarity between the prior acts and the ultimate harm caused." (emphasis
added) (citation omitted)). And because the drug convictions lacked probative value
on the underlying claim of negligent employment, they held no probative value as
to punitive damages for the employment-related claims.
Barr's previous drug charges and convictions do not indicate that C&B
showed a reckless disregard for MacKenzie's rights, because there was nothing about
them that indicated an increased likelihood that Barr would not follow safety
procedures in pulling to the side of the road. On the other hand, the unfairly
prejudicial nature of the allegation that Barr had previously possessed narcotics, and
the suggestion that he might have stopped on the side of the road to obtain the same,
is self-evident when it comes to whether jurors might have improperly considered it
in imposing punitive damages.
MacKenzie's attempt to create a ground for admitting this evidence by
pointing to language in Green v. Hewett does not change that. In Green, our supreme
court ruled that the respondent's previous conviction for participation in a drug
conspiracy was a "crime of moral turpitude" that should have been admitted against
the respondent under the common law rule about impeachment then in effect. Green
v. Hewett, 305 S.C. 238, 240–42, 407 S.E.2d 651, 652–53 (1991). Green, who had
been injured in an automobile accident, sued Hewett. At trial, the circuit court barred
Green from using a federal conviction for a drug conspiracy to impeach Hewett's
credibility. Id. at 240, 407 S.E.2d at 651–52.
On appeal, the Green court found that "commission of such a crime is
egregious enough such that it may be viewed as a breach of respondent's duty to his
fellow man and society as a whole." Id. at 241, 407 S.E.2d at 652. Importantly, the
court also noted that the "respondent's credibility as a witness was pivotal in this
case." Id. at 242, 407 S.E.2d at 653.
MacKenzie argues that the court's finding that a drug conspiracy offense is
"egregious enough such that it may be viewed as a breach of respondent's duty to his
fellow man and society as a whole," id. at 241, 407 S.E.2d at 652, can be translated
into a statement that such crimes "harm[] not only the public (as is required to prove
a claim of negligent hiring, supervision, or training), but harm[] society as a whole."
For that reason, MacKenzie contends, Barr's drug charges and convictions are
substantially probative of MacKenzie's claim for punitive damages.
However, despite MacKenzie's protests to the contrary, the issue in Green was
simply whether a drug conspiracy crime was admissible as a crime of moral turpitude
for impeachment purposes. All of the language MacKenzie highlights from the
decision must be viewed through the prism of what the court was deciding. And
even the Green court suggested that there were limits on the use of such evidence.
"Convictions for crimes of moral turpitude are admissible to impeach the credibility
of a witness when the [circuit court], in [its] discretion, determines the conviction is
not too remote in time and that the probative value of the conviction outweighs its
prejudicial impact." Id. at 242, 407 S.E.2d at 653; see also id. ("[T]he probative
value of the conviction on the issue of credibility far outweighed any prejudicial
impact on respondent.").
The Green court's consideration of whether the crime was a crime of moral
turpitude had nothing to do with what evidence may be introduced to prove a
negligent hiring claim or support a request for resulting punitive damages. And that
definition no longer has any relevance under South Carolina law when it comes to
the admission of prior bad acts. See State v. Black, 400 S.C. 10, 23 n.5, 732 S.E.2d
880, 888 n.5 (2012) ("This [c]ourt has stated that the moral turpitude test is no longer
relevant under a Rule 609 analysis."); but see generally Baddourah v. McMaster,
433 S.C. 89, 856 S.E.2d 561 (2021) (analyzing "crime of moral turpitude" in relation
to suspension from office).
We have found no authority, and MacKenzie has cited none, suggesting that
"crimes of moral turpitude" under any name have any relationship to whether C&B
was negligent in the employment claims, or whether MacKenzie was entitled to
punitive damages. See Doe, 367 S.C. at 206, 624 S.E.2d at 450 ("Our review of
negligent hiring and retention cases from other jurisdictions leads us to conclude that
such cases generally turn on two fundamental elements—knowledge of the employer
and foreseeability of harm to third parties. . . . From a practical standpoint, these
elements are analyzed in terms of the number and nature of prior acts of wrongdoing
by the employee, and the nexus or similarity between the prior acts and the ultimate
harm caused." (emphasis added) (citation omitted)); Hundley ex rel. Hundley v. Rite
Aid of S.C., Inc., 339 S.C. 285, 311, 529 S.E.2d 45, 59 (Ct. App. 2000) ("In order to
receive an award of punitive damages, the plaintiff has the burden of proving by
clear and convincing evidence the defendant's misconduct was willful, wanton, or in
reckless disregard of the plaintiff's rights." (quoting Lister v. NationsBank, of
Delaware, N.A., 329 S.C. 133, 150, 494 S.E.2d 449, 458 (Ct. App. 1997)).
In relation to her claims about the "moral turpitude standard," MacKenzie
argued to this court at oral argument that the evidentiary law in South Carolina
before Rule 60911 became effective remains unchanged by the rule, relying largely
11
Rule 609 of the South Carolina Rules of Evidence states, in part:
on the fact that the reporter's note to the rule includes a citation to Green.12 This is
contrary to what the rule and its accompanying reporter's note say: "Subsection (a)
does change the law in South Carolina." (Emphasis added.) Also, while the note to
Rule 609 cites Green v. Hewett multiple times in references to Rule 609(a) and (b),
it does so to lay out the former law that the rule is changing. See Note on Rule 609,
SCRE ("[T]he standard for balancing probative value against prejudicial effect was
the same for all witnesses, to include the accused in a criminal case. Green v.
Hewett, 305 S.C. 238, 407 S.E.2d 651 (1991). This subsection does not use the moral
turpitude standard, but instead allows impeachment with a conviction for any crime
which carries a maximum sentence of death or imprisonment for more than one year.
Further, the rule provides for a different standard for balancing probative value and
prejudicial effect for an accused who is a witness." (emphases added)); id. ("The
former case law did not set forth a time limit on the use of convictions for
impeachment. Green v. Hewett, supra. . . . The ten year limit was adopted to help
For the purpose of attacking the credibility of a witness,
(1) evidence that a witness other than an accused
has been convicted of a crime shall be admitted,
subject to Rule 403, if the crime was punishable by
death or imprisonment in excess of one year under
the law under which the witness was convicted, and
evidence that an accused has been convicted of such
a crime shall be admitted if the court determines that
the probative value of admitting this evidence
outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of
a crime shall be admitted if it involved dishonesty
or false statement, regardless of the punishment.
12
MacKenzie faults the circuit court for an interpretation of Green that is similar to
ours. Notably, MacKenzie argues that "whether or not Mr. Barr lied about his
driving history was wholly immaterial to the fact that C&B Logging, LLC had a duty
to the public to ensure its vehicles were operated in a safe manner by drivers that did
not pose a threat to the public." Indeed, MacKenzie's brief before this court does not
cite Rule 609. We address the issue here only to the extent necessary to address
MacKenzie's oral arguments before this court and because MacKenzie did raise the
issue below.
guide trial courts in making uniform determinations in this area." (emphasis added));
see also Black, 400 S.C. at 23 n.5, 732 S.E.2d at 888 n.5 ("This [c]ourt has stated
that the moral turpitude test is no longer relevant under a Rule 609 analysis."
(emphasis added)).
First, setting aside the need to perform a Rule 403 balancing test regarding the
drug evidence, not all of Appellant's evidence would have cleared even the initial
threshold under Rule 609(a)(1) because that evidence either dealt with charges rather
than convictions or did not fulfill the rule's requirement that the conviction be
"punishable by death or imprisonment in excess of one year under the law under
which the witness was convicted . . . ." Rule 609(a)(1), SCRE (emphasis added).13
Further, Rule 609(a)(1) does require a Rule 403 balancing test, and in
performing the Rule 403 balancing test, the circuit court considered whether the
probative value of Barr's previous convictions was "substantially outweighed by the
danger of unfair prejudice." See Rule 403, SCRE. This is the balancing test required
by the Rule 609(a)(1): "[E]vidence that a witness other than an accused has been
convicted of a crime shall be admitted, subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of one year under the law under
which the witness was convicted . . ." (emphasis added).
The circuit court found that "I do not believe that [the drug-related
convictions] are probative, and any probative value is certainly outweighed by the
potential prejudicial effect in this case." While the circuit court did not specifically
use the term "substantially outweighed," the court found that the drug-related
convictions had no probative value, meaning that virtually any unfair prejudice from
the evidence would substantially outweigh its probative value. Cf. State v. King, 349
S.C. 142, 156–57, 561 S.E.2d 640, 647 (Ct. App. 2002) (upholding a "compressed
Rule 403/404(b) analysis" that did not specifically outline the standard); id. at 156,
561 S.E.2d at 647 ("Though an on-the-record Rule 403 analysis is required, this
[c]ourt will not reverse the conviction if the trial judge's comments concerning the
matter indicate he was cognizant of the evidentiary rule when admitting the evidence
of . . . prior bad acts.").
Nor would Barr's offenses have qualified under the other prong of Rule
609(a), which concerns crimes of dishonesty. See Rule 609(a)(2) ("[E]vidence that
13
Specifically, while two different code sections appear on the 2014 sentence sheet,
in context it appears that Barr pleaded guilty to section 44-53-370(d)(2). The
maximum sentence for a first offense is a sentence of "not more than six months."
S.C. Code Ann. § 44-53-370(d)(2) (2018).
any witness has been convicted of a crime shall be admitted if it involved dishonesty
or false statement, regardless of the punishment.").
Our supreme court held in State v. Broadnax that "for impeachment purposes,
crimes of 'dishonesty or false statement' are crimes in the nature of crimen falsi 'that
bear upon a witness's propensity to testify truthfully.'" 414 S.C. 468, 476, 779 S.E.2d
789, 793 (2015) (quoting Adams v. State, 644 S.E.2d 426, 431–32 (Ga. Ct. App.
2007)), remanded on other grounds, 418 S.C. 227 (2015). The court cited with
approval an explanation of the federal counterpart to Rule 609(a)(2) that included in
the phrase "crimes involving dishonesty or false statement" the following: "crimes
such as perjury, subornation of perjury, false statements, criminal fraud,
embezzlement, or false pretense, or any other offense in the nature of crimen
falsi, the commission of which involves some element of deceit, untruthfulness, or
falsification bearing on the accused's propensity to testify truthfully." Id. at 476–77,
779 S.E.2d at 793 (quoting Stuart P. Green, Deceit and the Classification of Crimes:
Federal Rule of Evidence 609(a)(2) and the Origins of Crimen Falsi, 90 J. CRIM. L.
& CRIMINOLOGY 1087, 1090–91 (2000)).14
In that vein, our supreme court has repeatedly held that drug convictions
generally are not admissible under 609(a)(2). Green v. State, 338 S.C. 428, 432 n.3,
527 S.E.2d 98, 100 n.3 (2000) ("Conviction of a crime involving dishonesty or false
statement is always admissible for impeachment purposes, regardless of the
punishment. Narcotics convictions generally do not fall under this rule." (citation
omitted)); State v. Bryant, 369 S.C. 511, 517, 633 S.E.2d 152, 155 (2006)
("Violations of narcotics laws are generally not probative of truthfulness."); State v.
Cheeseboro, 346 S.C. 526, 543, 552 S.E.2d 300, 309 (2001) (same proposition).
Finally, Appellant appears to contend that our supreme court's ruling in James
v. Kelly Trucking Co. shows the court was unconcerned about the potential
admission of evidence like the criminal convictions at issue in the current case. 377
S.C. 628, 661 S.E.2d 329 (2008). That assertion misses the mark. In James, our
supreme court ruled, in response to a federal court's question, "that South Carolina
law does not prohibit a plaintiff from pursuing a negligent hiring, training,
supervision, or entrustment claim once respondeat superior liability has been
admitted . . . ." Id. at 634, 661 S.E.2d at 332. The defendant had contended that
the admission of evidence which must be offered to prove
a negligent hiring, training, supervision, or entrustment
14
As noted by our supreme court in Broadnax, Green's article in turn quoted this
passage (with slight discrepancies) from H.R. Conf. Rep. No. 93-1597, at 9 (1974).
claim—evidence such as a prior driving record, an arrest
record, or other records of past mishaps or misbehavior by
the employee—will be highly prejudicial if combined with
a stipulation by the employer that it will ultimately be
vicariously liable for the employee's negligent acts.
Id. at 632, 661 S.E.2d at 331. But the court found that such concerns could be
addressed through less restrictive means than cutting off the negligent employment
claims. Id. at 632–33, 661 S.E.2d at 331.
Nothing in James suggests that the coexistence of a respondeat superior claim
and a negligent hiring claim somehow negates the applicability of Rule 403. In fact,
one of the reasons the James court found that those claims could coexist was because
of Rule 403. See id. at 632, 662 S.E.2d at 331 ("Primarily, we think the argument
that an independent cause of action against an employer must be precluded to protect
the jury from considering prejudicial evidence presumes too much. Our court system
relies on the trial court to determine when relevant evidence is inadmissible because
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. Rule 403, SCRE." (emphases
added)). The circuit court in this case properly conducted that balancing test and
found the evidence was not admissible. As we have already noted, we agree with
that decision.
CONCLUSION
For the foregoing reasons, the circuit court's ruling is
AFFIRMED.
WILLIAMS, C.J., and HUFF, A.J., concur.