Gibson v. Gunsch

*417OPINION

SHELLEY, Judge.

Scott M. Gibson, hereinafter called Gibson, sued appellant Garth Gunsch, hereinafter called Gunsch, alleging intentional assault. The ease was tried to a jury and a verdict was rendered in favor of Gibson, finding that Gunsch intentionally assaulted Gibson and awarding damages. The sole issue presented on appeal is:

DID THE TRIAL COURT ERR IN PERMITTING GIBSON TO INTRODUCE TESTIMONY REGARDING HIS CHARACTER AS TO PEACEFULNESS?

Gibson contends that this issue was not properly preserved at the trial level because Gunsch’s objections to the evidence were too general to be given any consideration. Gibson overlooks the fact that Gunsch filed a motion in limine prior to trial, setting forth in detail specific objections to that type of evidence and citing Rule 404, Arizona Rules of Evidence. A properly filed motion in limine preserves appellant’s objections on appeal without need for further objection if it sets forth specific grounds for the objections. State v. Briggs, 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975).

Two witnesses testified as to Gibson’s peaceful character and that they had never seen him get involved in any physical assault. This issue was thoroughly discussed in Blankinship v. Duarte, 137 Ariz. 217, 669 P.2d 994 (App.1983). In that case, appellant filed suit for personal injury, alleging that he was assaulted by the appellee. There was a question as to who was the aggressor. In this case, we have the identical question raised as to who was the aggressor. The court in Blankinship stated:

During the trial appellants moved in limine to exclude evidence that Gilbert Duarte was a peaceful man. Appellees convinced the trial court that since there was a question as to who was the aggressor in this case, such evidence was admissible. While such evidence was once admissible in Arizona in a civil case, see Mong Ming Club v. Tang, 77 Ariz. 63, 266 P.2d 1091 (1954), it is not now.

Our Rule 404(a), Arizona Rules of Evidence, 17A A.R.S., states:

“Character evidence generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; ...”
As can be seen from the language itself, the rule only applies in criminal cases. This was observed in M. Udall & J. Liver-more, Law of Evidence § 83, at 170 (2d ed. 1982): “With the exception of credibility rules discussed elsewhere, Rule 404 makes clear that circumstantial use of character is permissible only in criminal cases____ (Footnotes omitted.) And in footnote 6 at 170 the authors state: “... The rule of Mong Ming Club v. Tang [citation omitted], allowing proof of the character of the victim in a civil assault suit in support of a self-defense claim apparently does not survive the enactment of the rules of evidence____” See also, 2 Weinstein’s Evidence ¶1404[03], at 404—20.
The trial court erred in denying the motion in limine and allowing evidence from three witnesses as to Mr. Duarte’s peaceful nature.

Id. at 221-222, 669 P.2d 994. (emphasis added)

The reasoning of Blankinship, supra, applies here as the issues are identical.

Weinstein’s Evidence, Vol. 2, U 404[03], p. 404—25 states:

*418It is not possible, particularly in view of the Advisory Committee notes, to read Rule 404(a)(1) and (2) as permitting evidence of character in a civil case if the conduct involved would be a crime. This is so because the terms “accused” and “prosecutor” are used.

Weinstein distinguishes cases like this where there is circumstantial use of character from cases where character is actually in issue as follows:

A person’s possession of a particular trait of character may be a material, consequential fact which under the substantive law determines the rights and liabilities of the parties. Character evidence in such a case does not fall within the prohibition of Rule 404. It is being offered not to prove that a person “acted in conformity therewith on a particular occasion” but rather because the character traits themselves are of significance as an element of a crime, claim or defense. As illustrations of character in issue, the Committee notes the chastity of a victim under a statute specifying chastity as an element of the crime of seduction, or the competency of a driver, in an action for negligence in entrusting a vehicle to an incompetent driver.

Weinstein’s Evidence, Vol. 2, ¶ 404[02]; p. 404—17.

In the case before us, character traits are not an element of the claim or defense. Weinstein quotes the Advisory Committee’s Note on Rule 404, which states that “the criminal rule is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence.” Weinstein’s Evidence, Vol. 2, Advisory Committee’s Note Rule 404, p. 404—7. This is apparently the reason why the rules of evidence make character evidence permissible in a criminal charge but not in a civil suit with regard to the same event.

Gibson cites the case of Crumpton v. Confederation Life Ins. Co., 672 F.2d 1248 (Fifth Cir.1982), as authority for the admissibility of character evidence in this case. In that case, Titus Crumpton (hereinafter called decedent), allegedly raped a Ms. Pet-ton and while doing so inflicted multiple bruises on her body. A few days later, Ms. Petton, with a pistol in her possession, saw decedent standing on the street across from her home. Apparently he started toward her so she pulled the gun and without verbal warning shot and killed him. The decedent was insured and his insurance company denied liability, claiming that his death was not accidental. The appellate court stated that the district court did not abuse its discretion in admitting evidence of character because:

Crumpton’s character was at issue given the defense raised by Confederation that Crumpton should have anticipated bodily injury because he committed a violent criminal act____ Given the unusual nature of this case, the decision whether to admit the evidence of character, although perhaps a close call, was reached after carefully weighing all factors. We thus find no abuse of discretion by the District Court in admitting such evidence.

Id. at 1252-1253 (emphasis added). The court went on to say that because of other evidence aside from the character evidence, in any event the evidence of character was not prejudicial to the rights of the insurance company.

The Crumpton case factually is entirely different than the case at bar: As the court in Crumpton stated: “the focus of the civil suit on the insurance policy was the issue of rape, and the resulting trial was in most respects similar to a case for rape.” 672 F.2d 1248 at 1253.

The court erred in admitting the evidence with regard to Gibson’s character. The judgment of the trial court is reversed and the case is remanded for a new trial.

GRANT, P.J., concurs.