author: Jim Hannah, Justice.

text:
    Samuel James JEFFERSON v. STATE of Arkansas
    CR 02-92
    76 S.W.3d 850
    Supreme Court of Arkansas
    Opinion delivered June 6, 2002
    [Petition for rehearing denied July 11, 2002.]

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.

      Imber, J., not participating.

   Jim Hannah, Justice.

Appellant Samuel James Jefferson appeals his conviction for possession of cocaine. Jefferson asserts that the trial court erred when it denied his motion to suppress evidence because the stop and detention were not based upon reasonable suspicion, and the evidence was obtained as a result of the subsequent illegal detention. The pretrial motion was heard on May 15, 2000, and the trial court issued its ruling denying the motion at the conclusion of that hearing. The case then went to trial, and Jefferson renewed his motion for suppression, which was again denied.

We hold that the encounter with police was not consensual, but rather that the police intended to and did stop Jefferson. We further hold, however, that the police had a reasonable suspicion to make the stop. The totality of the circumstances, including the late hour, the area being residential, the particular area where drugs and prostitution were known problems, the incidence of crime in the area, the fact appellant had just come from between two trailers, and appellant’s gait and manner, as well as an apparent effort of appellant to avoid identification or confrontation rises to a level sufficient to support the officers’ suspicion that a crime had been or was about to be committed. In addition, when Jefferson began walking toward the police officers, he put his hand in his right front pocket. This act bolstered the officers’ suspicion that a crime had been or was about to be committed as well as added to their concern about their safety. The decision of the trial court is affirmed.

Facts

This case arises from a pedestrian encounter between Samuel Jefferson and officers of the Litde Rock Police Department in the early morning hours of August 19, 1999. Officer Charles Allen testified that the police department had received numerous complaints about narcotics, loitering for narcotics, and prostitution around the Vorhees Trader Park.

Between 2:00 and 2:15 a.m. on August 19th, Little Rock Police Officers Charles Johnson and Allen entered the Vorhees Trailer Park in their marked patrol car. Their headlights were turned off because they were entering a high-crime area. The trader park only contains eight trailers. Vehicular traffic cannot pass through the trailer park because it is in a cul-de-sac, but foot traffic does pass through because holes have been cut in the fences.

According to Officer Johnson, upon pulling into the trailer park they saw Jefferson out walking in the roadway. It appeared he had just come from between two trailers. The officers testified that upon seeing their patrol car, Jefferson appeared startled and changed his direction of travel to put distance between them, and he quickened his pace. The officers turned their headlights on as Jefferson passed in front of their car.

Both officers testified that officer Allen stepped from the patrol car and called to Jefferson to come to the car. They also both testified that Jefferson did not turn to start toward the patrol car when Allen first spoke to him. It was only when Allen told Jefferson to come to the patrol car the second time that he turned and started toward them.

Officer Johnson testified that when Jefferson turned to walk toward them, he slipped his right hand in his right front pant’s pocket, and that Officer Allen drew his weapon. Jefferson testified that the officers were mistaken, that he did not put his hand in his pocket, but rather he was striking his right leg because of pain from a health disorder. Officer Allen testified that Jefferson had his right hand in his right front pant’s pocket until he was close to the right front of the patrol car when he made a motion as if he were about to turn away, and by pulling his hand out of his pocket, he dropped something to the ground. According to Officer Allen’s testimony, upon seeing Jefferson drop something to the ground they immediately took him into custody.

Officer Johnson testified that when the ground was searched they found a pill bottle and nothing else. According to Officer Allen’s testimony, the pill bottle contained ten to fifteen pieces of offiwhite rock-like substance later identified as crack cocaine. Jefferson testified that he had no pill bottle and that the officers were lying when they said he had dropped it. He also testified that the videotape made by the systems in the patrol car was shown to him by the officers, that it showed he was striking his leg and had not put his hand in his pocket, but that they told him they were going to charge him anyway. The videotape was not available in this case.

Standard of Review

In reviewing a ruling denying a defendant’s motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. We reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). When we grant a petition to review a decision of the court of appeals, we treat the matter as if the appeal had been originally filed in this court. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998). This court defers to the trial court in assessing witness credibility. E.g., Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998); Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998); Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001).

Search and Seizure

The first issue to be determined is just what sort of encounter this was between Jefferson and police, and based thereon, whether the Fourth Amendment was implicated and complied with. The State argues that the fact that Jefferson was apparently emerging from between two trailers and changed direction and speed of travel upon seeing the patrol car, the lateness of the hour, the area being residential, and the area being a high crime area gives rise to reasonable suspicion that a crime had been or was about to be committed. The State also argues alternatively that Jefferson was under no obligation to comply with police orders and that, therefore, the encounter was consensual and did not implicate the Fourth Amendment in any way. Jefferson argues he was detained by police without reasonable suspicion and that, therefore, the trial court was in error when it refused to suppress the evidence.

There is nothing in the Constitution that prevents the police from addressing questions to any individual. Baxter v. State, 274 Ark. 539, 543, 626 S.W.2d 935 (1982) (citing Terry v. Ohio, 392 U.S. 1 (1968)). Not all personal intercourse between police and citizens involves “seizures” of persons under the Fourth Amendment. Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990) (citing Terry, supra). Terry dealt with a search for weapons, but its holding has broader implications.

Terry did specifically involve the issue of “whether it is always unreasonable for a policemen to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.” Terry 392 US at 15. In Terry, the United States Supreme Court concluded:

Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a policemen observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policemen and makes reasonable inquires, and nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or other’s safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may be properly be introduced in evidence against the person from whom they were taken.

Terry 392 US at 30.

In the same year in Sibron v. New York, 392 U.S. 40 (1968), the United States Supreme Court further developed the law in dealing with a police officer who approached a suspected drug suspect and said, “You know what I am after,” upon which Sibron put his right hand in his pocket. The officer simultaneously reached into Sibron’s pocket and found glassine envelopes of heroin. The United States Supreme Court found the search unlawful because the officer was seeking narcotics rather than acting from fear for his own safety.

The United States Supreme Court jurisprudence has placed police citizen encounters into three tiers or categories:

First, there are communications between officers and citizens that are consensual and involve no coercion or restraint of liberty. Such encounters are outside the scope of the Fourteenth Amendment. Second, there are the so-called Terry-type stops. These are brief, minimally intrusive seizures but which are considered significant enough to invoke Fourth Amendment safeguards and thus must be supported by a reasonable suspicion of criminal activity. Third, there are highly intrusive, full-scale arrests, which must be based on probable cause.

United States v. Poitier, 818 F.2d 679, 681-682 (8th Cir. 1987). See also, United States v. Hernandez, 854 F.2d 295 (8th Cir. 1988); United States v. Wallraff, 705 F.2d 980 (8th Cir. 1983).

This court in Thompson v. State, 303 Ark. 407, 797 S.W. 2d 450 (1990), cited Hernandez, supra, in stating the following:

Police-citizen encounters have been classified into three categories. See U.S. v. Hernandez, 854 F.2d 295 (8th Cir. 1988). The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. Id. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime. Id. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause. Id.

See also, Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998); State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997).

The issue in this case is whether the encounter with Jefferson falls within the first or the second tier. Police observed Jefferson in the roadway and concluded he had just emerged from between two trailers. His testimony confirmed this. They also noted that upon seeing the patrol car, Jefferson seemed startled and that he then changed directions and increased his pace. Because of this the officers decided to stop Jefferson and did so by stepping out of the car and issuing a command that he stop and come to them. It is readily apparent that this action by the police may not be characterized as merely approaching an individual on a street to ask if he is willing to answer some questions. Thompson, 303 Ark. 407. A person has been seized within the meaning of the Fourth Amendment only if, in view of all circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. United States v. Mendenhall, 446 U.S. 544 (1980). If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed. Florida v. Royer, 460 U.S. 491 (1983). Police can be said to have seized an individual “only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Michigan v. Chesternut, 486 U.S. 567 (1988) (citing Mendenhall, supra). The United States Supreme Court has also characterized it as “so long as a reasonable person would feel free” to disregard the police and go about his business, California v. Hodari D., 499 U.S. 621, 628 (1991), the encounter is consensual, and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless is loses its consensual nature. Florida v. Bostwick, 501 U.S. 429 (1991). A reasonable person would not have believed he was free to leave once the police had turned on their lights and issued a command to stop and come to their patrol car. See Chesternut, 486 U.S. at 575. Therefore, this encounter was not consensual and does implicate the Fourth Amendment.

Our analysis now must be whether the facts of this case meet the requirements to support Jefferson’s restraint for a short period of time. To support this, there must be an “articulable suspicion.” Thompson 303 Ark. 407. An articulable or reasonable suspicion requires “facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion.” Stewart, 332 Ark. at 145. See also, Ark. R. Crim P. 3.1 (2002). Arkansas Rule of Criminal Procedure 2.1 defines reasonable suspicion as:

. . .a suspicion based upon facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

Arkansas Code Annotated Section 16-81-203 (1987) provides further guidance in setting out factors to be considered in determining whether an officer has grounds to “reasonably suspect.” Relevant to this case, they include:

(2) The gait and manner of the suspect;
(6) The time of day or night the suspect if observed;
* * *
(8) The particular streets involved;
* * *
(11) The suspect’s proximity to known criminal conduct;
(12) Incidence of crime in the immediate neighborhood;
(14) Apparent effort of the suspect to avoid identification or confrontation by the police.

Ark. Code Ann. 16-81-203.

Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119 (2000). Whether a person flees is also relevant. Id. The United States Supreme Court noted that while a person is free to ignore police and go on about their business when approached, “unprovoked flight” is the exact opposite of ‘going about one’s business,’ and as such there was suspicion to justify further investigation. Here, Jefferson changed directions and quickened his pace apparently intending to put more distance between he and the police. His reaction to police was immediate. Further, upon command, he did not immediately turn and begin walking toward the police car as commanded, but he did upon the second such command.

At the time the officers decided to stop Jefferson, they knew that he was startled by seeing them, that he had changed directions in walking to move away from them, that he quickened his pace, and that he was in a residential high-crime area in the early hours of the morning. Officer Johnson testified that Jefferson acted “squirrely” when he was arrested, but that is not relevant as it occurred after the stop.

The officers testified that this was an area known for drug trafficking and prostitution. They also testified that they had been receiving complaints about the area, apparently from residents. Finding appellant apparently coming out from between two residential trailers at 2:00 a.m. certainly should give rise to suspicion that something illegal was afoot. This is especially so when the area is considered, the history of the area is considered, and complaints of persons who likely had good reason to fear for the safety of their neighborhood is considered. Also, as Jefferson was walking toward the police officers he put his hand in his right front pocket, which gave the police officers good reason to be concerned about their safety. There was reasonable suspicion that a crime had been or was about to be committed.

The trial court correctly denied the motion to suppress. The issue of abandonment was also raised by the State as a reason that the pills should not be excluded. Because we hold that there was reasonable suspicion for the stop, we need not discuss whether the acts in this case constitute abandonment.

The trial court is affirmed.

Imber, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Marvin W. TULL v. STATE of Arkansas
    CR 02-509
    78 S.W.3d 714
    Supreme Court of Arkansas
    Opinion delivered June 6, 2002

      Joe Kelly Hardin, for appellant.
    No response.
   Per Curiam.

Appellant Marvin W. Tull. by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Joe Kelly Hardin, states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion wiE be forwarded to the Committee on Professional Conduct.


text:
    Samuel L. HENDERSON v. STATE of Arkansas
    CR 01-1299
    76 S.W.3d 857
    Supreme Court of Arkansas
    Opinion delivered June 6, 2002

      Morse U. Gist, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Appellant Samuel L. Henderson appeals from his conviction of first-degree murder for the shooting death of cab driver Paul Hill, for which Henderson was sentenced to life in prison.

We took this case under submission on June 6, 2002. In his appeal, Henderson asserts as one of his points that the trial court erred in denying his motion for new trial, a motion based on a claim of juror misconduct during the trial proceedings. Upon reviewing the materials included in Henderson’s abstract and addendum, it is apparent that his filing was deficient in that several relevant pleadings and documents essential to the understanding of this point on appeal were not contained in Henderson’s abstract or addendum. We are deferring action on this appeal until appellant fully complies with the provisions of Supreme Court Rule 4-2.

Supreme Court Rule 4-2(8)(b)(3) explains the procedure that we now follow when an appellant has failed to supply this court with a sufficient brief. The rule provides:

Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or addendum, the court may address the question at any time. If the court finds the abstract or addendum to be deficient such that the court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, addendum, and brief, at his or her own expense, to conform to Rule 4-2(a)(5) and (7). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, addendum, and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the rule.

Id.

Henderson has failed to comply with Supreme Court Rule 4-2. The rule in relevant part provides:

Following the signature and certificate of service, the appellant’s brief shall contain an addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the court’s jurisdiction on appeal. In the case of lengthy pleadings or documents, only relevant excerpts in context need to be included in the addendum. Depending upon the issues on appeal, the addendum may include such materials as the following: a contract, will, lease, or any other document; proffers of evidence; jury instructions or proffered jury instructions; the court’s findings and conclusions of law; orders; administrative law judge’s opinion; discovery documents; requests for admissions; and relevant pleadings or documents essential to an understanding of the court’s jurisdiction on appeal such as the notice of appeal. The addendum shall include an index of its contents and shall also be clear where any item appearing in the addendum can be found in the record. The appellee may prepare a supplemental addendum if material on which the appellee relies is not in the appellant’s addendum. Pursuant to subsection (c) below, the clerk will refuse to accept an appellant’s brief if its addendum does not contain the required order, judgment, decree, ruling, letter opinion, or administrative law judge’s opinion. The appellee’s brief shall only contain an addendum to include an item which the appellant’s addendum fails to include.

Id. (emphasis added).

In the case now before us, Henderson’s portion of the abstract and addendum addressing his motion for new trial contains only the testimony of his two witnesses at the hearing on the motion. The following information, which is essential to an understanding of this issue in this case, is missing: (1) Henderson’s motion for new trial; (2) the State’s response to Henderson’s motion for new trial; (3) the affidavits in support of the motion for new trial from Henderson’s witnesses, Erica Henderson and Bobbie Conway; and (4) Henderson’s notice of appeal and designation of the record. The State provided a supplemental abstract that included the trial court’s order denying Henderson’s motion for new trial. The other information missing from Henderson’s abstract and addendum was not mentioned by the State.

Review of Henderson’s motion for new trial, supporting affidavits, and the State’s response are essential to our consideration of this appeal. Specifically, a review of these documents is needed for us to understand the arguments that were raised below and the arguments that the trial court considered when it denied Henderson’s motion. Because Henderson has failed to comply with Rule 4-2, we are ordering him to submit a revised or supplemental abstract and addendum that contain all relevant pleadings and documents that are essential to an understanding of the issues raised in this appeal. Appellant must file a complying abstract, addendum, and brief within fifteen days from the entry of this order. Thereafter, appellee will have five days to respond.

Imber, J., not participating.


author: Tom Glaze, Justice.

text:
    Ellis Charles BUTLER v. STATE of Arkansas
    CR 01-487
    82 S.W.3d 152
    Supreme Court of Arkansas
    Opinion delivered June 13, 2002

      David O. Bowden; and Hicks Law Firm, by: Rickey H. Hicks, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

This second appeal follows an earlier appeal from seven convictions Ellis Butler sustained for rape and violations of a minor in the first-degree. We reversed and remanded Butler’s convictions, holding the trial court abused its discretion in denying a continuance when a last-minute change in counsel prejudiced Butler’s preparation for trial, because his counsel was hot provided full discovery of the names of the victims who were allegedly sexually violated. See Butler v. State, 339 Ark. 429, 5 S.W.3d 466 (1999).

On remand, Butler requested that the various charges be severed because all of the charges involving one victim, B.J.M. were for rape, and the two other charges involved counts of violating two other girls, A.W. and K.H., who were minors. The State agreed to sever the counts “by victim,” so the rape charges involving B.J.M. would be tried separately. Butler went to trial on three rape charges involving B.J.M., and was convicted on all three counts. He was sentenced to thirty-two years on each count, to run consecutively, totaling 96 years’ imprisonment. Butler brings this appeal, arguing four points for reversal.

Butler first contends that the evidence was insufficient to sustain the rape charges. His argument is meritless. We have repeatedly held that, when a defendant challenges the sufficiency of the evidence convicting, the evidence is viewed in the light most favorable to the State, Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992), and only evidence supporting the verdict will be considered. McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997). This court has also held that the uncorroborated testimony of a rape victim is substantial evidence to support a rape conviction if the testimony satisfies the statutory elements. Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998). Here, Butler was charged with rape under Ark. Code Ann. § 5-14-103(a)(4) (Repl. 1997), which provides that one commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. “Sexual intercourse” means “penetration, however slight, of the labia majora by a penis,” and “deviate sexual activity” means “any act of sexual gratification involving . . . [t]he penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person.” § 5-14-101 (1)(B).

Butler was the “general overseer of Maturing Word Ministries, Universal Church of God.” In February of 1997, Sergeant Bob Roten of the Sex Crimes Division of the Arkansas State Police became aware of allegations of sexual abuse in Shirley, Arkansas, involving Butler. Roten and another officer traveled to Shirley, where they spoke to Buder. They found that two girls, A.W. and K.H., who were students at Butler’s school, had made allegations to school officials. After conducting this investigation, Roten learned that another girl, B.J.M., who was now living in Sylvester, Georgia, had previously made a statement, that contained allegations against Butler. B.J.M.’s statement matched the information Roten had received from A.W. and K.H.

B.J.M., who was nineteen and married at the time of the trial, was only nine or ten at the time of the first incident involving Butler. She testified that she met Butler in 1990 in Sylvester, Georgia, where she was introduced to him by her parents. Shortly after meeting Buder, her family moved to Shirley to help him start a ministry. Butler established the Universal Church of God in 1991, and also established the Universal Christian Academy, a ministry associated with the church. One day during the “cold months” of the 1991-92 school year, BJ.M. was alone in Butler’s office with him when he grabbed her around the waist, laid her on the floor, and started kissing her. He then digitally penetrated her. She asked him what he was doing, and he said that he was “just playing” with her. Afterwards, he took the girl home and told her that she could not tell anyone what had happened.

B.J.M. and her family moved back to Georgia in August of 1993, but she saw Butler again when she returned to Arkansas in December of 1993, and stayed with Butler for a week. During that time, as they were leaving his office one night, he digitally penetrated her again. On another occasion, as they were driving home together, Butler pulled his car over on a dirt road that was close to his house; he put B.J.M. on the hood of his Mustang and had sexual intercourse with her. Afterwards, she returned to Georgia and never came back to Arkansas.

B.J.M.’s testimony constituted sufficient evidence to support the three rape convictions. She was born on March 10, 1981, and, therefore, was under the age of fourteen at the time of the events during the 1991-92 school year and again in December of 1993. She testified that Butler digitally penetrated her on two different occasions, and had sexual intercourse with her once. Although Butler contradicted her testimony, the jury was free to believe all or part of the victim’s testimony and disbelieve Butler’s assertions. See Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).

Butler’s second point suggests the trial court erred in failing to grant his mistrial motion when a juror, Keith Latimore, revealed for the first time during jury deliberations that he knew something about Butler’s earlier trial. Latimore did not raise his hand when defense counsel asked jurors on voir dire if they had heard anything about the case. During deliberation, the jury sent a note to the trial judge that one of the jurors (Latimore) raised the question of Butler’s prior trial and that Latimore was concerned abut Butler’s having served three years in jail. The jury wanted to know the implications of Latimore’s concern. The trial judge had Latimore come into his chambers, where the following exchange occurred:

Court: Are you Mr. Latimore?
Latimore: Yes, sir.
Court: I guess you’re aware of the question that was raised?
Latimore: Yes, sir.
Court: Are you the one that raised the question?
Latimore: Yes, sir.
Court: Mr. Latimore, did — do you recall going through voir dire and the question being asked if any of you know anything about this case?
Latimore: Yes, sir.
Court: Do you recall your answer?
Latimore: Yes, sir.
Court: And what was your answer?
Latimore: That I didn’t. I thought it was prior than what was presented from the media. I didn’t know anything outside of what I saw or read in the paper. I thought everybody that was here knew — knew about what had happened.
Court: So you didn’t think that it applied to any information at all, just what had happened since he had been arrested this time?
Latimore: No, sir.
Court: Well, what kind of information did you disclose to the other jurors?
Latimore: We were discussing — I mean, by then everybody had already made up their minds and they asked me how did I feel. I told them, you know ■— I told them I believe that . . .
Court: Well, I don’t know want to know what your vote was, Mr. Latimore.
Latimore: Okay. Okay.
Court: I just want to know what you told them.
Latimore: I told them that I — that he had already served three years and apparently something wasn’t right the first time or we wouldn’t be back here a second time. So before we put a man up for life or whatever, I don’t know what we’re going to do, but we need to think real close this time and get it right and don’t make the same mistakes that they made the first time.
Court: All right. You can go back.

Butler moved for a mistrial, stating that an instruction by the trial court to the jury could not cure the prejudice caused by Latimore’s actions, and that the jury was “weighing more than just the evidence . . . presented in the case.” The trial judge took Butler’s motion under advisement, and after the jury recessed overnight, the judge ruled the next day as follows:

In looking back on that, of course, the sole issue of whether I declare a mistrial is whether the prejudice occurred. And if that prejudice is so powerful that it can’t be corrected by some admonition or something else, the supreme court and the court of appeals are real clear that a mistrial is something that is to be avoided if possible as an extreme remedy. My reading of what he said is that everybody had their mind(s) made up already and it was kind of like Regis Philbin saying, “Is that your final answer.” And they — I think, you know —• you just have to speculate, really, to know what was going on, but they were inquiring of him, because he was the only African American on the panel, how did he feel about it. And that’s my opinion. I think at that point, he was advising the jurors they needed to use extra caution and that — in my opinion, that really inured to the benefit of the defendant.
Now, they’ve asked a question, so at that point, I’ve asked a question. I’m going to find that if there is prejudice it’s merely speculative and based on what he said, I don’t find that there is any prejudice.

After the trial court’s ruling, the court cautioned the jurors to read again the instructions given them before and at the close of trial. It further told the jurors that it was their duty to determine the facts from the evidence produced at trial and to apply the law contained in the jury instructions to the facts when rendering its verdict. When none of the jurors indicated they could not follow the court’s instructions, the jury returned to its deliberations. Sometime afterwards, Latimore told the bailiff that he wanted to •speak to the judge, and the judge, by note, asked Latimore, “What do you want to talk about?” Latimore’s response, by note, said:

Judge Reynolds:
Everyone feels I am holding up the process. I am following your instructions. I believe the prosecution only presented to me a case that shows an unusual relationship between a man and a child. I don’t believe it was sexual.
[Signed] K.L.

Butler renewed his motion for mistrial, which the trial judge denied, and the judge told the jury to continue its deliberation. Subsequently, the jury returned a guilty verdict on all three rape charges, and when polled, the jury confirmed its verdict was unanimous.

Butler initially analogized the present case to the one in Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983), where this court reversed and remanded Walton’s conviction on the basis of juror misconduct, but there, the juror deliberately withheld the fact that she had observed the first day of Walton’s first trial, and intentionally misled the court with answers during voir dire, indicating she had no personal knowledge of the facts of the case. Here, there was no evidence of intentional misconduct on Latimore’s part. Instead, Latimore’s remarks indicated he misunderstood the nature and extent of defense counsel’s questions as to whether the jurors knew anything about the case.

Following allegations of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from any such juror misconduct. State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000). This court will not presume prejudice in such situations. Id. (citing Larimore v. State, 309 Ark. 414, 833 S.W.2d 358 (1992)). Jurors are presumed unbiased and qualified to serve, and the burden is on the appellant to show otherwise. McIntosh v. State, 340 Ark. 34, 8 S.W.3d 506 (2000); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). Whether prejudice occurred is also a matter for the sound discretion of the trial court. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001).

Butler relies on United States v. Resko, 3 F.3d 684 (3d Cir. 1993), wherein that court of appeals held that the federal district court erred in not conducting a more comprehensive inquiry into allegations of juror misconduct. In that case, it came to the district court’s attention that the jurors had been discussing the case prior to its being submitted for deliberations. Defense counsel asked the court to conduct individualized voir dire of the jurors to ascertain what had occurred and the extent of any prejudice caused by the alleged premature deliberations; in the alternative, a motion for mistrial was made. The district court denied both motions, and instead gave the jurors a questionnaire that asked 1) if the jurors had participated in discussing the facts of the case with other jurors, and 2) if the answer to the first question was “yes,” whether or not those discussions had caused the juror to form an opinion about the defendant’s guilt. Each juror answered yes to the first question, but no to the second. Resko, 3 F.3d at 688.

In Resko, the defendants argued that the manner in which the district court handled and ruled on the matter was an abuse of discretion, and that the court should have engaged in further investigation into whether or not the jurors were prejudiced by their premature deliberations. The Third Circuit agreed, holding that, because the district court refused to engage in any investigation beyond the cursory questionnaire, there was no evidence in the record one way or the other regarding prejudice to the defendants. The Third Circuit Court of Appeals “simply [had] no way to know the nature of the jurors’ discussions and whether these discussions in fact resulted in prejudice to the defendants.” Id. at 690. By failing to conduct further inquiry, “the district court allowed the jurors, in effect, to be the judge of whether or not they had been influenced by their premature discussions. In this way, the district court effectively ceded to the jury its responsibility for determining whether or not the defendants would be prejudiced by the jurors’ misconduct.” Id. at 691.

By way of contrast, the Tenth Circuit Court of Appeals affirmed the lower court’s decision not to hold a hearing on the question of jury misconduct in United States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998). There, an alternate juror reported to the court clerk that the jurors had been conversing about who might be the alternates, and one juror said, “I hope I’m not the hold-out juror.” In response, another juror said, “It wouldn’t be very hard. I think we all know what the verdict should be.” After the federal district judge found out about this incident, he admonished the jury about the importance of not discussing the case and avoiding any media mention of the case until after the evidence had been presented. McVeigh, 153 F.3d at 1185-86. Once the jury had been dismissed for the day, the district court informed counsel of what had happened; defense counsel moved that the juror who said “I think we all know what the verdict should be” be stricken from the jury. The government said that it was satisfied with the court’s curative instruction. The district court decided not to hold a hearing on the allegation, and effectively denied the defense’s motion to strike the juror. Id. at 1186.

On appeal, McVeigh argued that the district court abused its discretion in not holding a hearing on the juror’s allegations. That court of appeals conceded that it was a close question, but concluded that the trial judge’s decision was not an abuse of discretion. Particularly, the Tenth Circuit noted the following:

Unlike cases concerning extraneous influences [on jurors], this case involves an allegation of intrajury misconduct, specifically the allegation that a juror had reached a premature conclusion regarding McVeigh’s guilt. Although premature discussions among jurors may prejudice the defendant, see Resko, 3 F.3d at 689-90, intrajury misconduct generally has been regarded as less serious than extraneous influences on the jury. Consequently, an allegation of intrajury misconduct may or may not warrant a hearing.
Courts face a delicate and complex task whenever they undertake to investigate reports of juror misconduct or bias during the course of a trial. In determining whether the allegation is sufficiently serious to warrant a hearing, the district court must consider the content of the allegations, including the seriousness and likelihood of the alleged bias, and the credibility of the source. Ultimately, the court must weigh the benefits of having a hearing, including the ability perhaps to ascertain more fully the extent and gravity of the possible prejudice, against the risks inherent in interrupting the trial and possibly placing undue emphasis on the challenged conduct.

Id. at 1186-87 (internal quotations and citations omitted).

The Tenth Circuit concluded that the district court had not abused its discretion in the McVeigh case for several reasons. The court noted the trial judge’s strong curative instructions and the fact that any further actions might have drawn undeserved attention to the remark. Further, the Tenth Circuit Court of Appeals pointed out that the trial court, from its own observations, was under the impression that the juror who had made the remark generally followed the court’s instructions, and the fact that there were no other reports of misconduct led to the conclusion that the trial court’s admonishments were effective. Id. at 1187-88. Thus, there was no abuse of discretion in refusing to hold a further hearing on the question of juror misconduct. See also Farm Bureau Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000) (no error in refusing to inquire further into alleged jury misconduct when there was no affirmative proof that the jurors had been discussing the case, and when such an inquiry might have only served to place undue emphasis on the challenged conduct).

In the present case, the alleged misconduct occurred during deliberations, not during the trial itself. Upon inquiry by the trial court, juror Latimore said that everyone else had already made up their minds, and had asked him what he thought. The trial court carefully weighed the situation, considering Latimore’s statement that everybody had their minds made up, before deciding no prejudice had occurred. In fact, in considering Latimore’s statement, the trial judge reasonably found that Latimore’s interaction with the jurors “really inured to Butler’s benefit.” Furthermore, the trial court also admonished the entire jury panel to follow its instructions with respect to the consideration of evidence; Latimore’s second note to the court indicated that he was following the court’s instructions. Finally, the polling of the jury revealed that the verdict was unanimous. Therefore, it does not appear that the trial court here abused its discretion in denying Butler’s motion for a mistrial.

Butler also argues that the trial court abused its discretion in' declining to question the jurors individually, as the Third Circuit held the trial court should have done in Resko. Flowever, Ark. R. Evid. 606 precludes inquiry into “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon [the juror’s] or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict[.]” A juror “may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Ark. R. Evid. 606(b). See also Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997) (the purpose of the rule is to balance the freedom of secret jury deliberations with the ability to correct an irregularity in those deliberations).

The “extraneous” information in the instant case was juror Latimore’s personal knowledge that Butler had previously been convicted and that the conviction was apparently reversed. While Rule 606 provides that jurors may testify about the introduction of extraneous information in an inquiry into the validity of a verdict, see Witherspoon v. State, 322 Ark. 376, 909 S.W.2d 314 (1995), the rule does not require a hearing on the question of juror misconduct. As in McVeigh, there was no error in the trial court’s decision not to hold a hearing where the judge “already knew much of the information that a hearing would have provided, including who made the statement, what was said, and the general circumstances surrounding the statement.” McVeigh, 153 F.3d at 1187 (comparing Resko, supra, for its holding that the trial court abused its discretion in not holding a hearing when it did not know this kind of information). Here, the trial court knew that juror Latimore had made the statement, and knew what the statement was and its context, based on the court’s colloquy with Latimore. Further, the court admonished the jury about what it was to consider during deliberations, and was further reassured by Latimore’s note that he was following the court’s instructions. Therefore, it cannot be said that the trial court abused its discretion in refusing to grant Butler’s motion for a mistrial.

In his third point for reversal, Butler argues the trial court erred in denying his motion to introduce evidence under the rape-shield statute, Ark. Code Ann. § 16 — 42—101 (b) (Repl. 1999), which provides as follows:

In any criminal prosecution under § 5-14-101 et seq. or § 5-26-202, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person, evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose. (Emphasis added.)

The trial court conducted a rape-shield hearing to determine the admissibility of Butler’s proffered testimony that was related to B.J.M.’s prior sexual conduct. B.J.M. testified that she told Butler’s daughter that B.J.M.’s stepfather had sexually abused her, and she further said that she never recanted her statement concerning her stepfather. Butler, however, testified that, during his visit with B.J.M., B.J.M. recanted the allegation. The trial court rejected Butler’s proffer, finding Butler’s testimony regarding B.J.M.’s having sexual contact with other persons was covered and should be excluded under the rape-shield statute.

In evaluating the admissibility of such evidence under the statute, the trial court determines whether the probative value of the evidence outweighs its inflammatory or prejudicial nature. Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995); see also Ark. Code Ann. 16-42-101(c) (Repl. 1999). The Harris court held that our rape-shield statute is intended to protect victims of rape or sexual abuse from the humiliation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the public when such conduct is irrelevant to the defendant’s guilt. Harris, supra. Here, Butler proffered the testimony as evidence of B.J.M.’s prior inconsistent statements to undermine her credibility. As such, the proffered testimony violated the rape-shield statute. See, e.g., Sera, 341 Ark. at 442, 17 S.W.3d at 78 (affirming the rape-shield-based exclusion of evidence because the testimony’s purpose was to cast the victim in a bad light); see also Hill v. State, 74 Ark. App. 28, 45, 45 S.W.3d 406, 407 (2001) (stating that testimony regarding victim’s prior inconsistent statements offered to rebut her credibility was inadmissible because it violated the rape-shield statute). Thus, the trial court did not abuse its discretion by ruling that the proffered testimony was inadmissible in violation of the rape-shield statute.

For his final point on appeal, Butler argues that the trial court erred in allowing the testimony of two other victims in this case. Butler notes that after this court’s remand in 1999, the rape and first-degree violation-of-a-minor charges against him, involving three separate victims, were severed. The rape counts that are the subject of this appeal involved B.J.M., and the violation-of-a-minor charges involved two other girls, A.W. and K.H. Prior to the trial of the rape charges, Butler became aware that the State intended to call A.W. and K.H. to testify in the rape trial. He filed a motion in limine to exclude their testimony, but the trial court denied the motion. At trial, both girls testified about Butler’s sexual contact with them.

The trial court allowed this testimony under the so-called “pedophile exception” to Ark. R. Evid. 404(b). Rule 404(b) precludes evidence of prior bad acts offered to prove the character of a person in order to show that he acted in conformity therewith. However, other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, or absence of mistake, or accident. Id. Moreover, the pedophile exception to 404(b) specifically permits the admission of evidence of other sexual acts with children, when it tends to show a proclivity toward a specific act with a person or class of persons with whom the accused has had an intimate relationship. Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995). The testimony of other rape victims is relevant in a criminal trial for the rape of an underage victim to show motive, intent, or plan. Id. The rationale for recognizing the pedophile exception is that such evidence helps to prove the depraved sexual instinct of the accused. Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001) (citing Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994)).

Butler argues that the testimony of A.W. and K.H. was improperly admitted for several reasons. First, he asserts that the facts in those two cases were not sufficiently similar to those in the case against B.J.M., in that B.J.M. never lived with Butler or in the school’s dorm, as A.W. and K.H. did. The pedophile exception, however, does not mandate that all of the alleged victims must have lived in the same house. See, e.g., Berger, supra; Thompson, supra (which made no mention of the “same household” language found in other pedophile exception cases).

Next, Butler contends that the facts surrounding his acts with A.W. and K.H. were distinguishable from those involving B.J.M., in that A.W. and K.H. were several years older than B.J.M. when he engaged in sexual intercourse with them. However, the mere fact that the abuses occurred with girls of different ages and in different locations does not preclude the application of the pedophile exception. Certainly, all three girls were minors, and all three were placed under Butler’s care and authority while they were attending his school. In Berger, supra, this court affirmed the trial court’s decision to admit testimony of two other rape victims, even though those rapes had occurred in another state, and apparently some years prior to the rape at issue in the appeal. Here, A.W. and K.H. were students in Butler’s school, as was B.J.M.; A.W. lived in Butler’s house, and one of the rapes of B.J.M. occurred while she was staying at Butler’s house for an extended period. The similarities are such that the trial court did not abuse its discretion in permitting the other victims’ testimony under Rule 404(b) and the pedophile exception to that rule.

For the foregoing reasons, Butler’s convictions are affirmed.

Imber, J., not participating.

       Although B.J.M. testified that the first rape occurred during the 1990-91 school year, later evidence showed that the school had not been established in 1990 or 1991. At the conclusion of the evidence, the State moved to amend the information to conform to the proof, and the trial court granted the motion.

       Butler asserts that the State improperly invoked the “religious privilege” under Ark. R. Evid. 505(b) and (c), because Butler was not functioning as a minister when B.J.M. allegedly rendered her recantation regarding her stepfather, nor, Butler says, did B.J.M. have any problem with any of her communication being divulged. The State submits that Butler failed to get a ruling on the Rule 505 issue, but since Buder’s proffer is inadmissible under the rape-shield statute, that preservation argument is of no import.


author:
Donald L. Corbin, Justice. Annabelle Clinton Imber, Justice,
      Ray Thornton, Justice,

text:
    ARKANSAS BLUE CROSS and BLUE SHIELD, A Mutual Insurance Company v. Ollie HICKS and Higine Hicks
    01-916
    78 S.W.3d 58
    Supreme Court of Arkansas
    Opinion delivered June 13, 2002

      Home, Hollingsworth & Parker, A Professional Association, by: Allan W. Horne and Mark H Allison, for appellant.

      Jackson & Foster, L.L.C., by: Sidney W. Jackson, III; Raymond Abramson; and Turbeville Law Firm, by: Richard Turbeville, for appellee.
   Donald L. Corbin, Justice.

This appeal presents the issue whether a trial court properly certified a suit as a class action pursuant to the requirements set forth in Ark. R. Civ. P. 23. Appellant Arkansas Blue Cross and Blue Shield appeals the order of the Monroe County Chancery Court certifying the suit filed by Appellee Ollie Hicks, as wife and next friend of Higine Hicks, and Appellee Higine Hicks as a class action. Appellant raises several arguments on appeal as to why the present action was improperly certified. This case was transferred to us from the court of appeals; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(d). We find no error and affirm.

The record reflects that Higine purchased a Medicare Supplement Policy, also known as a Medi-Pak policy, from Appellant on June 26, 1996, with the policy having an effective date of August 1, 1996. At the time that Hicks purchased the supplemental policy, he was also receiving Medicaid benefits. Appellant, when selling the Medi-Pak policy to Hicks, did not specifically inquire as to whether or not Hicks was eligible for or receiving Medicaid benefits. The Medi-Pak application did, however, ask whether the applicant had any other insurance coverage that provided benefits similar to the Medi-Pak policy. Higine answered the inquiry affirmatively and listed Medicaid as the other insurance providing similar coverage. At the end of the application was a section preceded by “IMPORTANT: PLEASE READ AND SIGN” that contained information informing the applicant that he may be eligible for Medicaid and may not need a Medicare supplement policy. It further advised the applicant that the supplemental policy could be suspended if the applicant later became entitled to Medicaid benefits.

Thereafter, Appellees filed suit against Appellant alleging that its practice of selling supplemental insurance policies to Medicaid-eligible beneficiaries violated the Arkansas Deceptive Trade Practices Act (“ADTPA”), constituted a breach of contract, and their collection of premiums constituted a conversion. The original complaint filed on April 2, 1999, alleged that Appellees were suing on their behalf, as well as all members of a class “consisting of all persons in the State of Arkansas who: (1) at any time purchased a Medicare Supplement Policy from Blue Cross and Blue Shield of Arkansas while enrolled as a Qualified Medicaid Beneficiary; and (2) paid premiums on such policy while enrolled as a Qualified Medicaid Beneficiary, at any time between August 1, 1996, and the date of Notice to the Class.”

Appellant filed an answer to the complaint, admitting that it may have sold supplemental policies to Arkansas residents who were entitled to, or later became entitled to, Medicaid benefits. Appellant contended, however, that there was a conflict between two federal provisions governing insurers in cases regarding Medicaid. Its answer further claimed that prior to 1996, its applications inquired as to whether or not an applicant was covered by Medicaid, but that in November 1995, the Arkansas Insurance Department (“AID”) advised Appellant that under federal law, it could no longer take into account that an applicant for supplemental insurance was eligible for, or receiving, Medicaid benefits. Thereafter, Appellant removed the Medicaid question from its applications. AID subsequently learned that its directive to Appellant was erroneous and reinstated its requirement that insurers include the Medicaid question on its applications. According to Appellant’s answer, however, AID did not inform it of this change until late 1996. Finally, Appellant’s answer denied that a class action was appropriate, averring that the allegations in Appellees’ complaint required individual determinations and that Higine Hicks could not adequately represent the interests of the class, as he was suffering from a weakened mental and physical state, was seventy years of age, and ignorant on insurance matters and uneducated.

Appellees also filed a motion seeking conditional class certification, alleging therein that a class action was a superior method for handling their cause of action and that all of the requirements of Rule 23 had been met. In connection with the motion for class certification, Appellees submitted various exhibits and affidavits in an effort to support their contention that a class action was a superior method for litigating their claims. Included in these documents was an affidavit of Ollie that her husband was enrolled in Arkansas’s Medicaid program on September 17, 1993, and was on Medicaid at the time that he applied for and received the Medi-Pak insurance. According to Ollie, her husband purchased the supplemental policy despite her advice to him that he did not need extra insurance since he was covered by both Medicare and Medicaid. She learned that her husband had purchased a Medi-Pak policy only after receiving a bill from Appellant. She stated that she attempted to contact Appellant and inquire as to why her husband was paying for insurance, but claimed that the person whom she called would not answer her question.

Appellees also submitted a transcript from the deposition of Ron DeBerry, Director of Marketing for Appellant. In his deposition, DeBerry explained the methods utilized by Appellant in marketing and selling its Medi-Pak policies. DeBerry stated that the policies were predominantly sold through direct-response advertising, specifically in newspapers and television commercials, and telemarketing. DeBerry stated that the company did not make cold calls, but instead followed up on written leads or leads phoned into the company. DeBerry also testified that individuals on Medicaid are not eligible for Medi-Pak, but admitted that there was no written manual instructing telemarketers on how to handle specific Medicaid questions. Finally, DeBerry stated that Appellant has the ability to produce a computer disc containing the social security numbers of each of its Medi-Pak customers that could in turn be given to Arkansas Medicaid in order to perform a cross-reference to determine how many Medicaid recipients had purchased Medi-Pak policies.

Joseph Smith, Vice President of Private Programs and Chief Information Officer for Appellant, was deposed and testified that he was responsible for overseeing Appellant’s claims, which were handled almost exclusively electronically. Smith stated that typically the only way a claims’ representative would know that a claimant was Medicaid eligible was if they received a telephone call from the individual consumer alerting them to their dual coverage. According to Smith, once Appellant learned of a person’s Medicaid coverage, they would verify that information and suspend the Medi-Pak policy if notification was made within a ninety-day time period. The premium would then be refunded from the date of notice, rather than the date the claimant became Medicaid eligible. If the customer called after the ninety-day time period, there was no premium refund. Smith also stated that the claims department could become aware of Medicaid coverage if a claim was returned from Medicaid.

Harris Shearer, a policy analyst with AID, filed an affidavit stating that the sale of Medi-Pak insurance to persons already on Medicaid is prohibited, because Medicaid typically pays for expenses covered by Medi-Pak. Thus, there is a requirement that an insurer ask persons applying for Medi-Pak coverage whether they are eligible for Medicaid. According to Shearer, in 1995, the AID was informed that insurers could no longer consider an applicant’s Medicaid status in determining whether to issue Medi-Pak coverage. In November 1995, Appellant submitted its proposed Medi-Pak application for the year 1996, and Shearer instructed Appellant to remove the question “Are you covered by Medicaid?” as a result of the previous information. A new' application form was then approved by Shearer in January 1996. Later in 1996, AID learned that insurers should continue to ask about an applicant’s Medicaid eligibility, but Shearer did not inform Appellant of this change until after it submitted its proposed application for 1997.

The affidavit of Wayne Olive, Director of the Third Party Liability Unit of the Arkansas Medicaid Program, was also submitted by Appellees in support of their motion for class certification. Therein, he discussed the details of Medicaid coverage, including the fact that a person may move in and out of Medicaid eligibility from month to month, depending on the person’s income and assets. Olive stated that during the initial Medicaid enrollment process, an applicant is asked whether he or she has any other health insurance. Any such insurance is recorded, and if a claim is submitted to Medicaid for which there is other health insurance, the Medicaid system will deny that claim until the provider seeks payment from the insurer. According to Olive, the Medicaid system did not have the capability to independently determine the number of Medicaid recipients who have Medi-Pak coverage, unless the insurance carrier engages in a data match of files or shares data. Finally, he stated that his statement in a previous affidavit that 4,174 persons with Medicaid benefits and Medi-Pak coverage through Appellant was not edited to reflect whether those persons were presently eligible for Medicaid or whether the Medi-Pak coverage was current, terminated, or suspended.

Appellant filed a motion seeking to transfer this action from circuit to chancery court, because it claimed that the action was one for recission and was thus cognizable only in chancery court. The circuit court subsequently entered an order transferring the case to the chancery division as one involving equitable issues and relief. Appellant also filed a motion to dismiss, or in the alternative, a motion for summary judgment. In a letter order dated November 13, 2000, the chancellor granted Appellant’s motion to dismiss with regard to Appellees’ claim under the ADTPA, because the Act does not apply to transactions permitted under laws administered by AID. The chancellor also dismissed Appellees’ claim regarding those persons who became eligible for Medicaid benefits after they purchased a Medi-Pak policy but continued paying premiums to Appellant. The chancellor concluded, however, that there were issues of fact and law to be resolved in the case and that it was necessary to hold another hearing on the issue of Appellees’ motion for class certification.

Appellees subsequently filed a second amended complaint on November 29, 2000, alleging therein breach of contract, fraud, and constructive-trust disgorgement and unjust enrichment. Specifically, Appellees alleged that Appellant engaged in a course of conduct in selling insurance to persons and accepting their premiums where Appellant knew or should have known that they could not perform under the contract, thus rendering the contracts voidable. Appellees also averred that Appellant fraudulently informed, or failed to inform, Appellees and the class that if they were entitled to Medicaid benefits, the supplemental policy duplicated these benefits. Finally, Appellees claimed that Appellant occupied a confidential relationship with Appellees, and breached this trust through the sale of unnecessary insurance; thus, Appellant should disgorge all profits derived from this trust.

A hearing on the issue of class certification was held on November 30, 2000. The chancellor took the matter under advisement and later issued findings of fact and conclusions of law as to the issue of class certification in an order dated May 1, 2001. After considering the pleadings, affidavits, documentary evidence, testimony of witnesses, and the oral argument of counsel at three separate hearings, the chancellor concluded that the proposed class satisfied all the requirements of Rule 23 and certified the class as all persons in the State of Arkansas who:

(1) at any time purchased a Medicare Supplement Policy from Blue Cross and Blue Shield of Arkansas while enrolled as a Qualified Medicare Beneficiary; or
(2) paid premiums on such policy while enrolled as a Qualified Medicare Beneficiary, at any time between August 1, 1994 and the date of Notice to the Class (the “Class Period”).

From that order, comes the instant appeal.

Rule 23 (a) and (b) sets forth the prerequisites for certifying a class action. Rule 23 reads in pertinent part:

(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class,- (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Before turning to an analysis of the above-stated requirements, we first reiterate our well-settled position that we will not reverse a trial court’s ruling on class certification absent an abuse of discretion. See, e.g., Ferguson v. Kroger Co., 343 Ark. 627, 37 S.W.3d 590 (2001); BPS, Inc. v. Richardson, 341 Ark. 834, 20 S.W.3d 403 (2000); Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999); Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997). Moreover, in reviewing a trial court’s order on class certification, this court focuses on the evidence in the record to determine whether it supports the trial court’s conclusion regarding certification. Id. In this same vein, this court has noted its refusal to consider the merits of the underlying claim, stating:

We have held that neither the trial court nor the appellate court may delve into the merits of the underlying claim in determining whether the elements of Rule 23 have been satisfied. In that regard, a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action. Thus, the propriety of a class action is “basically a procedural question.

Fraley, 339 Ark. at 335, 5 S.W.3d at 431 (citations omitted). Remaining mindful of these principles, we now turn to the class certification at hand.

Class Definition

For its first point on appeal, Appellant argues that the class definition is imprecise, and it will not be administratively feasible to identify the class members. Appellant avers that the definition is imprecise because of the use of the disjunctive “or” between subsections (1) and (2) of the class definition. According to Appellant, the chancellor’s findings of fact stated that it is permissible for a person with existing Medi-Pak coverage to keep that policy in force by continuing to pay premiums even if that person later becomes eligible for Medicaid. Thus, the use of “or” renders the class definition inconsistent with the court’s findings. Moreover, Appellant argues that the class as defined will include possibly thousands of people who became eligible for Medicaid after purchasing Medi-Pak insurance and that those people: share no common experience with the class representatives.

In Ferguson, 343 Ark. 627, 37 S.W.3d 590, the appellants argued on appeal that it was error for the trial court to deny class certification in an action by grocery shoppers against the Kroger Company for negligence, breach of contract, unjust enrichment, misrepresentation, and conversion stemming from a dispute over the grocer’s double-coupon program. The trial court denied class certification after concluding that individual issues dominated over common ones and that a class action was not a superior method for handling the litigation. In affirming the trial court, this court did so for a reason other than that stated by the trial court. On appeal, Kroger asserted that it was virtually impossible to identify members of the proposed class and, thus, impossible to define the class. This court agreed. In concluding that a defined class did not exist, this court stated:

It is axiomatic that in order for a class action to be certified, a class must exist. The definition of the class to be certified must first meet a standard that is not explicit in the text of Rule 23, that the class be susceptible to precise definition. This is to ensure that the class is neither “amorphous,” nor “imprecise.” Concurrently, the class representatives must be members of that class. Thus, before a class can be certified under Rule 23, the class description must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. Furthermore, for a class to be sufficiently defined, the identity of the class members must be ascertainable by reference to objective criteria.

Id. at 631-32, 37 S.W.3d at 593 (quoting 5 Jeremy C. Moore, Moore’s Federal Practice § 23.2(1) (Matthew Bender 3d ed. 1997)).

The court in Ferguson ultimately held that in order to maintain a class action, there must be a defined class that will make it administratively feasible for a court to determine membership in the class. In other words, class identity must be feasible, and the class cannot be excessively broad or amorphous. Id. (citing 7A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure § 1760 (2d ed. 1986)). As this court in Ferguson pointed out, clearly defining the class insures that those people who are actually harmed by the defendant’s wrongful conduct will participate in the relief ultimately awarded. Id. (citing Simer v. Rios, 661 F.2d 655 (7th Cir. 1981)).

In the present case, we disagree with Appellant’s assertion that the class is rendered unidentifiable by the use of “or” in the class definition. Appellant’s claim that the use of “or” in the class definition is inappropriate ignores a critical factor. In her order dated January 29, 2001, the chancellor dismissed that part of Appellees’ complaint dealing with those persons who became Medicaid eligible after they purchased a Medi-Pak policy. The chancellor specifically determined that under the law, a person who becomes Medicaid eligible after purchasing a Medi-Pak policy bears the burden of suspending the Medi-Pak coverage. The chancellor also pointed out that there had been no allegations that Appellant ever failed to comply with an individual’s request to suspend Medi-Pak coverage. Thus, Appellant’s argument on this point is unavailing.

We also disagree with Appellant’s assertion that it will not be administratively feasible to identify class members. Appellant asserts that even if the parties have the capability to identify every Arkansan who purchased a Medi-Pak policy or who paid premiums on such a policy after August 1, 1994, no one possesses information regarding when and for how long a person was covered by Medicaid as a Qualified Medicare Beneficiary (“QMB”). According to Appellant, this issue is made more complex by the fact that a person’s Medicaid status can change from month to month. Appellant relies on this court’s decision in Ferguson, but that case is distinguishable. In Ferguson, this court acknowledged that the ability to identify the class members was “made more difficult by the passage of time and changes in the shoppers’ circumstances.” Id. at 634, 37 S.W.3d at 594. No such situation is at issue in this case.

Here, Appellees presented evidence that established possible ways to identify those persons falling within the class definition. DeBerry testified that it was possible for Appellant to create a computer disk containing the Social Security numbers of each of its Medi-Pak customers that could then be cross-referenced with the social security numbers of Medicaid recipients to determine which Medicaid recipients had purchased Medi-Pak policies. Olive also testified that it would be possible to determine the identity of potential class members through sharing computer data. In sum, we believe there are adequate methods in place to aid in determining the identity of potential class members. Moreover, the class definition is sufficiently specific to prevent the class from becoming too unwieldy. Accordingly, we cannot say that the chancellor abused her discretion in defining the present class.

Adequacy of Representation

Next, Appellant argues that Appellees are not proper class representatives. Specifically, Appellant argues that there was no finding that Higine was enrolled as a QMB or that he met the asset criteria for a QMB at the time that he applied for the Medi-Pak policy. Appellant claims that whether the class consists of QMB’s and whether Higine was a QMB is a critical issue, because federal law permits the sale of certain types of Medi-Pak policies to QMB’s. Moreover, Appellant claims that Higine has no standing to represent those persons falling within subsection (2) as he did not become eligible for Medicaid after purchasing the policy, nor ever requested that Appellant suspend his policy due to his Medicaid eligibility.

Appellees counter that Appellant never raised this issue below, and as such, this court should not consider it for the first time on appeal. In its reply brief to this court, Appellant asserts that it never raised the specific QMB issue, because throughout this litigation, Appellees repeatedly framed the issue in terms of whether Higine was “Medicaid eligible.” This court has often stated that an argument that was never raised below will not be considered for the first time on appeal. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001); Qualls v. White, 342 Ark. 681, 30 S.W.3d 735 (2000). Accordingly, we do not address the merits of Appellant’s argument regarding Higine’s status as a QMB.

In fact, the record before us reveals that Appellant’s only challenge to Higine’s representation was based on a contention that he was an unsuitable class representative due to his age, lack of education, and lack of knowledge in the area of insurance practices. An attack on the adequacy of class representation under this theory also fails. Rule 23(a)(4) states that a trial court must determine whether the class representatives “will fairly and adequately protect the interests of the class.” In BPS, Inc., 341 Ark. 834, 20 S.W.3d 403, this court explained the three elements of this requirement, stating that:

(1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.

Id. at 844, 20 S.W.2d at 407-08 (citing Mega Life, 330 Ark. at 275, 954 S.W.2d at 904). Absent a showing to the contrary, this court will presume that the representative’s attorney will vigorously and competently pursue the litigation. Mega Life, 330 Ark. 261, 954 S.W.2d 898.

Here, according to Ollie, her husband Higine had been in a nursing home since the fall of 1997, his mind was wavering, and it did not appear that he was coming home. She testified that she completed the 7th grade, but later took some additional classes at Carver High School. In her affidavit, Ollie also stated that she was willing to participate in the litigation of this case by attending hearings and depositions and helping to make decisions in an effort to help other poor families recover monies spent on unnecessary insurance. The chancellor pointed out that Ollie had instructed her counsel to keep in contact with her and to let her know what was going on. We agree with the chancellor that this instruction, coupled with Ollie’s appearance at each scheduled hearing, was enough to demonstrate Ollie’s requisite interest in these proceedings. As this court previously held, the “adequacy of representation” element is satisfied if the representatives display a minimal level of interest in the action, familiarity with the challenged practices, and ability to assist in litigation decisions. See Cheqnet Sys., Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995). Moreover, there was no challenge to Appellee’s counsel’s ability to conduct this litigation. Accordingly, the chancellor did not abuse her discretion on this point.

Commonality and Predominance

For its third point on appeal, Appellant argues that it was error for the trial court to grant class certification because common issues do not predominate over individual issues. Specifically, Appellant avers that the elements required to be proven in order to sustain Appellees’ claims for fraud demonstrate that there are important individual issues to be decided. Appellees disagree and assert that the common questions of law and fact related to Appellant and its course of conduct in selling supplemental insurance is analogous to the situation in Mega Life, 330 Ark. 261, 954 S.W.2d 898.

Pursuant to Rule 23(a)(2), the trial court must determine that “there are questions of law or fact common to the class.” In Williamson v. Sanofi Winthrop Pharms., Inc., 347 Ark. 89, 60 S.W.3d 428 (2001), this court discussed the commonality issue:

[T]he common question prerequisite is interdependent with the notion of joinder impracticability under Rule 23(a)(1). Consideration of the common question issue requires an answer to the question: Common to whom?”
* * *
Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. The test or standard for meeting the rule 23(a)(2) prerequisite is . . . that is there need be only a single issue common to all members of the class. . . .When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.

Id. at 96, 60 S.W.3d at 432 (quoting Herbert B. Newberg, New-berg on Class Actions § 3.10 (3d ed. 1993)).

In Mega Life, the case relied on by Appellees, this court affirmed an order certifying a class of persons who sought a declaration that group insurance policies sold to them by agents of Mega Life were void, because Mega Life failed to comply with the applicable insurance regulations in issuing its policies. In affirming the class certification, this court held that the plaintiffs had satisfied the requirement that common claims regarding identical policies predominated over any individual issues. The court stated that “[i]f these issues are resolved in favor of the class, the individual members will have suffered a common injury of paying premiums for a void insurance policy.” Id. at 271, 954 S.W.2d at 902.

The trial court in the present matter determined that the following were common questions of law or fact:

I. whether Defendant has engaged and is engaging in the unlawful, negligent, and/or misleading conduct of selling Medipak coverage to persons eligible for Medicaid and/or collecting premiums from such persons;
II. whether the Defendant suppressed material facts in dealings with Plaintiff and Class;
III. whether the Defendant was unjustly and substantially enriched as a result of their wrongful conduct;
■IV. whether Plaintiff and the members of the Class were impoverished and suffered damages as a result of the conduct alleged herein, and if so, the measures of such damages;
V. whether the acts and conduct of Defendant violated state and common law; and,
VI. whether injunctive relief is appropriate and, if so, what form of injunctive relief is most appropriate.

The chancellor further recognized that individual issues, such as questions regarding the completion of the applications or whether applicants read the disclosures on the applications, may arise but that such questions did not predominate over common issues.

This court has repeatedly recognized that conducting a trial on the common issue in a representative fashion can achieve judicial efficiency. See Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991); International Union of Elect., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988). Moreover, this court has routinely found the bifurcated process of class actions to be consistent with Rule 23(d), which allows the trial court to enter orders necessary for the appropriate management of the class action. Mega Life, 330 Ark. 261, 954 S.W.2d 898; Hudson, 295 Ark. 107, 747 S.W.2d 81. In fact, this court has expressed its approval for the bifurcated approach to the predominance element by allowing trial courts to divide the case into two phases: (1) certification for resolution of the preliminary, common issues; and (2) decertification for the resolution of the individual issues. Mega Life, 330 Ark. 261, 954 S.W.2d 898. The bifurcated approach has only been disallowed where the preliminary issues to be resolved were individual issues rather than common ones. See Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995).

Here, the common issue that predominates any other potential issue is whether Appellant engaged in a fraudulent scheme to sell insurance policies that they knew, or should have known, were voidable because they provided coverage that was already being provided by Medicaid. If this issue is resolved in favor of the class, the individual members will have suffered a common injury of having paid insurance premiums on a void policy. The chancellor was correct in stating that any individual issues that may arise could later be resolved after a determination of the common issue.

Numerosity and Superiority

For its final argument on appeal, Appellant alleges that the potential class is not so large as to render joinder impracticable and that certification is not a superior method of adjudicating these claims. Appellees argue that joinder is impracticable as the class may number in the thousands and that certification is the superior method of disposing of these claims in an effort to avoid numerous small lawsuits. We agree with Appellees.

This court discussed the numerosity requirement in BPS, Inc., 341 Ark. 834, 842, 20 S.W.3d 403, 406:

The first requirement of class certification is “that the class is so numerous that joinder of all members is impractical.” Ark. R. Civ. P. 23(a)(1). In Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995), we held that the exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense. We have not adopted a bright-line rule to determine how many class members are required to satisfy the numerosity requirement. Mega Life, supra (citing Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991) (approving a class of several thousand claimants)); International Union of Elec., Radio, & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988) (declaring that “at least several hundred” class members were sufficient); Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986) (holding that 184 potential class members were enough); City of North Little Rock v. Vogelgesang, 273 Ark. 390, 619 S.W.2d 652 (1981) (rejecting a class of only seventeen potential plaintiffs)).

In this case, Appellees presented proof that the Medicaid program database reflected that approximately 4,174 persons who were eligible for Medicaid were at some point covered by a Medi-Pak policy. Appellant also presented the testimony of DeBerry at the December 10 certification hearing in circuit court. Therein, DeBerry stated that Appellant conducted a survey of 19,500 Medi-Pak applications submitted in 1995 and 1996 to determine how many people indicated they had Medicaid and then how many people were actually issued a Medi-Pak policy. According to DeBerry, 175 applicants indicated they had Medicaid in 1995, and 141 of those applications were denied or were never completely processed. In 1996, there were 79 applicants who indicated that they had Medicaid coverage, and while 49 of those applications were approved, only 31 people still have Medi-Pak coverage. Based on this evidence, the chancellor reasoned that the class would range from 77 to 4,000 persons and thus, was sufficiently numerous. We agree with the chancellor. Appellant’s own evidence regarding the minimum number of potential class members supports a conclusion that the numerosity requirement had been satisfied.

Within their argument regarding the issue whether the prerequisite for numerosity has been met, Appellant also avers that a class action is not the superior method for resolving this case. Appellant’s argument on this point is premised on the notion that there will be few claimants and that the more efficient way of handling their claims would be through joinder or individual trials. Appellant’s argument on this point is not based on any evidence, and thus we cannot agree that a class action is inappropriate here. Appellant also bases this argument on the notion that individual issues predominate over common ones, a notion already rejected by this court.

Rule 23(b) requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. See Williamson, 347 Ark. 89, 60 S.W.3d 428. This court has held that the superiority requirement is satisfied if class certification is the more “efficient” way of handling the case, and it is fair to both sides. Id. Where a cohesive and manageable class exists, we have held that real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. Id. This court has further stated that when a trial court is determining whether class-action status is the superior method for adjudication of a matter, it may be necessary for the trial court to evaluate the manageability of the class. See BNL, 340 Ark. 351, 10 S.W.2d 838.

In her order, the chancellor concluded that a trial on the common questions was manageable and, in fact, superior to numerous small lawsuits that might occur in the absence of class certification. As previously stated, the fact that individual issues may arise does not render class certification a less favorable means for conducting litigation. Moreover, we are mindful of a point previously made by this court in Summons, 306 Ark. 116, 128, 813 S.W.2d 240, 246, when discussing the importance of reviewing a trial court’s order regarding certification. There, we stated:

That is especially so when it is possible that a large number of persons who may have legitimate claims not worth pursuing because of the costs of our system of justice may lose those claims if they are not allowed to proceed together as a class. By not certifying a class, a trial court can cause the problem to “go away” to the extreme disadvantage of the claimants unless that decision is reviewable.

This concern that a case could just “go away” is certainly applicable in this action. Here, we are dealing with elderly, low-income persons who may lack knowledge regarding insurance coverage. If they are not allowed to proceed as a class, many, if not most, of those potential class members will either lack the knowledge or the financial means to proceed against Appellant in individual actions. While this standing alone is not enough to justify class certification, it is a compelling reason to approve a class certification where all of the other requirements of Rule 23 have been satisfied.

In sum, it is clear that the chancellor did not err in granting Appellees’ motion for class certification, as each of the prerequisites of Rule 23 have been satisfied. Accordingly, we affirm.

Mike Rainwater, Spl. J., joins in this opinion.

Imber, J., concurs.

Thornton, J., dissents.

Glaze, J., not participating.

Annabelle Clinton Imber, Justice,

concurring. I agree with the majority’s decision, and write separately only to clarify that the Appellees in this case are not required to produce a list identifying all members of the class. As the majority recognizes, the class description must only be definite enough so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. See Ferguson v. Kroger Co., 343 Ark. 627, 37 S.W.3d 590 (2001). See also Fabricant v. Sears Roebuck, 202 F.R.D. 306 (S.D. Fla. 2001); Mueller v. CBS, Inc., 200 F.R.D. 227 (W.D. Pa. 2001); 5 James Moore, Moore’s Federal Practice § 23.21 [1] (3d ed. 1997).

More precisely, it is generally recognized that the definition of a class need not be so specific that every potential member must be identifiable at the outset of the action. See Cherokee Nation of Okla. v. United States, 199 F.R.D. 357 (E.D. Okla. 2001); O’Connor v. Boeing N. Am., Inc., 184 F.R.D. 311 (C.D. Cal. 1998); Joseph v. General Motors Corp., 109 F.R.D. 635 (D. Colo. 1986); In re Tetracycline Cases, 107 F.R.D. 719 (W.D. Mo. 1985); 5 James Moore, Moore’s Federal Practice, § 23.21 [2] (3d ed. 1997); 7A Charles Alan Wright et al., Federal Practice & Procedure § 1760 (2d ed. 1986). A party seeking class certification is not required to state the exact number of members of the proposed class or to specifically identify each class member. 5 James Moore, Moore’s Federal Practice, § 23.22[3][b] (3d ed. 1997). Rather, the identity of class members must be readily ascertainable by reference to objective criteria such that the court can determine whether a person is a member of the class. Ferguson v. Kroger Co., supra. See also Garrish v. United Auto., Aerospace, And Agric. Implement Workers of Am., 149 F. Supp. 2d 326 (E.D. Mich. 2001); Fabricant v. Sears Roebuck, supra. Thus, the class definition in this case is sufficiently .precise and objective so that it will be administratively feasible for the trial court to ascertain whether an individual is a member of the class.

Ray Thornton, Justice,

dissenting. I respectfully dissent from today’s decision in which this court approves a defective class certification and allows it to proceed as a class action. Our court has previously departed from the standard applied in federal rules, as adopted in most other jurisdictions, by our decision in Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997), where we held that a rigorous analysis is not required for certification of a class in Arkansas. Id.

Today we expand that liberal interpretation of class actions in Arkansas to allow this appellate court to make surgical repairs to an order establishing an imprecise, amorphous, and excessively broad class composed of members whose Medicaid status may change from month to month, thereby making it unfeasible to identify members of the proposed class at any given time.

On May 1, 2001, the trial court entered its order, certifying the class consisting of all persons in the State of Arkansas who:

(1) at any time purchased a Medicare Supplement Policy from Blue Cross and Blue Shield of Arkansas while enrolled as a Qualified Medicare Beneficiary, or
(2) paid premiums on such policy while enrolled as a Qualified Medicare Beneficiary at any time between August 1, 1994 and the date of Notice to the Class (the “Class Period”).

(Emphasis added.)

In its order, the trial court found that the number of members of the class is disputed, but ranges between seventy-seven to 4,174 persons. The trial court notes that Wayne Olive states in his affidavit that he has identified “some 4,174 Medicaid recipients for whom Medicaid received a report of Medipak coverage through Blue Cross and Blue Shield of Arkansas ¡BCBSA].”

The trial court then finds “that even though the size of the class is uncertain . . . the minimum number is deemed sufficient to meet the numerosity prerequisite.” The trial court makes no finding that the definition of the class meets the standard established in Ferguson v. Kroger Co., 343 Ark. 627, 37 S.W.3d 590 (2001), which holds that in order to have a class action, there must be a defined class that will make it administratively feasible for a court to determine membership in that class. Id.

In the present case, there is an argument that it is actionable for an insurer to sell any supplemental insurance to a person who is already eligible for Medicaid benefits. This is covered in subsection one of the class as certified by the order. However, the plain language of subsection two of the certification would also include all those persons who “paid premiums on such [supplemental] policy while enrolled as a Qualified Medicare Beneficiary at any time between August 1, 1994 and the date of Notice to the Class.” The plain language of the certification would include those persons who continued to pay premiums on a preexisting Medi-Pak policy after becoming eligible for Medicaid. This is contrary to the findings of the trial court that such persons who did not request a suspension from Medi-Pak coverage because of Medicaid eligibility should be dismissed from the action.

The trial court wrote a letter on November 13, 2000, finding that there was no showing that BCBSA failed to comply with any suspension requests, and dismissing that aspect of the complaint. The trial court’s order ofjanuary 29, 2001, formally dismissed this aspect of the complaint on the basis that the applicable law does not prohibit an insurer from continuing to collect premiums for continuing Medi-Pak coverage, unless the owner of the insurance makes a suspension request within ninety days on the basis that he is eligible for Medicaid. Hence, the language of subsection two necessarily includes persons in the class who have suffered no harm because they' either failed to notify BCBSA of their Medicaid eligibility or chose to continue paying premiums on their Medi-Pak policy, despite their status as being temporarily in or out of eligibility for Medicaid.

It is not disputed that it would not be feasible to identify such class members by means of cross-referencing computer data because there is no showing that such data can establish whether the individual claimant has intentionally kept Medi-Pak coverage while his or her status changes from coverage to noncoverage by Medicaid. This individual variance in status is based upon each person’s circumstances, and depends upon an individual decision that cannot be determined by computer data. Such an amorphous and imprecise class is similar to the proposed class in Ferguson, supra, and should not be certified for reasons stated in that opinion. The computer data simply does not contain information whether the putative class number desired a continuation of Medi-Pak coverage, notwithstanding variations in Medicaid coverage month to month.

In my view, certifying a class of an indeterminate size, ranging from seventy-seven to 4,174 members does not identify the members of the class, and there is no showing how an identification of class members can be achieved. The computer cross-matches simply do not disclose whether a particular person who was already covered by Medi-Pak made a personal decision to continue that coverage for an in-and-out period in which that person’s Medicaid eligibility changed back and forth.

The majority seeks to remedy this flaw in the trial court’s class certification by pointing out that several months earlier, in the January 29th order, the trial court recognized that such in-and-out members should be excluded from the class. Unfortunately, this important exclusion of non-eligible persons is not reflected in the trial court’s certification of the class from which this appeal is brought. The trial court’s certification of the class simply does not exclude such persons. While the trial court recognized that as many as 4,000 persons must have their status as class members determined on the basis of individual choices, the order provides no guidance for discovering the reasons for such individual decisions.

The majority approves this flawed class after engrafting upon the final order the provision omitted by the trial court, to the effect that such noneligible persons should be excluded. To accomplish this modification, it was necessary for a modification of the class description to be included in the class to be certified. The trial court did not make this modification, and I strongly submit that we should not do so. It is inappropriate for this court to repair a flawed class certification.

In my view, we should decertify this class just as we decertified the class in Ferguson, supra. If the plaintiffs thereafter propose a class that meets the requirements of Rule 23, they may seek certification of that appropriate class. It is well established that we will not reverse a trial court’s ruling on class certification absent an abuse of discretion. See, e.g., Fraley v. Williams Ford Tractor & Equipment, 339 Ark. 322, 5 S.W.3d 423 (1999). It should be equally clear that we should reverse a class certification where an abuse of discretion results in a clearly erroneous certification.

We enter an unprecedented legal thicket when we modify or amend a class definition during our appellate review on the basis that the trial court intended to exclude some members of the class, but simply failed to do so. Our exercise of this newly assumed authority to modify the trial court’s order transforms this court from its appellate function to that of a supreme trial court, and I am not willing to seek or exercise that new authority and responsibility. The class as certified by the trial court is flawed, and we should reverse and remand.

I respectfully dissent.