concurring.
I fully concur with the majority's conclusion that the trial court erred in admitting the disposition of the traffic infraction, but write separately to expand on the analysis of the majority opinion.
Indiana Code Section 34-89-3-1 and Evidence Rule 808(22) essentially codify the exception to the general rule discussed in Dimmick, that the judgment resulting from a guilty plea in a felony proceeding is admissible in a subsequent civil proceeding. Section 34-89-8-1 and Rule 803(22) further expand that exception to allow the *641admission of a judgment of felony conviction after a trial. As the majority correctly concludes, these rules do not apply here because the underlying traffic infraction is not a felony, nor did Maria admit responsibility for the infraction. The majority also correctly notes that had Maria admitted to the infraction, her plea could be admissible as a statement by party-opponent under Indiana Evidence Rule 801(d)(2).4
In addition, while neither party raises collateral estoppel as an issue, this concept can bar relitigation of issues adjudicated in a prior lawsuit. See Doe v. Tobias, 715 N.E.2d 829, 831 (Ind.1999). "Defensive collateral estoppel," as applicable here, occurs when a defendant in litigation wishes to keep the plaintiff from relitigating an issue that the plaintiff has already litigated and lost in another proceeding. Slutsky v. Crews, 713 N.E.2d 288, 291 (Ind.Ct.App.1999). In determining whether defensive collateral estoppel is appropriate, "the court must consider whether the party against whom the judgment is pled had a full and fair opportunity to litigate the issue and whether it would be otherwise unfair under the cireumstances to permit the use of collateral estoppel." Id.
In considering whether an adjudication of a traffic infraction offers a "full and fair opportunity to litigate," much of the rationale precluding the admission of such judgments, as outlined in Dimmick, is applicable here. The lesser consequences and procedures involved in infraction proceedings simply do not warrant the reliability necessary for estoppel to apply. Moreover, traffie infractions are now judged by a preponderance of evidence, and this change does not make the resulting judgment more reliable Although estoppel may allow a party to introduce evidence of a prior conviction in some instances, the facts here do not support the admission of Lepucki's infraction adjudication.
Finally, I agree with the majority's analysis under Evidence Rule 403(b) concerning the overly prejudicial nature of the infraction adjudication. However, I would further note the prejudicial nature of the traffic citation itself and would have disallowed such testimony had an objection been made. Just as the evidence of the infraction adjudication "tainted" the province of the jury, the testimony by a uniformed officer that Maria was cited for a traffic infraction similarly gives unfair weight to the "official" conduct by the officer, especially where, as here, the county was a party to the action.
ORDER
The Appellants, by counsel, have filed a Motion to Publish Court's Opinion handed down November 14, 2008, Counsel states that the Court's opinion involves an issue of substantial public importance and requests that this Court publish its opinion.
Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS: 1. The Appellants' Motion to Publish is GRANTED, and this Court's opinion handed down on November 14, 2008, marked Memorandum Decision, Not for Publication is now ORDERED published.
KIRSCH, BAILEY, and VAIDIK, J.J., concur.. While the majority notes a growing trend for admitting this kind of evidence, the trend appears to apply only to judgments based on guilty pleas, and not convictions after a trial. 73 AL.R.Ath 691, 699-708 (1989); see also id. at 698-699 (only three states subscribe to general rule admitting evidence of conviction). Thirteen states apply to the general rule that such convictions are inadmissible. Id. at 708-11.