author:
Steele Hays, Justice.
      John I. Purtle, Justice,

text:
    Howard Vernon HUGHES v. STATE of Arkansas
    CR 86-198
    732 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Darrell E. Baker, Jr., and Danny Hyslip, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Howard Vernon Hughes was charged with rape and sexual abuse by engaging in deviate sexual activity between July and November 1985 with a five year old boy in violation of Ark. Stat. Ann. § 41-1803 and § 41-1808 (Repl. 1977). Hughes was convicted and sentenced to forty years in the Department of Correction.

On appeal Hughes contends the trial court erred in ádmitting hearsay evidence without first determining the child’s reliability in accordance with A.R.E. Rule 803(25)(A)(l)(j). He submits also the statements were too remote in time and were not shown to be sufficiently reliable to be admitted under A.R.E. Rule 803(25). He contends testimony proffered by the defense should not have been refused. We affirm the judgment.

The state’s proof was that appellant’s mother, Hazel Hughes, operated a baby-sitting service in her home. The child was left there two or three days a week from 9 o’clock in the morning until his mother got off work at about 6:00 p.m. At times the child was alone with Howard. The child’s mother received information in November 1985 that prompted her to ask her son whether he had been touched around his genitals. The child, she said, readily told her that Howard had touched him there, he said Howard had made him put his penis in his mouth, that he had twisted his arm and once put him in a closet. He told his mother he did not like Howard.

The child testified at trial and described the same occurrences—Howard made him put his penis (referred to as his “peek-a-dear”) in his mouth and did the same to him, that Howard had hit him, and scared him by putting him in a bedroom closet. These accusations were repeated by Sergeant Denny Halfacre of the Sheriff’s Department based on his interviews with the child. He said the child also told him, “Howard tries to make me hit and be bad to other kids, but Hazel makes him stop.”

Stephanie Danielson, a psychological examiner at Ozark Guidance Center, and Judith Smith, an investigative social worker with Arkansas Social Services testified to similar statements made by the child in the course of their interviews. Ms. Smith said the child told her that white sticky stuff came out of Howard’s penis into his mouth. Ms. Danielson testified that using anatomically correct dolls the child had demonstrated the sexual acts which had occurred between Howard and himself and, when asked what kind of sound was made by the act of oral sex, the child made a sucking noise. He said the same thing happened to one of his friends.

Trustworthiness of the Statements

Prior to trial the state notified the defense that it intended to rely on A.R.E. Rule 803(25) and a pre-trial hearing was conducted. The state presented essentially the same testimony which was later offered at trial, except that the child did not testify at the hearing. Ms. Danielson’s testimony included her reasons for believing the child’s statements to her were reliable and Ms. Smith said she had “no reason whatsoever to suspect that [the child] was not telling the truth.” At the close of the hearing the trial judge ruled the statements could be admitted at trial.

On appeal appellant does not question the constitutionality of A.R.E. Rule 803(25) under the confrontation clause, rather, he submits the in camera procedure under the rule requires that the child personally appear before the trial judge at the hearing to establish the reliability-credibility of his statements if they are to be introduced at trial. We sustain the argument.

Rule 803 of the Arkansas Rules of Evidence was amended by Act 405 of 1985. The amendment added subsection 25 to A.R.E. Rule 803 by providing that the statements of a child under ten years of age concerning sexual offenses are admissible in a criminal proceeding, provided the court determines in a hearing outside the presence of the jury that the statements have a reasonable likelihood of trustworthiness using thirteen criteria, including “(j) the reliability-credibility of the child witness before the Judge.” Among the other criteria are: the age and maturity of the child, the circumstances, time and content of the statement, “any other corroborative evidence,” and “any other factor which the court at the time and under the circumstances deems relevant and appropriate.” The emergency clause recites the alarming rate of child abuse, the need to expedite the prosecution of such crimes, and to minimize “the trauma and distress of child victims.”

While we agree with appellant’s argument that the wording of A.R.E. Rule 803(25) can only be read as intending that the trial judge must form his own conclusions of the trustworthiness of the statements by observing the child as a witness, we are satisfied there was substantial compliance with subsection (j) in this case by the child taking the stand at trial and testifying to the factual details on which the charges were based. The testimony of the other witnesses came afterwards, with the exception of the child’s mother, and their testimony was consistent with that given by the child. In Interest of C.K.M., 481 N.E.2d 883 (Ill. App. 1985). Other states have adopted statutes similar to Act 405 of 1985 and those enactments have provisions requiring the child to appear before the trial judge unless the child is unavailable. In the latter case, other corroborative evidence is required. See Revised Code of Washington, 9 A.44.120 (1982); Kansas Stat. Ann., § 60-460 (dd) (1982); Colorado Rev. Stat. § 18-3-411 (e); 111. Rev. Stat. ch. 38, para. 115-10 (1983); Ind. Code § 35-37-4-6 (1984); Minn. Stat. § 595-02(3) (1984); Utah Code Ann. § 76-5-411 (1983).

Proximity of the Statements

We disagree, that the statements in this case were too remote in time to be admissible under A.R.E. Rule 803(25). The statements were made within a few months of the alleged events. Nothing in the act suggests that a proximity of that degree is beyond the intended scope of the act.

Testimony of Ms. Judith Smith

We find no merit in the contention that the statements given by Ms. Smith should have been excluded because she was uncertain whether she had questioned the child about the evils of lying. She said she avoided using the word “lie,” preferring other methods of stressing the importance of truth. Nothing in her testimony suggests she was not alert to distinguishing between fact and falsehood.

Testimony of Ms. Stephanie Danielson

Appellant maintains the testimony of Ms. Danielson should have been excluded because, as a psychological examiner, she was not observed by a supervisor while interviewing and testing this child in January, 1986. Appellant relies on Ark. Stat. Ann. § 72-1502(A) which provides that a psychological examiner may practice certain kinds of personality appraisal, counseling, psychotherapy or personality readjustment techniques “only under qualified supervision.” There was no proof that this provision was intended to apply to these procedures. The trial court interpreted the statute as intended for control within the profession and appellant has not demonstrated how that was error. Even if the act applies, Ms. Danielson’s testimony that her conclusions were reached after discussions with her supervisor indicates reasonable compliance. Ricketts v. Ferrell, 283 Ark. 143, 671 S.W.2d 753 (1984).

Proffered Testimony

Appellant’s remaining point is that the trial court should have permitted the defense to introduce two statements. The parents of the appellant, Roger Hughes and Hazel Hughes, were prepared to testify that in the spring of 1985, before the alleged events with Howard, they separately overheard the child talking to other children about an incident involving his mother and her boyfriend. Mr. Hughes understood the child to say that he had seen his mother “kissing her boyfriend’s stomach and below.” Mrs. Hughes said she overheard similar remarks from the child, “I think he said tummy and down below.”

Appellant submits this proferred testimony was erroneously excluded as hearsay. He contends the purpose of the proof was to show that the child had knowledge of oral sex prior to any of the alleged acts charged to Howard. We need not weigh whether the proposed testimony was subject to a hearsay objection, as it is clear the trial judge excluded it as collateral (R.p. 591) and because he did not consider it relevant. (R.p. 607).

We note initially there is room for considerable doubt as to just what inference can be drawn from the proferred testimony. Aside from that, Mrs. Hughes was not even certain of what she heard the child say. Be that as it may, whether the remarks are probative of the conclusion that the child was thus informed about oral sex by his observations at home rather than his asserted experiences at the Hughes household is, at best, debatable, and one which resides largely with the discretion of the trial court. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). Giving the remarks as much probative force as possible, they do not explain the child’s graphic description of Howard’s ejaculation in his mouth nor the sounds he associated with the experience. We are satisfied the proferred remarks had minimal probative value and there was no abuse of the trial court’s discretion in excluding them for lack of relevance. Killensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983); Jim Halsey Co., Inc. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). A.R.E. Rule 403.

For the reasons stated, the judgment of conviction is Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. My chief disagreement with the majority opinion is that I feel A.R.E. 803(25) is unconstitutional as violative of the Confrontation Clause of the Sixth Amendment. The appellant in the present case did not argue the constitutionality of A.R.E. 803(25) and I will therefore not address that issue in this opinion. For a discussion of the constitutionality of the new child hearsay exception, see my concurring opinions in Joe Henry Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987) and Charles Wesley Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987). The appellant did, however, argue that the trial court did not comply with the requirements of Rule 803(25) itself and I agree with his argument.

The provisions of A.R.E. Rule 803(25) were not followed by the trial court in the present case. The new rule excludes from the rule against hearsay statements concerning physical or sexual abuse made by a child under ten years of age:

PROVIDED The court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria:
j. the reliability-credibility of the child witness before the Judge.
3. If a statement is admitted pursuant to this Section the Court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factors.

The child did not testify at any hearing conducted outside the presence of the jury. The only testimony presented by the child was that on one occasion the appellant made him put the appellant’s penis in the child’s mouth. That’s enough to sustain a conviction. However, all the amplification and/or embellishment presented by hearsay witnesses was probably the basis of the conviction by the jury.

One of the hearsay witnesses testified that the victim said the appellant twisted his arm. The victim testified that it did not happen. The child did not state either by tape recorded statement or trial testimony, that “sticky stuff’ came out of the appellant’s penis. He never referred to his penis as a “pick-a-dear”, “pick a dur”, or any of the other funny little names furnished by the hearsay witnesses. All of the witnesses, including the officer, stated that the appellant denied the accusations.

Witness Smith, the social worker, testified to the boy’s detailed description of the alleged sexual acts between the appellant and the child. However, the child did not remember telling her any of these things. Neither did he confirm the testimony of witness Danielson, the psychological examiner, who gave equally damaging testimony.

Ms. Danielson testified that it was her opinion that the child was telling the truth and that it was her opinion that the child had been sexually abused. In the companion case of Johnson v. State, we hold that a medical witness could not give his opinion, in the absence of medical evidence, that a child had been sexually abused. We base this holding on our decision in Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), where we stated:

The single point of appeal concerns a question asked of the State’s first witness, Dr. Donna Van Kirk, a licensed psychologist. The Deputy Prosecuting Attorney first asked Dr. Van Kirk if in her opinion the victim had been sexually abused. The appellant objected, and the trial court correctly ruled that the witness could not give her opinion about whether sexual abuse had, in fact, occurred.

Ms. Danielson is a licensed psychological examiner. Why should a psychological examiner be allowed to give such an opinion in this case and a psychologist not be allowed to give a similar opinion in Russell? The only answer is that our opinions are not consistent.

Although the victim was present at the trial and testified on behalf of the state, the trial court allowed all of the hearsay testimony from the other witnesses. The mother testified before the child as to the boy’s recitation to her of the accusations concerning the appellant. The police officer testified after the child that that’s what the boy told him (or something like it). The social worker testified that that’s what the child told her (or something like it). The psychological examiner testified that that’s what the child told her (or something like it). It was primarily all this hearsay testimony, not the alleged victim’s testimony, that contributed to the severity of the sentence, if not the conviction itself. After five (5) different versions of the alleged despicable act had been presented to the jury, the inescapable inference was that the accusations must be true.

The child did not testify that the appellant performed oral sex on him. This evidence was solely presented by hearsay witnesses who stated that they heard the child make the statements. The child was not even asked about this type of activity, nor was he questioned concerning the details of the other allegations. Judy Smith, the social worker, testified that the child did not tell her that the appellant placed the child’s penis in his mouth. Her exact words were: “I don’t believe he told me that Howard had put his mouth on his ‘peck a doo.’ ” Officer Halfacre was asked the question: “Did it occur to you that you should have asked if the child had actually had to perform oral sex on this adult?” His answer was: “Okay. That I did ask. He said no.” Witness Danielson stated the victim told her both acts of oral sex were performed. This witness also stated that the victim related that a sucking sound was made during the performance of oral sex. The child did not state such in his testimony nor was he asked about it.

I mention only a few of the hearsay statements to show how devastating the testimony must have been. It was absolutely unnecessary because the witness was present and testified. Even if all these statements were actually made, they should not have been admitted because there was absolutely no confrontation afforded. No power on earth can reveal what result confrontation would have had at the time the statements were allegedly made. The trial court allowed their introduction into evidence because Rule 803(25) dispenses with the right of confrontation whenever the declarant is under the age of 10 and is the alleged victim of physical or sexual abuse.

The majority opinion makes the statement that the trial judge must form his own conclusions of the trustworthiness of the hearsay statements by observing the child as a witness as required by subsection (j). Where in the record is a finding of “the reliability-credibility of the child witness before the judge?” The majority’s statement that this requirement was met is not founded anywhere in the record. The opposite is true. There was not a hearing conducted outside the presence of the jury, or anywhere else, to determine the reliability-credibility of the child. It was impossible for the trial court to make such a determination because the child never appeared before him for such purpose at all. The trial court made absolutely no attempt to determine the trustworthiness of the alleged statements. How this Court can make the statement that the rule was substantially complied with by the child taking the stand at the trial is beyond me. This determination is supposed to take place before the introduction of the hearsay statements or the testimony of the child at the trial.

The majority is in error again where it states the hearsay witnesses’ testimony was consistent with the child’s testimony. The statement is only partially true because, as discussed earlier in this opinion, their testimony went far beyond the testimony of the child. He never told the jury half the things the hearsay witnesses did. Their testimony at trial, with the exception of the mother’s, was presented after the testimony of the child. This testimony very obviously was not intended to prove the trustworthiness of the child’s statements, but rather to prove additional criminal acts of which these witnesses had no personal knowledge and which were not even corroborated by the testimony of the victim.

The reliability of the hearsay statements is particularly lacking in this case. There is no testimony from any source which even establishes the month this crime was supposed to have occurred. All we know is that many months afterward, following two or three discussions with the child, he eventually gave several different recitations of the alleged act. The original information was filed January 7,1986. On April 29,1986, two days before the trial, the court permitted the state to amend the information to allege the crime occurred between May and September, 1985. The defense in this case was alibi and the practical elfect of this amendment was to give the defense an additional forty-five days to account for—with only two days until trial. Smith did not interview the victim until November, 1985, and Danielson did not interview him until January of 1986. It is quite clear that the statements were not within a relatively short time span of the alleged act. See State v. Skala, 719 P.2d 283 (Ariz. App. 1986), where two days was considered too remote. Certainly the legislature intended that the time of the statements in relation to the alleged offense be considered when determining the trustworthiness of the hearsay statements.

The defense proffered hearsay testimony which has long been considered within a well-established exception to the hearsay doctrine. There is no doubt that in order that justice be done the jury should have been allowed to consider the proffered testimony of Hazel and Roger Hughes, the defendant’s mother and father, in determining the credibility of the victim’s statements. This proffered statement occurred prior to any hearsay statement made to the state’s witnesses. The testimony was offered for the purpose of showing that the child’s knowledge of oral sex existed prior to the time of the alleged offense. The testimony was a statement by the child that he had come into the living room unexpectedly one night and discovered his mother “sitting on” her boyfriend and “kissing him on the stomach and below”. The record clearly demonstrates that the state objected to this testimony as hearsay, and the trial court excluded it as such. The following exchange from the record:

STATE: Judge, it is still hearsay he is trying to show.
DEFENSE: It is not.
THE COURT: Let him finish. He is trying to show that that’s where the boy got the knowledge, so it has to be true for him to have gotten that knowledge. So it is as to the truth of the matter asserted. I will sustain objection to it.

A statement made out of court is not hearsay if offered for the purpose of providing that the statement was made, and not for the purpose of proving the truth of the matter asserted. Nowlin v. State, 252 Ark. 870, 481 S.W.2d 320 (1972); and A.R.E. 801(c).

Even if the proffered testimony were hearsay, so was that of the other witnesses. I fail to understand why the hearsay rule applies to one and not the others. These proffered statements were no more collateral or irrelevant than were all of the other hearsay statements. They all fit the same category. The discretion of the trial court does not extend to the extent of allowing hearsay in favor of the state and rejecting it on behalf of the defense.

I cannot end this dissent without a final reference to my concurring opinions in Johnson and Cogburn. Neither can I vote to uphold a conviction based solely upon completely untested hearsay testimony. I would reverse and remand for a new trial.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Lige ROBINSON and Clayton KIDD v. Jerry Wayne ABBOTT
    87-57
    731 S.W.2d 782
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Laser, Sharp & Mayes, P.A., for appellant.

      Lovell, Arnold & Nalley, for appellee.
   Steele Hays, Justice.

Appellants ask us to overturn a jury verdict and remand for a new trial because the issue of punitive damages was improperly submitted to the jury. The jury refused to award punitive damages, but did return a verdict for the plaintiff, now the appellee, of $50,000 in compensatory damages. While we agree with appellants that the proof was entirely insufficient with respect to punitive damages, we cannot agree the error requires remand.

Appellee Jerry Wayne Abbott sued appellants Lige Robinson and Clayton Kidd for injuries arising from a motor vehicle collision. Robinson and Kidd admitted that Robinson caused the collision and that he was Kidd’s employee, but denied any grounds for punitive damages.

Before the jury was impaneled the trial judge listened to the plaintiffs proof relative to punitive damages. It consisted essentially of testimony which would clearly sustain a finding of negligence, but fell far short of establishing willful, wanton misconduct. The trial judge informed counsel for plaintiff he could “risk” making proof on that issue, but could not introduce proof of the defendants’ net worth. As we have mentioned, the jury rejected the claim for punitive damages but upheld the claim for compensatory damages.

We agree with appellants that it was error to submit the issue of punitive damages to the jury on the proof of mere ordinary negligence. Even if evidence of Robinson’s conduct could be considered gross negligence, an arguable point, it would not have sustained an award of punitive damages. Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 385 (1984).

Even so, we have repeatedly said that it is only harmful, thus reversible, error to submit the issue of punitive damages to the jury where there is proof of the defendant’s net worth. In KARK-TV v. Simon, 280 Ark. 228, 656 S.W.2d 702 (1983) we summarized the rule:

The jury’s refusal to award punitive damages would ordinarily render the error harmless, but appellees were permitted to present evidence of the appellant’s net worth. We have held on a number of occasions that where the issue of punitive damages is erroneously submitted to the jury, together with the defendant’s financial condition, an award of compensatory damages is tainted and cannot stand. Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982); Life and Casualty Insurance Co. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966). (Emphasis added).

We restated that principle in Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983).

Here, there was no proof of net worth, nor any showing of prejudice, and we do not reverse for error which does not result in prejudice. Peoples Bank v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1987); Ricketts v. Ferrell, 283 Ark. 143, 671 S.W.2d 753 (1984); Rule 61, Arkansas Rules of Civil Procedure. Our Rule 61 is identical to FRCP 61. “The philosophy behind this rule is that proceedings should not be disturbed because of a technical error which resulted in no prejudice. Gutshall v. Wood, 123 F.2d 174 (C.A. 1942).” Reporter’s Notes to ARCP Rule 61.

Affirmed.

Glaze, J., not participating.


author: David Newbern, Justice. John I. Purtle, Justice, Robert H. Dudley, Justice, Steele Hays, Justice,

text:
    Joe Henry JOHNSON v. STATE of Arkansas
    CR 86-150
    732 S.W.2d 817
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Lohnes T. Tiner and Chet Dunlap, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is a child sexual abuse case in which the appellant was convicted of raping the nine-year-old son (the boy) of the woman with whom he was living (the mother). We find that one of the appellant’s eight points of appeal requires reversal. It was prejudicial error for the trial court to have permitted the physician who examined the alleged victim to state, albeit indirectly, that the boy had been sexually abused. The remaining points will be addressed only to the extent it may be helpful in the event of a retrial.

The appellant and the mother had lived together for eight years. Living with them was the boy, who was the mother’s son but not the son of the appellant, and a younger daughter who was fathered by the appellant.

At the trial the boy testified that the appellant was planning to go fishing on April 27, 1985, with the boy and two other men. As the plans developed, a decision was made that it would be an overnight trip, and thus the boy could not go. He testified that he became angry and went into the house where his mother whipped him for picking on his little sister. He then told his mother that the appellant had sexually molested him. His mother took him to a hospital where he told the examining doctor, a pediatrician, the same thing. The boy then testified that his statements about the appellant had been untrue, as had his subsequent, similar, statements to a police officer, social worker, and deputy prosecutor.

The testimony of other witnesses indicated that the boy had accused the appellant of having anal and oral intercourse with him and then recanting the accusation and then recanting the recantation.

Police officers testified that the appellant, during questioning after his arrest, admitted rubbing his penis around the boy’s anus and saying that “it might have slipped in.” They said when they began questioning the appellant he refused to permit them to tape record his statement. After they had questioned him, they asked him to sign a written version of his statement, and he said he

would not sign anything until after he had talked with a lawyer. At that point the questioning ceased. The appellant denied having made any such admission to the officers.

The evidence against the appellant thus consisted of (1) the officers’ testimony about the appellant’s statement, (2) the doctor’s statement about what the boy had told him and his opinion that the boy had been abused, and (3) the statements of various persons about what the boy had told them when he accused the appellant and when he took back his accusations.

1. The Doctor’s Opinion

The doctor who examined the boy testified he found no physical evidence of the anal intercourse the boy said had taken place that day. The doctor said that lack of such evidence would not rule out the possibility that it had occurred. He testified that the boy told him the sexual relationship with the appellant had existed for some months and the acts had occurred on several occasions. The prosecutor then asked the doctor if he had examined many other children for alleged sexual abuse. The appellant objected, and at that point wrangling in bench conferences and otherwise out of the hearing of the jury began over whether the doctor could express an opinion whether the boy in this case had been sexually abused.

The court refused to allow the doctor to express his opinion whether the boy had told him the truth. However, the court allowed the doctor to give “an opinion as to whether or not child abuse existed.” The appellant objected, contending the doctor had no basis for such an opinion other than the boy’s out-of-court statément. The court responded that the doctor could give his opinion based upon “history, coupled with the physical facts, the living conditions that his parent related, . . . and the facts and circumstances at hand ¡ . . .” The appellant argued that the “history,” and the completely negative physical examination were the only bases the doctor could have had for his opinion. The court said the question could be asked and if the appellant wished to cross-examine on the bases for the opinion he could do so. The doctor had been admonished not to say his opinion was based solely on his belief of what the boy told him. When the jury returned to the courtroom, the questioning went like this:

<

BY MR. HUNTER [the prosecutor]:
Q. Doctor Kemp, during the time that you talked to [the boy] and examined him, what was his demeanor^©»© of voice, that sort of thing?
A. He seemed very concerned. Somewhat frightened. Worried. Very tense, anxious, and nervous. Obviously upset. Somewhat—obviously embarrassed with the conversation, and what he was saying to me.
Q. Ok. And you’ve indicated, Doctor Kemp, by pointing to the genital area, and the rectal area how he described what happened to him.
Did [the boy] ever use words, particular words to describe what he told you this defendant did to him?
A. He used words like his thing, and I would say, “What do you mean his thing” And he would—he would say, “Well, you know what I mean.” And I would say, “No, . . ., what do you mean.” And he would then point to his own penis and say, “This is what I mean, and I said, “You mean this is what you’re talking about when you say his thing,” and he would say, “Yes.” Descriptions like that.
Q. Do you remember how he referred to his hind part?
A. He initially pointed to his rectal area in—in describing where the thing was placed.
Q. Did he refer to it ever as his bottom?
A. Yes, he used that term once.
Q. Do you remember in what connection he referred to his hind part as his bottom?
A. He kept saying to me that he—he put his thing in my bottom, or—or point—he would point say, you know, back here.
Q. Doctor Kemp, based upon your examination of [the boy], the history that you took, including his living circumstances, and physical examination, did you formulate an opinion to within a reasonable degree of medical certainty, as to whether or not [the boy] had been subjected to sexual abuse?
A. Yes, I did.
Q. And Doctor Kemp, will you tell the ladies and gentlemen of the jury, please, what that opinion is?
A. I feel like I could not ignore the child’s comments to me. His sincerity—
MR. TINER [defense counsel]:
Judge, I’m objecting. The answer is not responsive.
MR. HUNTER:
Your Honor, he’s entitled to explain what his opinion was based on.
THE COURT:
Doctor, you said you formed an opinion. Can you state in general terms what the opinion was relative to child molestation or abuse?
A. I had an opinion based on the history that this child gave me, and my experience in dealing with children through the years, that an act had occurred that I considered detrimental to this child’s health.
MR. TINER:
Judge, may we approach the Bench?
THE COURT:
Yes.
(REPORTER’S NOTE: THE FOLLOWING IS A BENCH CONFERENCE THAT TOOK PLACE OUT OF THE HEARING OF THE JURY).
MR. TINER:
Judge, at this time, we’re going to move for a mistrial because he said, “Based upon the history that the child gave him, and based upon examining other children.” And that’s what it’s based upon, and that is improper, and we’re asking for a mistrial.
THE COURT:
I am going to deny your motion. And I am going to tell you at this time, Mr. Hunter, to go on to something else.
MR. HUNTER:
We are, your Honor.
MR. TINER:
We would ask the Court to admonish the jury to disregard the last statement that was made by the Doctor.
THE COURT:
No, that will be denied.

It is apparent the doctor ultimately conveyed to the jury his opinion that the boy was telling the truth. It was error, however, for the court to have permitted the doctor to have given his opinion that “an act had occurred that [he] considered detrimental to this child’s health.” The only “act” to which the doctor’s testimony could have referred was the anal intercourse related to him by the boy. The opinion of an expert that a child has been sexually abused is not objectionable on the basis that it is an opinion on the “ultimate issue.” A.R.E. 704; Jennings v. State, 289 Ark. 39, 709 S.W.2d 69 (1986). The question here is whether such an opinion may be expressed if it is based on nothing but the “history” given by the child.

In Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), a psychologist testified in a rape and child sexual abuse case that, based on her experience, what the child had told her was “consistent with a child who has been abused.” The majority opinion said:

The appellant argues that the trial court erred in allowing the witness to answer whether the child’s statements were consistent with sexual abuse because the subject matter was not beyond the common knowledge of the jury. The argument is meritorious.
The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact issue. Unif. R. Evid. 702; B&J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the trier of fact’s ability to understand and draw its own conclusions. B&J Byers Trucking, Inc. v. Robinson, supra. Here, lay jurors were fully competent to determine whether the history given by the victim was consistent with sexual abuse.
Accordingly, we conclude the trial court erred in admitting the testimony. The issue then becomes whether the error was prejudicial. The State’s case against the appellant was so strong, and the error so inconsequential, that we find no prejudice.
The overwhelming evidence came primarily from the victim and a pediatrician. The victim’s testimony was explicit, graphic, and unequivocal ....

In the case before us now the error was prejudicial. The majority in Russell v. State, supra, found overwhelming evidence of the accused’s guilt based on the child’s graphic (and unrecanted) trial testimony relating the acts of the appellant. The evidence before us now can hardly be characterized as “overwhelming,” as it consisted solely of the doctor’s opinion, evidence of the inconsistent, out-of-court statements of tjie boy, and the disputed testimony with respect to the statement allegedly made orally by the appellant.

Although the evidence against the appellant was strong enough to be permitted to go to the jury, it was not of such overwhelming proportions as to make the error in allowing the doctor to give his opinion non-prejudicial.

2. A.R.E. 803(25)(A) and the Confrontation Clause

Testimony of witnesses as to what the boy had said about the appellant was admitted pursuant to A.R.E. 803 which provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (25) (A) A statement made by a child under ten (10) years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, provided:
1. The Court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria:
a. the age of the child
b. the maturity of the child
c. the time of the statement
d. the content of the statement
e. the circumstances surrounding the giving of the statement
f. the nature of the offense involved
g. the duration of the offense involved
h. the relationship of the child to the offender
i. the reliability of the assertion
j. the reliability-credibility of the child witness before the Judge
k. the relationship or status of the child to the one offering the statement
l. any other corroborative evidence of the act which is the subject of the statement
m. any other factor which the Court at the time and under the circumstances deems relevant and appropriate
2. The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
3. If a statement is admitted pursuant to this Section the Court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factors.
4. This Section shall not be construed to limit the admission of an offered statement under any other hearsay exception or applicable rule of Evidence. . . .

The appellant’s argument is that in Ohio v. Roberts, 488 U.S. 56 (1980), the Supreme Court said the Confrontation Clause of the Sixth Amendment requires, as a prerequisite to making an exception to the hearsay rule, that the witness whose out-of-court statement is to be discussed, i.e., the declarant, be unavailable and that there be adequate indicia of reliability of the statement. The appellee points out that in this case the boy was not unavailable.

In Ohio v. Roberts, supra, the question was whether the testimony taken at a preliminary hearing could be used at the trial in the absence of the witness. After a general discussion of the history of the hearsay rule exceptions in the context of the Confrontation Clause, in which it was noted that both unavailability of the witness and indicia of reliability of the statement are required, the court said: “In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.” In this case the witness was present at the trial. He was also available for the equivalent of cross-examination, as the court allowed the appellant to call him as a hostile witness even though his testimony was favorable to the appellant.

If we were to terminate this portion of the opinion at this point, we might be interpreted as suggesting that in any case where the witness is present for the trial his prior out-of-court statements may be substituted for live testimony as long as there are indicia of reliability of the prior statement. We do not mean to do that. In United States v. Inadi,_ U.S __, 106 S.Ct. 1121 (1986), the Supreme Court considered whether the hearsay rule exception permitting admissibility of out-of-court statements of co-conspirators made in the course and furtherance of the conspiracy could be admitted despite the availability of the witnesses in question. The claim there, as here, was that Ohio v. Roberts, supra, required unavailability of the witness as a prerequisite to any exception to the hearsay rule. The Supreme Court said that case was hardly to be interpreted as a wholesale revision of the law of evidence, and that the unavailability requirement did not apply with respect to every exception to the hearsay rule. The Supreme Court noted that the unavailability requirement applied in situations where the testimony of the witness at the trial was to be the same as it had been when given out of court. Obviously the better testimony would be that given live, and cross-examination could then be much more meaningful. However, where the testimony in court can be expected to be substantially different from that given out of court, as in the case of a co-conspirator whose out-of-court statement was surreptitiously obtained, the reason for the unavailability requirement disappears. The question then becomes solely whether there are sufficient indicia of reliability to make an exception to the hearsay rule. With a touch of understatement, the Supreme Court observed:

When the Government—as here—offers the statement of one drug dealer to another in furtherance of an illegal conspiracy, the statement often will derive its significance from the circumstances in which it was made. Conspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand. Even when the declarant takes the stand, his in-court testimony seldom will reproduce a significant portion of the evidentiary value of his statements during the course of the conspiracy. [106 S.Ct. at 1126]

We find the same reasons apply to permit admissibility of the out-of-court statements of an alleged child abuse victim as applied to admit the statements of the alleged co-conspirators. One of the witnesses who testified as to the boy’s out-of-court statements accusing the appellant was a psychologist. As abstracted by the appellant, his testimony included the following:

It is not unusual for children who have been sexually abused to recant. Often children that have been abused, when they become aware of the implications, coming forward and talking about the sexual abuse, quite often they will recant. Some of the implications which they become aware of are going to court, changes that it causes in the family, and the pain they perceive they are causing other family members.

The appellant has not argued that the boy’s statements lacked sufficient indicia of reliability. We quote the psychologist’s testimony solely for the purpose of showing it was his expert opinion that a child is likely to recant a statement about being abused sexually by a family member. Thus, in view of the common prospect, and here the known reality, of a great difference between trial testimony and out-of-court statements of the alleged victim, the unavailability requirement does not apply in this case any more than it did in United States v. Inadi, supra.

Although the appellant’s primary argument under this point is the one about unavailability, he also contends that the application of A.R.E. 803(25)(A) in this case gave the prosecution an undue advantage not available in other cases as it permitted it to prove the crime by hearsay evidence and that that violated his rights to due process and equal protection of the laws. No authority is cited for this second proposition under this point, thus we will not address it. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Should this become an issue upon retrial, we refer the parties and the court to Note, 83 Colum. L. Rev. 1745 (1983); Note, 98 Harv. L. Rev. 806 (1985); and Note, 13 Pepperdine L. Rev. 157 (1985).

3. The Appellant’s Statement

The appellant argued he had asked for counsel at some point before or during the statement he gave to the police officers. They testified that he did not mention getting a lawyer until the appellant was asked to sign a written version of what he had told them. This was a credibility issue to be resolved by the trial court in determining the admissibility of the testimony as to the appellant’s statement. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).

4. Bill of Particulars

The appellant was charged with violating Ark. Stat. Ann. § 41-803 “on or about April 27, 1985 [,] in Poinsett County.” He filed a motion for a bill of particulars asking that the exact place and time of the acts alleged be stated. The motion was denied.

A bill of particulars as to the precise time the offense was committed need not be granted unless the time is material to the allegation. Ark. Stat. Ann. § 43-1015 (Repl. 1977); Payne v. State, 224 Ark. 309, 272 S.W.2d 829 (1954); Venable v. State, 177 Ark. 91, 5 S.W.2d 716 (1928).

Charging the location at which an offense occurred is necessary to establish the jurisdiction of the court. Ark. Stat. Ann. § 43-1016 (Repl. 1977). Therefore, it is sufficient if the court having jurisdiction of the offense alleged can be determined from the information. Haller v. State, 217 Ark. 646, 232 S.W.2d 829 (1950).

5. What is a Statement?

The appellant contended that when the boy was questioned by a police officer his responses consisted only of “yes and no” answers to questions asked, and that those responses to questions did not constitute a “statement” by the alleged child abuse victim contemplated by A.R.E. 803(25)(A). While this court has not defined “statement” in this context, other courts have done it in similar situations. For example, in United States v. Katsougrakis, 715 F.2d 769 (2nd Cir. 1983), cert. den. 104 S.Ct. 704 (1984), a nod of the head in response to a question was held to be a statement. In United States v. Guzman, 754 F.2d 482 (2nd Cir. 1985), questions were held admissible to give meaning to responses. In our opinion, the responses of the alleged victim in this case constituted clear assertions and were sufficient to be considered a “statement” as contemplated in the rule.

6. Conflicting Testimony

A tape recording of the boy’s statement to a police officer was played for the jury. A social worker who was present when the statement was made testified she heard the boy make a statement which did not appear on the tape. The officer testified the tape contained all that was said. The appellant claims this conflict in testimony presented by the prosecution made the tape so untrustworthy that it should not have been admitted. Such a conflict goes only to the weight to be given to the testimony presented by the prosecution and not to its admissibility. See Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982).

7. Evidence of Other Crime

When the tape recording of the boy’s statement was to be played for the jury, the appellant objected on the basis that the statement was hearsay, the rule does not permit tape recording as opposed to statements, and the witness (presumably meaning either the officer or the boy) was present in court and could testify to what the statement had been. The appellant also argued that the tape contained prejudicial evidence of another offense, that is, the boy was asked if the appellant had ever “fooled around” with the boy’s sister. Focusing on that basis for the objection, the court asked what the response to the question was. At that point the appellant’s counsel said, “alright, the tape is inaudible to that, Judge. I don’t think—I don’t think the jury’s gonna be able to hear the tape anyway.” The judge said he would permit the tape to be played. The appellant then asked that his objection be treated as a continuing one.

We need not decide whether the objection was waived or not. If this case is retried, it is clear that the court should review the tape before it is admitted to ascertain if it contains evidence that the appellant committed another crime and take appropriate action to see to it that any such evidence does not get before the jury.

8. The Boy’s Age

The appellant contends that when the boy made his out-of-court statements accusing the appellant he was nine years old, but at the time of the trial he was ten. The appellant argues that A.R.E. 803(25)(A) was designed to protect a young child from the trauma of a trial, and thus the critical age is the age of the child at the time of the trial rather than the age at the time the statement was made, and the rule thus does not permit the statements to be admitted.

The birth certificate of the boy showed that his tenth birthday occurred May 3, 1985. His accusatory statements were given on April 27 and 30, 1985. His statements recanting the accusations occurred after May 3, 1985. The court ruled that it would be unfair to the appellant to exclude the boy’s statements made after May 3,1985, in the circumstances of this case, and he admitted both the accusatory statements and the recantations citing A.R.E. 803(24).

Although the judge’s ruling was probably not responsive to the appellant’s objection, we find no error here. We have found no authority, and the appellant has cited none, supporting the appellant’s interpretation of Rule 803(25)(A) as meaning that the declarant must be less than ten years old at the time of the trial as opposed to the time the statement was made. The rule refers to a “statement made by a child under ten years” as being admissible. Our view is that had the authors of the rule meant to restrict it to a statement made by a child “under ten years of age at the time of the trial” they would have said so. It seems clear to us that the Rule permits the statements to be admitted in this case because they were “made by a child under ten years.”

Reversed.

Purtle, and Dudley, JJ., concur.

Hays, J., dissents.

John I. Purtle, Justice,

concurring. Although I agree with the result, I write a concurring opinion primarily because of the misleading statement of the majority:

If we were to terminate this portion of the opinion at this point, we might be interpreted as suggesting that in any case where the witness is present for the trial his out-of-court statements may be substituted for live testimony as long as there are indicia of reliability of the prior statement. We do not mean to do that.

The opinion actually accomplishes exactly what it says it does not do. But in the words of Humpty Dumpty—the words mean what the majority says they mean. The opinion does not hold that in all cases where a witness is present at trial his prior out-of-court statements may be substituted for live testimony. However, the opinion does hold that, pursuant to A.R.E. 803(25), in all cases where the declarant is the alleged child victim of sexual/physical abuse and is present for the trial, his out-of-court statements may be substituted for live testimony as long as there are indicia of reliability of the prior statements. The alleged child victim was present in the case under consideration and was in fact questioned by defense counsel during the course of the trial.The majority misinterprets Ohio v. Roberts, 448 U.S. 56 (1980). There the transcript of the witness’ preliminary hearing testimony was allowed into evidence because the witness was unavailable at the trial. The former testimony was taken subject to the full right of confrontation, i.e. taken under oath and subject to full and effective cross-examination. Further, the state had made substantial efforts to compel the witness’ attendance at the trial of Roberts.

The thrust of Roberts was that the right to confrontation was not violated because the witness could not be located and the evidence indicated that her prior testimony bore sufficient indicia of reliability that it afforded the trier of fact a satisfactory basis for the determination of the truth of the former testimony. After canvassing the many previous cases that had examined the relationship between the Confrontation Clause of the Sixth Amendment and the many exceptions to the hearsay rule, Justice Blackmun, writing for the Court, stated:

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. . . .
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule.”

The testimony admitted in Roberts included questioning of the witness by Roberts’ attorney. Confrontation was not only afforded, it was utilized.

What the majority in the present decision appears to overlook is that in Roberts the witness or declarant was, in fact, unavailable. The majority at one point, without expressly doing so, attempts to distinguish Roberts on the basis that in the present case the declarant was not unavailable. It is precisely because the witness was not unavailable that the testimony should not have been admitted. To hold otherwise flies right smack dab in the face of both the Confrontation Clause of the Sixth Amendment and the common law rule against the admission of hearsay. The Arkansas act attempts to allow any and all (the more the better?) recitations of prior statements even though the declarant is available for trial and cross-examination. Neither this Court nor the General Assembly possesses the power to nullify this fundamental principle of Anglo-American law against the admission of such evidence.

The majority reaches its conclusion in the present case by analogy to U.S. v. Inadi,_U.S._, 106 S.Ct. 1121 (1986), where the statements in dispute were those of an unindicted co-conspirator. The admission of the out-of-court statements of a co-conspirator is founded on the concept of agency. See A.R.E. 801(d)(2)(v). To compare the out-of-court statements of an alleged child abuse victim with the statements of co-conspirators in a drug ring seems, at best, rather strained. The Court in Inadi stated:

If the declarant is available and the same information can be presented to the trier of fact in the form of live testimony, with full cross-examination and the opportunity to view the demeanor of the declarant, there is little justification for relying on the weaker version. When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence.

The Court did not reject the confrontation requirement but rather reaffirmed it in the language quoted above. The opinion further stated: “These same [confrontation] principles do not apply to co-conspirators’ statements.” The opinion expressly distinguished Roberts where it stated:

The admission of co-conspirators’ declarations into evidence thus actually furthers the “Confrontation Clause’s very mission” which is to “advance ‘the accuracy of the truth-determining process in criminal trials.’ ”

Moreover, the reasoning behind the decision in Inadi has been brought into question by the Supreme Court’s recent decision in Cruz v. New York,_U.S__, 107 S.Ct. 1714 (1987). Justice Scalia, writing for the Court, held that where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant,. . . the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him.

Ohio v. Roberts, supra, is still valid law on this subject according to the opinion in Kentucky v. Stincer,_U.S__, 107 S.Ct. 2658 (1987), where the Court considered a Kentucky statute which closely resembles A.R.E. 803(25). In Stincer the trial court conducted an in chambers hearing, at which the accused was excluded, to determine the competency of two child victim witnesses. The accused’s counsel was present at the hearing. The hearing was held out of the presence of the jury and the defense counsel was allowed full cross-examination. The Stincer holding is limited to the question of whether due process and confrontation were denied the appellant by excluding him from the hearing at which the reliability-credibility of the seven and eight year old victims was determined. The Court held that the accused’s rights were not violated. I agree with the decision. Both reliability and confrontation were preserved. The majority opinion in this case preserves neither.

I recognize the child sexual molestation problem in this country is serious and demands immediate attention, not only from the courts but from the legislature and the general public. The effort to deal with this problem must be undertaken with all deliberate speed. However, deliberate is the word of caution which we must always keep in mind. History has proven time and again that decisions hastily made in the heat of anger, or in a state of excitement, are frequently found to have been unwise.

Children are apt to be confused on cross-examination by a lawyer. They frequently cannot recall exact dates, places and complete details of prior experiences. They may be reluctant or scared, or they may be vindictive. Also, children sometimes respond in a manner intended to please the parent or interviewer. These are but a few of the matters which must be considered in deciding the trustworthiness of hearsay statements. These problems must be resolved by the simple process of the trial court making a prior independent evaluation of the credibility-reliability or trustworthiness of not only the child witness, but also of each prior hearsay statement. Corroboration of such hearsay testimony is mandatory if we are to preserve our system of justice. The child in this case, a nine year old boy, made the accusation after the appellant refused to take the child on an overnight fishing trip. After the appellant told the alleged victim he could not go, the child went inside the house and started trouble with his little sister, for which his mother whipped him. He then told his mother the appellant had been molesting him. The mother took him to a pediatrician the same day. The doctor found absolutely no evidence that the child’s accusation was true. The child said the appellant had done it to him that day and for several months before. The child subsequently recanted his story.

The doctrine of exclusion of hearsay existed long before the Constitution and Bill of Rights were adopted by the people of the United States. The hearsay exclusion was a basic tenet of the common law. Trial by depositions was found to be fundamentally lacking in trustworthiness and thus such Star-Chamber proceedings were swept aside by the adoption of the Sixth Amendment. Justice Marshall, in his dissenting opinion in Inadi, 106 S.Ct. at 1129, remarked: “The plight of Sir Walter Raleigh, condemned on the deposition of an alleged accomplice who had since recanted, may have loomed large in the eyes of those who drafted that constitutional guarantee.” Exceptions have eroded the Confrontation Clause and the rule against hearsay. However, the present erosion seems not to be founded so much upon the test of reliability in search of the truth as it is upon the convenience of the state. Exceptions to the rule against hearsay must be permitted only for a compelling reason, and then the exceptions should be narrowly defined and strictly construed. Especially in light of the procedure providing for videotaped testimony of the child, A.S.A. § 43-2036, which retains most of the safeguards attendant to a trial, I would require an affirmative showing of reliability and unavailability.

The inherent untrustworthiness of hearsay, as clearly demonstrated in the present case, led to the development of the hearsay exclusion doctrine in the common law. The exceptions to the hearsay doctrine were few in number and were founded upon a showing of reliability and necessity. The hearsay testimony in this case should be required to pass this two-part test demanded by Ohio v. Roberts. We have no indicia, even on appeal, of the circumstances relating to reliability at the time these hearsay statements were allegedly made. No case I have read holds that a statute as broad as 803(25) is constitutional. See my concurring opinion in Charles Wesley Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987). Therefore, I insist the Arkansas procedure is unconstitutional.

Robert H. Dudley, Justice,

concurring. I concur solely to issue a caveat to the trial judges hearing criminal cases.

The Uniform Rules of Evidence are perhaps the most outstanding of the Uniform Laws. The trial judges and trial lawyers have grown accustomed to the use of them and appreciate using rules which are located in one place, rather than in scattered cases. For the first time since their adoption, the courts are faced with the question of whether a rule of evidence is in existence.

The Uniform Rules were adopted as the Arkansas Rules of Evidence by an invalid session of the General Assembly. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). We declared their adoption invalid, but then, under our rule-making authority, adopted them as court rules. Ricarte, id. at 104. The Legislature later enacted Rule 803(25), but this Court has not adopted such a rule, and probably will not do so.

The question then becomes whether this Court or the General Assembly has the authority to promulgate rules of evidence. This separation of powers issue was not raised in the case at bar and is not answered by today’s opinion.

Obviously, the trial judges are going to be faced with the question of whether Rule 803(25) is a part of the Rules of Evidence. If I were a trial judge faced with such a decision, I would carefully consider the following language in the Ricarte case, supra, at 104:

Under our own rule-making power and under existing statutory authority, as of this date we adopt the Uniform Rules of Evidence as the law in Arkansas. We have no misgivings about either the validity of our action or its wisdom, but a few comments are appropriate.
For more than fifty years there has been a steady trend in favor of committing to the courts the regulation of practice and procedure. Dean Wigmore took a strong stand in the matter as early as 1928. Editorial, 23 111. L. Rev. 276. Many others agreed. In 1940 the American Bar Association chose as the subject for its annual Ross essay contest: “To What Extent May Courts under the Rule-Making Power Prescribe Rules of Evidence?” The winning essay by Prof. Thomas F. Green, Jr., argued persuasively that all rules of evidence are properly subject to the courts’ rule-making power. 26 A.B.A.J. 482 (1940). Other pertinent articles include another Ross essay submitted by Charles A. Riedly, 26 A.B.A.J. 601 (1940); Morgan, “Rules of Evidence—Substantive or Procedural?,” 10 Vanderbilt L. Rev. 467 (1957); and Joiner and Miller, “Rules of Practice and Procedure: A Study of Judicial Rule Making,” 55 Mich. L. Rev. 623 (1957).
Arkansas has kept step with the progress made elsewhere. Our Constitution of 1874 confers upon the Supreme Court “a general superintending control over all inferior courts of law and equity.” Art. 7, § 4. We note in passing that the Supreme Court of New Mexico relied on almost that identical language in the New Mexico constitution as authority for the court’s action in adopting the Uniform Rules of Evidence as the law in that state. Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), where the court analyzed in depth its rule-making power.
In 1971, the Arkansas legislature used mandatory words in committing the regulation of criminal practice and procedure to this court:
The Supreme Court of the State of Arkansas shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings in criminal cases.
Ark. Stat. Ann. § 22-242 (Supp. 1985). That action was not an improper delegation of legislative power; it merely recognized the court’s inherent power. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). The statutory language quoted above was repeated in a 1973 statute by which the legislature recognized the Supreme Court’s power to prescribe rules with respect to procedure in civil cases. § 22-245. Under those statutes, we have adopted the Rule of Criminal Procedure and the Rules of Civil Procedure. More recently we adopted rules for the certification of court reporters. We are not the first court to adopt the Uniform Rules of Evidence by judicial action. That step has been taken not only in New Mexico, as mentioned earlier, but also in Florida, In re Florida Evidence Code, 372 So.2d 1369 (1979); in Montana, Montana Rules of Evidence, Ch. 10, Mont. Code Ann. (1984); and in Wisconsin, In re Promulgation of Rules of Evidence, 59 Wis. 2d R1-R377 (1973). The Supreme Court of the United States adopted the Federal Rules of Evidence pursuant to federal statutes quite similar to the 1971 and 1973 statutes enacted in Arkansas. See Reporter’s Note, 409 U.S. 1132 (1972).

Steele Hays, Justice,

dissenting. I find no error in the trial court permitting Dr. Charles Kemp to express an opinion as a medical expert that this child had been sexually abused. The trial judge told the doctor not to state that the boy was testifying truthfully, and not to rely solely on what the boy had told him. Working within those limits the doctor was asked if he could formulate an opinion as to sexual abuse with a reasonable degree of medical certainty based on the history he took, the living circumstances, and physical findings; the doctor said he could and proceeded to state it.

The jurors doubtless recognized the doctor was merely stating an opinion and they were not bound by it in the slightest. The defense was free to show on cross-examination whether it was based on fact or on conjecture and that is how we ought to leave it, to the judgment of the trial court. We have recognized that the trial court is in the best position to weigh all the factors affecting the admissibility of evidence, McQueen v. State, 283 Ark. 231, 675 S.W.2d 358 (1984), and we should, I believe, be restrained in overruling those actions.

ERRATA 292 ARKANSAS REPORTS at page 637 Detach at perforation, moisten the back, and paste over the first four lines of text on page 637 of Johnson v. State: BY MR. HUNTER [the prosecutor]: Q. Doctor Kemp, during the time that yomtalked to [the boy] and examined him, what was his demeanofftbne of voice, that sort of thing?

      ERRATA 292 ARKANSAS REPORTS at page 637 Detach at perforation, moisten the back, and paste over the first four lines of text on page 637 of Johnson v. State: BY MR. HUNTER [the prosecutor]: Q. Doctor Kemp, during the time that yomtalked to [the boy] and examined him, what was his demeanofftbne of voice, that sort of thing?


author: Tom Glaze, Justice.

text:
    Ivan HALL, Mona HALL, Individually, and Ivan HALL, as Father and Next Friend of Troy HALL and Justin HALL v. Del LUNSFORD
    87-52
    732 S.W.2d 141
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Gordon L. Humphrey, Jr., Legal Services of Arkansas, for appellant.

      Bob Keeter, for appellee.
   Tom Glaze, Justice.

This case involves landlord/tenant issues and was initiated by the appellee filing an action for unpaid rent, damages to the rental house and monies owed on a propane bill. Appellants answered, denying the appellee’s allegations and counterclaimed for damages, alleging appellee had breached an implied warranty of habitability. The trial judge granted the appellee’s motion to dismiss appellants’ cause of action based upon an implied warranty theory, holding no such action exists in Arkansas. The judge’s order left intact appellants’ wrongful eviction action as well as the appellee’s claim for rents and other damages. Although the parties’ other claims remain pending below, appellants filed this appeal from the trial court’s order without first complying with Rule 54(b) of the Arkansas Rules of Civil Procedure. See Sherman v. G & H Transportation, Inc., 287 Ark. 25, 695 S.W.2d 832 (1985). Therefore, we must dismiss the appeal.

Appellants suggest the trial court’s order here was a final and appealable one under Ark. R. App. P. 2(a)2 and (a)4. To further support their argument, appellants stated in oral argument that they had agreed with appellee that, if appellants failed to prevail in this appeal on the implied warranty issue, the appellants would not contest the remaining matters and would agree to a consent order. In sum, the appellants’ argument suggests this appeal could possibly resolve the parties’ entire dispute belbw.

Of course, the question of whether a final order exists is a jurisdictional issue to be decided by the appellate court and, that being true, the parties here, by their agreement, cannot make that determination. It is a settled rule of law that whether a final order exists is a jurisdictional question which the appellate court has the duty and right to raise in order to avoid piecemeal litigation. See Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982). In this respect, the trial court’s order, for it to be final and appealable, must have dismissed the parties from the court, discharged them from the action or concluded their rights to the subject matter which is in controversy. Id. Clearly, the court’s order failed to comply with these requirements, nor have the parties attempted to obtain the trial court’s final determination of a claim or certification under Ark. R. Civ. P. 54(b).

Because there has been no final or otherwise appealable order entered, we lack jurisdiction to hear the appeal. Budd v. Davis, 289 Ark. 373, 711 S.W.2d 478 (1986).

Appeal dismissed.


author: Tom Glaze, Justice. John I. Purtle, Justice,

text:
    Joyce Davis HARVEY v. Rod BELL
    87-12
    732 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Davis & Associates, P.A., by: Charles E. Davis, for appellant.

      Ball, Mourton & Adams, Ltd., by: Stephen E. Adams, for appellee.
   Tom Glaze, Justice.

This case involves opposing parties who are real estate developers in Eureka Springs, and who are each developing subdivisions in close proximity of one another. Their conflict ensues from appellee’s “hookup” to an existing sewer line located within a subdivision established by appellant. Appellant contends appellee’s action constituted an intentional trespass and encroachment, which entitles appellant to punitive damages and a mandatory injunction, compelling removal of appellee’s sewer connection and manhole from appellant’s property. Appellee’s primary response, contained in his cross-appeal, is that appellant’s sewer line had been dedicated to the public and that appellee’s sewer hookup was lawfully installed within that public easement.

At trial, the chancellor rejected the appellant’s and appellee’s contentions (offered again here on appeal) but instead, determined that appellee had performed the sewer construction mistakenly but in good faith, that appellant’s request for removal of the sewer hookup would require a forfeiture and deny equity, and that appellant was entitled to no punitive damages but was entitled to a judgment in the sum of $ 1,000, representing the damage to the lot on which the construction took place. Because we find the law and evidence support appellee’s argument that his sewer connection was constructed within a publicly-dedicated easement, we affirm the chancellor’s decision, denying appellant’s request for an injunction and punitive damages, but reverse his award of compensatory damages to appellant.

Our decision largely turns on the plat filed by appellant when she developed the Breezy Point Subdivision in 1976. In that plat, appellant dedicated “all roads and easements for the use of the general public and for installation of utilities.” While the plat depicted the only road, Breezy Point Drive, that ran through the entire subdivision containing nineteen tracts, it did not define or locate the dedicated easements. The sewer line easement in issue here runs north-south about eight feet inside the west boundary line of Breezy Point tracts 4A, 9, 10, 11 and 12, which tracts, themselves, are located on the west side of the subdivision. Breezy Point Drive fronts these five tracts along their east boundary lines and Dairy Hollow Road abuts them along their west boundary lines.

In 1983, appellee purchased property west of Dairy Hollow Road and Breezy Point Subdivision, and in 1984, he contacted officials with the City of Eureka Springs about his plans to build apartments on his newly-acquired land. After submitting his master plan for building the apartment units, the city officials gave appellee permission to connect to the north-south sewer line situated on the aforementioned five tracts in Breezy Point Subdivision. In making this connection, appellee constructed a sewer line from his land east, crossing Dairy Hollow Road and extending about eight feet onto tract 9, where the hookup was made and a manhole was installed. After learning of appellee’s action, appellant filed this suit.

Appellant, by filing her plat on Breezy Point Subdivision, expressly dedicated that subdivision’s utility easements for the use of the general public. Arkansas law concerning dedicated property is well-established, and in recounting that law in the early case of Frauenthal v. Slaten, 91 Ark. 350, 121 S.W.2d 395 (1909), the court said:

An owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable.
* * *
The fact of dedication depends upon the intention of the owner to dedicate to the public, as clearly and unequivocally manifested. But it is held that “the intention to which courts give heed is not an intention hidden in the mind of the landowner, but an intention manifested by his acts.”

See also Poskey v. Bradley, 209 Ark. 93, 189 S.W.2d 806 (1945); Holthoff v. Joyce, 174 Ark. 248, 294 S.W.2d 1006 (1927) and Hope v. Shiver, 77 Ark. 177, 90 S.W.2d 1003 (1905).

Appellant argues the plat she filed failed to specifically show any defined utility easements. Her plat’s omission of such specifications is not fatal to her dedication of such easements. She immediately caused the construction of the sewer easement in question here in 1976 or 1977, shortly after her filing the plat. Cf. Bradley v. Arkansas Louisiana Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983) (wherein no specific location of right of way was given in grant; court held subject to accepted standards of reasonableness, grantee was free to locate pipe line, but once selected, the right of way becomes fixed). Also, the law of this state has been long established that an unbounded easement is a grant of a valid right of way and that the limits are to be determined by the lines of reasonable enjoyment. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W.2d 645 (1924).

Appellant’s own testimony reflects she intended the sewer line dedicated for public use, but wishes to limit its use to preclude appellee. Although she claimed she had never dedicated the sewer line to Eureka Springs, she conceded the line connected to the city’s main sewer line, and if the line on her tracts clogged or broke, she expected the city to fix it. She also testified that another developer (who owned property outside and north of appellant’s subdivision), and “maybe” the city, had previously connected onto this Breezy Point sewer line. Mr. Charles Fargo, an inspector for the city, testified that he knew the city had “some type of an easement” to access and fix the sewer line and that the city maintained that line. Fargo said that the city had tapped the sewer line for another apartment development near appellee’s property.

Thus, the record clearly reflects the appellant dedicated the sewer-line easement to the public, and, since then, the city has accepted, maintained and tapped into that line. While appellant now seeks to limit access to the line, she had provided no such restriction or reservation in the Breezy Point plat which was used to dedicate the subdivision’s utility easements. The respective rights of the public and owner dedicating easements are subject to the following rule:

Unless there are reservations, the general public, that is to say any and everyone, has the right to use dedicated property to the full extent to which such easements are commonly used; and the person making the dedication may not object to such use whether the public owns the fee or only a right of way. However, no right exists to impose on the property dedicated burdens in addition to those placed on the property by the dedicator himself.

26 C.J.S. Dedication § 54 (1956).

Here, the city directed the appellee to hookup to the Breezy Point sewer line on Tract 9 and that connection indisputedly is a use which could reasonably and commonly be expected. In addition, appellant related that she had never intended to build anything “over the sewer line.” Appellant’s objection is that she had not intended the city or appellee to cross onto her tracts to intersect the line—an intention that has not been substantiated by her actions. Appellant has, by manifested acts, expressed that she expects the city to maintain the sewer line and had, even before this suit was filed, permitted the city to hookup to the line for a development north of her subdivision. Such actions only support her earlier dedication of the utility easement contained in the plat that was filed establishing Breezy Point Subdivision.

In this de novo review, we conclude the appellant had dedicated the sewer line easement to the general public, and, therefore, the appellee’s sewer hookup was lawful and within the lines of reasonable enjoyment and compatible with the public sewer line.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion literally adds insult to injury inasmuch as the opinion not only allows the appellee to appropriate the appellant’s property for his own use, it also takes away the piddling sum awarded by the trial court. I am beginning to understand the dialogue between Socrates and Thrasymachus, as recorded by Plato in his Republic, where it is stated: “Justice is in the interest of the stronger.”

The city had no right to permit the appellee to go onto appellant’s property and connect his apartment complex’s sewer system onto the appellant’s privately installed system. I make these statements because I do not find anywhere in the record where the site of the connection was within the dedicated right-of-way. Apparently the majority finds no such dedication either as the opinion resorts to finding an “implied dedication.”

According to the plat introduced into this record, the appellee constructed a manhole outside the dedicated right-of-way and connected his sewer to a line on the appellant’s property. In all probability appellant deliberately installed the sewer line on her own property in order to prevent such intrusions as in the case before us.

The fact that the location of this particular connection was more desirable and less expensive than another does not authorize the appellee to privately condemn appellant’s property for his own personal gain. I am not a real estate expert, but I am able to read the plat of Breezy Point Subdivision, and if the exhibit correctly locates the connecting point of appellee’s sewer line, there is no doubt that the appellee trespassed upon appellant’s property and permanently damaged it. The appellant should at least be indemnified for this permanent trespass on her property.


author: Per Curiam.

text:
    Wayne DUNCAN v. STATE of Arkansas
    731 S.W.2d 784
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Wayne Emmons, for appellant.
    No response.
   Per Curiam.

Petitioner, Wayne Duncan, by his attorney, Wayne Emmons, has filed a motion for rule on the clerk. His attorney admits he failed to tender the record within the time constraints required under Rule 5 of the Arkansas Rules of Appellate Procedure, due to oversight plus on-going negotiations with the prosecuting attorney. On June 5, 1987, the trial court held a hearing pursuant to our per curiam in this cause dated February 23, 1987.

Upon our review of counsel’s motion with attached affidavit and the record submitted herein, we find that the error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

Dudley, J., would deny.


text:
    Chester ROSS v. STATE of Arkansas
    CR 87-65
    732 S.W.2d 143
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1986, the Court of Appeals affirmed the petitioner Chester Ross’s convictions for several offenses committed in Poinsett County. Ross v. State, CACR 85-111, January 22, 1986. He now seeks postconviction relief pursuant to Criminal Procedure Rule 37.

The State in its response to the petition urges that the petition be dismissed because the petitioner filed a petition for writ of habeas corpus in federal district court before he filed the petition in this court. The federal district court considered the habeas petition on its merits and dismissed it. The State cites our opinion in Barton v. State, 278 Ark. 159, 644 S.W.2d 272 (1983), as precedent for our dismissing the Rule 37 petition. We do not find Barton to be controlling.

In Barton the petitioner pleaded guilty and subsequently sought to vacate the plea pursuant to Rule 37. The trial court denied the petition, but the petitioner did not pursue an appeal to this court. Rather, he filed a petition for writ of habeas corpus in federal court which was denied. He then requested from this court permission to proceed with a belated appeal of the denial of the Rule 37 petition. We denied the motion for belated appeal, concluding that the petitioner who was aware of his right to appeal had waived that right without good cause.

Here, the petitioner is not asking to file a belated petition for postconviction relief or asking for any other extraordinary consideration. The only difference between this petition and any other petition for postconviction relief filed in this court under Rule 37 is that the federal court acted on the merits of the habeas petition filed there without requiring the petitioner to exhaust state remedies first. The state concedes that none of the issues now raised in this court under Rule 37 was contained in the habeas petition, but even if the issues were the same, this court will not refuse to consider a timely Rule 37 petition simply because the federal court has already considered a petition for writ of habeas corpus.

The greatest part of the petition is taken up with allegations that petitioner was not offered effective assistance of counsel. He alleges that counsel: (1) did not adequately prepare the defense; (2) did not timely object to the introduction of tainted evidence; (3) did not offer adequate evidence to substantiate his innocence; (4) did not vigorously cross-examine witnesses and thus stripped him of the presumption of innocence; (5) did not present an effective opening statement or closing argument; (6) conducted the voir dire such that the veniremen became aligned with the State; (7) only argued one issue on appeal; (8) failed to “draw out” that the guns were not taken from or near him upon arrest; (9) did not point out in cross-examination discrepancies in witnesses’ testimony; (10) failed to request a change of venue after the court showed it was prejudiced; and (11) permitted the prosecutor to put words in the mouths of witnesses.

None of the enumerated allegations warrants an evidentiary hearing because petitioner does not provide any factual support for them. For instance, he does not explain to what evidence counsel should have objected, what meritorious issues were omitted on appeal, why a change of venue was needed or what conduct of counsel caused the veniremen to align themselves with the prosecution. This court has consistently held that the petitioner in a collateral attack on a judgment has the burden of providing facts to support his allegations. Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). Moreover, factual support must establish that the petitioner suffered actual prejudice from his attorney’s conduct. Campbell v. State, 283 Ark. 12, 670 S.W.2d 800 (1984). The conclusory allegations raised by petitioner do not demonstrate that he was prejudiced by any act or omission of counsel. See Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). See also Whisenhunt v. State, 292 Ark. 33, 727 S.W.2d 847 (1987).

Petitioner makes one allegation of ineffective assistance of counsel for which he provides factual support but does not demonstrate that he suffered any prejudice arising from counsel’s conduct. He contends that counsel should have objected when the trial judge answered three questions from the jury. He urges that the court should have simply reread the jury instructions to them and argues that the judge’s answers amounted to an expression of opinion. The record does not support petitioner’s conclusion.

When the jury indicated during deliberations that it had questions, the judge called it back in to open court. The jury’s first question concerned the difference between concurrent and consecutive sentences. The court briefly explained the differences but correctly informed them that while a jury could make a recommendation on a concurrent or consecutive sentencing, the court was not bound by that recommendation.

The second question concerned the differences between the offenses of breaking or entering and theft of property and the sentence for each. In response, the trial court said:

I am not sure I understand what your question is. Breaking and entering is a Class D felony under the Arkansas Criminal Code punishable by eight to fifteen years an an habitual criminal. Theft of property involving a firearm or more than $200 is a Class D felony punishable by ten to thirty years as an habitual. In other words, there is a distinction under the code of the classification or the seriousness of the crime between breaking and entering and theft.

The foreman responded, “I believe that takes care of it, sir.” Petitioner who received the minimum sentence of eight years does not contend that the statement of the court was inaccurate, and there was no apparent prejudice to him.

The last question from the jury was, “Is it necessary for us to know how much time he spent originally before?” The court answered, “No, that is something that you should not concern yourselves with.” The answer was again accurate.

There is a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance of counsel, petitioner must show that counsel’s performance was deficient and that counsel made an error so serious that he was not functioning as the counsel “guaranteed” by the sixth amendment to the Constitution. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Petitioner has offered nothing to demonstrate that counsel’s failure to object to the judge’s answers affected the outcome of his trial.

Petitioner next argues that the evidence is insufficient to support the judgments of conviction. Rule 37 provides a means to collaterally attack a judgment. Since the question of whether evidence was sufficient to sustain a judgment constitutes a direct challenge to the conviction, the question must be settled at'trial and on the record on appeal. Pride v. State, 285 Ark. 89, 684 S.W.2d 819 (1985); Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974).

Finally, petitioner alleges that the dismissal of certain unnamed persons from the jury constituted “judicial prejudice.” The meaning of the allegation is unclear, but in any event, the issue is one which could have been raised at trial. When an argument could have been made in the trial court, it is not a basis for collateral attack on the conviction, unless it presents a question so fundamental as to render the judgment of conviction absolutely void. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981). Conclusory allegations are not sufficient to void a judgment.

Finally, petitioner requests a writ of certiorari to supplement the trial record with the complete voir dire of the jury and the opening statements and closing arguments. Since petitioner has not stated any ground for postconviction relief in this petition, there is no reason to supplement the record.

He also complains that he was not provided a copy of the “court records” and trial transcript. Before a motion for a transcript will be granted, the petitioner must show that he has some reasonably compelling need for specific documentary evidence to support the grounds raised in the petition. Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985). Petitioner has not cited any compelling need for specific documentary evidence.

Petition denied.