author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Charles Wesley COGBURN v. STATE of Arkansas
    CR 87-24
    732 S.W.2d 807
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Ronald L. Griggs, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Charles Wesley Cogburn, was charged with rape for allegedly engaging in sexual intercourse with his seven-year-old daughter. He was convicted by a jury of carnal abuse in the first degree and, when the jury was unable to agree on the punishment, sentenced by the court to ten years imprisonment. On appeal, Cogburn challenges the admissibility of a videotaped interview of his daughter, the constitutionality of A.R.E. Rule 803(25)(A), the admissibility of certain testimony, the failure to give a jury instruction, and the refusal to admit certain test results. The court of appeals certified this case to us to determine the constitutionality of Rule 803(25)(A). We find that the rule is constitutional as applied to Cogburn, but that the trial court committed error when it permitted the introduction of the videotaped interview and reverse.

1. ADMISSION OF VIDEOTAPED INTERVIEW.

The state filed a motion with the trial court on May 21,1985, requesting permission to take a videotaped deposition of the victim pursuant to Ark. Stat. Ann. § 43-2036 (Supp. 1985). The motion was granted and the deposition was scheduled for July 2, 1985. At the deposition, however, the child became emotionally distressed and was unable to testify.

On earlier dates, February 13 and 15,1985, Carol Dungan, assistant juvenile probation officer for the Union County Juvenile Court, interviewed the child at the request of Arkansas Social Services. Each interview was videotaped. In the course of the interviews, the child was given two dolls: a boy and a girl. She pretended the boy doll was her father and the girl doll was her, and described several incidents of sexual contact between the two. The defendant was not notified that the interviews were to take place and his attorney was not present for the interviews. The court permitted the state to play these videotapes for the jury, over Cogburn’s objections, relying on A.R.E. Rule 803(25).

Rule 803(25) provides in part:

(25)(A) A statement made by a child under ten (10) years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, . . .

The rule then conditions the admission of such a hearsay statement on a hearing conducted by the court, outside the presence of the jury, after which the court finds that the statement possesses reasonable likelihood of trustworthiness using criteria enumerated in the rule.

Rule 803(25) applies generally to any statement made by a child that meets the required criteria. The Legislature, however, has made specific provisions for such statements when they are videotaped. The appropriate procedure for presenting videotaped testimony of victims of sexual abuse is provided in Ark. Stat. Ann. § 43-2036 (Supp. 1985) as follows:

In any prosecution for a sexual offense or criminal attempt to commit a sexual offense against a minor, upon motion of the prosecuting attorney and after notice to the opposing counsel, the court may, for a good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of seventeen (17) years. The videotaped deposition shall be taken before the judge in chambers in the presence of the prosecuting attorney, the defendant and his attorneys. Examination and cross-examination of the alleged victim shall proceed at the taking of the videotaped deposition in the same manner as permitted at trial under the provisions of the Arkansas Uniform Rules of Evidence. Any videotaped deposition taken under the provisions of this Act . . . shall be admissible at trial and received into evidence in lieu of the direct testimony of the victim. However, neither the presentation nor the preparation of such videotaped deposition shall preclude the prosecutor’s calling the minor victim to testify at trial if that is necessary to serve the interests of justice (emphasis added).

It is an accepted rule of law that a general statute, such as Rule 803(25) (Ark. Stat. Ann. § 28-1001 (Repl. 1979 &Supp. 1985)), does not apply where there is a specific statute, such as § 43-2036, covering a particular subject matter. Drum v. McDaniel, 215 Ark. 690, 222 S.W.2d 59 (1949). Accordingly, the trial court erred in admitting the videotape under Rule 803(25).

The state concedes that § 43-2036 was not complied with in videotaping the Dungan-victim interviews. We have explained that videotaped depositions are permissible only when authorized by statute, and that the use of depositions in criminal cases is more carefully scrutinized than in civil cases. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986). In Russell v. State, 269 Ark. 44, 598 S.W.2d 96 (1980) this court reversed the trial court’s decision admitting into evidence a videotaped deposition that was not authorized by statute. We stated:

While we have approved the use of a video tape recording in taking depositions, that is only in an instance where a deposition is lawfully authorized. . . .
[T]he right to take depositions in a law case rests upon statutory authority and in no case can the right be exercised unless the authority therefor exists.

Since the requirements of Ark. Stat. Ann. § 43-2036 were not followed and Rule 803(25) does not apply, the trial court erred in receiving the videotape into evidence, and we reverse the conviction on that basis. The error was prejudicial in that the defendant was denied the right to cross-examine the child at the time she made her videotaped statement, and the state was in effect permitted to offer the direct testimony of the victim twice, once through the videotape and once through live testimony.

2. HEARSAY TESTIMONY.

The victim made statements about the sexual abuse she allegedly suffered to her mother, Rebecca Cogburn; to Linda Coursey, a counselor at the South Arkansas Regional Health Center; and to Carol Dungan, as previously discussed. The state filed a motion to introduce this hearsay testimony on the grounds that the minor has suffered a tremendous emotional distress, and her testimony at the trial would be extremely embarrassing and difficult for her. The state argued that the testimony of the parties falls within the purview of A.R.E. Rule 803(25). After two pretrial hearings, the court permitted the testimony, but limited Dungan to either testifying about the statement or introducing the videotape. The state chose to introduce the tape.

As to the other statements offered, Cogburn argues that Rule 803(25) “clearly requires” the court to make specific findings that the statements offered possess a reasonable likelihood of trustworthiness. Cogburn states that, although a hearing was held on this question, the court simply admitted the statements without making such specific findings.

The court’s action was sufficient. Rule 803(25) does not require written findings, or specific oral findings, but rather requires the trial court to base its decision on the enumerated criteria. Two pretrial hearings were held in this case in which evidence was presented about the statements. During the hearings, the prosecutor referred constantly to the necessary criteria, commenting as he offered proof of each one. In addition, the court stated that it took “all those matters into consideration when it made its ruling”, referring to the requirements of Rule 803(25). There is no merit to this argument.

Cogburn also maintains the criteria of the rule were not met in that the statements were not trustworthy. Rule 803(25) requires the judge to determine the age and maturity of the child; the time and content of the statement and the circumstances surrounding the giving of the statement; the nature and duration of the offense involved; the relationship of the child to the offender; the reliability of the assertion; the reliability-credibility of the child witness before the judge; the relationship of the child to the one offering the statement; and any other corroborative evidence of the act or any other appropriate factors.

At two pretrial hearings on the admissibility of evidence under A.R.E. 803(25), Rebecca Cogburn testified that the child was born November 7, 1977, and is able to relate events and knows the difference between telling the truth and lying. She testified that the child’s teacher called and said they were having trouble with her at school, whereupon Mrs. Cogburn took the child to a counselor. The counselor suggested asking the child if she might be a sexual abuse victim. Mrs. Cogburn then talked to the child and told her that if anyone touched her where she didn’t want to be touched that that was wrong and that she could talk to her about it. A week later, the child told her mother about sexual incidents with Cogburn.

The counselor testified at the pretrial hearings that she, too, discussed the allegations against Cogburn with the child and learned that the abuse began when the child was five and in kindergarten and the counselor assessed the child’s mental status, her mental health and the degree of her adjustment. It was her opinion that the child was sexually abused. In Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), we held that a medical witness could not give his opinion, in the absence of any medical evidence, that, a child was sexually molested. Here, the counselor’s statement of opinion that the child was sexually abused was not argued as error before the trial court or in this appeal. Accordingly, we need not address this issue in this case.

The foregoing pretrial proceedings met the requirements of Rule 803(25) and no error was committed in permitting the parties’ subsequent trial testimony. Had the state opted to use Dungan’s testimony, that testimony would also be admissible provided it met the criteria stated above.

3. CONSTITUTIONALITY OF A.R.E. 803(25).

Cogburn also argues Rule 803(25) permitting hearsay testimony unconstitutionally denies a defendant the right to confront the person giving the statement. Cogburn maintains that substantive due process prohibits the admission of testimony which does not give the defendant the basic right to cross-examine the witnesses against him.

The sixth amendment’s confrontation clause, made applicable to the states through the fourteenth amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.”

The United States Supreme Court has held that the confrontation clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. California v. Green, 399 U.S. 149 (1970). The Court explained that even if “the out-of-court statement may have been made under circumstances subject to none of these protections,... if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections.” Id. See also, U.S. v. King, 613 F.2d 670 (7th Cir. 1980); U.S. v. Green, 548 F.2d 1261 (6th Cir. 1977).

Here, the victim testified at the trial and was subject to unbridled cross-examination. Therefore, the hearsay evidence admitted against Cogburn concerning the victim’s statements under Rule 803(25) did not violate the confrontation clause and, under these circumstances, does not render the rule unconstitutional. In so holding, we must point out what is not being addressed in this opinion. Unlike our decision in Johnson v. State, supra, handed down today, no argument has been made about the requirement in Ohio v. Roberts, 488 U.S. 56 (1980) that a declarant be unavailable before their out of court statement can be admitted at trial without violating the Confrontation Clause. Since this argument was not raised in this appeal, as it was in Johnson, we are unable to reach it.

4. JURY INSTRUCTION—A.R.E. 803(25).

Rule 803(25)(A)(3) provides:

If a statement is admitted pursuant to this Section the Court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.

The state concedes that the jury was not instructed by the court pursuant to this rule, but maintains Cogburn never requested such an instruction nor objected to its omission. In addition, it notes the jury was instructed generally on credibility of witnesses. The state is apparently correct and accordingly, we would not reverse Cogburn’s conviction on this basis. Inasmuch as the conviction is being reversed because of the admission of the videotape, however, at a retrial the trial court should instruct the jury as required by the rule. The instruction should be given before the testimony is offered, in the nature of an admonition, rather than given at the conclusion of the case with the packet of jury instructions. See Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214 (1986). Although the rule does not specify the time at which the instruction is to be given, we think this is the better practice since it would enable the jury to truly consider the testimony as it is given in light of the admonition.

5. EX POST FACTO APPLICATION OF A.R.E. 803(25).

The legislature amended Rule 803 and added subsection (25) in 1985. Cogburn was arrested and charged with having committed the crime in 1984. Cogburn argues that application of Rule 803(25) to him violates the constitutional prohibition against ex post facto laws.

In the recent case of Smith v. State, 291 Ark. 163,

722 S.W.2d 853 (1987), this court discussed at length the admissibility of evidence in the face of an alleged ex post facto violation. In that case, the appellant argued that evidence which could not have been admitted against him at the time the crime was committed was made admissible by legislation which became effective before he was tried. In finding no ex post facto violation, this court acknowledged that a law may not lawfully be changed between the time of the offense and the time of the trial, if it affects the definition of the crime or changes the punishment or makes the amount of proof necessary to sustain the conviction less than what was required at the time of offense. See Kring v. Missouri, 107 U.S. 221 (1882) and Government of the Virgin Islands v. Civil, 591 F.2d 255 (3rd Cir. 1979). We then stated:

We find nothing in . . . [these cases] which would require reversal here. We do not have a defendant who has lost a defense or been subjected to a trial in which “less evidence” in any direct sense is required for conviction than would have been required at the time of the offense . . .Nor are we persuaded by U.S. v. Henson, supra, for in that case, the law deemed ex post facto required the introduction against a testifying accused of certain facts which might not have been introduced had the law extant at the time of the offense been applied. That is not the case before us now. Rather, we are faced with the question whether admission of certain evidence of clearly admissible facts violated the ex post facto prohibition.
While we could not condone legislation criminalizing an act after its perpetration or retroactively increasing the punishment, we can find no reason to hold that a person who commits a crime has a right to rely on rules of evidence in effect at the time of the crime which govern not the facts which may be proven but the manner in which those facts are ascertained by a witness.

Applying this analysis to the case before us, the state was required to prove the same facts at the trial as it was before Rule 803(25) was enacted. The change which occurred was allowing those facts—the sexual abuse of the child—to be proven by testimony which would not have been admissible at the time of the crime. The trial court’s ruling admitting the testimony was correct.

6. TRUTH SERUM TESTS RESULTS.

Prior to the trial, the defense took the deposition of Dr. Gregory S. Kaczenski. The doctor testified that he conducted a neuropsychiatric evaluation of Cogburn and an amytal interview to look for evidence of a mental disorder. The doctor stated that the amytal interview, otherwise known as administering “truth serum”, lowers the inhibitions in the conscious mind and allows the person to speak freely. While under the influence of the truth serum, the doctor said that Cogburn achieved a hypnotic state and denied having sexual contact or experience with the victim. The doctor testified that, in his opinion, the test is good evidence against Cogburn having abused his daughter. The state filed a motion in limine to suppress the doctor’s testimony, which was granted by the trial court.

We do not set aside the trial court’s ruling unless it is clearly against the preponderance of the evidence. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). Here, the trial court was correct.

The results of polygraph tests are not admitted unless both parties enter into a written stipulation agreeing on their admissibility. Foster, supra; Ark. Stat. Ann. § 42-903 (Repl. 1977). Truth serum tests are generally held to occupy the same position as polygraph tests and most courts do not recognize the admissibility of either test for the purpose of proving the truth of the matter asserted. 29 Am. Jur. 2d Evidence § 831 pp. 923-24 (1967). Of these courts we are persuaded by the reasoning of the Texas Court of Criminal Appeals in Cain v. State, 549 S.W.2d 707 (1977) where they stated:

The great weight of authority in this country regards results of truth serum tests as inadmissible inasmuch as they have not yet attained scientific acceptance as reliable and accurate means of ascertaining truth or deception.
“It is therefore apparent that the efficacy of neither the lie detector or the truth serum test have gained that standing and scientific recognition nor demonstrated that degree of dependability to justify the courts in approving their use in the trial of criminal cases.” (quoting Henderson v. State, 94 Okl. Cr. 45, 230 P.2d 495 (1951)).

Because of the error in admitting the videotaped statement of the victim, the conviction is reversed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result reached by the majority opinion but I disagree with that part of theopinion which holds A.R.E. Rule803(25) to be constitutional.

Before discussing the merits of the opinion I am compelled to state that this Court seems to me to be slowly shifting the entire responsibility of following the laws and procedures to the defense. It is as much the responsibility of the courts and the state to enforce and uphold the laws and rights of the people as it is the responsibility of the defense counsel. People are guaranteed rights by the laws and constitutions and it is the responsibility of the state to justify denial of these rights. This Court seems to have reached the point in too many cases where we find that an accused has either “failed to claim” or has “waived” his rights. The price of liberty is eternal vigilance and the price of justice has already been paid. We ought to be vigilant in the protection of the rights of individuals. It is not enough to say that the public has rights too. Of course they do. The public is the sum of individuals and denial of individual rights is the denial of the rights of the people.

The majority makes reference to the companion case of Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), in which we hold that a medical witness could not give his opinion, in the absence of any medical evidence, that a child had been sexually abused. The majority then states that the counselor’s statement of opinion in this case that the child had been sexually abused was not argued as error before the trial court or in this appeal and therefore “we need not address this issue in this case.” The majority opinion concedes that the appellant in this case argues that 803(25) unconstitutionally denies a defendant the right to confront the person giving the statement. However, the majority then states that “no argument has been made about the requirement in Ohio v. Roberts, 488 U.S. 56 (1980), that a declarant be unavailable before their out of court statement can be admitted at trial without violating the Confrontation Clause,” and concludes that “since that [specific] argument was not raised in this appeal, as it was in Johnson, we are unable to reach it.” The majority continues by stating that the state concedes that the jury was not instructed by the court pursuant to subsection (3) of 803(25), but that the state maintains that the appellant never requested such an instruction nor objected to its omission. The opinion then concludes that “the state is apparently correct and accordingly, we would not reverse Cogburn’s conviction on this basis.”

The three opinions being handed down today (Cogburn v. State, Johnson v. State, and Hughes v. State) appear to be a deliberate attempt on the part of this Court to create a “Catch 22” with respect to Rule 803(25). The opinions remind me of the Abbott and Costello comic routine of “Who’s on third.” Each one shifts the responsibility to the other and in the end none of the three deal with the real issue of the right to confrontation as established in the Sixth Amendment. These opinions, like old Mother Hubbard’s skirt, cover everything but touch nothing.

As to the constitutionality of Rule 803(25), I doubt the validity of the legislative enactment of an addition to the rules of this Court. Under the doctrine of separation of powers, rule-making authority is a function of the Court. See State v. Robinson, 735 P.2d 801 (Ariz. 1987), in which the Supreme Court of Arizona held that state’s statutory exception for child hearsay to be unconstitutional as infringing upon the Court’s authority to make procedural rules for the judiciary.

Even if Rule 803(25) is considered constitutional, it was not the intent of the General Assembly to allow anything and everything an alleged child victim said to be introduced at the trial. Certainly, it was not intended to permit other witnesses to violate the rule against hearsay and testify as to the out-of-court statements of an alleged child victim and to present their own speculation on the credibility of the alleged victim.

The purpose and importance of the common law hearsay exclusion seems not to have been adequately considered by the legislature or the majority opinion. The common law exceptions to the hearsay doctrine were based upon necessity and compelling reason. Professor Wigmore has stated that the hearsay doctrine is:

That most characteristic rule of the Anglo-American Law of Evidence—a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world’s methods of procedure.

5 Wigmore, Evidence, p. 27.

Exceptions to the hearsay doctrine should be very limited in purpose and number. Exceptions should be narrowly defined and strictly construed against the exception. Certainly the legislature did not mean to open the floodgates to admit any and all statements of an alleged victim. The legislative amendment to court rule 803 in part states:

(25)(A) A statement made by a child under ten (10) years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, provided:
1. The Court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria:
j. The reliability-credibility of the child witness before the Judge
m. any other factor which the Court at the time and under the circumstances deems relevant and appropriate.
2. The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.

[Emphasis added.]

The videotaped former statements of the victim were introduced in this case. The majority holds that this tape did not comply with the requirements of Ark. Stat. Ann. § 43-2036 and moreover, that the introduction of the tape was prejudicial. The videotaped deposition statute meets the mandates of the Confrontation Clause as most of the safeguards attendant to a trial, such as effective cross-examination by defense counsel, are preserved. The majority is correct in upholding A.S.A. § 43-2036, but it is wrong in upholding the constitutionality of Rule 803(25). The holding, as I understand it, is that the Rule as applied to Cogburn is constitutional. In my opinion the Rule, absent an affirmative showing by the state of the witness’ unavailability and the statement’s reliability, is a violation of the Sixth Amendment. It is also the first time that any court or legislature has authorized the admission into evidence of the out-of-court statements of a witness without attempting to comply with the Confrontation Clause or to show a compelling reason exists for the exception.

The majority acknowledges that the jury was not instructed in accordance with 803(25)(A)(3). The statute requires the trial judge to make an independent determination of the trustworthiness of the child’s hearsay statements before the testimony is presented to the jury. After such determination the court must, contemporaneous with the introduction of the child’s hearsay statements, instruct the jury that it is the duty of the jury to determine for themselves the weight and credibility to be given the child’s out-of-court statements. In People v. Mathes, 703 P.2d 608 (Colo. App. 1985), the Colorado Court of Appeals, faced with the application of a statute that included a verbatim recitation of subsection (3) of the Arkansas statute, reversed a lower court decision because the jury had not been so instructed.

I believe the attempt by the legislature to amend our rules is an unlawful infringement upon our rule-making authority. I also believe the amendment to Rule 803 is unconstitutional because it violates the Confrontation Clause of the Sixth Amendment. I therefore would hold the statements inadmissible. The hearsay statements, allegedly made by the child, had none of the constitutional safeguards required by Ohio v. Roberts, 448 U.S. 56 (1980). The repetition of such testimony unduly prejudices the accused. As a result of the majority opinion upholding the constitutionality of A.R.E. 803(25), the state may eventually be allowed to produce its entire case without the interference of the Confrontation Clause. I will not be a party to such a development.

I strongly disagree with the majority’s interpretation of California v. Green, 399 U.S. 149 (1970). The witness in Green had previously testified at a preliminary hearing under oath and subject to cross-examination. The prior testimony had been fully tested by the defense. The statement therefore complied with the mandate of the Confrontation Clause. There was an additional issue in Green which was not addressed because it was not yet ripe for adjudication. That issue concerned the testimony of an officer that the declarant had previously told him a different story. The officer’s testimony was of course hearsay, but the Supreme Court did not rule on its admissibility. The witnesses in the present case are in exactly the same status as that of the officer in Green. The United States Supreme Court has not approved the introduction of such evidence.

Green approved the introduction of a witness’ prior sworn testimony where his trial testimony contradicted his former testimony. The prior statement, like the statement in Roberts, supra, was given under circumstances which afforded the defendant unrestricted cross-examination. Green holds that the admission in evidence of the witness’ prior testimony, which had been subjected to full and effective cross-examination, did not violate the accused’s right of confrontation. I agree with the holding but submit that Green is inapposite to the present case. For additional discussion of the constitutionality of A.R.E. 803(25), see my concurring opinion in Joe Henry Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987).

Not one of the cases cited in the majority opinion is binding precedent for this case. This addition to our rule by the legislature is the only legislative act, court rule or precedent to hold that untested hearsay statements of such a nature are permissible. We have no prior decisions by this Court or the Court of Appeals interpreting this enactment. Therefore, we must look to other decisions for guidance.

Arkansas’ statute, like those of quite a number of other states, was obviously molded from the Washington statute. However, the differences are very great. The Washington statute requires the child victim to either: (1) testify at the proceeding outside the presence of the jury or (2) be unavailable as a witness. The statute, Revised Code of Washington 9 A.44.120, in pertinent part states:

A statement made by a child when under the age of ten describing any act of sexual contact... is admissible in evidence in dependency . . . and criminal proceedings ... if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings [outside the presence of the jury]; or
(b) Is unavailable as a witness;
Provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

The Washington statute requires the victim to testify at the hearing or be unavailable as a witness, provided further that when the child is unavailable there must be corroborative evidence of the act. The Arkansas statute requires neither, if the majority interprets our rule correctly. Although the majority opinion seems to suggest that “any other corroborative evidence of the act” should be considered by the trial court in determining the trustworthiness of the child’s hearsay statements, the Arkansas statute does not require corroborative evidence of the act whether the child is unavailable as a witness or not. All the other statutes that I have read are more restrictive and more narrowly defined than A.R.E. 803(25). See The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harvard L. Rev. 806 (1985).

The Washington statute was considered in State v. Ryan, 103 Wash. 2d 165, 691 P.2nd 197 (1984). The trial court in the Ryan case allowed the introduction of out-of-court hearsay statements very similar to those which were introduced into evidence in the case before us. The prosecution and defense stipulated that the victims, boys age four and five, were incompetent to testify. The trial court held that admissions by Ryan were sufficient to corroborate the hearsay statements. The Washington Supreme Court overturned the conviction. It is difficult to understand the reasoning of the court in Ryan since the three separate errors found in the trial court’s application of the statute were: (1) that unavailability cannot be established by stipulation of incompetency; (2) that if the victims were, in fact, found to be incompetent, then their hearsay statements would be likewise unreliable and inadmissible; and (3) that the trial court erred in failing to find circumstantial guarantees of the reliability of the hearsay statements. Although the Arkansas act requires circumstantial guarantees of trustworthiness before the admission of such statements, the majority, in effect, dispenses with this requirement. Moreover, our rule does not require unavailability or proof of incompetency.

The Ryan court quoted with approval the cases of Ohio v. Roberts, 448 U.S. 56 (1980), and California v. Green, 399 U.S. 149 (1970). The court further explained their statute by stating:

The statute requires a preliminary determination “that the time, content, and circumstances of the statement provide sufficient indicia of reliability. . . .” It requires the child to testify at the proceedings, or to be unavailable, and does not alter the necessary showing of unavailability. Neither unavailability nor reliability were shown prior to admitting the hearsay testimony.
Unavailability means that the proponent is not presently able to obtain a confrontable witness’ testimony. It is usually based on the physical absence of the witness, but may also arise when the witness has asserted a privilege, refuses to testify, or claims a lack of memory. [Citations omitted.] Unavailability in the constitutional sense additionally requires the prosecutor to make a good faith effort to obtain the witness’ presence at trial. Roberts, at 74.

I have discussed the Washington statute in detail because it exemplifies the recent efforts by various states to find a satisfactory and Constitutional solution to the problem of abuse of children. I contend that the Arkansas statute goes far beyond any other attempt to deal with this vexatious problem. I will briefly discuss the Arizona statute and some cases interpreting it. The statute reads:

§ 13-1416. Admissibility of minor’s statement; notice.
A. A statement made by a minor who is under the age of ten years describing any sexual offense performed with or on the minor by another person or any act of physical abuse of the minor, which is not otherwise admissible by statute or court rule, is admissible in evidence in any criminal or civil proceeding if both of the following are true:
1. The court finds, in an in camera hearing, that the time, content and circumstances of the statement provide sufficient indicia of reliability.
2. Either of the following is true:
(a) The minor testifies at the proceedings.
(b) The minor is unavailable as a witness, provided that if the minor is unavailable as a witness, the statement may be admitted only if there is corroborative evidence of the statement.

On April 15,1986, the Arizona Court of Appeals decided the case of State v. Superior Court, Pima County and Skala, 719 P.2d 283 (Ariz. App. 1986). The court affirmed the trial court’s exclusion of the hearsay testimony of the mother concerning the child’s statement which occurred two days after the alleged sexual offense by the three year old child’s father. The case was remanded on the grounds that the trial court did not make an in chambers independent determination of each hearsay witness’ testimony for trustworthiness. The Arizona Court of Appeals stated: “In some cases, the trial court may conclude that all statements are unreliable, but that determination must be independently made as to each statement offered and/or each witness called to so testify.”

The Arizona statute was subsequently struck down in State v. Robinson, 235 P.2d 801 (Ariz. 1987), in which the Supreme Court of Arizona held the statute to be unconstitutional as infringing upon the Court’s authority to make procedural rules for the judiciary. The Court stated:

Although we have previously recognized consistent statutory additions to the rules of evidence,. . .the reach of our rulemaking authority and the function of the hearsay rules, taken together, severely limit the legislature’s authority to manipulate the hearsay rules, particularly in criminal cases where confrontation rights are constitutionally protected.. . . [T]he hearsay rules are at the core of the judicial function: defining what is reliable evidence and establishing judicial processes to test reliability. Under basic separation of powers principles, these judicial functions are separate and different from legislative powers.

The Arkansas version of the child hearsay statute should likewise be declared unconstitutional.

It is time we returned to the basic constitutional concept that an accused is considered innocent until proven guilty beyond a reasonable doubt. I am in complete accord with the public demand for swift and sure punishment of child molesters. However, in our zeal to rid society of such individuals we must not lose sight of the rights of others. We ought not to tear down our well-established institutions before we decide what we will replace them with. By the same logic a person should not be adjudged guilty by the untested hearsay testimony of any witness. The foundation of the doctrine prohibiting the introduction of hearsay is to prevent a conviction on untested statements made without the safeguards of confrontation and a determination of trustworthiness. Sir Walter Raleigh was convicted on hearsay testimony which had been retracted before his conviction. This is the type of trial the Sixth Amendment to the Constitution of the United States sought to prohibit. If the Amendment is bad then let it be stricken by the people instead of the courts.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Charles GARRETT v. Jolene GARRETT
    87-18

      732 S.W.2d 127
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Davidson, Horne & Hollingsworth, A Professional Association, for appellant.

      Witt Law Firm, P.C., by: R. Kevin Barham, for appellee.
   Jack Holt, Jr., Chief Justice.

This case is an appeal of a Franklin County Chancery Court order in which custody of the children of Charles and Jolene Garrett was awarded to Jolene* appellee. Charles, appellant, argues that the trial court should not have taken jurisdiction of the case because an Oklahoma court had previously entered an order granting custody to him and because he was not personally served with notice of the Arkansas proceedings. We reverse and dismiss.

The events leading to the Arkansas court’s decree are as follows: Charles and Jolene Garrett were married in Clarksville, Arkansas, on May 29, 1982, and immediately moved to Miami, Oklahoma. On August 11, 1986, the couple separated. Charles left their two children, ages three and two, with Jolene and went to his parents’ home in Miami. The next day, Jolene took the children to Altus, Arkansas, and moved in with her parents. Two days later, on August 13, Jolene filed a complaint in Franklin County, Arkansas, asking for custody of the children. On August 15, Charles filed a petition for divorce in Ottawa County, Oklahoma, asking for custody of the children. The Oklahoma court entered an order the same day giving him temporary custody.

On September 9, the Arkansas court entered an order giving temporary custody to Jolene. Charles filed a special entry of appearance in the Arkansas court, in which he challenged the court’s jurisdiction. Jolene also entered a special appearance in the Oklahoma court to challenge that court’s jurisdiction.

On September 18, the Oklahoma court, after a hearing in which both parties were present and represented by counsel, found that it had jurisdiction as the “home state” as defined by the Uniform Child Custody Jurisdiction Act (UCCJA) and continued in force its temporary order of custody in Charles. The order recited that the trial judge had, pursuant to the UCCJA, communicated by telephone with the chancellor presiding over the Arkansas proceedings, and that he had informed the Arkansas chancellor that he invoked jurisdiction over the parties and the children. On September 26, the Oklahoma court entered a final decree of divorce and awarded custody to Charles. The Oklahoma court decree stated that it had sole and exclusive jurisdiction under the UCCJA as enacted by both Oklahoma and Arkansas. No appeal was taken from the Oklahoma court decree.

The UCCJA provisions on jurisdiction relied on by the Oklahoma court, codified in Arkansas as Ark. Stat. Ann. § 34-2703 (Supp. 1985), state:

(a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one [ 1 ] contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; ....

“Home state” is defined as

the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six (6) consecutive months, ....

Ark. Stat. Ann. § 34-2702(5) (Supp. 1985).

The Arkansas court, after a hearing in which the Oklahoma decree was put into evidence, nevertheless found that it had jurisdiction pursuant to paragraph (2) of § 34-2703, inasmuch as the parties had a significant contact with the state because Jolene and the children were residing in Arkansas, Jolene was raised in Arkansas, and the parties lived here for a substantial time before their marriage and were married here. The order also said that there was available in this state substantial evidence concerning the children’s present and future care, protection, training, and personal relationships and that it was to the best interest of the children that this court assume jurisdiction. The order, entered on October 28, gave custody of the children to Jolene.

Under both the UCCJA and the Parental Kidnapping Prevention Act, 28 U.S.C. 1738A, (PKPA) the Arkansas court erroneously exercised jurisdiction. These two acts must be read in conjunction, and where they conflict, the preemptive PKPA controls. Norsworthy v. Norsworthy, 289 Ark. 479, 713 S.W.2d 451 (1986).

The scenario in this case, and the instability created for the family, is precisely what both of these acts were designed to prevent. Their stated purposes are to avoid jurisdictional conflict with courts of different states, to promote cooperation between courts so that the custody decree is rendered by the state which can best decide the case, to discourage continuing controversies over child custody, to deter abductions, and to avoid re-litigation of custody decisions. Ark. Stat. Ann. § 34-2701 (Supp. 1985); 28 U.S.C.S. 1738A (History; Ancillary Laws and Directives).

The PKPA seeks to minimize jurisdictional controversies by giving little leeway to the court of the second state when the home state enters an order regarding custody. Subsection (a) of the PKPA states:

The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.

Unlike the UCCJA, under the PKPA jurisdiction is given to the “home state” to the exclusion of other jurisdictional considerations. 28 U.S.C. 1738A(4); Norsworthy, supra. Because Oklahoma was clearly the home state under the PKPA, which defines that term just as the UCCJA does, the Oklahoma decree was entitled to enforcement in the Arkansas court under the PKPA.

The same result follows from the UCCJA. It is true that the UCCJA allows alternate means of jurisdiction other than in the home state when it is in the best interest of the children. There must be a “significant connection” with this state, and there must be “available in this state substantial evidence concerning the child’s present and future care, protection, training and personal relationships.” In Norsworthy, however, where an Arkansas court exercised jurisdiction under the same section utilized here, we stated that this provision, “while broad, must be judiciously applied, and it should not be regarded as giving a court only recently involved an excuse to act' precipitously, in an ex parte proceeding, by disregarding the remainder of the act, so plainly aimed at promoting cooperation between courts. Particularly is that true where, as here, Texas clearly remained the home state.”

The Garretts had lived in Oklahoma the entire time they were married, the children were born there and lived there until Jolene took them to Arkansas two days before she filed for custody, and Charles and his family remained in Oklahoma. The Arkansas court erred in disregarding the fact that Oklahoma remained the “home state” for jurisdictional purposes. Accordingly, the Oklahoma decree must be enforced in the Arkansas courts.

Both parties allege that the decree obtained by the other was not entitled to enforcement because they were not personally served with notice. Arkansas and Oklahoma have the same notice requirements under the UCCJA for out-of-state defendants:

(a) Notice required for the exercise of jurisdiction over a person outside this State shall be given in a manner reasonably calculated to give actual notice, and may be:
(1) by personal delivery outside this State in the manner prescribed for service of process within this State;
(2) in the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction;
(3) by any form of mail addressed to the person to be served and requesting a receipt; . . .
(c) Proof of service outside this State may be made by affidavit of the individual who made the service, or in the manner prescribed by the law of this State, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery to the addressee.

Ark. Stat. Ann. § 34-2705 (Supp. 1985).

An affidavit of personal service was entered into the record, in which the affiant states he personally delivered a copy of the Oklahoma summons and temporary order to William Gray, Jolene’s father, at his usual place of residence in Altus. Jolene stated that she remembered a man throwing a bundle of papers on her porch which said Charles had filed for divorce. The service on her was “reasonably calculated to give actual notice” of the Oklahoma proceeding, and Jolene poses no convincing argument why the service on her father at the home where she was living was not adequate for this purpose.

As we have found that the Arkansas court should not have taken jurisdiction over the parties under the provisions of the PKPA and the UCCJ A, it is not necessary for us to reach the issue of the notice given Charles of that proceeding.

Reversed and dismissed.


author: Darrell Hickman, Justice.

text:
    Tom ANDREWS v. James F. McDOUGAL, Vincent W. SKILLMAN, Jr. and Chadd L. DURRETT, Jr., d/b/a SKILLMAN and DURRETT, a Partnership
    87-50
    731 S.W.2d 779
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987
    [Rehearing denied September 21, 1987.]

      Hanks, Gunn & Borgognoni, by: Mary Ann Gunn, for appellant.

      Rieves & Mayton, by: Ted Mackall, Jr. and Michael R. Mayton, for appellees.
   Darrell Hickman, Justice.

This is a legal malpractice case. The material facts are undisputed. The appellant engaged the appellees’ law firm, specifically James F. McDougal, to represent him in a case against his mother, who shot him on his front lawn on June 12, 1984. He was seriously injured. Andrews and his mother had a stormy relationship, and each had their version of the trouble between them. The appellant decided not to press criminal charges against his mother but to sue her civilly. McDougal told Andrews that since another partper, Vince Skillman, was representing Andrews’ father in a divorce suit against his mother, it would be best to wait until the divorce suit was settled before filing the civil suit against his mother. McDougal waited too long. The statute of limitations for battery, which is one year, had run. Ark. Stat. Ann. § 37-201 (Supp. 1985).

The appellant sued the appellees for malpractice. The appellees filed a motion for summary judgment. The basis of the motion was that the appellant had no case for malpractice because Andrews still had a cause of action against his mother for trespass. Consequently, Andrews was not damaged by the failure to file the law suit within one year. The trial court granted summary judgment.

The appellees’ argument is that firing a shot onto or over the land of another is a trespass to real property and, if the trespass is willful, both compensatory and punitive damages can be recovered. The appellees cite Restatement (Second) of Torts § 159(1); Boyd v. Fulton, 212 Ark. 555, 206 S.W.2d 753 (1947), and several annotations on trespass. Specific attention is called to a Tennessee case, Burson v. Cox, 6 Baxt. 360, 65 Tenn. 360 (1873), where the court permitted an action in trespass although a suit for assault and battery was barred by the statute of limitations.

This argument is ingenious, but it will not work. This suit was not against someone for firing a bullet across land, but a suit against someone for shooting another person, which is battery. Ark. Stat. Ann. § 37-201 specifically states a battery action must be brought within one year after it accrues.

This court and federal courts interpreting Arkansas law have repeatedly looked to the gist of the action in determining which statute of limitations to apply. See generally Tollett v. Mashburn, 291 F.2d 89 (8thCir.1981); Dunlap v. McCarty, 284 Ark. 302, 280 S.W.2d 884 (1955). We look to the gist of this case. Clearly, it was an action for assault and battery, which was barred by the one year statute of limitations. Accordingly, summary judgment should have been denied.

The appellees have filed a motion to dismiss this appeal because, evidently, the appellant has filed a suit for trespass in circuit court. The argument is that that action is evidence that the appellant still has a viable cause of action and, therefore, this appeal should be dismissed. The filing of the complaint has no effect on this appeal. The appellant does not have a viable cause of action; his cause of action existed for one year and it has expired.

Reversed and remanded.


text:
    Carlon BASSETT v. HOBART CORPORATION
    87-73
    732 S.W.2d 133
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      F. H. Martin, for appellant.

      Kincaid, Horne & Trumbo, by: Bass Trumbo, for appellee.
   Darrell Hickman, Justice.

This case was referred to us by the court of appeals because it involves the tort of conversion. The trial judge, sitting as a jury, decided that the appellant, Carlon Bassett, sold some restaurant equipment which he had no right to do. His father, Johnny Bassett, had guaranteed payment for the equipment, which was repossessed by Mcllroy Bank and Trust Company and given to him as guarantor. His father died, and the appellant disposed of the property. The judge found that the appellant did not have title to the goods and did not demonstrate he had any right to sell the property; he was not administrator or executor of his father’s estate; he could not prove he had authority to act for a trust which he claimed authorized him to sell the equipment; and he could not produce a valid assignment of the bank’s interest in the property. The appellee, a foreign corporation, which sold the equipment originally to Sam Harrison, d/b/a End of the Rainbow, a restaurant, took a security interest in the equipment but did not perfect it by properly filing a financing statement. However, the court held that the appellee had met the burden of proof regarding conversion against the son, Carlon Bassett, who could not demonstrate a legal right to the property. A judgment of $5,500 was entered against the appellant, and we affirm.

On appeal two issues are raised. First, it is argued that the trial court wrongfully failed to apply one section of the Wingo Act, Ark. Stat. Ann. § 64-1202 (Repl. 1980), which provides in part that a foreign corporation which fails to register to do business in Arkansas cannot enforce a contract made in this state.

It is undisputed that the appellee was a foreign corporation, had failed to register in Arkansas, and was doing business in Arkansas. But the contract provided that it had to be accepted in Ohio. The trial court held the contract to be an Ohio contract, relying on the case of Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982), where we said:

. . . The trial court was correct in finding that the contract was made in Mississippi, where the final acceptance occurred. . .
. . .‘The rule is stated in Leflar’s American Conflicts Law (1969), § 144 at page 353:
“The authorities are reasonably clear that, in this event, the contract is made at the time and place ‘where the last act necessary to the completion of the contract was done—that is, where the contract first creates a legal obligation.’ ”

The appellant argues that the final act was not acceptance in Ohio but was a payment to be made by the buyer when the merchandise was delivered in Arkansas to him, a condition precedent to formation of the contract, according to the appellant. The trial court made a finding, and we cannot reverse it unless it is clearly wrong. ARCP 52. In this case we cannot say it was clearly wrong in finding this contract to be an Ohio contract, so the Wingo Act cannot bar the appellee’s claim.

The second argument is essentially that provisions of the Uniform Commercial Code dictate that the appellee cannot prevail. Specifically, the appellant cites Ark. Stat. Ann. § 85-9-302 (2) (Supp. 1985) and comment 5 to Ark. Stat. Ann. § 85-3-415 (Add. 1961), which deal with assignment and subrogation. The argument is that the bank which held a valid security interest in the property, and properly repossessed it, assigned its rights to the appellant’s father, who was a guarantor on the note to the bank, or the appellant’s father was, at least, subrogated to the bank’s rights. Therefore, the sale was proper because these rights were superior to the unsecured rights of the appellee.

This argument must fail because the appellant did not prove he had these rights—he was the son, not the father. The trial court made these remarks and these findings:

. . . Mr. Bassett claims he was entitled as a family member to sell, because Johnny Bassett was a Guarantor of the obligation of Rainbow Enterprises, Incorporated, to Mcllroy Bank and Trust, and that the security agreement in favor of Mcllroy Bank and Trust was filed on December 9, 1982, prior to the filing by the Plaintiff [Hobart]. Assuming that all this is true, ... he did not act as a personal representative of the estate of Johnny Bassett; he hadn’t been appointed. Reference is made to the Johnny Bassett Trust, and it is argued that Mr. Carlon Bassett was authorized to act on behalf of the Trust. The testimony of the Trust was that it was created by written instrument, and as the Trust was not produced, evidence was excluded by the Court as to the nature and provisions of the Trust. The written instrument would be the best evidence on the question, and would also be the best evidence on any right of Mr. Bassett to act as a Trust representative. To put it plainly, Mr. Bassett was in the position of a family member acting summarily, but unofficially, be it in good faith. It is also in evidence that the money obtained from the sale of this equipment, part of which the plaintiff had a security interest in, was used to pay the obligation of the late Mr. Bassett in Texas. It is suggested that some of this eventually came back to Mcllroy Bank, but, once again, Mcllroy Bank is not a party to this lawsuit. To urge that Mcllroy Bank had rights under its security agreement that were superior to those of the plaintiff, but Mcllroy Bank is not a party, and it cannot informally transfer its rights to Carlon Bassett . . . Now, the plaintiff did neglect to file its security agreement until Mcllroy had filed its security agreement, but Mcllroy is not a party of interest in this case, and Bassett cannot claim under the matter of the Mcllroy security agreement. It has been argued by learned counsel that, oh, Johnny Bassett was a guarantor, and he stood in the shoes of the Mcllroy Bank. Maybe so. But, Johnny Bassett’s position and mantle cannot descend automatically on Mr. Carlon Bassett unless Carlon Bassett had been duly appointed and qualified as the personal representative of the estate of Johnny Bassett, deceased

On appeal all evidence is viewed in a light most favorable to the appellee. Looper v. Madison Guaranty Savings & Loan Ass’n., 292 Ark. 225, 729 S.W.2d 156 (1987). The appellant must demonstrate prejudicial error was committed to obtain a reversal of a judgment. McNair v. Ozark Gas Transmission System, 292 Ark. 235, 729 S.W.2d 165 (1987). This case was tried to the judge who made findings which we cannot say were clearly wrong. ARCP 52. The appellee made a prima facie case, and the appellant was unable to demonstrate he had any right to the property. The appellant has been unable to demonstrate the trial judge was clearly wrong in his findings. Therefore, the judgment is affirmed.

Affirmed.

Newbern, J., not participating.


text:
    Sylvester WILKINS et al. v. STATE of Arkansas
    CR 87-14
    731 S.W.2d 775
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Addie Burks, for defendant Sylvester Wilkins.

      Brett B. Stein, for defendant Charles Webster Smith.

      Thomas B. Montgomery, for defendant Victor Lind Johnson.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Appellants were convicted of aggravated robbery. Charles Webster Smith and Victor Lind Johnson were each sentenced to 99 years imprisonment and Sylvester Wilkins was sentenced to 25 years. Appellants raise numerous arguments for reversal, all of which are meritless.

On May 10,1986, Barbara and Glen Phelps stopped at a rest area on Interstate 40, west of West Memphis, at approximately 3:30 a.m. When they went to the restroom, they noticed a black man wandering around. Phelps entered the men’s room and went to the last stall. He heard someone say “hey.” He looked over the partition and saw a black man with a gun aimed at him, demanding his money. When Phelps refused, he was shot in the collarbone. Phelps then threw his billfold under the door. Phelps got his wife and they drove to the weigh station to report the incident. Phelps was then taken to the hospital.

Unfortunately for the appellants, an Arkansas State policeman, Lt. Bobby Hambrick, driving an unmarked car, pulled into the same rest area near West Memphis about the time this incident occurred. He saw a dark colored Mercury without license plates parked. After a few minutes, the car left hurriedly without any lights on. Lt. Hambrick followed. The speeding vehicle turned its lights on when it reached the interstate, crossed the median and headed toward West Memphis at a speed of 75 m.p.h. Hambrick pulled the car over and the three appellants were in the car. The driver, Sylvester Wilkins was arrested for speeding, crossing the median and no driver’s license and put in the officer’s car. A trucker stopped to tell Hambrick there had been a shooting at the rest area. The car was locked, and the other two appellants said they would walk to West Memphis. On the way to the sheriff’s office with Wilkins, Hambrick received a radio dispatch and returned to the car.

A deputy sheriff on patrol learned there had been a shooting at the rest area and went to the nearby weigh station and obtained a description of the assailants from the victim and his wife. He returned to the rest area, found no evidence and learned that a blue Mercury had been left on the interstate and two individuals from the car were walking toward West Memphis. He drove to the vehicle, heard an explosion, and then saw two males between his vehicle and the Mercury. The car’s back window had been broken out with a large chunk of concrete. The victim’s brown billfold was found on the back floorboard. The gun used in the shooting was found 15 feet away. Appellants Johnson and Smith were then arrested. In their statements, appellants admitted they were at the rest area.

All three appellants were taken to the hospital where Mr. Phelps identified Smith as his assailant. Mrs. Phelps identified Johnson at trial as the man she and her husband saw standing outside the rest area. None of the appellants testified at the trial. They all had prior felony convictions.

First, appellants argue that the trial judge erred in ruling that Johnson could be cross-examined about his prior convictions. This is not preserved for appeal because the requirements of Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), were not met. Johnson did not assert that he would testify and made no record of what his testimony would be.

Second, appellants argue they were prejudiced because they were limited to eight peremptory challenges instead of eight each. We have rejected this argument several times. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983). As evidence of the necessity for the additional challenges, appellants point to two jurors who would have been challenged if the appellants had not already exhausted their peremptory challenges. The juror, L.G. Stevens, owned a liquor store which had been robbed four times. He was challenged for cause and the trial court denied the motion. The second juror the appellants wanted excused was Deborah Brown. After hearing part of the testimony, Brown remembered that her husband, a part-time emergency medical technician, had worked this particular shooting incident. He told her there had been a shooting at the rest area. The trial court denied her submission for cause.

Both jurors were questioned extensively by appellants’ counsel and by the trial court. The trial court determined that the jurors were not biased. Both jurors assured the judge that their situations would not influence their decision; their decision would be based on the evidence. We cannot say that the trial judge abused his discretion. See Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979).

Third, the trial court refused to allow the balance of Johnson’s statement read to the jury after a policeman read an excerpt. The trial judge excluded the parts of Johnson’s statement which would have incriminated the other appellants. This procedure is correct. Bruton v. U.S., 391 U.S. 123 (1968); Mosby v. State, 246 Ark. 963, 440 S.W.2d 230 (1969); Grooms v. State, 251 Ark. 374, 472 S.W.2d 724 (1971).

Fourth, Johnson argues there was insufficient evidence to support his conviction. He argues that his identification as the man outside the rest room was insufficient as a matter of law. On appeal we review the evidence in a light most favorable to the appellee. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986). Mrs. Phelps identified Johnson at trial. Discrepancies in testimony and the credibility of witnesses are for the jury to resolve. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Taylor v. State, 288 Ark. 456, 706 S.W.2d 384 (1986).

In addition to the identification, Johnson was in the back seat of the vehicle when Wilkins was arrested. The billfold was found on the floor there. He was with Smith when the car window was broken out. The gun used in the robbery was found nearby. There was substantial evidence to support his conviction.

Fifth, the appellants argue that their cases should have been severed. A trial court has discretion in this matter and will only be reversed for an abuse of that discretion. McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). In McDaniel, we set out the factors to be considered in determining whether or not severance should be granted: (1) where defenses are antagonistic; (2) where it is difficult to segregate the evidence; (3) where there is a lack of substantial evidence implicating one defendant except for the accusation of the other defendant; (4) where one defendant could have deprived the other of all peremptory challenges; (5) where if one defendant chooses to testify the other is compelled to do so; (6) where one defendant has no prior criminal record and the other has; and (7) where circumstantial evidence against one defendant appears stronger than against the other.

In this case the defenses were not antagonistic, because there were no defenses. All of the appellants decided not to testify. Most of the evidence applied to all of the appellants, and they all took part in the robbery; one driving the car, one outside looking around, and one inside the rest room. They all left together in the speeding darkened car. When stopped, Wilkins lied about his name. The other two broke into the car. The police found the billfold in the car and the gun used in the robbery nearby. There is no evidence that one appellant deprived the other of peremptory challenges. All three appellants chose not to testify. All had prior felony convictions. Considering all these circumstances, we cannot say the trial judge abused his discretion in allowing the appellants to be tried at one trial.

Sixth, Wilkins argues there was insufficient evidence to convict him. The car he was driving was stopped soon after he sped from the scene of the robbery without headlights on. He lied about his name. He admitted being at the rest area with two other black males. Considering the evidence we have outlined, there is substantial evidence to support the conviction.

Seventh, Smith argues his identification by Mr. Phelps at the hospital should have been suppressed. This question is always one of reliability. James v. State, 270 Ark. 596, 605 S.W.2d 448 (1980). In this case the officers thought Phelps might die, and they had to promptly see if the victim could identify any of these appellants as his assailant. Appellants were shown to Phelps one at a time. The identification was approximately 30 to 45 minutes after the shooting. The trial court correctly admitted the identification.

Smith also argues that he was not advised of his right to an attorney at the showup. A defendant is not entitled to have an attorney present at a showup. Kirby v. Illinois, 406 U.S. 682 (1972); Lewis v. State, 281 Ark. 217, 663 S.W.2d 177 (1984).

Affirmed.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Robert E. CASALI v. Glenn R. SCHULTZ and J.A. McENTIRE, III
    87-29
    732 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987
    [Rehearing denied September 14, 1987.]

      Davidson Law Firm, Ltd., by Charles Darwin Davidson and Geoffrey B. Treece, for appellant.

      Ralph Cloar, Jr. and Hilburn, Bethune, Calhoon, Harper & Pruniski, Ltd., for appellees.

       Hickman, J., would grant rehearing.

   Robert H. Dudley, Justice.

The sole issue in this case is whether the sale of a unit in a partnership constituted the sale of a security within the meaning of the Arkansas Securities Act. We hold that the transaction constituted the sale of a security.

One of the appellees, Glenn R. Schultz, wanted to purchase an investment banking firm. His extensive financial background included a bachelor’s degree from Harvard University with majors in economics and banking, a law degree from Chicago Kent College of Law, experience with R. Roland, a New York Stock Exchange firm, and positions as head of the bond operation for Continental National Bank of Chicago for 10 years, and Senior Vice-President in charge of the bond department of Stephens, Inc. of Little Rock for 10 years. In 1981, he approached the other appellee, J.A. McEntire, III, a Little Rock banker, about raising the money to purchase an investment banking firm. McEntire apparently thought Schultz’s idea was a sound one as he said he knew some medical doctors who were potential investors. A number of doctors, including appellant Robert Casali, were contacted. Ultimately, eight doctors, an art dealer, and appellees contributed $1,175,000.00 into a partnership which was to purchase an investment banking house. They entered into an agreement captioned, “KGS Partners Partnership Agreement.” The stated purpose of the agreement was to own the controlling interest in investment banking houses and to own other real and personal property. The partnership purchased all of the stock of a New York investment banking firm, Park, Ryan & Co. and also a minority of the outstanding stock in a real estate investment company, Greenbelt Properties. The partnership had a later offering of units and appellant Casali invested more money. All together, this second solicitation raised an additional $875,000.00.

Ultimately, Park, Ryan & Co. went into bankruptcy and the partnership was liquidated. Appellant Casali filed this action alleging that the sale of the partnership units amounted to the sale of securities and that appellees Schultz and McEntire had neither registered nor asked for exemption of the securities, and therefore, the transaction must be rescinded. See Ark. Stat. Ann. § 67-1256(a) (Repl. 1980), and Graham v. Kane, 264 Ark. 949, 576 S.W.2d 711 (1979). The trial court did not make a finding of fact, but ruled that, as a matter of law, the transaction was not a security. We reverse.

The only business of the partnership was a passive investment in the corporate stocks of Park, Ryan & Co. and Greenbelt Properties. As a practical matter, the partners had no business to run since all they could do was vote the common stock of Park, Ryan & Co., and they could not even vote to sell that stock without appellees’ consent since the partnership agreement provided that it took unanimous agreement of all partners to sell any of the assets of the partnership.

Appellant and the other investors did not have any control over the operations of Park, Ryan & Co. Appellee Schultz’s testimony on that issue is fairly abstracted as follows:

The investors did not have the right to hire employees of Park Ryan. The investors did not have the right to fire the employees of Park Ryan. The investors did not have the right to trade securities for Park Ryan. The investors did not have the authority to buy securities for Park Ryan. The investors did not have the authority to sell securities for Park Ryan. The investors did not have the authority to set salaries for Park Ryan. The investors did not have the authority to mortgage property of Park Ryan. The investors did not have the authority to open bank accounts. The investors did not have the authority to sign checks. The investors did not have the right to incur any debts. The investors did not have any rights to sell any assets. The investors did not have the individual right to say how the stock of Park Ryan would be voted. The only thing that they had a right to do was to vote the partnership interest.

Appellee Schultz alone among the investors had the knowledge, experience, and expertise necessary to operate an investment banking house. In fact, appellant Casali did not have any training in business or management and had never traded in securities. His only other investment was in an 80 acre farm.

The term “security” as defined in Ark. Stat. Ann. § 67-1247(1) (Repl. 1980) includes “investment contracts” and “certificate of interest or participation in any profit-sharing agreement.” In Schultz v. Rector-Phillips-Morse, 261 Ark. 769, 552 S.W.2d 4 (1977), we decided to adopt a flexible concept for the term “security” since the act is remedial and should be liberally construed to afford protection to the public. Further, the legislative intent was that, regardless of the label on a document, the underlying economic substance of a security is an arrangement where the investor is a mere passive contributor of risk capital to a venture in which he has no direct or managerial control. See Bell, Real Estate and Unconventional Securities Concepts Under The Arkansas Securities Act, 3 UALR L.J. 75 (1980).

The mere fact that an investment takes the form of a general partnership does not insulate it from the reach of the Arkansas Securities Act. In construing the Federal Securities Act of 1933, which is similar to the Arkansas Act, the Fifth Circuit Court of Appeals has written:

A general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers.

Williamson v. Tucker, 645 F.2d 404, 424 (1981).

Here, the first of the above criteria was clearly established by the investor, appellant Casali. Appellant established that appellee Schultz, by his veto power, could assure that the general partnership would always keep its investment in the investment banking house, and, at the same time, he had absolute control over the investment banking operation. Thus, appellant, in economic reality, was merely a passive contributor of risk capital to appellees’ enterprise. Appellant had no control over the risks taken with his investment. “This subjection of the investor’s money to risks of an enterprise over which he exercises no managerial control is the basic economic reality of a security transaction. . .” State of Hawaii v. Hawaii Market Center, Inc., 52 Hawaii 642, 485 P.2d 105 (1971). The transaction in the case at bar constituted a security transaction.

Reversed.

Hickman, Hays, and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. This case was tried to the trial court without a jury. To reverse, this court must determine that the trial court erred as a matter of law or its findings were clearly against the preponderance of the evidence. See ARCP Rule 52; see also Taylor v. Richardson, 266 Ark. 447, 585 S.W.2d 934 (1979). In my opinion, this court’s holding violates Rule 52.

The single and controlling issue to be decided is whether the interest the appellant (and his other general partners) purchased in KGS Partners constituted a “security transaction.” If so, appellant is entitled to pursue his action to rescind the so-called security unit he purchased in KGS since KGS neither registered nor exempted any such security transactions under the Arkansas Securities Act. Of course, if the appellant’s interest in KGS Partners was not a “security” (as the trial judge so found), the appellant’s action against the appellees must fail.

In our earlier case of Schultz & Watkins v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977), we fully discussed the term “security” and what constitutes one under the provisions of the Arkansas Securities Act. We held that, to determine whether a sale or transaction constitutes a security, we must look to more than how the transaction is labeled. On this point, I agree with the majority opinion where it holds that the underlying substance of a security—as defined in Schultz—is an arrangement where the investor is a mere passive contributor of risk capital to a venture in which he has no direct or managerial control. In Schultz, we held that certain interests purchased in a joint venture constituted securities, because the investors there were strictly passive investors who were buying an interest in a tax shelter. We hastened to add that by no means are all general partnerships or joint venture units securities within the meaning of the Arkansas Securities Act.

The Schultz holding is clearly controlling here, and the only issue is whether the record supports the trial court’s decision that the appellant’s interests purchased in KGS are not securities. As the majority opinion indicates, the underlying and pertinent factual issue is whether the appellant was a passive contributor or investor of risk capital to the KGS partnership. The following summarized testimony supports the trial court’s holding that the appellant and his other general partners were active, not passive, investors in KGS.

Westbrook Testimony

Dr. Kent Westbrook contacted the appellant and other doctors about forming an investment group to be involved in the bond, real estate development and leasing business. Westbrook’s role was one of the three managing partners and was to keep the other partners informed. Westbrook said that when the doctors-investors were initially contacted, they specifically stated they did not want a limited partnership but instead wanted a general partnership in which everyone had a participation in the management. Eventually, an advisory committee was formed comprised of five of these general partners, plus Westbrook and both appellees. That committee met on a monthly basis—other general partners were invited and appellee Schultz sent minutes and a newsletter concerning the meetings to the partners. The general partners met and agreed to buy stock in Park, Ryan, Inc., a New York investment banking firm. Most of the board meetings of Park, Ryan, Inc. were held in conjunction with partnership meetings and all partners were notified of the partnership meetings.

Johnson Testimony

Sam Johnson was a general partner in KGS and attended the first organizational meeting. At that meeting, the attendees-investors, by consensus, agreed to form a partnership so that they would be “involved in the management of the partnership and have a say-so, because a lot of the people voiced that they had been in limited partnerships where they felt they had no control.” Johnson said that partnership meetings were held and appellant attended those meetings. KGS’s progress and policies were discussed and decisions were made and voted on by the partnership members. All of the partners participated in the decision to purchase Park, Ryan, Inc. and to invest in Greenbelt Properties.

Price Testimony

Charles Price said that his law firm was employed to assist in the acquisition of the stock in the broker-dealer firm, Park, Ryan, Inc. He attended the first organizational meeting when the investors said they did not want a limited partnership because “they wanted to have a voice in how the operation ran.” Price expressed his opinion that the partnership interest in KGS would not be a security. He related that the KGS partnership agreement “specifically says that each of the partners will have a voice in the partnership.” He said the partners had control over Park, Ryan, Inc. through their voting control of KGS.

Downing Testimony

Richard Downing, appellant’s witness and attorney specializing in securities law, offered an opinion that the KGS partnership interest was a security, but conceded that the general partners could have removed the appellees “without either [appellee] voting on it.” On cross-examination, Downing conceded that, if it could be established that the partners in KGS attended partnership meetings held in conjunction with director meetings of Park, Ryan, Inc. and those partners participated in the meetings, those facts—with some additional factors—would change his mind when determining whether a passive investor had become an active one.

McEntire and Schultz Testimonies

J.A. McEntire, III said that the partners participated in the partnership and that Dr. Westbrook came to the offices at least once a week and reported back to all the investors-partners. He stated the partners, through monthly partnership meetings and board of directors meetings, were kept advised. McEntire testified he received an oral legal opinion that the partnership interest in KGS was not a security, and understood no need existed for filing anything with the securities department.

Glenn Schultz related that he and McEntire were involved in the day-to-day management of Park, Ryan, Inc., but were getting overall direction from the partners. The doctors, he said, were to give direction as to the management of the firm. He said he had been legally advised that the KGS partnership interests were not securities.

The trial court, relying upon evidence such as that set out above, could have readily and reasonably inferred that the appellant and his other general partners retained control of KGS and, in fact, participated in and directed the affairs of that partnership. Dr. Westbrook undisputably was a managing partner, and he served as the other general partners’ link to the weekly business affairs of KGS. In addition, the appellant, and other investors-partners like him, actively participated in the decision making of the business at the monthly partnership and board of directors meetings.

Admittedly, the majority has recited testimony which, if believed, could support the decision it reached. That, however, is not our function on review. We should all be able to agree, I think, that it was within the trial court’s province to weigh the evidence and to observe and to determine the credibility of the witnesses in this matter. Once done, this court reverses only if the trial court was clearly erroneous in discharging its duty under Rule 52. Given the strong evidence that supports the trial court’s decision here, I cannot say it was clearly wrong. This case should be affirmed.

Hickman and Hays, JJ., join in this dissent.

      NOTE: Price referred to the KGS Partners Partnership Agreement, which reflects the partners’ initial interests in the partnership were:
      Schultz.................................. 12.8%
      Westbrook................................. 8.5%
      McEntire.................................. 4.3%
      Other partners............................ 74.4%


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    Mildred F. HARDESTER v. Robert W. EUBANKS, III, Insurance Commissioner for the State of Arkansas
    87-42
    731 S.W.2d 780
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      Cliff Jackson, P.A., for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Robert H. Dudley, Justice.

Appellant Mildred Hardester owned and operated the White River Catfish Inn which was destroyed by fire in October 1983. The Union Indemnity Insuranee Company of New York had issued its policy insuring the structure for $190,000.00, insuring the contents for $80,000.00, and insuring against lost profits for $42,000.00. The total coverage under the policy was $312,000.00. In the summer of 1984 the insurance company paid Madison Guaranty Savings and Loan Association, the mortgagee and the loss payee under the policy, the sum of $99,523.00 in partial satisfaction of its claim. No payment was made to appellant Hardester. On April 22,1985, the insurance company’s certificate of authority to issue insurance in Arkansas was suspended by the Arkansas Insurance Commissioner. Upon petition, the Circuit Court of Pulaski County appointed appellee Robert W. Eubanks, III, the insurance commissioner, as ancillary receiver for the insurance company, and directed him to take charge of all property of the company in Arkansas. As ancillary receiver Eubanks notified all potential claimants for the receivership and, in response, appellant Hardester filed a timely claim for money remaining due under the policy. In June 1986, Eubanks, as ancillary receiver, filed this action by interpleading the sum of $200,477.00 into the registry of the court, allegedly in full payment of the $300,000.00 limit the receiver would be liable for under the provisions of the Arkansas Property and Casualty Insurance Guaranty Act, Ark. Stat. Ann. §§ 66-5501 to -5519 (Repl. 1980). The receiver contended that by virtue of the previous payment of $99,523.00 by the insurance company and the $200,477.00 interpleaded, the full $300,000.00 due under the Guaranty Act had been tendered. The trial court held that the $200,477.00 interpleaded was sufficient to discharge the receiver’s obligation under the Guaranty Act, and in so holding, denied appellant Hardester’s claims for $4,659.00 in unearned premiums, $12,000.00 in unpaid benefits under the policy, and $25,049.86 which appellant Hardester paid to Madison Guaranty in satisfaction of appellant’s remaining debt to Madison. We affirm, but modify, that ruling.

Ark. Stat. Ann. § 66-5505 (Repl. 1980) limits the liability of the Arkansas Property and Casualty Insurance Guaranty Fund to $300,000.00. The trial court held that the amount due from the Fund was reduced by the $99,523.00 paid by the company months before its certificate of authority was revoked. The appellant contends that the trial court erred in reducing the amount the Fund owes by the amount the company previously paid. The argument is meritorious. The applicable statute, § 66-5505(2) provides that a covered claim “is an unpaid claim of an insured. . . .’’Thus the fund is entitled to credit only for payment of unpaid claims. The unpaid claim is the amount remaining due. Nothing in the act even hints that claims against the fund should be reduced by an amount paid by the insurer before it became insolvent.

In their briefs, both parties make policy arguments favoring their proposed construction, or interpretation, of the act. There is no need to discuss the policy arguments because where the wording of a statute is plain, unambiguous, and self-evident, there is no room left for construction or interpretation. Casey v. Scott Paper Co., 212 Ark. 312, 613 S.W.2d 821 (1981). We accordingly modify the holding of the trial court so that the Fund is not entitled to an off-set for amounts previously paid by the company.

However, that modification does not mean that appellant is automatically entitled to all that she claims because a covered claim must be within the limits of the policy. Ark. Stat. Ann. § 66-5505(2) (Repl. 1980). In this case the policy limit was $312,000.00. The company paid $99,523.00, which left $212,477.00 owing under the limit. The Fund tendered $200,477.00 which was $12,000.00 short of the limit. Therefore, $12,000.00 more is owing to appellant under the policy limit.

In addition, the appellant is entitled to a refund of $4,659.00 for unearned premiums. Again, the reason is that the applicable statute is clear. It provides: “ ‘Covered claim’ shall also include one hundred percent (100%) of unearned premiums.” Ark. Stat. Ann. § 66-5505(2) (Repl. 1980). Unearned premiums are in the nature of a refund of premium and do not come within the concept of payment under the policy. Thus, they do not count against the policy limit and must be repaid to appellant.

The appellant claims an additional $25,000.00 is due to her but such a claim is without merit because that amount would be beyond the policy limits.

The decree of the trial court is affirmed as modified, and the trial court is directed to enter an order consistent with this opinion.

Hickman, J., not participating.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I believe the majority has focused too narrowly on the term “covered claim,” ignoring the intent behind the “Property and Casualty Insurance Guaranty Act.” Ark. Stat. Ann. § 66-5501 et seq. (Repl. 1980). The purpose is to provide protection from insolvent insurance carriers by creating a fund contributed by other carriers and, indirectly, by the public. The act places a ceiling of $300,000 on “covered claims” so as to provide a wider distribution of recovery among existing claimants. The act expressly provides that individual covered claims “shall” be limited to $300,000 and “Shall not include any amount in excess of $300,000” (My emphasis). Considering the overall intent and spirit of the act I do not believe it was intended to exclude amounts advanced to the insured on a particular loss which is still being processed at the time insolvency occurs. The fact that one claim has been partially processed at the time of insolvency and an interim payment made, should not give that claimant a preference over another claimant of equal standing. Under that approach, claimants whose losses may have occurred simultaneously, or even previously, to Ms. Hardester but who are still unpaid at insolvency are limited to $300,000, whereas Ms. Hardester is not. That was not the purpose of the act. I believe the trial court should be affirmed.


author: Robert H. Dudley, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Mark SMITH, Guardian of Christine SMITH, an Incompetent
    87-82
    732 S.W.2d 137
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

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

      Sam T. Heuer, for appellee.
   Robert H. Dudley, Justice.

Appellant, State Farm Mutual Automobile Insurance Company, sold three separate insurance policies on three different automobiles to Mark and Christine Smith. Each of the policies provided identical coverage against one year’s loss of income as required by the no-fault statute, Ark. Stat. Ann. § 66-4014(b) (Repl. 1980). Appellant charged a premium on each policy for this coverage. The appellee, Christine Smith, was totally disabled in a car wreck. Each policy contained a limit on the benefits for loss of income. Appellant paid the limit of one policy but refused to pay any more. Appellee filed suit claiming that she was entitled to benefits under all three policies even though such a recovery would exceed her actual loss of income. Appellant admitted that stacking of the three policies was permissible but argued that the stacking of benefits is improper when it causes the insured to recover an amount in excess of the actual loss of income. The trial court held that the insured could collect benefits for her lost wages under each policy. We affirm.

The insured paid the three premiums to the insurance company for three separate policies. In fairness, the insurance company should pay benefits under each policy unless the insurance policies provide otherwise, or the pertinent statute provides otherwise, or the payment of benefits in excess of the actual loss would be contra to public policy.

The language in each of the policies provides that the appellant insurance company will pay 70% of the insured’s weekly wage, up to a maximum of $ 140.00 per week, for a period of up to 52 weeks. There is no language indicating that only one policy is effective, or that benefits shall not be payable in excess of the actual loss. The policies simply do not prevent the stacking of benefits.

Many states have statutes which provide that the benefits under personal injury protection coverages shall not exceed the actual losses. Courts have uniformly enforced such statutory provisions. For example, the Texas Court of Civil Appeals cited V.A.T.S. Insurance Code, art. 5.06-3, in holding that benefits cannot in the aggregate exceed the actual loss. Creighton v. Fidelity & Casualty Co. of New York, 581 S.W.2d 815 (Tex. Civ. App. 1979). The Michigan Court of Appeals cited M.C.L. § 50.3115(3) in reaching the same result. Beaver v. Auto-Owners Ins. Co., 93 Mich. App. 399, 286 N.W.2d 884 (1979). The Kentucky Court of Appeals cited similar provisions, K.R.S. § 304.39-060, 304.39-070, Hargett v. Dodson, 597 S.W.2d 151 (Ky. App. 1979), and the Supreme Court of Nevada cited N.R.S. § 698.010 et seq., § 698.040, § 698.070, § 698.280(l)(h), (which have since been repealed), in reaching the same result. Bryan v. Allen, 96 Nev. 572, 613 P.2d 412 (1980). However, the Arkansas personal injury protection statute, Ark. Stat. Ann. § 66-4014 (Repl. 1980), does not contain such a limiting provision. Thus, payment in excess of the actual loss does not violate our insurance code, and the stacking of benefits is not prohibited for that reason.

The appellant does not contend that payment of benefits in excess of actual losses is contra to public policy. Accordingly, we hold that since neither the policies nor the applicable statute prohibit payment in excess of actual losses, and no public policy argument is made, the insurer is liable on multiple policies for which multiple premiums are collected.

The appellant next argues that the trial court erred in granting summary judgment for appellee because there was a factual dispute about the amount of her loss of earnings. The argument is without merit. The appellee attached affidavits to her motion for summary judgment showing her salary as a part-time school teacher for the six months immediately prior to the accident in order to show her then current salary. Of course, the purpose was to establish her future loss of income. Appellant did not offer a counter-affidavit to dispute her salary level. Even viewing all inferences and doubts in appellant’s favor, as we must do in reviewing the summary judgment, we see no dispute of a material fact about the amount of appellee’s loss of earnings.

Affirmed.

Glaze, J., not participating.


text:
    Benjamin WILLIAMS v. STATE of Arkansas
    CR 86-126
    732 S.W.2d 135
    Supreme Court of Arkansas
    Opinion delivered July 6, 1987

      John Wesley Hall, Jr., for appellant.

      Steve Clark, Att’y Gen., by; Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Benjamin Williams, was convicted of two counts of delivery of a controlled substance. He appealed his conviction, and it was affirmed by this court. Williams v. State, 290 Ark. 449, 720 S.W.2d 305 (1986). He subsequently filed a Motion to Correct Illegal Sentence pursuant to Ark. Stat. Ann. § 43-2314 (Supp. 1985). The trial court denied the motion. We affirm.

Appellant was charged with two counts of delivery of a controlled substance in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1985). In addition, he was charged asan habitual offender pursuant to Ark. Stat. Ann. § 41-1001 (Supp. 1985). The verdict forms given to the jury directed the jury members to set his sentence at “not less than 20 years nor more than 60 years, or life.” The jury set the sentence at 60 years on each count.

Appellant argues that the jury was given the wrong range of punishment. He contends that the offenses should have been treated as an unclassified felony under Ark. Stat. Ann. § 41-1001(1 )(g), with the range set at 10 to 50 years, or life, rather than a class Y felony under § 41 -1001 (1) (a), with the range set at 20 to 60 years, or life.

Appellant’s entire argument is based upon a sentence which occurs at the end of each subparagraph in Ark. Stat. Ann. § 82-2617(a)(l)(i) (Supp. 1985). The paragraph that is pertinent to this case provides:

(1) Any person who violates this subsection with respect to:
(i) A controlled substance classified in schedule I or II, which is a narcotic drug, and by aggregate weight, including adulterants or diluents, is less than twenty-eight (28) grams, is guilty of a felony and shall be imprisoned for not less than ten (10) years nor more than forty (40) years, or life and shall be fined an amount not exceeding twenty-five thousand dollars ($25,000). For all purposes other than disposition, this offense is a class Y felony.

(Emphasis added.)

Appellant argues that the italicized sentence requires that the range for his punishment as an habitual offender be set in accordance with Ark. Stat. Ann. § 41-1001 (1 )(g), unclassified felonies, rather than under § 41-1001(1 )(a), class Y felonies. We find no merit in his argument.

Ark. Stat. Ann. § 82-2617(a)( 1 )(i) was amended substantially in 1985 by Act No. 669. The offense was changed from a pure class Y felony to one in which the offense was gradated according to the weight of the drug delivered. The punishment under the amended statute is much harsher than that previously authorized for class Y felonies. The amended statute gives trial courts the authority to impose a fine of up to $250,000.00, and it also raises the minimum number of years for imprisonment according to the weight of the drug involved. Obviously, the General Assembly did not want trial courts to be limited to the dispositions authorized by Ark. Stat. Ann. §41-901 for class Y felonies. Rather, the legislative intent was to take the profit out of selling drugs and to impose longer sentences. It is simply inconceivable that the General Assembly would go to such lengths to devise a harsher scheme of punishment for drug offenders under Ark. Stat. Ann. § 82-2617 and then turn around and intend for these same offenders to receive more favorable treatment under Ark. Stat. Ann. § 41-1001, the sentence enhancement statute. Even penal statutes should not be interpreted so strictly as to reach absurd consequences which are clearly contrary to the legislative intent. Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188(1986); Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985); Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985).

Affirmed.