author: Donald L. Corbin, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. John HEATH
    91-98
    817 S.W.2d 885
    Supreme Court of Arkansas
    Opinion delivered November 4, 1991
    Department of Human Services, by: Bruce P. Hurlbut, Asst. Chief Counsel, for appellant.

      Rose Law Firm, A Professional Association, by: Webster L. HubbelV, and Rieves & Mayton by: Elton A. Rieves, III, for appellee.
   Donald L. Corbin, Justice.

The Arkansas Department of Human Services (DHS) appeals an order of the Crittenden County Circuit Court to expunge appellee John Heath’s name from the Child Abuse and Neglect Central Registry. On December 10,1990, the circuit court ordered expunction subsequent to the court’s reversal of the department’s determination that appellant had committed child abuse. DHS does not appeal the reversal.

Ark. Code Ann. § 12-12-516(b)(1)(A) (Supp. 1989) sets out the applicable law for expunction of child abuse reports:

(b)(1)(A) Records of all reports of abuse, neglect, sexual abuse, or exploitation shall be retained by the Child Abuse and Neglect Central Registry in accordance with the terms of this subchapter and it shall be sealed when the youngest minor victim-subject of the report reaches the age of twenty-one (21) years.
(i) Once sealed, the records shall not otherwise be available unless the department, upon notice to the subject of the report, gives approval for an appropriate reason.
(ii) Reports which were determined to be unfounded shall be expunged after three (3) years. [Emphasis supplied.]

Appellant DHS relied on the statute’s expungement provision in making a motion for clarification and amendment of the circuit court’s order. In its motion, DHS argued that section 12-12-516(b)(1)(A) prohibits expungement prior to the expiration of a three year period, and requested the circuit court to modify its order to conform with the department’s-, interpretation of the statutory expungement provision.

The circuit court responded to appellant’s motion by issuing an order directing DHS to “immediately carry out the Order of the Court of December 10, 1990 and immediately expunge Mr. Heath’s name from any Central Regis try [.]” The order further declared section 12-12-516(b)(1)(A) unconstitutional on grounds that the expungement provision violated appellee’s due process rights, and unconstitutionally infringed on the court’s inherent power to issue orders assuring compliance with its rulings.

Appellant DHS asserts two grounds for reversal of the trial court’s order. First, DHS argues that the trial court erred in ordering the agency to violate the statutory recording requirements. Second, DHS argues that the trial court’s expunction order exceeded the scope of judicial review under the Administrative Procedure Act, Ark. Code Ann. § 25-15-212 (1987). Given the circuit court’s stated grounds for declaring section 12-12-516(b)(1) (A) unconstitutional, we believe both arguments implicate constitutional issues. In fact, appellee relies solely on constitutional arguments in urging this court to uphold the expungement order.

We do not address the merits of appellant’s argument because the Attorney General was not notified of the constitutional attack on the expungement provision. Ark. Code Ann. § 16-111-106(b) (1987) requires that “[i]n any proceeding” in which a statute is alleged to be unconstitutional, “the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.” In the instant case, the constitutionality of section 12-12-516 was not implicated until the circuit court relied on constitutional grounds in ordering appellant DHS to comply with the expungement order. The purpose of the notice requirement is to prevent an ordinance or statute from being declared unconstitutional in a proceeding which might not be a fully adversary and complete adjudication. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), cert. denied, 462 U.S. 1111 (1983). Since the constitutional arguments were not fully developed before the trial court, a decision on the merits would circumvent the purpose of the notice requirement. See Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Olmstead v. Logan, 298 Ark. 421, 768 S.W.2d 26 (1989). Consequently, we reverse and remand to allow •conformance with the requirements of section 16-111-106(b).

Hays, J., concurring.

Brown, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    BIRDSONG CABINET SHOP, INC. v. Ray BLAND and Hazel Bland
    91-111
    817 S.W.2d 886
    Supreme Court of Arkansas
    Opinion delivered November 4, 1991

      Robert L. Thacker, for appellant.

      Dan Stripling, for appellee.
   Donald L. Corbin, Justice.

On October 16,1989, Ray and Hazel Bland filed an interpleader action in the Van Burén County Chancery Court seeking to interplead the sum of $11,580.06. This sum represented the contract, balance the Blands owed to Linn Perry d/b/a Perry Construction Co. (“Perry”) for construction of the Blands’ residence in Fairfield Bay.

The Blands filed the interpleader action after learning that Perry had failed to pay various subcontractors, mechanics, materialmen and laborers for work on the Blands’ residence. Hoping to avoid the assertion of multiple liens and liability claims by Perry’s creditors, the Blands named Perry and fifteen of his unpaid creditors as parties defendant in the interpleader action. Appellant Birdsong Cabinet Shop, Inc. (“Birdsong”) was an interpled creditor to whom Perry owed $6,749.00 for Birdsong’s construction and installation of cabinets in the Bland residence.

After the Blands filed the bill seeking interpleader on October 16, 1989, appellant Birdsong and the other party defendant creditors asserted cross-claims against co-defendant Perry for the amounts Perry owed to them. Perry admitted that the total sum he owed to his unpaid creditors exceeded the amount that the Blands sought to interplead, and Perry never asserted a claim to the funds.

On March 22,1990, the Van Burén County Chancery Court entered a decree granting the Blands’ motion for interpleader. At the oral hearing on the interpleader, appellant Birdsong claimed that Birdsong was entitled to priority in the distribution of the interpled funds. Birdsong argued for distribution priority based on its allegation that Birdsong had obtained a prior judgment for $6,949.00 against co-defendant Perry in an earlier Van Burén County Circuit Court proceeding. Birdsong informed the court that on the morning of March 12, prior to the interpleader hearing, Birdsong had obtained a writ of execution from the circuit court commanding the sheriff of Van Burén County to take into his possession funds held by the Chancery Clerk “on behalf of and for the credit of Perry Construction Co.”

After hearing Birdsong’s allegations, the chancellor stated that he would need briefs on the issue as he was unfamiliar with the law on priorities. Consequently, the chancellor’s decree reflected that the priorities issue would remain open pending submission of briefs, and further ordered the chancery clerk to hold the interpled funds pending future orders of the court.

The chancellor entered a final order in the interpleader action on October 22,1990. This order denied Birdsong’s motion for priority, and decreed that the interpled funds should be distributed on a pro-rata basis to Perry’s co-defendant unpaid creditors. The decree also awarded the creditors deficiency judgments plus post judgment interest against co-defendant Perry. Finally, the decree awarded attorney’s fees totalling $750.00 to co-defendant Perry’s attorney. Provision for the attorney’s fees was as follows: $500.00 payable out of the interpled funds prior to distribution, and $250.00 payable specifically from Birdsong’s pro-rata share of the funds.

Appellant Birdsong challenges the chancellor’s decree on two grounds. First, appellant alleges that the chancellor erred in not according Birdsong the distribution priority of a lien creditor. Second, appellant argues that the chancellor erred in awarding attorney’s fees to co-defendant Perry’s attorney because Perry was not a successful party in the interpleader action. We affirm the chancellor’s pro-rata distribution of the interpled funds, and reverse the award of attorney’s fees to Perry’s attorney.

Appellant Birdsong argues for priority based on the writ of execution Birdsong obtained on its prior judgment against Perry. However, Birdsong’s attorney did not raise the priority issue until the March 12, 1990 oral hearing on the interpleader action. At that time, Birdsong’s attorney orally informed the chancellor of Birdsong’s judgment and writ of execution. Birdsong did not attempt to enter into the record either the judgment or writ of execution.

After the chancellor informed present counsel that he would need briefs on the priorities issue, Birdsong’s attorney specifically stated, “I’ll state on the record, Y our Honor, that we — if you rule against us on this priority issue, then we have no problem with the settlement. We’ll agree with the settlement and with the payout period.” At the close of the hearing, the chancellor requested that present counsel stipulate the facts into the record and into the briefs on the priority issue. The record reflects no such stipulation.

At the final hearing on October 22, 1990, the chancellor ruled that the interpled funds should be distributed pro rata among the co-defendant unpaid creditors. Birdsong did not object to the chancellor’s ruling and again failed to introduce into the record its prior judgment or writ of execution. Nor did Birdsong call any witnesses or introduce any evidence regarding Birdsong’s lien claim or the claims of the other co-defendant unpaid creditors. In fact, the other defendants agreed to a settlement providing for pro-rata distribution of the interpled funds.

Our review of the record indicates that appellant Birdsong did not introduce any evidence to support its priority claim. We further believe Birdsong waived its objection to a prorata distribution by expressing its consent to the settlement at the March 12 hearing. Consequently, we affirm the chancellor’s prorata distribution of the interpled funds. See Arizona Public Service Co. v. Lamb, 84 Ariz. 314, 327 P.2d 998 (1958) (affirming a pro-rata distribution of interpled funds to unpaid co-defendant creditors).

Appellant’s second allegation of error challenges the chancellor’s award of attorney’s fees in the interpleader action to John Aldworth, co-defendant Perry’s attorney. We reverse this award.

In Saunders v. Kleier, 296 Ark. 25, 751 S.W.2d 343 (1988), we specifically addressed the issue of attorney’s fees in interpleader actions. After noting that ARCP Rule 22, the rule governing interpleader, does not even mention the issue of attorney’s fees, we affirmed the denial of attorney’s fees based on our general rule that attorney’s fees are not allowed except when expressly provided for by statute. Saunders, supra. We apply the same rationale in the instant case to find that the chancellor had no authority under Rule 22 to award attorney’s fees to co-defendant Perry’s attorney.

Perry’s attorney relied on the attorney’s lien statute, Ark. Code Ann. § 16-22-304 (Supp. 1989), in arguing that he should be entitled to attorney’s fees. We likewise find no authority under this statute for an award of attorney’s fees.

Section 16-22-304 provides in pertinent part:

(a)(1) From and after service upon the adverse party of a written notice signed by the client and by the attorney at law,. . .the attorney at law,. . . shall have a lien upon his client’s cause of action, claim, or counterclaim, which attaches to any settlement, verdict, report, decision, judgment, or final order in his client’s favor, and the proceeds thereof[.] [Emphasis supplied.]

In the instant case, co-defendant Perry did not receive a verdict in his favor in the interpleader action. Rather, the final decree ordered distribution of the interpled fund among Perry’s co-defendant unpaid creditors. As Perry did not receive any portion of this fund, no judgment exists on which his attorney may attach a lien. Consequently, we reverse the chancellor’s award of attorney’s fees to Perry’s attorney.

Affirmed in part and reversed in part.

Brown, J., not participating.


text:
    Bobby NIXON and Lois Nixon, Parents and Next Friend of Charlotte Nixon Berry v. H & C ELECTRICAL COMPANY, Inc. and Southern Farm Bureau Casualty Insurance Company, et al.
    91-148
    818 S.W.2d 251
    Supreme Court of Arkansas
    Opinion delivered November 4, 1991

      M. Edward Morgan, for appellants.

      Laser, Sharp, Mayes, Wilson, Bufford and Watts, P.A., by: Alfred Angulo and Brian Allen Brown, for appellees.
   Donald L. Corbin, Justice.

This appeal involves the interpretation of our underinsured motorist statute. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c). Charlotte Nixon Berry was injured in a car accident on December 4, 1987. Appellants Bobby and Lois Nixon, as parents and next friend of Berry, sued appellee H & C Electrical Company for damages caused by its employee, Wayne Head, while acting within the scope of his employment. H & C Electrical Company’s insurance policy limit was $65,000. As there were other persons injured in the same accident, appellants anticipated that the policy limit of $65,000 would not cover all the damages resulting from the accident. They therefore amended the complaint to include Berry’s insurance carrier, appellee Farm Bureau, as a defendant. Appellants claimed that Farm Bureau was obligated to Berry under the underinsured motorist clause of her policy. Farm Bureau moved for summary judgment on the basis that Berry did not have underinsured motorist coverage as of the date of the accident. The trial court granted Farm Bureau’s motion for summary judgment. The case was then tried to the court and judgment was entered against H & C Electrical Company for $61,172.99. Appellants received $28,895.10 from H & C Electrical Company’s policy, thereby leaving Berry underinsured in the amount of $32,277.89. From the order granting summary judgment in favor of Farm Bureau comes this appeal. We affirm.

On appeal, appellants claim Berry is entitled to recover from Farm Bureau under the underinsured motorist coverage stated in her policy declaration effective December 4,1987, the date of the accident. Appellants claim that Ark. Code Ann. § 23-89-209 (Supp. 1989), which was effective July 20, 1987, requires Farm Bureau to have provided Berry with underinsured motorist coverage on December 4, 1987. Section 23-89-209 states that “[ejvery insurer writing automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicles in this state shall make underinsured motorist coverage available to the named insured[.]” (Emphasis supplied.)

Farm Bureau claims there was no underinsured motorist coverage in Berry’s policy which was in effect on December 4, 1987. Berry’s policy was renewed on July 5, 1987; Farm Bureau maintains it was not required to offer Berry under insured motorist coverage until January 5,1988, the first renewal date of Berry’s policy after the effective date of section 23-89-209.

In support of their argument, appellants claim section 23-89-209 is unambiguous and as such, must be given effect as it reads without resorting to construction or interpretation. Kansas City So. Ry. Co. v. Pledger, 301 Ark. 564, 785 S.W.2d 462 (1990). Appellants cite the following quotation, “The first rule to be applied in statutory construction is to give the words in the statute their usual and ordinary meaning. If there is no ambiguity we give a statute effect just as it reads.” Chandler v. Perry-Casa Public Schools Dist. No. 2, 286 Ark. 170, 172, 690 S.W.2d 349, 351 (1985).

Appellee Farm Bureau points out that since the time of Berry’s accident, section 23-89-209 has been amended. 1991 Ark. Act 209 had an effective date of February 21, 1991, and amended section 23-89-209 to require that underinsured motorist coverage be rejected in writing. 1991 Ark. Act 1123 amended section 23-89-209 to provide that “[t]he notice to policy holders regarding the right to reject the coverage required in this section applies to policies issued after February 21, 1991, or the first renewal after February 21, 1991, of an existing policy[.Y’ (Emphasis supplied.) Farm Bureau argues that the amendments reflect the legislature’s intent that section 23-89-209’s requirement of offering underinsured motorist coverage apply to new policies issued on or after July 20, 1987, section 23-89-209’s effective date, and to existing policies on the first renewal after July 20, 1987.

The amendments to section 23-89-209 indicate the legislative intent that underinsured motorist coverage be offered to every insured and that rejection of such coverage be written. We hold the specific expression in 1991 Ark. Act 1123 that the written rejection requirement be effective on “February 21,1991, or the first renewal after February 21, 1991” indicates the legislative intent that the initial requirement of offering the underinsured motorist coverage be effective on July 20,1987, or the first renewal after July 20, 1987. See Nathaniel v. Forrest City School Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989).

This holding is consistent with the following statements of the general rule of the effective dates of statutes concerning insurance policies:

An insurance policy is governed by statutes existing when it [is] issued, .... Statutes subsequently enacted ordinarily do not affect contractual rights, whether the concern be with policies of personal, property, or liability insurance, or bonds; however, where an existing policy is renewed, although the results vary, the better rule is to regard the statute as applicable to the extended contract.

Appleman, 12 Insurance Law and Practice § 7041 at 171-176 (1982).

Insurance statutes are usually considered to operate prospectively only, and not retroactively, so as not to affect contracts issued prior to the date of passage of such act.

Appleman, 19 Insurance Law and Practice § 10326 at 54 (1982).

In M.F.A. Mutual Ins. Co. v. McKinley, 245 Ark. 326, 328, 432 S.W.2d 484, 485 (1968), a case involving the application of our uninsured motorist statute to an accident occurring after the effective date of the statute, we stated “we cannot give the statute a retroactive effect that would cut off a valid defense available to the insurer before the passage of the act.” Although McKinley involved facts distinctly different from the present case, we think it is a statement of our inclination to follow the above-quoted general rule.

In granting Farm Bureau’s summary judgment the trial court held that “because the policy in question was renewed on July 5, 1987, prior to the effective date of the Underinsured Motorist Act which was July 20, 1987, Farm Bureau was not required to offer underinsured motorist coverage to Berry at that time.” Summary judgment is an extreme remedy and should only be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Morris v. Valley Forge Ins. Co., 305 Ark. 25, 805 S.W.2d 948 (1991). On appeal, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented in support of the motion left a material question of fact unanswered. Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (1980). There is no question of fact involved here, only the question of law regarding the interpretation of a statute. Thus, we cannot say the trial judge erred in granting summary judgment.

Affirmed.

Glaze, J., not participating.


author: Robert L. Brown, Justice.

text:
    Robin KRATZKE v. NESTLE-BEICH, INC.
    91-154
    817 S.W.2d 889
    Supreme Court of Arkansas
    Opinion delivered November 4, 1991

      Dodds, Kidd, Ryan & Moore, by: Judson C. Kidd, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   Robert L. Brown, Justice.

The appellant, Robin Kratzke, appeals from a judgment in her favor and against the appellee, Nestle-Beich, Inc., in the amount of $2,000. She argues that the verdict amount is clearly against the preponderance of the evidence and, further, that there was jury misconduct. Finding substantial evidence to support the verdict, we affirm the judgment.

On November 18,1988, Kratzke, who was driving her car in Little Rock, was hit from behind by a vehicle driven by an employee of Nestle-Beich. Damage to Kratzke’s car amounted to $63. Following the accident, Kratzke received considerable medical attention, including a stay in the hospital of more than two months. She alleged that the resulting paralysis, numbness in her arms and legs, and limitation in her mobility were directly attributable to the accident. She incurred total medical expenses of $47,060.12.

At trial, the appellee admitted liability, leaving damages as the sole issue to be decided by the jury. The jury returned a verdict of $2,000, and judgment was entered on October 22, 1990. Kratzke then moved for a new trial under Ark. R. Civ. P. 59(a) on grounds that the verdict for damages was clearly erroneous and that there was jury misconduct due to contact between the jurors and the appellee’s witnesses. The circuit judge denied the motion for a new trial.

We first consider the issue of error in the damage award. When a trial judge denies a motion for a new trial, the standard of review is whether the jury verdict is supported by substantial evidence. Reddish v. Goseland, 301 Ark. 527, 785 S.W.2d 205 (1990); Johnson v. Cross, 281 Ark. 146, 661 S.W.2d 386 (1983); Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982). In the case before us, Kratzke testified that she had her back and neck x-rayed in 1981, that she had a vehicular accident in 1983 requiring x-rays and hospitalization, and that she suffered a severe muscle pull from activity with her children in 1986. Her medical records reflect that she had similar back problems in 198 6 as complained ofinl988,andthatshehad been in the hospital in 1986 for two weeks.

Dr. James Raddin, an impact expert, testified that the records he reviewed demonstrated that Kratzke had been either subject to injury or was the victim of degenerative processes prior to the November 1988 accident. He found no objective reason for her paralysis and opined that the impact from the Nestle-Beich car traveling at about three miles an hour would not produce any psychological effect.

Dr. Thomas Fletcher, a neurological surgeon, declined to accept Kratzke as a patient. He testified that she suffered from a muscle spasm aggravated by a nervous state that operated to continue the spasm. He did not think that she had nerve root compression, and he could give no medical reason for her inability to walk or for the numbness in her legs or arms. In his opinion a bone spur and degenerative disc were preexisting conditions. He stated that her physical reaction was out of proportion to the actual injury.

Taken in sum, this evidence easily qualifies as substantial enough to support the jury’s verdict.

Kratzke also argues that there is a defined pecuniary measurement resulting from Nestle-Beich’s liability which is represented by her medical expenses of $47,060.12. The jury’s verdict of $2,000, according to Kratzke, is not supported by substantial evidence; in her view only the $47,060.12 is. We disagree, having held in other collision cases that the jury could well have decided that the medical expenses were attributable to preexisting causes and not to the automobile accident. See Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982); Warner v. Liebhaber, 281 Ark. 119, 661 S.W.2d 399 (1983). The mere fact that medical expenses have been incurred by the appellant and the additional fact that the appellee has admitted liability do not automatically translate into a damage award equivalent to those expenses.

For her second point, Kratzke asserts jury misconduct due to juror contact with the appellee’s witnesses and urges that this is sufficient reason for setting aside the verdict. Rule 9(d) of our Rules of the Supreme Court states that the appellant’s abstract should consist of “material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” Kratzke refers in her brief to affidavits supporting juror misconduct but fails to abstract them. Under these circumstances, Rule 9 precludes us from considering this argument on its merits. See Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982).

Affirmed.


author: Robert L. Brown, Justice. David Newbern, Justice,

text:
    E. Leon NICHOLSON v. CENTURY 21, Ivy Realty, Inc., et al.
    91-119
    818 S.W.2d 254
    Supreme Court of Arkansas
    Opinion delivered November 4, 1991

      Thaxton, Hout, Howard, & Nicholson, by: E. Leon Nicholson, for appellant.

      Wright, Lindsey & Jennings, by: Wendell L. Griffin, for appellees.
   Robert L. Brown, Justice.

The appellant, E. Leon Nicholson, appeals from a judgment for deceit in favor of the appellee, Billy C. Ivy, in the amount of $105,000. The judgment was in the nature of an indemnity for a judgment entered in like amount against Ivy for negligence and in favor of Maurice and Virginia Odom. Finding no error, we affirm.

This case involves the sale of real property known as Odom Skating Rink and Rental Property and the financing of that sale. On February 10,1983, Maurice and Virginia Odom, who owned the realty, signed a listing agreement with Ivy as the broker to sell the property. The original listing agreement was for a price of $424,000. No prospective purchaser agreed to that amount. Thereafter, a second listing agreement was signed between the same parties on February 24, 1985, with an asking price of $390,000. Again, no buyer was found for the listed figure.

During this period, Ivy contacted Nicholson about purchasing the property. On June 4,1985, Ivy and Nicholson agreed on a purchase price of $275,000, and that figure was memorialized in an offer and acceptance signed by Nicholson which showed Nicholson and his father-in-law, Walter Allbright, as the buyers. The sale price was comprised of the assumption of a promissory note dated February 10,1971, that was given by the Odoms to the original owner, Dan Holbrook, and his wife. That note was secured by a deed of trust on the real property. The offer to Nicholson and Allbright further entailed a down payment to the Odoms of approximately $50,000 and a note to the Odoms in the amount of $125,000 secured by a mortgage on the property to be sold. Attached to the offer was a list of 32 mobile homes in which the Odoms would have a security interest as additional collateral for the $125,000 note. The Odoms accepted the offer.

Between the offer and the sale’s closing, the buyer changed from Nicholson and Allbright to a corporation formed by them named Popeye Investments, Inc. The corporation was formed on July 10,1985, for the purposeof buying the Odoms’property. The Odoms agreed to a corporate purchaser but told their agent, Ivy, that they required personal guarantees from Nicholson and Allbright. Ivy testified at trial that he specifically told Nicholson that personal guarantees were required. Nicholson denied this assertion.

The sale closed at Nicholson’s law firm on July 22, 1985, with Popeye purchasing the property. The Odoms were given a corporate note from Popeye with no personal guarantees and no security interest in the mobile homes. They also received a down payment of $52,242.99; of that amount $13,200 was paid to Ivy for his services. The down payment was financed by a loan to Popeye from the Bank of Tuckerman, secured by a second mortgage on the real property. A security interest in the 32 mobile homes was also given by Popeye as additional collateral for the loan. Both Nicholson and Allbright personally guaranteed the loan.

At the closing, Nicholson, who is an attorney, represented his interest as a principal of Popeye. The Odoms did not have counsel present. Ivy testified at trial that Nicholson had said his law firm would prepare the documents and that separate counsel was not necessary. Maurice Odom also testified that Ivy told him that Nicholson had said separate counsel was unnecessary. It is not disputed that Nicholson’s law firm prepared the warranty deed and bill of sale for the Odoms and that Nicholson personally prepared the remaining documents. Nicholson disputed giving any advice on whether the Odoms should have independent counsel. Also at closing Mr. Twyford and Mrs. Twyford, the son-in-law and daughter of the first mortgagee, Dan Holbrook, testified that they raised the issue of personal guarantees by Nicholson and Allbright, because Popeye was giving Holbrook a new note to replace the 1971 Odom note. They were assured that guarantees were not necessary, because Holbrook would still retain a first mortgage on the property. Ivy and the Odoms deny hearing any discussion of personal guarantees at the closing.

The day after the sale to Popeye, the corporation sold the property to Harold Calhoun, who had managed it for several years, for $400,000. After a few months Calhoun defaulted and the property was sold to the First Apostolic Church, which also defaulted approximately one year later. The Bank filed a foreclosure action on its second mortgage and joined Popeye and the Odoms as parties defendants. After judgment in favor of the Bank, Nicholson and Allbright purchased the property at the foreclosure sale for $62,150, in full satisfaction of the Bank’s debt. The Odoms were awarded judgment against Popeye but received nothing at the foreclosure sale on the Popeye note, because Popeye had no assets, and the proceeds from the foreclosure sale were not sufficient to pay off the Odoms’s third mortgage.

As part of the Bank’s foreclosure suit, the Odoms filed a third party complaint against Ivy and alleged negligence due to Ivy’s failure to obtain personal guarantees of the Popeye note from Nicholson and Allbright. Ivy in turn filed a cross claim against Nicholson for indemnity. After full trial before the chancery court, judgment was entered in favor of the Odoms and against Ivy, and Ivy was awarded judgment over against Nicholson for deceit for the amount that Ivy was required to pay the Odoms — $125,000.

For his first point, Nicholson contends that the chancery court erred in making numerous findings of fact. He says that taken individually or as a whole, these errors in the court’s findings mandate reversal in a case where a fraudulent course of conduct is at issue. We discuss those findings seriatim:

1. The court found that Mr. Twyford discovered for the first time at closing that Popeye was going to be substituting a new note to replace the note given to Holbrook by the Odoms and that the note was to be liberalized. Nicholson argues error in that both Twyfords were aware in advance of closing that a liberalized replacement note would be given.
2. The court found that Ivy told Mr. Twyford that the individuals would be the makers on the note, and nothing was said about a corporate maker. Nicholson argues error in that this implies that the Twyfords were not aware of the Popeye note until closing. This is not correct, according to Nicholson, since Mrs. Twyford testified that she knew it was going to be a corporate note before closing.
3. The court found that Nicholson did not do a title opinion on the property for the Odoms, but he had done one for the Bank in anticipation of the second mortgage and the financing for the down payment. Nicholson argues error in that his law firm, not he, prepared the title opinion for the Bank. Moreover, he argues that the Odoms were not looking to him for a title opinion or legal counsel.
4. The court found that the Odoms received $38,042.99 in cash at closing. Nicholson argues error in that this omits the $13,200 commission that was paid to their real estate broker, Ivy. When that is factored in, the total payment to the Odoms at closing was $51,242.99.
5. The court found that Popeye was capitalized with only $300. Nicholson argues error in that Popeye in fact received $55,000.00 from the Bank, of which $51,242.99 was then paid to the Odoms as a down payment.
6. The court found that Nicholson told Mr. Odom at closing that the Popeye note was “just like cash.” Nicholson argues error in that this statement was made solely for the purpose of impressing upon Odom the need to put the note in a safe place.
7. The court found that Nicholson assumed the role of buyer, closing attorney, attorney for Popeye, attorney for the buyer, and attorney for the seller at closing. Nicholson argues error in that three of those roles — attorney for Popeye, attorney for the buyer, and the buyer — are one and the same. Also, his law firm only charged $75 for preparing the warranty deed and bill of sale for the Odoms, and Ivy was representing the Odoms while the Twyfords were there on behalf of Holbrook.
8. The court found that it was “unbelievable” that a third mortgagee financing an amount twice the size of the second mortgagee would not receive the same protection such as personal guarantees that the second mortgagee received. Nicholson argues error in that a nervous seller who had not gotten his first or second asking price might well agree to no personal guarantees, especially when the seller could easily have believed that the value of the real property exceeded the total indebtedness.

Nicholson concludes that these allegations of error by the chancellor militate against a judgment for deceit which must be proven by “clear and convincing evidence.” That, however, is not the standard of proof for cases in deceit, when alteration of a solemn writing is not involved. See Grendell v. Kiwhl, 291 Ark. 228, 723 S.W.2d 830 (1987); Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963). Rather, the standard for deceit is preponderance of the evidence. Id. We hold that there is factual justification in the record for each of the chancellor’s findings of fact, and we are not prepared to say that any one of the eight is clearly erroneous under Ark. R. Civ. P. 52(a), or that in combination they are of sufficient magnitude to warrant reversal of the judgment.

For his second point, Nicholson urges that the facts of the case do not support a judgment in deceit. We have held that five elements establish the tort of deceit: a false representation of a material fact; knowledge or belief on the part of the person making the representation that the representation is false or that there is not a sufficient basis of information to make such a representation; an intent to induce the other party to act or refrain from acting in reliance upon the misrepresentation; a justifiable reliance upon the representation by the other party in taking action; and resulting damages. See Brookside Village Mobile Homes v. Meyers, 301 Ark. 139, 782 S.W.2d 365 (1990); MFA Mutual Insur. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981).

In cases of deceit the credibility of the witnesses is all important in determining liability, and it is the trier of fact that is the sole judge of the credibility of the witnesses and of the weight and value of the evidence. See Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). In the case before us, the chancellor was the trier of fact, and he had the opportunity to observe the witnesses, judge their credibility, and weigh the value of their testimony.

It is undisputed that Nicholson, as attorney for Popeye and one of its principals, made no effort to obligate himself personally to the Odoms for the balance of the purchase price. Dan Holbrook, who was given a note by Popeye without guarantees, had a first mortgage on the property. The Bank as second mortgagee had a Popeye note but also personal guarantees and a security interest in the mobile homes. Only the Odoms held a Popeye note secured by a third mortgage but with no other protection.

The chancellor placed great emphasis on the fact that Nicholson had taken pains to make the Bank secure with personal guarantees and a security interest in the mobile homes, but he had failed to afford the Odoms similar protection. This discrepancy in treatment was found to be significant evidence of the deceitful activity complained of. He further took note of the multiple roles played by Nicholson at closing and particularly of the fact that Nicholson’s law firm had provided legal services to the Odoms, who were not represented by counsel at the closing.

In sum, there was substantial evidence of record that Nicholson agreed to the personal guarantees and a security interest in the mobile homes in his offer but then prepared closing documents that did not reflect this fact. By this action the Odoms were induced to complete the sale under the misapprehension that the Popeye note would be guaranteed and that additional security would be given, and they were damaged. Under these facts the five elements establishing deceit were present, and we so hold.

We finally consider appellee Ivy’s motion for costs on grounds that he was impelled to incur these costs due to Nicholson’s deficient abstract. We do not agree. The abstract filed by Nicholson in conjunction with his brief was sufficient to determine the issues raised on appeal. See Goodloe v. Goodloe, 253 Ark. 550, 487 S.W.2d 593 (1972).

The judgment of the chancellor is affirmed. The appellee’s motion for costs is denied.

Newbern, J., concurs.

David Newbern, Justice,

concurring. The Chancellor found that Billy Ivy was negligent in not seeing to it that, after the Odoms and Nicholson and Allbright had agreed to new terms, the offer and acceptance document was not revised. Ivy was also found negligent in accepting Nicholson’s recommendation, and passing it on to the Odoms, that the Odoms did not need independent counsel for the complex real estate transaction.

The Chancellor concluded the injury to the Odoms resulting from Ivy’s negligence would not have occurred if Nicholson had not misrepresented to Ivy that Nicholson and Allbright remained personal guarantors of the obligation to the Odoms of the note to them from Popeye Corporation. It was on this basis that the Chancellor held that, despite Ivy’s negligence, Ivy was entitled to be indemnified by Nicholson for the entire damages to be paid to the Odoms.

Nicholson argues the elements of the tort of deceit have not been satisfied. If we pursue the matter in the way he suggests, we will raise the question whether a chancellor should ever try an intentional tort claim as an “incident” to another matter of which the chancellor has jurisdiction. We need not do so.

We should be dealing here with the law of indemnity rather than the law of deceit. The question is not whether the elements of deceit were satisfied. The question is whether indemnity was proper. By way of an obiter dictum this Court stated in Larson Machine, Inc. v. Wallace, 268 Ark. 192, 213-14, 600 S.W.2d 1, 12 (1980):

It has been appropriately stated that the doctrine of indemnity is based upon the equitable principles of restitution which permit one who is compelled to pay money, which injustice ought to be paid by another, to recover the sums so paid unless the payor is barred by the wrongful nature of his own conduct.

Although the Chancellor could have found that Nicholson’s conduct in this case fit the elements of deceit, it was only necessary that it be shown, as a matter of equity, that Nicholson’s misrepresentations were such that he should reimburse Ivy for the amount that Ivy was found to owe the Odoms.

It is not necessary to find that Nicholson committed a tort to require equitable restitution from him to Ivy; however, a case in which restitution of one tortfeasor by another was discussed presents a good analogy. A survey of Arkansas indemnity law, was provided by the United States Court of Appeals for the Eighth Circuit in Merrill Lynch v. First Nat. Bank of Little Rock, 774 F.2d 909, 918 (1985). The discussion of the matter of indemnity between tortfeasors was as follows:

The third type of indemnity case is characterized by breaches of different duties owed by the tortfeasors to the injured party. Product-liability actions and defective-premises cases give us most of the case law in this area. In the typical case of this kind the supplier of a defective product is found liable to the injured consumer (on a strict-liability or warranty theory) but is allowed indemnity from the manufacturer of the product apparently on the ground that that manufacturer’s negligence in producing a defective product is more direct and palpable that the supplier’s failure to discover the defect. As in the case of imputed liability, the justification for indemnity disappears if the supplier was himself proximately at fault for failing to inform the consumer of a known defect. Harrell Motors, Inc. v. Flattery, 272 Ark. 105, 612 S.W.2d 727 (1981) [Footnote omitted, emphasis in original.]

While it might be troublesome to some scholars of the law of indemnity that an equitable remedy transfers liability from one tortfeasor to another, leaving one of them with no liability whatever, the analogy to the manufacturer-seller is apt. If Ivy had been found to have known the legal documents prepared by Nicholson and his law firm were contrary to Nicholson’s assurances, then presumably total indemnity would not have been proper. Here, however, Ivy was relying on Nicholson’s legal expertise to effect Ivy’s understanding of the deal as well as that of the parties.

While I concur in the result reached by the Court, I do so on the basis that indemnity by way of equitable restitution was proper rather than on the basis that Nicholson was guilty of the tort of deceit.


author: Per Curiam.

text:
    Harold HENDERSON v. Fred D. DAVIS III, Judge
    91-93
    816 S.W.2d 612
    Supreme Court of Arkansas
    Opinion delivered November 4, 1991
    Appellant, pro se.
    No response.
   Per Curiam.

The petitioner, Harold Henderson, asks the court to reconsider his motion to have the Attorney General print his pro se brief. This court has twice denied the same motion on June 17, 1991, and again on October 14, 1991.

This is a civil case and Henderson has not made the requisite showing that his suit has merit. See Glick v. Lockhart, 218 Ark. 417, 706 S.W.2d 178 (1986).

The appellant continues to file pleadings in this court concerning the printing of his pro se brief, which are without merit and which are burdensome to the administrative affairs of the court. The clerk is therefore directed to dismiss this motion for reconsideration and to accept no further filings by Harold Henderson in this regard.

It is so ordered.


author: Jack Holt, Jr., Chief Justice.

text:
    ARKANSAS ELECTRIC COOPERATIVE CORPORATION v. ARKANSAS PUBLIC SERVICE COMMISSION
    91-123
    818 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered November 11, 1991

      Wright, Lindsey & Jennings, by: N.M. Norton, Jr., for appellant.

      Lee McCulloch, for appellee.

      Rose Law Firm, A Professional Association, by: M. Jane Dickey, for intervenors Augusta, Gentry, and Newark School Districts.
   Jack Holt, Jr., Chief Justice.

This case involves an assessment of 1987 ad valorem taxes on properties of the Arkansas Electric Cooperative Corporation (Cooperative) by the Tax Division of the Arkansas Public Service Commission. After the Tax Division refused the Cooperative’s request to lower its assessment, the Cooperative filed a formal petition asking the Commission for review. An administrative law judge (ALJ), sitting by designation of the Commission, conducted a public hearing and affirmed the Tax Division’s assessment. The assessment was reaffirmed by the full Commission. The Cooperative subsequently appealed to the Pulaski County Circuit Court for relief. The trial court found that the Commission’s decision that the Cooperative’s property had been properly valued was supported by substantial evidence in the record. Thereafter, the Cooperative appealed to the Arkansas Court of Appeals.

This case was submitted to the court for its consideration on December 20, 1990. On May 6, 1991, the court of appeals certified this appeal to us under Ark. Sup. Ct. R. 29(4)(b) as presenting a question of significant public interest. On May 25th, we refused certification and returned the case to the court of appeals.

On June 26, 1991, the Court of Appeals, by per curiam, raised on its own motion certain jurisdictional questions and ordered the parties to file supplemental briefs addressing these matters. On October 10th, the court of appeals again certified this case to our Court.

The parties, by way of their supplemental briefs, argue as to the appropriate processes for appeal from the Commission’s findings in light of Ark. Code Ann. § 23-2-423(a)(l) (1987), which provides that “[a]ny party to a proceeding before the commission aggrieved by an order issued by the commission in the proceeding may obtain a review of the order in the Court of Appeals of Arkansas . . .,” as opposed to Ark. Code Ann. § 26-24-123(a) (1987), which provides that “[a]ny taxpayer aggrieved by the action or order of the Arkansas Public Service Commission respecting the assessment or equalization of property shall have the right of appeal to the circuit court and thence to the Arkansas Supreme Court.”

These statutes are easily distinguishable, inasmuch as section 23-2-423 pertains to public utility regulatory matters and section 26-24-123 governs judicial review on Commission decisions concerning taxation matters, such as the case before us. Accordingly, the Cooperative’s appeal from the Commission to the circuit court was correct procedure.

The legislature’s placement of further appellate process in this court pursuant to section 26-24-123 was, however, inappropriate and cannot be followed to the extent that it conflicts with our per curiam opinion of February 24, 1986, where we declared that under Amendment 58 to the Arkansas Constitution, which created the court of appeals, and Rule 29 of the Rules of the Arkansas Supreme Court, we decide the appellate jurisdiction of the court of appeals, not the legislature.

We further noted that, while we respected the General Assembly’s concern to expedite decisions of an administrative agency, we would not overlook the intent of Amendment 58 and our duty as an appellate court to see that any decision was fairly and completely reviewed once. With that observation, we amended Ark. Sup. Ct. R. 29 (1) (c) and (d) to the effect that all appeals of Public Service Commission decisions should be first be made to the court of appeals subject to certain exceptions, none of which apply in this instance.

Jurisdiction of this case, then, properly lies in the court of appeals. However, we will, to avoid further delay, retain jurisdiction pursuant to Rule 29 (4) (b) since it is of significant public interest to expeditiously resolve matters of state taxation, especially where, as in this instance, school funding formulas are involved.

The Cooperative initially claims that the trial court erred in affirming the Tax Division’s refusal to consider economic and functional obsolescence in valuing and assessing the Cooperative’s property.

Arkansas Code Ann. § 26-26-1607 (1987) addresses the method of valuing property for the assessment of taxes and provides in pertinent part as follows:

(a) The valuation of the taxable property, both real and personal, of all. . . cooperatives, associations, and corporations required by law to be assessed by the Tax Division of the Arkansas Public Service Commission shall be made upon the consideration of what a clear fee simple title thereto would sell for under conditions which usually govern the sale of property of that character.
(b) The division in determining fair market value, insofar as other evidence and information in its possession does not make it appear improper or unjust for it to do so, shall ascertain and determine as nearly as it can and consider:
(1) Original cost less depreciation, replacement cost less depreciation, or reconstruction cost less depreciation. Proper consideration may be made for functional or economic obsolescence and for operation of nonprofitable facilities which necessitate regulatory body approval to eliminate;
(2) (A) The market value of all outstanding capital stock and funded debt, excluding current and deferred liabilities, except accumulated deferred income taxes, investment tax credits, and items associated therewith. A premium or discount to capital stock may be considered above or below the current market price where evidence warrants.
(B) In cases where the outstanding capital stock is not traded or is not capable of reasonably accurate determination, book values may be substituted;
(3) (A)(i) The utility operating income after deduction of all actual income taxes paid, capitalized in the manner and at such rates as shall be just and reasonable, but in no event shall the capitalization rate be less than six percent (6%). The deduction from income of deferred income taxes, investment tax credits, and items associated therewith is specifically prohibited for purposes of this subsection.
(ii) The utility operating income after the deduction of all income tax expense capitalized in a manner which recognizes the utility’s ability to defer income taxes, utilizing accumulated deferred income taxes, investment tax credits, and items associated therewith as cost-free debt in the capital structure to determine the capitalization rate.
(B) The utility operating income to be capitalized should be determined by reference to the company’s historical income stream appropriately weighted, with consideration to the future income stream.
* * * *
(4) Such other information as evidence to value as may be obtained that will enable the division to determine the fair market value of the property of the companies. . . .

In Tuthill v. Arkansas County Equalization Bd., 303 Ark. 387, 797 S.W.2d 439 (1990), we noted that, because of the separation of powers doctrine, it is not within the province of state courts to assess property. We can only review the assessments and reverse them and send them back to the executive department when they are clearly erroneous, manifestly excessive, or confiscatory. Furthermore, we will reverse property assessments only in the “most exceptional cases,” and the burden of proof is on the protestant to show that the assessment is manifestly excessive or clearly erroneous or confiscatory. Finally, in reviewing a finding of fact by a trial judge, we view the evidence, and all reasonable inferences therefrom, in the light most favorable to the appellee.

Section 26-26-1607 provides, in essence, that three valuation methods are available for the assessment of property valuation: 1) the book value method, 2) the stock and debt method, and 3) the income method. Not only did the Cooperative effectively concede, in this case, that the stock and debt method and the income method were inappropriate in valuing its assets, but one of its own witnesses testified that the book value method was “the method which [the Cooperative] believes is appropriate for a utility cooperative.”

Consequently, we must decide whether the Tax Division’s application of the book value method pursuant to section 26-26-1607(b)(1) was clearly erroneous.

Although section 26-26-1607(b)(1) provides that “[p]roper consideration may be made for functional or economic obsolescence (emphasis added),” the Cooperative asserts that its principal argument under this point of error “is that the Tax Division did not specifically consider obsolescence at all.”

Economic obsolescence, as used with respect to valuation of property for taxation, is “a loss of value brought about by conditions that environ a structure such as a declining location or down-grading of a neighborhood resulting in reduced business volume.” Black’s Law Dictionary (5th ed. 1979).

Functional obsolescence is defined as the loss of value due to inherent deficiencies within the property (the need for replacement because a structure or equipment has become inefficient or out-moded because of improvements developed since its original construction or production.) Black’s Law Dictionary (5th ed. 1979).

In determining whether the word “may” is merely permissive or is mandatory, not only the language of the act, but the circumstances surrounding its passage and the object in view, must be considered. Washington County v. Davis, 162 Ark. 335, 258 S.W. 324 (1924).

We note that prior to the passage of Act 9 of the Second Extraordinary Session of 1980, subdivision (b)(1) provided that “proper allowance and deduction shall be made for functional or economic obsolescence. . . .” (Emphasis added.) The 1980 amendment thus changed the statute from mandatory (shall) to directory (may), and it is clear that the legislature intended to invest the Tax Division with the option and discretion of considering economic and functional obsolescence in valuing taxable property. See generally Gregory v. Colvin, 235 Ark. 1007, 363 S.W.2d 539 (1963).

Given the Tax Division’s discretion in considering functional or economic obsolescence in the determination of the fair market value of the Cooperative’s property, the Tax Division nevertheless contends that it does consider obsolescence in valuating the Cooperative’s property because an implicit component of the depreciation subtracted from the original cost is obsolescence.

The Tax Division introduced available sales data statistics indicating that electric generating facilities tended to sell at approximately “net book” value. This evidence showed that in 18 of 24 sales of electric utility facilities from 1974 through 1981, the price paid for the facility was between 100 % and 108 % of “net book” value. The Cooperative challenged these statistics on the basis that they were too old to reflect the current market value of electric utility facilities; yet, it failed to produce any evidence as to more recent sales or that electric utility facilities are currently selling for less than “net book” value.

Additionally, the fact that the Tax Division has used the book value method and has not employed the income or stock and debt methods does not result in a denial of equal protection. “That two methods are used to assess property in the same class is, without more, of no constitutional moment.” Allegheny Pittsburgh Coal v. Webster County, 488 U.S. 336 (1989). The General Assembly’s designation of optional accepted accounting methodology authorized the Tax Division to pursue or apply one of the options. The Tax Division offered reasons supporting its choice, and the Cooperative conceded that the book value method was the appropriate valuation method; accordingly, the Cooperative has failed to show that section 26-26-1607 is invalid either on its face or as applied in this case.

Consequently, we cannot say that the Tax Division’s assessment of the Cooperative’s property is clearly erroneous.

The Cooperative next asserts that the trial court erred in affirming the Tax Division’s refusal to consider certain of its oil and gas fired plants as economically and functionally obsolete. The Tax Division valued these plants at $17.5 million in 1987; at that time, the plants were in extended cold standby status, meaning that the plants were taken “off-line” and the mechanical parts susceptible to corrosion or rust were placed into a gel compound.

Arkansas Code Ann. § 26-26-1602(a) (1987) addresses the reporting of property subject to assessment and provides in pertinent part as follows:

(a) For purposes of this subchapter, property is used or held for use in the operation of a company as such if it is owned or controlled by a utility or carrier and is being utilized, is capable of utilization, in the operation of a utility or carrier, or is being constructed for future utilization in the utility or carrier operation. . . .

(Emphasis added.)

Tellingly, the Cooperative states that these plants, in cold standby status, are “significantly reduced in value at this time,” but that it is currently considering restoring one of the three plants. Apparently, two major considerations resulting in taking these three plants off-line were the regional surplus production capacity and less-than-anticipated demand for electricity.

The Commission determined that the three plants were assessable property pursuant to section 26-26-1602(a) and stated:

While these plants are admittedly not being used at the present time, it is obvious that they are capable of being used. . . . [the Cooperative] obviously has contemplated that some time in the future, the plants may again be needed and placed back in operation. The fact that some restoration or modification of the plants may be necessary to take the plants out of “cold-standby” status and to place the plants back in operation does not support a conclusion that the plants are not capable of utilization.

We also find it significant that these three plants are currently included in the Cooperative’s rate base at their “net book” value and, as a consequence, that the Cooperative is presently recovering in authorized rates all of the expenses associated with the plants prior to their being placed in cold standby status, as well as the ad valorem taxes associated with the three plants.

These plants remain capable of generating electricity subject to the management decisions of the Cooperative; indeed, the Cooperative continues to voluntarily maintain these plants as assets.

In sum, these three plants are capable of utilization and are earning a return based on their pre-cold standby status. We, again, cannot say that the Tax Division’s assessment was clearly erroneous.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Louis PRATER v. STATE of Arkansas
    CR 91-115
    820 S.W.2d 429
    Supreme Court of Arkansas
    Opinion delivered November 11, 1991

      William R. Simpson, Jr., Public Defender, Andy O. Shaw, Deputy Public Defender, by: Andy O. Shaw, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

This case determines our standard for the admissibility of novel scientific evidence and the standard for the admissibility of calculations as to probabilities arising from that novel scientific evidence.

The prosecutrix, a seventeen-year-old girl, was raped in a laundromat in southwest Little Rock. She called the police. They quickly responded and began searching the area for the offender. After only a few minutes, the victim spotted the appellant and identified him as the man who had attacked her. He was arrested. She was taken to the University Hospital where her vagina was swabbed to collect samples of secretions. The swab samples, along with blood samples taken from both the prosecutrix and the appellant, were sent to the laboratory of the Federal Bureau of Investigation (FBI) in Washington, D.C. There, the FBI conducted deoxyribonucleic acid (DNA) print identification tests.

The State gave the appellant notice that, at trial, it would offer evidence to prove that appellant’s DNA profile matched that found in the swab samples, and that it would offer evidence that the probability of selecting a person at random from an unrelated black population and getting the same profile was only 1 in 3,700. The appellant objected to the proposed evidence. A preliminary hearing was held, and the trial court ruled that the evidence was admissible. It was then admitted at trial, and the appellant was convicted. This court has taken the case as it involves a case of first impression involving a significant legal issue.

1. THE STANDARD

The majority approach for determining the admissibility of novel scientific evidence continues to be the test enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under that standard, courts admit novel scientific evidence only when the theory upon which the evidence is based has gained general acceptance within the relevant scientific community. Id. at 1014. This court has never adopted the Frye standard even though we signaled it as “see” in a per curiam opinion. See Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). Several states have rejected the Frye standard. In doing so the Supreme Court of Georgia wrote: “[T]he Frye rule of ‘counting heads’ in the scientific community is not an appropriate way to determine the admissibility of a scientific procedure. . . . The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community.” Caldwell v. State, 260 Ga. 278, 285-86, 393 S.E.2d 436, 441 (1990).

A growing number of jurisdictions, now numbering about one-third, have adopted a more liberal standard of admissibility. Imwinkelried, The Standard for Admitting Scientific Evidence: A Critique from the Perspective of Juror Psychology, 28 Vill. L. Rev. 554,557-59 (1983). This more liberal standard, and the one which we adopt, is based upon the relevancy approach of the Uniform Rules of Evidence. The pertinent rules are the following:

A.R.E. Rule 401:
Definition of “relevant evidence". — “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [Emphasis added.]
A.R.E. Rule 402:
Relevant evidence generally admissible — Irrelevant evidence inadmissible. — All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible. [Emphasis added.]
A.R.E. Rule 702:
Testimony by experts. — If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. [Emphasis added.]

The relevancy approach requires that the trial court conduct a preliminary inquiry which must focus on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case. See 3 J. Weinstein & M. Berger, Weinsteins Evidence ¶ 702[03] at 702-18 to 702-20 (1991).

A. RELIABILITY

Under this relevancy approach, reliability is the critical element. See United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985) for a list of cases so holding. The relevancy approach, unlike the Frye standard, permits, but does not require, a referendum by the relevant scientific community to determine the reliability of the technique. Many times that factor alone will determine the issue. On the other hand, courts may look to a number of other factors which bear upon reliability. These include the novelty of the new technique, its relationship to more established modes of scientific analysis, the existence of specialized literature dealing with the technique, the qualifications and professional stature of expert witnesses, and the non-judicial uses to which the scientific techniques are put. Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988) (citing United States v. Downing, 753 F.2d at 1238-39, and Weinstein & Berger, supra, at ¶ 702[03]).

The frequency of erroneous results produced by a novel scientific technique is an important component of reliability. At one extreme, a technique which yields erroneous results more often than correct ones would be of no value to the trier of fact. At the other extreme, a technique which is always correct would be of significant value. In addition to the rate of error, the trial court might examine the type of error which could occur.

Another important component of the reliability of scientific evidence is proof of the use of the correct protocol during the specific test. This proof is fundamental to the question of reliability. To illustrate, we quote from Imwinkelried, The Debate In The DNA Cases Over the Foundation For the Admission of Scientific Evidence: The Importance of Human Error As a Cause of Forensic Misanalysis, 69 Wash. U. L.Q. 19, 25:

When the issue, however, is the trustworthiness of scientific evidence, courts generally cannot dismiss the possibility of error as purely theoretical or minimal. Studies have established impressive evidence of a substantial error margin in contemporary laboratory analysis. In the 1950s the American Academy of Forensic Sciences’ Toxicology Section conducted a study of the accuracy of blood alcohol analyses. That study unearthed indications of “a great degree of error.” In the mid-1970s, Dinovo and Gottschalk undertook to evaluate the proficiency of laboratories conducting drug analyses. They too reported significant variations in the level of proficiency from laboratory to laboratory.
Later in .the same decade the Law Enforcement Assistance Administration funded a much larger test, the Laboratory Proficiency Testing Program. Two hundred and forty laboratories participated. The researchers sent the participating laboratories twenty-one sets of blind samples for analysis. On three of the twenty-one sets, fewer than half the participating laboratories reported correct, complete findings. One of the lead researchers reluctantly concluded that the tests demonstrated that “a disturbingly high percentage of laboratories are not performing routine tests competently. . . .”
In the early 1980s, other researchers administered a proficiency test to 105 toxicology laboratories in forty-nine states. Like the Laboratory Proficiency Testing Program researchers, these researchers found the laboratories’ performance “disappointing.” They discovered “considerable” variation in proficiency, especially in quantitative analysis. On some samples, the coefficient of variation was 133 percent.
In the mid 1980s, several organizations published proficiency studies of laboratories conducting immunoassay tests to detect the presence of contraband drugs in urine samples. The studies were conducted under the auspices of such respected organizations as the College of American Pathologists. Two researchers for the Office of Technology Assessment of the United States Congress bluntly summarized the studies by generalizing that “error rates continue to be high.”.A study conducted by the Centers for Disease Control yielded particularly disturbing findings. One laboratory reported erroneous results on 66.5 percent of 160 samples analyzed.
In 1987, Collaborative Testing Services made public the results of a proficiency test of laboratories engaged in electrophoretic analysis of enzymes and proteins. Sixty-eight laboratories participated in the test. Sixteen of the laboratories (23.5%) erred on one or both samples.
More recently, the Forensic Science Foundation released the results of proficiency tests of document examiners. Like the studies described in the preceding paragraphs, these tests disclosed an alarmingly high incidence of misanalysis. The percentages of error were in the double figures. The incidence of error was so high that it “should provide anyone with cause for concern.”
In sum, extensive hard evidence exists of a substantial margin of error in modern forensic analysis. When an opposing party points to a brief gap in chain of custody to challenge the trustworthiness of an item of physical evidence, a court plausibly can dismiss the challenge as raising only theoretical risks of error. However, when the challenge is directed at a forensic laboratory analysis, the court cannot reject the challenge summarily. [Footnotes omitted.]

The lengthy quotation is set out to impress upon the trial judge his or her heavy responsibility in determining whether the correct protocol was followed in the particular test at issue. If the laboratory that performed the test did not follow reliable procedures to ensure accurate test results, the test should not be admitted. State v. Schwartz, 447 N.W.2d 422 (Minn. 1989). As one court aptly wrote, “[W]e are not, at this juncture, holding that DNA fingerprinting is now admissible willy-nilly.” Cobey v. State, 80 Md. App. 31, 43, 559 A.2d 391, 398 (Md. Ct. Spec. App. 1989).

When a proponent of scientific evidence seeks to have admitted not only novel scientific evidence, but, in addition, seeks to have admitted the mathematical probabilities arising from that scientific evidence, the trial judge must also make a preliminary determination of the reliability of the process used to calculate those probabilities. To illustrate this type of evidence, we quote from a paragraph from the case of State v. Brown, 470 N.W.2d 30, 31 (Iowa 1991):

In this case, four “fragments” of Brown’s known DNA samples were matched with four fragments of the crime scene DNA. The probability of an individual possessing the particular genetic pattern for those four segments were, respectively, one in 25,094; one in 441; one in sixty; and one in 194. When these figures are combined, the likelihood of a person matching in all four fragments, according to the State’s expert, would be one in several billion.

Under the standard we adopt, a trial judge would have to make a preliminary determination of the reliability of such things as population genetics databases which are used in calculating such probabilities before allowing an expert to extrapolate calculations as to the probabilities in a particular case. Again, this determination places a heavy responsibility upon the trial judge.

In sum, novel scientific evidence coupled with evidence of mathematical probabilities should be admitted only when the proponent of that evidence makes a preliminary showing of reliability of both the novel scientific evidence and of the process underlying the calculations. The opponent of the evidence may cross-examine and attack the showing of reliability with his own experts at the preliminary hearing. If the evidence is determined to be reliable and admissible, the opponent may, after its admission at trial, cross-examine or directly attack the evidence since the jury must determine the weight and credibility to be given it.

B. NOT MISLEADING

After assessing the reliability of the evidence, the trial court must also weigh any danger that the evidence might confuse or mislead the jury. The danger that scientific evidence will mislead the jury may be the greatest where the jury is not presented the data on which the expert relies, but instead, must accept the expert’s assertions as to the accuracy of his conclusions. See United States v. Downing, 753 F.2d at 1239 (citing Weinstein and Berger, supra, 702[03] at 702-20 n. 18). The trial court must then weigh its assessment of the reliability of the novel scientific evidence against the danger that the evidence, even though reliable, might nonetheless confuse or mislead the finder of fact. In that weighing process, the trial judge must keep in mind the “presumption of helpfulness” accorded expert testimony generally under A.R.E. Rule 702. “The relevancy approach favors admissibility whenever the general conditions for admissibility of evidence have been met.” Weinstein and Berger, supra, ¶ 702[03] at 702-21.

This Rule 702 determination of whether the evidence might confuse or mislead the jury is separate from a Rule 403 weighing. Under the relevancy approach, the proponent of the evidence must first prove that it is reliable and will not confuse or mislead the jury. If the court rules that it is admissible under Rule 702, the opponent of the evidence might then object to it on the basis that its probative value is outweighed by unfair prejudice, or it is a waste of time, or it is needless presentation of cumulative evidence. A.R.E. Rule 403.

C. HELPFUL

The third general consideration under the Rule 702 relevancy analysis is whether the proposed expert testimony is sufficiently tied to the facts of the case to aid the trier of fact in resolving the dispute. The proponent of the evidence must show the trial court precisely how the expert’s testimony is relevant and helpful to the case. Failure to make this proof is a sufficient ground to exclude the evidence. United States v. Downing, 753 F.2d at 1242 (citing United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)).

II. FACTS OF THIS CASE

A. DNA IDENTIFICATION

The evidence in this case and the holding of cases from other jurisdictions clearly establish that the procedures involved in DNA profile analysis have been widely used in laboratories for research and diagnostic purposes for many years. It is only the transfer of this technology to a forensic setting which has recently occurred.

The background of DNA identification is set out below. The background information is taken from the testimony in this case and the following articles: Burk, DNA Identification Possibilities & Pitfalls Revisited, 31 Jurimetrics J. 53 (1990); Imwinkelreid, The Debate In The DNA Cases Over the Foundation For the Admission Of Scientific Evidence: The Importance Of Human Error As A Cause Of Forensic Misanaly sis, 18 Wash. U. L.Q. 19 (1991); Moenssens, DNA Evidence And Its Critics - How Valid Are Challenges?,31 Jurimetrics J. 97 (1990); Thompson & Ford, DNA Typing: Acceptance And Weight Of The New Genetic Identification Tests, 75 Va. L. Rev. 45 (1989); Note, Evidence Of DNA Fingerprinting Admitted For Identification Purposes In Rape Trial, 12 U. Ark. Little Rock L.J. 543 (1989-90).

In the early 1800’s scientists started to look inside the cell and learned that it had a nucleus. In the 1860’s scientists identified chromosomes, which are rodlike bodies within the nucleus, and then they were able to distinguish individual chromosomes within a cell by their size and shape. As research progressed, scientists discovered that there are forty-six (46) chromosomes in each ordinary human cell. The Austrian monk Gregor Mendel manipulated pea nuclei and established that traits such as color and shape are controlled by heredity factors; these factors came to be called genes, which are specific regions on the chromosomes. Continuing to push forward the limits of human knowledge, other scientists discovered a substance that was called deoxyribonucleic acid, DNA, which is the building block of chromosomes, and thus the basic genetic material.

In 1953, two (2) scientists, Watson and Crick, discovered the exact nature of DNA, which they described as a double helix. The experts in this case, and some courts, have described DNA as appearing like a spiral staircase. Research continued as scientists attempted to discover the components of the DNA molecule and began to unravel the basic genetic code within the strands of DNA. It was learned that the DNA strands are composed of four (4) nucleotide bases. These bases pair up, or hybridize, in certain ways to form the DNA molecule. The sequence of the bases along the strand determine the message the DNA carries.

It was then discovered that there are certain enzymes that cut DNA at very specific sites, or loci, on a strand. These findings ultimately led to the discovery of DNA probes, which are produced by recombinant DNA techniques. A DNA probe is simply a single strand of DNA which will attach to another strand of DNA when it finds a complimentary sequence. These probes were first used for diagnosis of genetic diseases, and later to look for DNA sequences that differentiate each individual. The research also established that the DNA in every cell of an individual is the same and remains so during the lifetime of that individual, at least in a general sense. Finally, it has been postulated, and this has not been disproven to date, that the DNA of one person is different from the DNA of all other people, with the exception of identical twins.

DNA testing does not evaluate all of the genetic information carried by a person’s DNA. Rather, the tests identify variations in the structure of the DNA molecule. These structural variations are revealed by cutting DNA strands into pieces with restriction enzymes that break the DNA only at certain recognition sites. The recognition sites may be absent in some people; the uncut region of DNA from such a person will be longer than that from persons who have the recognition site. These variations of DNA fragments are called restriction fragment length polymorphisms, or RFLPs.

In order to visualize these characteristic fragment variations, the DNA fragments are separated on the basis of size. Native DNA exists as an intertwined double helix of two strands of nucleotide bases; these are separated into single strands which are cut by restriction enzymes, and the DNA fragments are placed into wells cut at one end of an agarose gel. The gel looks something like a slab of grey gelatin. When an electric current is applied, the pull of the current causes the electrically charged DNA fragments to move through the gel. The smaller fragments move more quickly through the gel than do the larger fragments. This migration, by size, in the direction of the current creates lanes of DNA with different sized fragments separated into bands. This process is known as electrophoresis.

For the ease of handling, the bands are transferred to a filter through a process called Southern blotting; if the blotting process is done properly, the fragment bands on the filter will occupy the same positions as they did in the gel. The bands are then visualized through the use of a radioactive DNA probe that binds to an RFLP fragment of interest. Probes may be single-locus, identifying only a single band at a time, or they may be multilocus, identifying many RFLPs simultaneously. Photographic film is then placed next to the filter, and the radioactive probe will expose the film at the location of the DNA fragments which have hybridized with the probe, creating an autoradiograph that reveals the positions of the RFLP bands.

The banding pattern revealed by the autoradiographic patterns indicates the RFLPs carried by the particular person. Because these characteristics are inherited, they can be used to show relatedness, which has led to the use of such tests in paternity cases. See Ark. Code Ann. § 9-10-108 (Supp. 1991). RFLP banding may also be used to link suspects with materials from the scene of the crime, or as was done in this case, link the appellant with the crime by linking his RFLPs with those in the DNA found in the victim’s vagina.

The interpretation of the autoradiographs to determine if the band patterns from the known and unknown samples match is conducted as follows: Assuming the autoradiographs produce banding patterns suitable for comparison, the examiner first determines whether a match may be called by visually comparing the bands. If the bands in the lanes containing the known DNA and the unknown DNA do not align with each other, they are declared not to match, and the examiner then determines whether the non-match should be interpreted as inconclusive or as excluding the donor of the known sample as a possible donor of the DNA in the questioned sample.

If the donor of the known sample is not excluded, a computerized measurement is made by comparing the bands from the known sample and the questioned specimen to the size markers located on the autoradiograph. This comparison allows the examiner to extrapolate the length (the number of base pairs) of the bands of DNA from the evidentiary samples. If the bands from the known and questioned samples otherwise appear to be consistent, they are said to match if they fall within a “match window” of + /- 2.5% of the band’s size.

The following courts have held DNA testing is admissible as forensic evidence under the Frye standard: Smith v. Deppish, 248 Kan. 217, 807 P.2d 144 (1991); State v. Schwartz, 447 N.W.2d 422 (Minn. 1989); State v. Davis, No. 71694, 1991 WL 134460 (Mo. July 23, 1991); State v. Ford, 392 S.E.2d 781 (S.C. 1990); Glover v. State, 787 S.W.2d 544 (Tex. Ct. App. 1990); State v. Woodall, 385 S.E.2d 253 (W. Va. 1989).

DNA profiling has been upheld under relevancy standards such as ours. See Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988); Caldwell v. State, 260 Ga. 278, 393 S.E.2d 436 (1990); State v. Brown, 470 N.W.2d 30 (Iowa 1991); Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989). One state has taken judicial notice of DNA typing reliability. State v. Woodall, 385 S.E.2d 253 (W. Va. 1989).

No court has held DNA profiling evidence to be inadmissible per se. A few courts have questioned the results in a particular case or in some way limited the testimony. See State v. Schwartz, supra (DNA evidence reliable only if performed in accordance with appropriate laboratory procedures); State v. Woodall, supra (DNA profiling reliable but test results not admitted because inconclusive); People v. Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 988 (N.Y. Sup. Ct. 1989) (evidence of inclusion inadmissible because of failure of testing lab to use generally accepted scientific techniques).

In sum, we have no hesitancy in affirming the trial court’s ruling that DNA testing is such a sufficiently reliable scientific procedure that it may be admitted in evidence. The issue then becomes whether the laboratory protocol was shown to be reliable.

Harold Deadman, a Ph.D. in organic chemistry, a supervisory special agent with the FBI, and a member of the DNA analysis unit testified that he used proper protocol in conducting the analysis. He additionally testified to the quality control steps and the in-house proficiency testing which the FBI uses in its DNA analysis unit.

Dr. James Hardin, an associate professor of medicine, biochemistry, and molecular biology at the University of Arkansas for Medical Sciences, and associate director of research at the Arkansas Cancer Research Center, testified that the FBI’s testing procedures were “very reliable, very conservative, and very well settled.” He further testified that he was familiar with the correct protocol from his years of experience in a molecular biology laboratory. Dr. Gary Bannon, assistant professor in the Department of Biochemistry and Molecular Biology at the University of Arkansas for Medical Sciences, testified the FBI’s methodology was “very reliable.”

The appellant’s expert witness, Dr. Helen Benes, assistant professor in the Department of Biochemistry and Molecular Biology at the University of Arkansas for Medical Sciences, agreed with the protocol followed and testified:

In my examination of Doctor Deadman’s notes that he sent to me I could basically detect no human error. I believe that the sample was handled appropriately, that the DNA was extracted appropriately, that the distinction between the male and female DNA was also done appropriately and I have some disagreement with or inconsistencies with some of the numbers, but that we’ll come to later, but I do not believe that they have anything to do with human error and I’m sure that Doctor Deadman can explain these. The interpretation of the DNA patterns I am essentially with the DNA patterns. I will tell you that when Doctor says that there is a band I also believe that there is a band. When Doctor Deadman says that there is no band present I also find no band present. The opposite you might consider if he claims there is a band I agree with that. He makes no claims to a band that I do not see. So we are basically in agreement with that aspect of the analysis.

The protocol was thus shown to be sufficiently reliable. The examination then shifts to determining the reliability of the interpretation of the autoradiographic patterns. Dr. Deadman first testified about the banding revealed by the autoradiographs. He testified that he ran four (4) probes in this case. One (1) was inconclusive. Two (2) showed that the upper bands from the sample taken from the victim’s vagina were consistent with the upper bands of the samples taken from the appellant. On the fourth probe, Dr. Deadman, at first, could not get a banding pattern due to the insufficiency of the sample, but, by reprobing with a longer radiation exposure, was able to declare a match of both the upper and lower bands.

The appellant’s expert, Dr. Helen Benes, testified that there was only one (1) clear match of the upper bands; that two (2) of the others were unclear, although she could understand how others would see them as matches.

In rebuttal, the State then called Dr. Gary Bannon and Dr. Jim Hardin. They testified they did not agree with Dr. Benes’s criticisms of Dr. Deadman’s work and instead fully agreed with Dr. Deadman’s matching of the bands.

The evidence established that autoradiographs may sometimes be ambiguous or difficult to interpret and that the analyst can err in measuring the bands and in interpreting the results. Determining whether two (2) samples match can involve subjective judgement. Just as it is difficult to distinguish between two (2) individuals on the basis of blurry photographs, it may be difficult to distinguish between (2) different DNA types if the bands are unclear. A misidentification may occur if two (2) different types are mistaken for one another. The trial court, in deciding whether the testimony about matching of bands was reliable, considered the possibility of a mistake in the subjective judgment of the scientists. The trial court heard Dr. Deadman on the issue, heard Dr. Benes’s criticisms of his judgment, and heard Drs. Bannon and Hardin’s rebuttal. The admissibility of expert testimony rests on the broad discretion of the trial court, Sims v. Safeway Trails, Inc., 297 Ark. 588, 764 S.W.2d 427 (1989), and we cannot say the trial court abused its discretion in ruling that the protocol used in administering this test was reliable and that the interpretations were sufficiently reliable to be admitted in evidence.

B. EXTRAPOLATING CALCULATIONS AS TO PROBABILITIES

Evidence of a DNA match made by a scientist who followed the proper laboratory protocol is admissible without drawing any statistical inferences. The scientist could simply testify to having performed the necessary steps and having determined that the two (2) samples examined match. The next step of extrapolating calculations as to the probability of random matches is not an essential step to DNA identification testing but, because of its impact, the State sought to add it to the testimony.

These calculations, arrived at by using population genetics, have been questioned by at least three (3) courts and one commentator. The Supreme Court of Minnesota questioned its tendency to prejudice a jury and limited the use of such statistics. See State v. Schwartz, 447 N.W.2d 422 (Minn. 1989). As of 1989, nineteen (19) jurisdictions had refused to follow the reasoning of the Schwartz doctrine. See State v. Schwartz, 447 N.W.2d at 429 (Kelly, J., concurring). The Supreme Court of Alabama has also expressed concern over the potential tendency the statistics have to prejudice a jury. See Ex parte Perry, 586 So.2d 242 (Ala. 1991). In Perry, the court adopted an approach similar to the one we adopt in that they separated the determination of the reliability of the statistical population genetics portion of the analysis from the determination of the reliability of the DNA “matching” evidence. The Superior Court of the District of Columbia, criminal division, felony branch, in United States v. Porter, No. 706277-89, 1991 WL 319015 (D.C. Super. Sept. 20, 1991), in applying the Frye test, held that the government failed to demonstrate general acceptance within the scientific community of the calculations of probabilities. In addition, Dr. Eric Lander, a mathematician, has raised questions about the adequacy of existing population genetics databases which are used in calculating the probabilities. See Moenssens, DNA Evidence And Its Critics - How Valid Are The Challenges?, 31 Jurimetrics J. 97 (1990).

While calculations as to probabilities based upon population genetics have been questioned, they are clearly relevant and, if proven to be reliable, would be helpful to a jury, particularly in rape cases such as this one where there are no witnesses other than the victim and the accused. Thus, under our standard, if the extrapolations are reliable, they should be admitted in evidence.

Once two or more DNA patterns derived from loci that are known to be polymorphic (different among individuals) have been matched, the question arises whether this matching is coincidental. This is the point at which statistics begin to play a role.

In order to establish estimates of probability, the F.B.I. employs a technique called fixed bin analysis. This system is used to determine population allele frequencies and, in turn, to determine the frequency of an allele in an evidentiary sample. This approach is designed to compensate for the inability to precisely measure alleles.

First, the F.B.I. constructs tables of allele frequencies. In order to construct these tables, DNA profiles, using the same RFLP process and probes previously discussed, are run by the F.B.I. on a population. In this case, we are concerned only with the data from the black population since the appellant fits within that group. These blood samples come from studies at the Baylor University School of Medicine in Houston, Texas, from a crime laboratory in Dade County, Florida, and from the University of South Carolina Medical School in Charleston, South Carolina.

For each of the four (4) probes, the allele or alleles resulting from the profile are assigned to bins, a category of alleles which all fall within a predetermined size range defined by the size markers which are run with each DNA test. As to each probe, the frequency for each bin is calculated by dividing the total number of alleles falling within it by the total number of alleles resulting from the profiling of all the samples for that probe. The first size marker occurs at 640 base pairs; so the first bin, which is called bin 1, contains alleles measuring between 1 and 639 base pairs. The second category, or bin 2, contains alleles measuring between 640 and 672 base pairs, and so on through twenty (20) bins.

Once the frequencies of the bins are established for each probe, the tables of allele frequencies are used to determine the estimate of the probability that a person of the population relevant to the suspect, picked randomly, would have a DNA profile matching the profile displayed by the DNA from the samples from the same population group.

The likelihood of a coincidental match decreases as the number of matching bands and the rarity of those bands increases. Suppose, for example, there is a matching of two (2) bands, one reflects a band found in 10 % of the group’s population and the other one reflects a band found in 50% of the group’s population. An analyst would conclude that the probability of coincidental match is .10 X .50 = .05, or a 5 % probability. This approach assumes that the probability of one band occurring does not affect the probability of any other band occurring. This assumption is valid only if the entire population being studied is in a condition known as Hardy-Weinberg Equilibrium. Dr. Deadman testified for the State that the population genetics were appropriate in every manner.

Dr. Benes, in testifying for the appellant, expressed concern that the database for black people was not representative of the population group at-large. She also expressed concern as to whether the databases were in Hardy-Weinberg Equilibrium.

Dr. Deadman and Dr. Jim Hardin testified in rebuttal that probabilities given in this case were “conservative.” The significance of the “conservative” rebuttal testimony is that in the best known case on this subject, People v. Castro, 144 Misc. 2d 956, 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989), the court, in quoting an expert on the issue, wrote: “Conservative or reduced calculations may also correct the Hardy-Weinberg deviation problems.” Id. at 993, 545 N.Y.S.2d at 993.

Upon reviewing the foregoing evidence we cannot say that the trial court abused its discretion in admitting the calculations as to probabilities. However, just because there was no meaningful attack upon the population genetics in this case does not mean that there can not be a successful attack in future cases. In fact, there was such a successful attack in the case of United States v. Porter, No. 706277-89 (D.C. Super. Ct., Sept. 20, 1991). Just how small the sample population may be, how the sampling is done, and the assumptions that underlie the probability calculation from the sample may all be the subject of dispute. In short, the population criterion against which DNA identification matches are declared is not a closed issue.

III. APPOINTMENT OF EXPERT WITNESS

The appellant was charged by information, made bond, was determined to be an indigent, and an attorney was appointed for him. He stood trial on October 26 and 27,1989 and, at that trial, challenged the admissibility of the DNA testing. The jury heard Dr. Deadman’s testimony for the State on DNA testing. The presiding special judge ruled the DNA results were not admissible and declared a mistrial because the jury had heard the DNA-testing testimony.

The State gave notice that it intended to retry the appellant and asked for a rehearing on the admissibility of DNA profiling. The appellant asked for funds to employ an expert on DNA testing. Three (3) days later, on November 30, 1989, the regularly elected judge held a hearing and ruled that DNA testing was admissible but, because of a shortage of county funds, declined to appoint an expert in DNA analysis for the appellant. That ruling was in error.

DNA tests should not be ruled admissible before the accused’s expert has had a chance to examine the evidence, procedures, and protocol. Ideally, an accused should even be provided with the actual DNA samples in order to reproduce the tests. As a practical matter, this may not be possible because, as in this case, the samples were so small that the entire sample was used in the proponent’s testing of the evidence. Consequently, access to data, methodology, and actual results are crucial. An accused must be given the opportunity for independent expert review before a determination of reliability is made.

However, the regular trial judge subsequently ordered that funds be provided to employ an expert witness for the appellant. Appellant obtained the service of Dr. Benes. The State’s data, including the autoradiographs, methodology, and results were supplied to the appellant’s expert, Dr. Benes. She apparently had sufficient time to examine all of the materials. Later, at trial, the appellant’s attorney used the materials to cross-examine the State’s witnesses. Dr. Benes, a most competent witness, testified on direct examination in great detail about the specific nature of her disagreement with Dr. Deadman’s interpretation of the DNA profile analysis. Given that the accused was afforded an expert to testify about these matters, and that the accused has not shown any prejudice as a result of the expert’s late appointment, we decline to reverse the judgment of conviction. We do not reverse for trial error in absence of prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1985 (1985).

IV. SUFFICIENCY OF EVIDENCE

The appellant’s final argument is that the evidence is not sufficient to support the verdict. We treat the argument in summary fashion. On appeal, we review the evidence in the light most favorable to the appellee. Jones v. State, 297 Ark. 499, 763 S.W.2d 655 (1989). We affirm a conviction if substantial evidence exists to support it. Evidence is substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Id. The testimony of the rape victim satisfies the substantial evidence requirement in a rape case. Id. The testimony of the prosecutrix alone is thus sufficient to support the verdict. Additionally, appellant attacks the prosecutrix’s testimony. However,the credibility of witnesses is the province of the jury. We will not disturb the jury’s judgment. Taylor v. State, 296 Ark. 89, 752 S.W.2d 2 (1988).

Affirmed.

Brown, J., not participating.


author: Steele Hays, Justice.

text:
    Gary D. LEACH v. STATE of Arkansas
    91-114
    819 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered November 11, 1991

      Gibbons Law Firm, P.A. by: Jefferson K. Faught, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Gary Leach, aged sixteen, and a companion were charged with some nineteen misdemeanor and felony counts of burglary, breaking and entering, criminal mischief and theft of property. The crimes were committed over a period of ten days. Leach pled guilty to eighteen counts and the order of commitment provided that Leach and his parents pay restitution in the amount of $3,670.08 jointly and severally with his co-defendant.

Leach filed a motion to correct an illegal sentence and brings this appeal from the denial of that motion. Leach maintains it was error for the trial court to order him to pay restitution in an amount exceeding the maximum provided in Ark. Code Ann. § 9-27-331 (d) (1987), which reads:

An order of restitution to be paid by the juvenile, his parent, guardian, or custodian may be entered only after the loss caused by the juvenile is proved by a preponderance of the evidence and the amount of restitution may not exceed $2,000.00.

Appellant does not challenge the imposition of joint liability, but contends his several liability is limited to $2,000. He argues that we must construe a legislative enactment exactly as it reads and on that basis a juvenile may not, under any circumstances, be held liable for an amount of restitution exceeding $2,000.

We disagree with that view of the statute. If the legislature had intended the ceiling to apply to a multiplicity of crimes it would have referred to “losses,” rather than “the loss.” The use of the singular noun clearly suggests that the cap is intended to apply to any one loss. Appellant’s interpretation would permit an offender to inflict losses of unlimited proportions upon a community while restricted to the paltry sum of $2,000 in restitution. That interpretation would be both implausible and contrary to the common meaning of the language used in the act. Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980).

Affirmed.