author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice, Robert L. Brown, Justice,

text:
    John Antonio COLE aka Tony Cole v. STATE of Arkansas
    CR 90-305
    818 S.W.2d 573
    Supreme Court of Arkansas
    Opinion delivered October 28, 1991

      Keith N. Wood, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On August 28, 1990, the appellant, John Antonio Cole aka Tony Cole, was convicted of rape and carnal abuse in the second degree and sentenced as an habitual offender to forty years and ten years, respectively, in the Arkansas Department of Correction with the sentences to be served consecutively.

Cole alleges six points of error on appeal: 1) that the trial court erred in denying his motion for a directed veredict on the charge of rape, 2) that the evidence on the element of forcible compulsion was insufficient to support a conviction of rape, 3) that the trial court erred in denying his motion to suppress the introduction of evidence of HSV2 testing as the resulting prejudice outweighed its probative value in violation of A.R.E. 403, 4) that the trial court erred in admitting hearsay testimony that was not admissible as an excited utterance exception under A.R.E. 803(2), 5) that the trial court improperly applied the state of mind exception to the hearsay rule under A.R.E. 803(3), and 6) that the trial court improperly permitted the introduction of hearsay testimony because it was not offered to rebut an implied charge of recent fabrication.

SUFFICIENCY OF THE EVIDENCE

Cole asserts in his first and second points of error that the trial court erred in denying his motion for a directed verdict on the charge of rape and that the evidence on the element of forcible compulsion was insufficient to support a conviction of rape. However, he did not make a motion for a directed verdict at the close of the case.

Arkansas R. Crim. P. 36.21(b) provides:

Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evience will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

The sufficiency of the evidence issues raised in points 1 and 2 were thus waived by Cole’s failure to move for a directed verdict at the close of the case, and we decline to consider these issues on appeal. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991) (citing Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990) and Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1981)).

SUPPRESSION OF EVIDENCE OF HSV2 TESTING

As a third point, Cole argues that the trial court erred in denying his motion to suppress the introduction of evidence of HSV2 testing as the resulting prejudice outweighed its probative value in violation of A.R.E. 403. Rule 403 states that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

The balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and his decision on such a matter will not be reversed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

Although the established rule is that corroboration is not required in a rape case, Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984), we held in Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980), that the trial court properly allowed articles of the defendant’s clothing to be introduced into evidence together with testimony that there were human bloodstains on the clothing where this evidence tended to corroborate the testimony of the rape victim, the police officers, and the medical examiner.

In this case, Cole emphasizes the inconclusive nature of the HSV2 (genital herpes) test results. However, Dr. Michael Young testified that Cole’s HSV2 antibody IGG tested positive and that “[b]ased on the lab reports that I saw, and having not examined him [when he had herpes lesions], I can say that probably, he had HSV2 some time in the past.”

Dr. Young further testified that the victim had been a patient of his for two and one half years. In October 1989, he had examined the victim during her annual physical checkup, and she had not exhibited any symptoms of the disease. The incident occurred later that month, on October 22, and Dr. Young examined the victim again as a result of the victim’s allegation.. Based on his examinaiton of the victim, her medical history, and positive HSV2 test results at that time, he determined that the victim had contracted genital herpes around the end of October 1989. As in Brewer v. State, supra, this evidence tended to corroborate the testimony of the rape victim, whose credibility had been placed into question by Cole, and the trial court’s admission of this evidence was not a manifest abuse of discretion.

EXCITED UTTERANCE EXCEPTION TO HEARSAY RULE

In his fourth point of error, Cole contends that the trial court erred in admitting hearsay testimony that was not admissible as an excited utterance exception under Rule 803(2). That rule provides that “[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness:... (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

We have recently held, in Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), that where a three-year-old declarant witnessed the brutal murder of his aunt, was returned home by the murderer about three hours later before his mother got home, slept fitfully and cried and screamed during the night, and made the statement when he first fully awoke the next morning, and where the declarant was crying and frightened when he told his mother what had happened, the trial court did not err in ruling that the child’s statement to his mother, and later to police, was admissible as an excited utterance under Rule 803(2). In that case, we listed numerous citations from other jurisdictions that expanded the time interval between an exciting event and an out-of-court statement when the declarant is a child and recognized the considerations summarized in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980):

The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of 803(2). Nor is it controlling that the [declarant’s] statement was made in response to an inquiry. Rather, these are factors which the trial court must weigh in determining whether the offered testimony is within the 803(2) exception. Other factors to consider include the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. In order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive, rather than the product of reflection and deliberation. [Citations omitted.]

Here, the mentally retarded twenty-three-year-old victim was described by Dr. Young as having the mental capacity of a six or seven year old child. The victim’s teacher credited her with academic skills of an eight to eleven year old child. Thus, we have no problem in applying the rationale of our holding in Smith v. State, supra, to the facts of this case.

The victim lived in a home for adults with mental disabilities, and the incident occurred on a Sunday afternoon in the victim’s room at. the home. The following morning in class, the victim began talking very loudly to herself about the incident. Her teacher “whisked” her out of the classroom and took her to the program coordinator, who noted that she was frightened and upset. The administrator for the home was also informed of the incident. The victim told the three women at that time that Cole had told her not to tell that he had come into her room and wanted to play tricks. All three of the women testified that the victim was upset and excited when she told them of the incident.

At that time, the three women were not aware that the victim had been physically abused by Cole. It was not until Thursday night that the victim burst into the program coordinator’s office and excitedly told her the rest of the story that Cole had placed his penis inside her buttocks and “taken her temperature.” However, the emotional condition of the victim is unknown during the interval from her initial reporting of the incident on Monday until the following Thursday, four days after the incident.

The program coordinator testified as follows:

Q What did [the victim] tell you that Wednesday night?
A Thursday night. This was my night at the home. She told me basically, the same story she had on Monday, but she began to tell what I believe is the rest of the story. She indicated that there had been some genital contact. That she was told not to tell. That it hurt. I asked her if she asked him to stop and she said, T did, but he just kept on.’

Given the mental faculties of the victim and her excited and upset condition on the morning following the incident when she first spoke of the incident, we find that the three women’s testimony about what the victim told them on Monday morning comes within the excited utterance exception to the hearsay rule encompassed in Rule 803(2).

We do not, however, stretch the exception to cover the victim’s statements made on Thursday. In Smith v. State, supra, we noted that “the interval between a statement and an event is governed by the particular circumstances of each case. ‘The general rule is that an utterance following an exciting event must be made soon enough thereafter that it can reasonably be considered a product of the stress of the excitement, rather than of intervening reflection or deliberation.’ ” D. Binder, Hearsay Handbook § 2.03 (1983). Continuing emotional or physical shock and loss of consciousness, unabated fright, isolation and other factors may also prolong the time, “making it proper to resort to Rule 803.(2), despite long lapses of time”. Smith v. State, supra (quoting 4 D. Louisell, Federal Evidence § 439 (1980).

A rationale for relaxing the general rule was stated in People in Interest of O.E.P., 654 P.2d 312 (Colo. 1982) as follows: “The element of trustworthiness underscoring the excited utterance exception, particularly in the case of yound children, finds its source primarily in the ‘lack of capacity to fabricate rather than the lack of time to fabricate.’ ” Citing to Fed. R. Evid. 803(2) Advisory Committee Note.

While we cast no aspersions on the veracity or credibility of the victim’s statements made four days after the incident, we are unable to except them from the hearsay rule under the excited utterance exception. The record is devoid of any evidence as to the victim’s emotional state during the lapse of time between the victim’s excited utterances on Monday and her further declarations made on the following Thursday. There has been no showing that the victim was under continuing emotional shock, suffered from unabated fright, or remained in a state of excitement and agitation during this interval. Furthermore, there has been no showing that a person of the victim’s diminished mental capacities lacked the capacity to fabricate. The only facts we have before us are that the victim made two complaints and there was an unexplained three day interval between them.

For these reasons, we cannot assume or say that the declarant’s utterances on Thursday following the Sunday incident can reasonably be considered a product of the stress of the excitement, rather than of intervening reflection and deliberation.

STATE OF MIND EXCEPTION TO THE HEARSAY RULE

Furthermore, these latter statements are not admissible as a state of mind exception under Rule 803(3), Cole’s fifth point of error. Rule 803(3) provides as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * * *
(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

The three women’s testimony of what the victim said four days after the incident about what Cole did to her in her room is inadmissible as being statements of the victim’s memory about the past, not statements of her then-existing state of mind. See State v. Abernathy, 265 Ark. 218, 577 S.W.2d 591 (1979).

REBUTTAL TO AN IMPLIED CHARGE OF RECENT FABRICATION

Finally, Cole contends that these latter statements are inadmissible as rebuttal to an implied charge of recent fabrication under A.R.E. 801(d)(l)(ii), which provides as follows:

(d) Statememnts Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive ....

This exception is inapplicable simply because any motive that the victim might have had existed prior to her making her initial statements on the day following the incident. In Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977), we stated that the principle applies when there is an express or implied charge that a witness has fabricated a statement that he is now making under oath. It is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence.

Here, the principle simply has no application because the victim had the same motive for fabrication when she made the allegation as she had when she testified in the case. See also Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984).

CONCLUSION

Consequently, the three women’s testimony that the victim told them on the Monday morning following the incident that Cole had come into her room and wanted her to play tricks, but had told her not to tell anyone, is admissible and corroborates the victim’s testimony at trial that Cole anally penetrated her with his penis.

Arkansas Code Ann. § 5-14-105 (1987) addresses carnal abuse in the second degree and provides that “(a) A person commits carnal abuse in the second degree if he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is incapable of consent because he is mentally defective or mentally incapacitated.” Thus, we affirm Cole’s conviction of carnal abuse in the second degree.

However, that portion of the program coordinator’s testimony that the victim told her on Thursday that she had told Cole to stop, but he had “just kept on,” is inadmissible as it was the result of statements she made some four days after the incident in question.

Arkansas Code Ann. § 5-14-103 (1987) addresses the crime of rape and provides that “(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person: (1) By forcible compulsion . . . .” Since the program coordinator’s testimony about what the victim told her on Thursday night is the only evidence in the record that purports to show that Cole used forcible compulsion in his actions, its inadmissibility forces us to reverse Cole’s conviction of rape and remand to the trial court. See Burks v. United States, 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978); and United States v. Harmon, 632 F.2d 812 (9th Cir. 1980).

Affirmed in part; reversed and remanded in part.

Hays and Brown, JJ., concur in part and dissent in part.

Steele Hays, Justice,

concurring in part, dissenting in part. I share Judge Brown’s views, with which I join. I would add that I am unable to agree with the majority in reversing the judgment of conviction for rape. I believe it is a mistake to require evidence that the victim remained in an agitated, excited state between the offending conduct and the excited utterance. That was not the rationale in Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990). Nor does the majority opinion cite supporting authority for its position.

There was testimony that on Thursday the victim “burst” into the office of Ms. Roth and began telling the “rest of the story.” Ms. Roth described the victim as “upset, speaking loudly, as she has a tendency to do when she is upset.” Given the circumstances as a whole: the victim’s confinement to an institutional setting without parental accessibility, the relationship between the victim and the appellant, and the obvious improbability that a seriously retarded victim would manufacture an. accusation from the whole cloth, I disagree that it was error to permit the introduction of this evidence.

The majority’s disparate treatment of the two utterances produces an anomaly — the victim’s statements on Monday to the effect that certain sexual offenses were inflicted on her by the appellant are held to be reliable, yet her staements three days later, also emanating from an agitated state of mind, of additional sexual offenses by the same individual are held to be unreliable only because of an interval of time. In State v. Padilla, 110 Wis.2d 414, 329 N.W.2d 263 (Ct. of App. 1982), a ten-year-old girl’s statements to her mother three days after the incident were admitted as an excited utterance. The rationale of that decision is relevant to this case:

A broad and liberal interpretation is given to what constiutes an excited utterance when applied to young children. Love v. State, 64 Wis.2d 432, 219 N.W.2d 294 (1974); Betrang v. State, 50 Wis.2d 702, 184 N.W.2d 867 (1971); Bridges v. State, 247 Wis. 350, 19 N.W.2d 529, reh’g denied, 247 Wis. 350, 19 N.W.2d 862 (1945). In this special circumstance, the court has held that stress is present even some time after the triggering event. This ascertainment of prolonged stress is born of three observations. First, a child is apt to repress the incident. Bertrang, 50 Wis.2d at 707-08, 184 N.W.2d at 870. Second, it is often unlikely that a child will report this kind of highly stressful incident to anyone but the mother. Cf. Bridges v. State, 247 Wis. 350, 19 N.W.2d 529 (1945). Third, the characteristics of young children work to produce declarations “free of conscious fabrication” for a longer period after the incident than with adults. It is unlikely a young child will review the incident and calculate the effect of the statement. See United States v. Nick, 604 F.2d 1199, 1204 (1979).

I would affirm the judgment of conviction.

Robert L. Brown, Justice,

concurring in part, dissenting in part. I concur with the affirmance of the carnal abuse conviction but would also affirm the rape conviction.

The crimes in question occurred in the Group Home, a residential center for persons with developmental disabilities, both physical and mental. The victim, who was age 23, was mentally impaired and had the mental capacity and academic ability of a child of between ages six and eleven. The appellant was married to one of the victim’s supervisors at the Group Home — a person in charge — and would visit his wife at the home on weekends. The crimes occurred in the victim’s private room on the premises.

The majority finds no “forcible compulsion” in this case due to the exclusion of hearsay statements of the victim made four days after the event which included an implied threat by the appellant. However, even if the stale statements are excluded, there is sufficient evidence of forcible mental compulsion to warrant a conviction. The victim was impaired and living in the Group Home’s structured environment. This made her very vulnerable and susceptible to assault. Her assailant was in a position of some authority due to his marriage to the victim’s supervisor, and he knew his victim to be susceptible to direction. There was more than mere trickery here. The appellant directed the victim on what to do. Under such circumstances and in such an environment, it is difficult for me to conclude that the victim was not compelled to yield to the appellant’s sexual demands.

“Forcible compulsion” is defined as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann § 5-14-101(2) (1987). We have held that where three girls stayed with their uncle after school each day and submitted to his sexual advances, their submission was induced by the forcible compulsion of the uncle who stood in loco parentis to the three girls. Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986). Admittedly, in Griswold there were threats by the uncle, but we quoted with approval from an Oregon case that placed great emphasis on the situation of the victim and her intelligence in discussing forcible compulsion:

In the present case, the complaining witness was a young girl toward whom for more than 17 years the defendant had stood in loco parentis.... [A] reading of her testimony indicates that her intelligence is not of a very high order. Upon such a person the constraints of family discipline and the habit of obedience must necessarily exercise a considerable influence. How a more mature and more intelligent woman might have reacted under the circumstances is not in point. . . . Where submission of a girl is induced ‘through the coercion of one whom she is accustomed to obey, such as a parent or one standing in loco parentis,” the law is satisfied with less than a showing of the utmost physical resistance of which she was capable.

State v. Risen, 235 P.2d 764, 766 (Ore. 1951).

As the husband of the supervisor of a mentally impaired victim living in a structured environment, the appellant undoubtedly was perceived as an authority figure by the victim. This case is analogous to the situation in State v. Risen. Here, the intelligence of the victim was not of a very high order — somewhere between the ages of six and eleven. Here, also, though not a person, strictly speaking, who stood in loco parentis to the victim, the appellant was most assuredly in a position to control the victim’s destiny through his wife. Under such circumstances I readily find forcible compulsion by implied threat.

Hays, J., joins.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Robert FINDLEY v. STATE of Arkansas
    CR 91-34
    818 S.W.2d 242
    Supreme Court of Arkansas
    Opinion delivered October 28, 1991

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Robert Findley, was convicted a second time of capital murder, and sentenced to life imprisonment without parole. On appeal, following Findley’s first trial and conviction for this oifense, we reversed and remanded for a new trial due to error in the admission of certain statements Findley made while in police custody. See Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989).

Findley now appeals from his second conviction, asserting six points of error for reversal. None of his contentions have merit and we affirm.

Since one of Findley’s arguments involves a challenge to the sufficiency of the evidence, we discuss it first.

I. SUFFICIENCY OF THE EVIDENCE

Initially, we note that we cannot, as the State urges, decide the issue of whether the evidence was sufficient to support the verdict on law of the case principles. That doctrine applies only when the evidence in the second trial does not materially differ from the evidence presented in the first trial. See Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). In the first trial of this case, the State relied heavily on three statements Findley made to the police concerning the murder. In addition, Findley testified as part of his own case-in-chief. On appeal, we ruled that although the evidence was sufficient to support the conviction, Findley’s statements should have been suppressed.

At the second trial, instead of Findley’s statements, the State offered the testimony of Jim Moore. Moore described the events surrounding the murder, as related to him by Findley, as well as both parties’ participation in disposing of the victim’s body. Findley did not testify. Although the testimony of the other witnesses in the two trials was substantially the same, the exclusion of Findley’s statements and the addition of Moore’s testimony upon retrial, varies such that we are required to examine the evidence anew.

In determining whether there is sufficient evidence to support a jury verdict, the appellate court reviews the evidence in the light most favorable to the appellee and affirms if there is substantial evidence to support it. Substantial evidence is that which is of sufficient force to compel a conclusion one way or another; it must be more than mere speculation or conjecture. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991).

Findley’s conviction for capital murder arose from his participation in the robbery and shooting death of David Phillips.

Pillips’ co-workers revealed that Phillips had given Findley $ 1,700 in cash to purchase a car for him through some contacts of Findley’s in Memphis. The teller at Phillips’ bank testified that Phillips had withdrawn $1,800 from his savings account on Wednesday, March 2, 1988, and mentioned buying a car in Memphis. Phillips told his co-workers that the car was to be delivered during his break that evening. They chided him about not having received a bill of sale and “getting ripped off.”

When the car did not arrive that evening, Phillips left work early to investigate. Findley’s ex-wife, Judy Findley Jones (they were married at the time in question), testified that she remembered Phillips coming over late one night the first week in March and discussing the car deal and the fact that “the guys at work” were teasing him about “Findley ripping off his money.”

Phillips returned to work on Thursday, March 3, and told his co-workers that “everything was fine” and he was to get the car on Friday. He was last seen at work on Thursday evening.

Phillips’ body was later discovered in a drainage ditch in Crawford County on March 24. It was tied and weighted with a concrete block and wrapped in plastic. Phillips had been shot twice in the upper chest, once in the neck, and once in the back. State Medical Examiner, Dr. Fahmy Malak, estimated that the body had been placed in the water less than 24 hours after Phillips died.

As prevoiusly stated, testimony concerning the actual murder came from Jim Moore. Moore testified that Findley came by his house around dusk on Saturday, March 5, and asked Moore to accompany him to Paragould to sell some guns. Findley drove them in his car. After stopping at a liquor store, Findley informed Moore that there were no guns and they were just taking a trip to Paragould. Findley and Moore stopped at the home of Darla Clark, in Paragould, and visited with her and a friend of Ms. Clark’s. Moore testified they drank several beers and left after a few hours.

Leaving Paragould, Findley began driving towards Bay, Arkansas, and informed Moore that “he had a body to get rid of,” and offered Moore $500 to help him. Findley told Moore the body was David Phillips and that Findley had “set up a car deal and it went sour. . . .[T] hese two guys in Memphis were supposed to rough us up and we were supposed to split the $1,700, but he (Phillips) got killed.” Moore stated Findley told him that when he and Phillips arrived in Memphis, Phillips noticed the gun Findley was carrying and asked to see it, whereupon one of the other men got the gun from Phillips, shot him, and then told Findley to “deal with it.”

Findley took Moore to an abandoned farm house where he had stored Phillips’ body in a refrigerator. The two men loaded the body in the trunk of the car and eventually deposited it in the drainage ditch. They returned to Phillips’ home in Truman, Arkansas, and moved his car to a parking lot in Bay so that “people would think he had left.” Findley then drove Moore home, arriving at approximately 2:00 a.m. on Sunday, March 6.

Moore went with Findley the next day to get a new spare tire and trunk mat. Moore testified that the old, blood stained tire and mat were thrown out alongside a country road. Moore stated Findley never paid him the $500 as promised, and that Findley had used the $ 1,700 to pay bills. This testimony was corroborated by Findley’s ex-wife who testified that Findley gave her money between March 2 and 4 to pay the rent and to have the phone reconnected. Mrs. Jones also testified that she had remarked to Findley about the disappearance of the spare tire and mat and that she had seen some green plastic in the trunk.

The Findleys’ landlord confirmed that on March 1 the Findleys were behind on their rent and on March 2 they paid $610 in cash.

An expert with the Arkansas State Crime Lab established that the bullets recovered from David Phillips’ body were fired from Findley’s gun. Findley purchased the gun from a pawn shop on March 4. Mrs. Jones testified that after Findley was arrested, he asked her to dispose of the gun shells in their apartment or to have his sister do it.

Findley argues the evidence is insufficient to support the fact that a robbery occurred at the time of Phillips’ death and thus there was no proof of an underlying felony to support a capital murder conviction.

Ark. Code Ann. § 5-10-101(a)(l) (1987) provides:

(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular piracy, robbery, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human
life ....

Findley contends, at most, the State’s evidence suggests that Findley committed theft or theft by deception and then several days later Phillips was killed, not immediately therafter, as provided by the capital murder statute. “A person commits robbery if, with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Ark. Code Ann. § 5-12-102(a) (1987).

There is ample evidence in the record to support the conclusion that Findley obtained money from Phillips for a phony car purchase and then, either acting alone or with others, killed Phillips in order to keep that money. As in the first appeal, we reject Findley’s argument that the robbery and murder had to occur within a brief interval of time. Although the robbery scheme originated earlier in the week, it culminated when Findley’s accomplice (or Findley himself) employed lethal force, either to take Phillips’ money or to ensure his silence when he asked for its return. See Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989) (theft by receiving held to be a continuing offense), and our analogy to this case in Findley v. State (I), supra.

Findley also argues the evidence is insufficient to prove that the murder took place in Arkansas and, therefore, the trial court was without jurisdiction.

The State is not required to prove jurisdiction unless evidence is admitted that affirmatively shows that the court lacks jurisdiction. Ark. Code Ann. § 5-1-111(b) (1987). Before the State is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). Here, there was no positive evidence that the crime occurred in Memphis, as Findley contends. It was only through the State’s witness, Jim Moore, that the murder was linked to Memphis, and the State has never contended that Moore’s testimony should be accepted as the sole truth of what occurred.

Furthermore, it is not essential that all of the elements of the crime charged take place in Arkansas. We have said it is generally accepted that if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985) (quoting Gardner v. State, supra). As we explained, evidence shows the robbery scheme initated in Arkansas, but culminated (if Findley’s story, as told by Moore, is to be believed) in Memphis. The trial court was correct in refusing Findley’s motion for directed verdict on the issue of jurisdiction.

Lastly, under Findley’s “sufficiency” argument, he contends the State’s own evidence proves, as a matter of law, his affirmative defense to the offense of capital murder as defined in Ark. Code Ann. § 5-10-101 (b) (1987). This argument is meritless and will be addressed under our discussion of jury instructions.

II. SPEEDY TRIAL

Findley next asserts the trial court erred in denying his motion to be released from pretrial incarceration, thereby violating speedy trial rules. We disagree.

Charges were filed against Findley on March 31,1988, and the first trial began on September 9,1988. On October 30,1989, we reversed Findley’s conviction and remanded for a new trial. The State retried. Findley on May 9, 1990.

Findley argues he should have been released on his own recognizance before the second trial, since he had been continously incarcerated for over nine months from the time the information was filed. (Findley excludes the time from September 9, 1988, the first trial date, to October 30, 1988, the date we reversed and remanded the case.)

In denying Findley’s motion, the trial court relied on Ark. R. Crim. P. 28.2 which states in pertinent part:

(c) if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial, order granting new trial or remand.

Pursuant to this rule, the time for speedy trial purposes began running anew on October 30,1989, when we granted a new trial. See also Nettles v. State, 303 Ark. 8, 791 S.W.2d 702 (1990). There was no violation of speedy trial rules since Findley was retried in May, 1989, only seven months from the date of our order.

III. JURY INSTRUCTIONS/AFFIRM A TIVE DEFENSES

During oral argument to this court, Findley’s counsel conceded that Findley was not entitled to an instruction as to the affirmative defense for first degree murder under Ark. Code Ann. § 5-10-102(b), as the proof shows that Findley was armed with a deadly weapon during the time the offense was committed. Findley insists, however, that the trial court erred in not instructing the jury under section 5-10-101 (b), which provides that “it is an affirmative defense to [a prosecution for capital murder], in which the defendant was not the only participant, that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid its commission.”

After hearing arguments from counsel, the trial court ruled that, based on the evidence, there was no “rational basis” for giving the instructions and that the instructions would confuse, rather than assist, the jury. The trial court’s use of the term “rational basis” tracks our language in O’Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989), in which we indicated there was “no rational basis” for giving the affirmative defense instruction for felony murder since there was no evidence the defendant did not kill his parents or aid in the commission of their murders.

More recently, we have said that where there is even the slightest evidence to warrant an instruction, it is error to refuse it. Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990). Under either standard, the trial court was correct in refusing the instruction.

An examination of the record, as a whole, reveals that Findley schemed to rob Phillips, brought him to the rendezvous site, obtained the gun used in the homicide immediately prior to Phillips’ death, and then made arrangements for, and participated in, the disposition of Phillips’ remains. There was simply no evidence to warrant instructing the jury that Findley did not “in any way” solicit, command, induce, procure, counsel, or aid in Phillips’ murder.

IV. CONFIDENTIAL COMMUNICATIONS ¡SPOUSAL PRIVILEGE

Findley next claims he should have been allowed to assert the husband-wife privilege in order to prevent his ex-wife from testifying as to certain confidential communicaitons between them around the time of the murder.

■ Findley presented seventeen statements to the trial court that Judy Findley Jones made at the first trial and that he argued were confidential communicaitons and should be excluded from her testimony at the second trial. The trial court examined each statement, heard arguments from counsel, and ruled that the statements Findley made to his wife, and which she repeated at trial, were either for the purpose of establishing an alibi, in which case they were intended for publication, or the statements did not comprise things Findley told his wife, but were merely things Mrs. Jones did or observed. The trial court admitted most of the statements, and suppressed others. We find the trial court’s rulings, with regard to these statements, were correct; however, one statement is worthy of comment.

Mrs. Jones testified at the first trial that following Findley’s arrest, she visited him at the county jail and he told her “to dispose of [some shells intheir apartment] or call his sister and get her to do something with them.” The trial court held the statement was not confidential since it was intended for disclosure to Findley’s sister. We agree since the communication clearly falls outside the purview of A.R.E. Rule 504, which provides that a communication is confidential “if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.” (Emphasis added.)

V. CROSS-EXAMINATION REGARDING REFILING OF MURDER CHARGES

For his next point of error, Findley claims the trial court erred in refusing to allow him to cross-examine Jim Moore concerning the fact that Moore was initially charged with capital murder, along with Findley, and that the charge was then nol prossed, re-filed, and eventually nol prossed again. The trial court ruled that Moore could be questioned as to whether he had ever been charged with capital murder and then later charged with hindering apprehension, but barred any questions about the State’s decision to ultimately nol pross the murder charge. We find the trial court was wrong in this regard; however, Findley was not prejudiced by the trial court’s restriction of his cross-examination.

Moore testified, on cross-examination, that he had been charged with capital felony murder for the death of David Phillips and that he had eventually pled guilty to the charge of hindering apprehension for helping dispose of the body. He testified further that he was not giving testimony as the result of plea negotiations but because his testimony was the truth. This exchange was more than sufficient to call into question Moore’s credibility, as his negotiations with the State could only lead to the logical conclusion that he had made a bargain with the State which led to a lesser charge and sentence, in return for his testimony. Cross-examination should be limited to material, relevant matters before the court, and harmless errors are not grounds for reversal. Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).

VI. CROSS-EXAMINATION REGARDING MARIJUANA

When Jim Moore was arrested for the murder of David Phillips, the police recovered marijuana from Moore’s home, pursuant to a consensual search. No charges were filed, as a result of Moore’s plea negotiations.

At trial, the court prevented Findley from cross-examining the investigating officer, Jerry Brogdan, concerning the seizure of marijuana from Moore’s home. Findley asserts this ruling was error since the information was relevant to Moore’s plea negotiations with the State and the issue of Moore’s credibility.

The trial court reasoned that information concerning the seizure of marijuana could not be elicited from Officer Brogdon as Moore had already testified, at length, on cross-examination, that marijuana was found in his home and that the State had agreed not to press charges as part of his guilty plea to the offense of hindering apprehension. The exclusion of evidence cannot be considered prejudicial if the same evidence is introduced by another witness and was before the jury for its consideration. Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985). We uphold the trial court’s ruling since Findley suffered no prejudice.

VII. FEE CAP

Findley’s final assertion of error is that the $ 1,000 attorney’s fee limitation, set forth in Ark. Code Ann. § 16-92-108 (1987), is unconstitutional.

We recently ruled that the fee cap for appointed attorneys in criminal cases is, in fact, unconstitutional, in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991);however, Findley is precluded from raising the issue on law of the case principles.

The fact that the evidence was substantially different in the second trial does not prevent us, here, from deciding the issue on the law of the case doctrine since the constitutionality of Section 16-92-108 has nothing to do with evidentiary matters. Either Findley raised this issue at his first trial, and lost on appeal when we reversed and remanded the case, or Findley did not raise the issue at his first trial. The law of the case doctrine prevents consideration of arguments that were made, or could have been made, at the first trial of the case, Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990), and applies to constitutional issues. See Bedell v. State, 260 Ark. 401, 541 S. W.2d 297 (1976).

Pursuant to Ark. Sup. Ct. R. 11(f), we have reviewed all other rulings adverse to Findley and find that none constitute prejudicial error.

Affirmed.

       We note, and the trial court so held, that Findley’s failure to raise the husband-wife privilege at the first trial does not now bar consideration of the issue on law of the case principles. The admission of Findley’s police statements and his decision to testify at the first trial, precluded him, as a practical matter, from raising the issue.


text:
    Clifford McANALLY and Staci Douglas v. FARM BUREAU INSURANCE COMPANY
    91-73
    817 S.W.2d 204
    Supreme Court of Arkansas
    Opinion delivered October 28, 1991

      Jim Petty and Art Anderson, for appellants.

      Laser, Sharp, Mayes, Wilson, Buff or d & Watts P.A., by: Sam Laser and Brian Allen Brown, for appellee
   Jack Holt, Jr., Chief Justice.

This case involves whether the trial court properly granted summary judgment in favor of the appellee, Farm Bureau Insurance Company (Farm Bureau).

The underlying facts of this case show that on October 29, 1988, Lloyd Douglas was driving a car owned by his step-father, Jeff Baker, who was a passenger in the car at the time of the incident. Both men were intoxicated.

Messrs. Douglas and Baker encountered the appellants, Clifford McAnally and Staci Douglas (Lloyd Douglas’s estranged wife), in Ms. Douglas’s car. The Douglas’s daughter was in the car with Mr. McAnally and Ms. Douglas. Mr. Douglas got out of Mr. Baker’s car and approached his wife’s car. He then ostensibly attempted to slap his wife and remove his daughter from his wife’s car, at which time Ms. Douglas and Mr. McAnally drove away. Mr. Douglas returned to Mr. Baker’s car and tried to overtake them in a high-speed chase during which time Mr. Douglas fired a pistol. Ms. Douglas’s car left the road and overturned, resulting in injury to the occupants.

Farm Bureau filed a declaratory judgment action against Messrs. Baker and Douglas, Mr. McAnally, Ms. Douglas, and other parties who were in Ms. Douglas’s car at the time of this incident seeking a declaration that insurance coverage did not exist because its policy specifically excluded damage caused by intentional acts.

Mr. Baker filed a motion for summary judgment, after which Farm Bureau and Mr. McAnally and Ms. Douglas also filed motions for summary judgment. All of these motions were denied by the trial court because disputed issues of fact existed. Mr. Douglas and the other named parties failed to file an answer, and a default judgment was entered against them.

Farm Bureau then amended its complaint to allege that the occurrence did not arise out of the “ownership, maintenance, or use” of Mr. Baker’s automobile, as required by the insurance policy, and added theories of joint venture and agency to impute Mr. Douglas’s actions to Ms. Baker.

Again, Farm Bureau and Mr. Baker filed motions for summary judgment. The trial court denied Mr. Baker’s motion for summary judgment, but granted that of Farm Bureau stating:

* * * *
4. The intentional act of Lloyd Daniel Douglas in pointing a gun at the vehicle driven by Duree Hodges and firing said gun at or near said vehicle was the proximate cause of said vehicle leaving the road and overturning as a result of which some of the occupants of said vehicle were allegedly injured.
5. Said occurrence did not arise out of the ownership, maintenance, or use of the insured vehicle.
6. Therefore, there exists no coverage for Baker for this occurrence, under Plaintiffs policy of insurance issued to Baker, and there is no duty on Plaintiff to defend Baker . . . nor is there any obligation on the part of Plaintiff to pay any judgment rendered against Baker therein.
* * * *

Mr. McAnally and Ms. Douglas appeal and assert three points of error: 1) that the trial court erred in granting summary judgment in favor of Farm Bureau, 2) that the trial court erred in failing to grant summary judgment in favor of them and Mr. Baker, and 3) that the trial court erred in granting summary judgment to Farm Bureau as to a disputed issue of fact.

The appellant’s first and third arguments on appeal both assert that the trial court erred in granting summary judgment in favor of Farm Bureau.

In Register v. Oaklawn Jockey Club, Inc., 306 Ark. 318, 811 S.W.2d 315 (1991) (citing Rickenbacker v. Wal-Mart Stores, Inc., 302 Ark. 119, 788 S.W.2d 474 (1990)), we noted that Ark. R. Civ. P. 56 provides that summary judgment is appropriate where the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact. On appeal, in determining whether there is an issue of fact, the proof is viewed most, favorably to the party resisting the motion, with all doubts and inferences resolved against the moving party. The burden of proving that there is no genuine issue of material fact rests with the party moving for summary judgment.

In this case, the issue is whether the actions of Mr. Baker, the named insured under Farm Bureau’s insurance policy, preclude coverage under his policy. Farm Bureau’s policy apparently provides that it covers, “bodily injury and property damage . . . caused by an accident” but excludes “bodily injury or property damage caused by [the expected or unexpected results of] intentional acts.”

Essentially, Farm Bureau attempts to preclude coverage by asserting imputed liability and agency theories against Mr. Baker; Mr. Baker, however, refutes these claims and argues negligent entrustment of his automobile to Mr. Douglas. Also, whether this incident and resulting injuries occurred as the result of the discharge of the gun during the chase or the manner in which the automobile was driven is another matter contested by the parties. Consequently, there are genuine issues of material fact still in dispute, and the trial court’s granting of summary judgment was in error.

With regard to the appellants’ argument that the trial court erred in failing to grant summary judgment in their favor, we will not consider the matter since the denial of a motion for summary judgment is not subject to review on appeal, even after a trial on the merits. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991) (citing Rick’s Pro Drive 'N Ski Shop, Inc. v. Jennings-Lemmon, 304 Ark. 671, 803 S.W.2d 934 (1991)).

Reversed and remanded.

Glaze, J., not participating.


author: Jack Holt, Jr., Chief Justice. Donald L. Corbin, Justice, Robert L. Brown, Justice,

text:
    Robert ROSS, M.D. v. Jimmy PATTERSON, as Special Administrator, et al.
    90-259
    817 S.W.2d 418
    Supreme Court of Arkansas
    Opinion delivered October 28, 1991
    [Rehearing denied November 25, 1991.]

      Friday, Eldredge & Clark, by: Phillip Malcom and Tonia P. Jones, for appellant.

      Morgan E. Welch, P.A., by: Morgan E. Welch, for appellees.

      Corbin and Brown, JJ., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

This is a tort of outrage case.

The appellant, Dr. Robert Ross, treated the appellee, Dorothy Patterson, as a patient in his OB/GYN practice in Pine Bluff, Arkansas. During the course of Mrs. Patterson’s pregnancy, and unknown to her at that time, Dr. Ross developed a substance abuse problem with drugs and alcohol.

The day before Mrs. Patterson went into labor in September 1984, Dr. Ross received a complaint and notice of hearing from the Arkansas State Medical Board that he was to appear before them in December on charges of falsifying drug prescriptions. Dr. Ross, who later admitted his alcohol and drug addictions, immediately made arrangements for treatment of his substance abuse and left Pine Bluff to be admitted to an impaired physician’s rehabilitation center in Mississippi, leaving his wife to handle the transfer of responsibility of his patients to a medical group of which he was a member.

As a result of Dr. Ross’s absence when Mrs. Patterson went into labor and when she was admitted into Jefferson Memorial Hospital, Dr. Siva Kaipa, one of the physicians who took calls for Dr. Ross as part of the medical group, became Mrs. Patterson’s attending physician and delivered her baby, who died several hours after birth. After the baby’s funeral, Mrs. Patterson learned that Dr. Ross’s absence was due to his efforts to address his substance abuse.

The estate of the deceased infant, Christopher Patterson, filed a medical malpractice suit against Dr. Ross, his nurse, Frances Vanlandingham, Dr. Kaipa, and Jefferson Memorial Hospital. Mrs. Patterson also asserted a personal claim against Dr. Ross, Nurse Vanlandingham, and the Jefferson Memorial Hospital for deceit and the tort of outrage.

Prior to trial, the appellees entered into a settlement agreement with the hospital. A jury trial was held between December 5 and December 21, 1989, and the medical malpractice claim against Dr. Kaipa resulted in a mistrial. Dr. Ross and Nurse Vanlandingham were both found not liable for medical malpractice or deceit in connection with the infant’s death. The jury also found that Nurse Vanlandingham was not liable for the tort of outrage; however, it returned a verdict against Dr. Ross in this regard and awarded Mrs. Patterson $175,000 in compensatory damages and $50,000 in punitive damages.

On appeal, Dr. Ross asserts three points of error: 1) that there was not substantial evidence to support the jury’s verdict against him for the tort of outrage, 2) that the trial court abused its discretion in admitting unfairly prejudicial evidence of his substance abuse, and 3) that the trial court erred in the manner in which it instructed the jury on the issues of tort of outrage and punitive damages.

We have taken a very narrow view of claims for the tort of outrage, also known as the intentional infliction of emotional distress, see Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985) (citing Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982)), and we continue to do so here. We find that there was not substantial evidence to support the jury’s verdict against Dr. Ross for the tort of outrage, and we reverse and dismiss.

In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988) (citing M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980)), we stated that one is subject to liability for outrage if he or she willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct: conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. Furthermore, the emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it. Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).

Furthermore, the tort of outrage is not easily established and requires clear-cut proof; merely describing the conduct as outrageous does not make it so. Givens v. Hixson, supra.

In Sterling Drug, we found that where a corporate employer suspected that an employee had reported it to the General Services Administration for pricing violations, and had entered on an eighteen-month campaign to force the employee to resign even though agents of the employer knew that the employee was under pressure because of a recent divorce, the employer’s conduct did not rise to a sufficient level to support a verdict for outrage as recognition of the tort of outrage did not open the doors of the courts to every slight insult or indignity one must endure in life.

Likewise, in Sterling v. Upjohn Healthcare Servs., Inc., 299 Ark. 278, 772 S.W.2d 329 (1989), we held that where an employee’s supervisor had taken a dislike to him and made various atempts to undermine his authority with his employees and to have him fired by falsely accusing him of always being drunk and of making untrue statements on his job application, by delaying the processing of his expense vouchers, by having employees watch him and report back to his supervisor, by instructing him not to communicate with other employees, and by cursing him, the conduct did not meet the standard required for the tort of outrage.

In Neff v. St. Paul Fire & Marine Ins. Co., 304 Ark. 18, 799 S.W.2d 795 (1990), we also noted that where the hospital was doing no more than it had a legal right to do — releasing the seventeen-week-old fetal remains to one of the parents without consulting the other — the conduct, even if improper, would not equate with outrageous conduct necessary for the tort of outrage. See generally Deason v. Farmers and Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989); Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988); and Webb v. HCA Health Servs. of Midwest, Inc., 300 Ark. 613, 780 S.W.2d 571 (1989).

In contrast, where an employer interrogated an employee, whom it suspected of theft, at thirty minute intervals for most of a day, denied him valium when he was under obvious stress, and threatened him with arrest, we found that there was substantial evidence to support the jury verdict for outrage and placed special emphasis on the fact that even though the employer knew of the employee’s lower than normal emotional stamina, it refused to permit him to take his medication during the interrogation. Tandy Corp. v. Bone, supra.

In Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), cert. denied, 475 U.S. 1036 (1986), Treece, a police officer, sued Hess, the Little Rock City Director, for outrage. Hess, who was angry with Treece over a personal matter, conducted surveillance of Treece, communicated to other individuals that he would have Treece fired at any cost, and apparently made false reports concerning Treece’s employment conduct. Basing our decision in part on the fact that Hess’s actions continued over a two year time span, we found substantial evidence to support the jury verdict for outrage.

We also found sufficient evidence to support a finding that corporations operating a perpetual care cemetary had committed the tort of outrage where the corporations’ agents had repeatedly driven heavy equipment across two gravesites of members of the appellees’ family in an attempt to alleviate a drainage problem which the corporations had caused and which could have been solved in other ways, and had continued construction even after the vaults had been exposed and the distress to the appellees had become apparent. Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1980).

In viewing the facts of this case, we cannot find substantial evidence to satisfy the requirements of the tort of outrage set out in Sterling Drug, Inc. v. Oxford, supra, or Tandy Corp. v. Bone, supra. To the contrary, Mrs. Patterson was not aware during the course of her pregnancy that Dr. Ross had a substance abuse problem. When Dr. Ross was confronted with the complaint from the Arkansas State Medical Board, he enlisted the help of his wife to handle the necessary communications for the transfer of responsibility for his patients to the “call group” (of which he was a member) consisting of Drs. Kaipa, Devi, and Bracy. Although there was initially some confusion at the hospital as to which doctor would be responsible for Dr. Ross’s patients when Mrs. Patterson first went to the hospital, the confusion was resolved by the time that she was actually in labor and admitted to the hospital.

Mrs. Patterson claims that she suffered severe emotional distress because Dr. Ross never saw her during the last month of her preganancy and because he failed to personally inform her that he was leaving town.

Even if we were to accept Mrs. Patterson’s claim as true that she was upset because Dr. Ross did not see her during the last month of her pregnancy, which fact is disputed by Dr. Ross and Nurse Vanlandingham as well as office records of her visits, Mrs. Patterson testified that she always had the utmost faith and confidence in Dr. Ross, even in the last month of her pregnancy, and that she had resisted suggestions from family members that she change doctors.

Additionally, Dr. Reid Pierce, another physician with an OB/GYN practice in Pine Bluff, Arkansas, testified that Dr. Ross’s decision to ask his wife to handle the transfer of responsibility for his patients to a physician on call for him was professionaly acceptable. Mrs. Patterson had also signed a form acknowledging that he might be unavailable at the time of her delivery and consenting to treatment by another physician.

Mrs. Patterson’s own psychologist testified that her depression stemmed primarily from the death of her child, the unfortunate occurrence of which the jury had found Dr. Ross to be not liable. In fact, Mrs. Patterson testified that her severe emotional distress did not begin until after the death of her baby, when she learned the reason for Dr. Ross’s absence.

Although there is some testimony that Mrs. Patterson suffered from “post-partum emotional distress” brought about by her realization of Dr. Ross’s alcohol and drug abuse and that she blamed herself for “trusting” him, it is insufficient to sustain the jury’s findings.

While we cannot and do not sanction Dr. Ross’s intemperate use of alcohol, drug abuse, and lack of professionalism in not assisting in making final arrangements for Mrs. Patterson’s delivery, there is no clear-cut proof, as we require in all tort of outrage cases, that his conduct toward Mrs. Patterson was so outrageous in character and so extreme in degree as to rise to the level necessary for the tort of outrage.

In sum, then, there is a lack of substantial evidence to support Dr. Ross’s liability for the tort of outrage. Consequently, we need not discuss Dr. Ross’s remaining two points of error.

Reversed and dismissed.

Glaze, Corbin and Brown, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. I dissent.

This court’s distaste for the tort of outrage results in a majority opinion that blatantly ignores our firmly established, deferential standard of review in sufficiency of the evidence cases. It is a well-settled rule that this court will affirm sufficiency of the evidence cases “if there is any substantial evidence to support a jury’s verdict, . . . .” Boyd v. Reddick, 264 Ark. 671, 675, 573 S.W.2d 634, 637 (1978). (Emphasis supplied.) In determining whether substantial evidence exists, we have stated that we will rely on two crucial principles to avoid invading the province of the jury: 1) We will consider only the evidence favorable to the successful party below, Love v. H.F. Constr. Co., 261 Ark. 831, 552 S.W.2d 15 (1977); and, 2) we defer to the jury’s resolution of the issue unless we can say that there is no reasonable probability to support the version of the successful party below. Id.

In the instant case, the jury’s verdict reflected a studied deliberation of the lay and medical testimony elicited during a two week trial. The majority, however, disregards our well-settled standard of review and its supporting rationale to undertake a de novo review of the evidence. This de novo analysis focuses on testimony detrimental to Mrs. Patterson’s claim rather than on testimony supporting her allegations about Dr. Ross’ behavior. Such an analysis cannot be reconciled with our oft-stated concern for protecting the province of the jury. I believe that our prior explanation of this concern is applicable to the case before the court today:

Both of these parties were interested in the results. Consequently, the jury was not duty bound to accept either party’s testimony as being undisputed. Indeed, a fact question was presented for resolution by the jury. The jury heard the witnesses, observed their demeanor and conduct on the witness stand and, therefore, were in a better position to judge the credibility of the witnesses.

Boyd, supra, at 675, 573 S.W.2d at 637.

After viewing the evidence favorable to appellee Dorothy Patterson, I believe substantial evidence exists to support the jury’s verdict on the outrage claim. The evidence indicates that Dr. Ross knew of Mrs. Patterson’s precarious emotional state and the potential injurious consequences to Mrs. Patterson of his absence during the latter part of her pregnancy. Dr. Ross admitted that his incapacity had been developing for some time yet he deliberately chose not to advise his patients to retain alternative obstetric care during the course of their pregnancies. Instead, he rubber-stamped a prescription pad, leaving his nurse to prescribe medication for his patients. Mrs. Patterson testified that after receiving one such prescription, she was'unable to have it filled because the pharmacist became suspicious.

Mrs. Patterson also produced both lay and expert testimony concerning the bond she felt with the doctor to whom she entrusted her health and the delivery of her baby. Her evidence indicated that Dr. Ross’ treatment of her throughout the last trimester of her pregnancy caused her severe emotional distress because his deception concerning his whereabouts left her unable to procure medical treatment for the obstetric problems she developed near the end of her pregnancy. Particularly distressing to Mrs. Patterson was her experience at the hospital hours before her baby’s birth. When Mrs. Patterson began experiencing contractions, she went to the hospital only to learn that no arrangements had been made for her. Confused about the whereabouts of Dr. Ross, the hospital staff sedated Mrs. Patterson and sent her home. She returned only a few hours later to deliver her son.

After the jury heard the evidence, the trial court properly instructed the jury on the elements of outrage. The jury voted nine to three to award damages under the tort theory of outrage, and I do not think it coincidental that five out of six women on the jury agreed that Dr. Ross’ treatment of his expectant patient rose to the level of outrage. Based on Mrs. Patterson’s evidence, I believe it was certainly within the jury’s province to find that Dr. Ross willfully or wantonly caused severe emotional distress to Dorothy Patterson by extreme and outrageous conduct.

Brown, J., joins in this dissent.

Robert L. Brown, Justice,

dissenting. The majority concludes that while Dr. Ross’s alcohol and drug abuse and lack of professionalism were disgraceful and without excuse, these circumstances do not rise to the level of outrageous conduct. I disagree.

The jury determined on the facts presented that Dr. Ross was not available to Mrs. Patterson during her time of need, knowing full well that Mrs. Patterson had previously had a miscarriage and was experiencing difficulties in her current-pregnancy. The fact that Dr. Ross was a functional alcoholic and addicted to cough syrup is not the issue here. What is at issue is whether a physician who caused his patient considerable pain and mental anguish by abandoning her during an emotionally wrenching time committed the tort of outrage, taking into consideration the fact that she had previously experienced a complicated pregnancy and was “scared to death” about what was happening to her in her current pregnancy.

On appeal we look to whether substantial evidence exists to support the jury verdict and judgment. I believe that there was sufficient evidence of outrageous conduct on the part of Dr. Ross prior to the baby’s delivery on September 1,1984, which resulted in the mental anguish experienced by Mrs. Patterson. The following facts, for example, support the jury’s award:

a. Dr. Ross did not see or examine Mrs. Patterson during the last month of her pregnancy. His nurse performed the examination. (Dr. Ross denies the extent of his absence, but even according to his testimony and records, he had no contact with her the last ten days of her pregnancy.)
b. Mrs. Patterson was experiencing some problems with the pregnancy. Early in May and June she had complained of low abdominal pain. On August 13, 1984 she reported some spotting. The progress notes show on August 15 that she was not sleeping, that she was hurting a lot, and that she was “leaking.” On August 21 she complained of contractions and nausea.
c. Mrs. Patterson told the jury that in August the baby had quit moving as much, and she was hurting and sick and was losing weight. She was scared to death, she testified. She had an intuition something was wrong and was really upset. She went to the Pine Bluff hospital from her home in McGehee on September 1 after being up all night with more bleeding and leaking. She had telephoned Dr. Ross several times from her home, and he had not returned the calls.
d. Mrs. Patterson continued to have faith in Dr. Ross up until delivery because he had successfully delivered her first child. (He had not been the doctor for the previous pregnancy that resulted in a miscarriage.) As she testified, “He just wasn’t there for me.”
e. Dr. Ross admitted that he usually tried to see pregnant women who had previously lost a baby, as had Mrs. Patterson, more often than others because of their emotional state.

The majority emphasizes that Mrs. Patterson signed the standard form agreeing to delivery by another physician in the event Dr. Ross was unavailable. But uriavailability on the day of delivery is a far cry from abandonment over the last month of a difficult pregnancy, when that woman had previously experienced a miscarriage.

In Arkansas we recognize, the tort of outrage as intentional conduct that results in injury which is so abhorrent that a civilized society cannot condone it. Part of our AMI Instruction 404 reads:

A person acts willfully and wantonly when he knows or should know in the light of surrounding circumstances that his conduct will naturally and probably result in emotional distress and continues such conduct in reckless disregard of the consequences.

The law does not require that Dr. Ross intend to harm Mrs. Patterson personally by his conduct. It only requires that he act “willfully and wantonly” knowing that his conduct will probably cause someone emotional distress. Here, Dr. Ross acted in what he had to know was an impaired state for an extended period of time and then abandoned his patient altogether. Abandoning a woman in her last days of pregnancy without any warning or explanation and with knowledge that some difficulties are associated with the pregnancy and that the woman previously had experienced a miscarriage, easily qualifies as outrageous conduct. Under the evidence presented, the jury could readily have found that Dr. Ross committed the tort. He existed in an impaired state and had for some time during Mrs. Patterson’s pregnancy. He should have made arrangements to care for her — not only on the date of delivery — but for the days or weeks preceding delivery. This he failed to do.

In 1986 the Supreme Court of Arizona found that the trial court had erred in granting summary judgment in favor of an OBG YN physician on a tort of outrage claim involving abandonment by that physician. See Lucchesi v. Stimmell, 716 P.2d 1013 (Ariz. 1986). There, the allegation against the defendant physician was that he had failed to attend the delivery of the child and had failed to inform the parents of the child of the full circumstances of the birth, all of which caused the parents emotional distress. The physician involved was a high-risk specialist who had said that he would assume responsibility for the mother’s care. He made no effort to meet the mother at the hospital, it was a breech delivery, and doctors who had less experience with high-risk deliveries decapitated the child in an effort to extricate the child from the birth canal. The issue in Lucchesi was whether the defendant physician had failed to follow an appropriate practice in deciding when to leave for the hospital and whether that failure constituted outrageous conduct. The court in Lucchesi determined that the intent or state of mind of the doctor was a material fact question for the jury to decide and, accordingly, summary judgment was improper.

In the case before us the majority has decided how this case should be decided. With respect to the factual questions of Dr. Ross’s state of mind or intent, his attitude toward Mrs. Patterson’s particular pregnancy, and his knowledge of his own impaired condition, all of which were presented to the jury for resolution with supporting evidence, it is now improper for this court to usurp that role and reverse a jury verdict. Certainly, Lucchesi v. Stimmell is precedent for the appellee’s position that this case embraces factual matters for a jury to determine. To suggest that insufficient facts illustrative of abandonment and emotional distress were presented to the jury is simply not correct. I would affirm.

Glaze and Corbin, JJ., join.


text:
    STATE of Arkansas v. Willie Edward JOSHUA
    CR 91-126
    818 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered October 28, 1991
    [Rehearing denied December 16, 1991.]

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen. for appellant.

      William R. Simpson, Jr., Public Defender, by: Llewellyn J.Marczuk, Deputy Public defender, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves the interpretation of Ark. Code Ann. § 5-13-202 (a)(4)(C)(1987), which provides as follows:

(a) A person commits battery in the second degree if: * * * *
(4) He intentionally or knowingly without legal justification causes physical injury to one he knows to be:
* * * *
(C) An individual sixty (60) years of age or older or twelve (12) years of age or younger; ....

On February 26,1991, the appellee, Willie Edward Joshua, was charged by amended felony information with battery in the second degree on the allegation that he caused injury on July 11, 1990, to Bobby Johnson, Jr., a minor who he knew to be twelve years of age or younger.

At a pretrial hearing in the Pulaski County Circuit Court on March 1, Joshua made an oral motion to dismiss on the basis that Bobby Johnson was twelve years, five months, and four days old at the time of the incident and, therefore, did not come within the definition of the statute. The trial court announced from the bench that Joshua’s motion would be granted and subsequently entered the corresponding order on March 8, 1991.

The appellant, State of Arkansas, asserts a single point of error on appeal and argues that the trial court erred when it concluded that an individual who has attained his twelfth birthday, but who has not yet reached his thirteenth birthday, is not an individual “twelve years of age or younger” for purposes of application of the definition of second degree battery as set forth in section 5-13-202.(a)(4)(C). We find that the State’s argument has merit.

In interpreting statutes, our basic rule is to give effect to the intention of the legislature, Fairchild v. State, 286 Ark. 191, 690 S.W.2d 355 (1985), making use of common sense, Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979), and assuming that when the legislature uses a word that has a fixed and commonly accepted meaning that the word at issue is presumed to have been used in its fixed and commonly accepted sense. Muhammed v. State, 300 Ark. 112, 776 S.W.2d 825 (1989); Bass v. State, 285 Ark. 341, 686 S.W.2d 441 (1985). We interpret the statute at issue in such a way as to give meaning and effect to every word in the statute, Locke v. Cook & Cook, 245 Ark. 787, 434 S.W.2d 598 (1968), but even penal statutes should not be interpreted so strictly as to reach absurd consequences that are clearly contrary to legislative intent. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988).

The interpretation of similar statutes in other jurisdictions has produced divergent views. Compare State v. Carlson, 223 Neb. 881, 394 N.W.2d 669 (1986) (the Supreme Court held that as used in a statute setting forth the crime of sexual assault of a child, the phrase “fourteen years of age or younger” designated persons whose age is less than or under 14 years, and also designated persons who have reached or passed their 14th birthday but have not yet reached their 15th birthday); People ex rel. Makin v. Wilkins, 22 A.D.2d 497, 257 N.Y.S.2d 288 (1965) (the court held that a child 10 years and 3 months of age was “a child ten years of age” until such child reached its 11th birthday, so that the felony provisions of the questioned statute were activated); State v. Hansen, 404 So.2d 199 (Fla. App. 1981) (the Supreme Court adopted the rationale of the court of appeals when it found that an 11 year, 3 month old victim was within the plain language of the statute addressing the sexual battery of “a person 11 years of age or younger”); and Phillips v. State, 588 S.W.2d 378 (Tex. Crim. App. 1979) (the court held that the statutory language, “a child who is 14 years of age or younger,” included in its protection all children who had not attained their fifteenth birthday and protected the 14 year, 1 month, and 5 days old victim in that case), with State v. Jordan, 528 A.2d 731 (R.I. 1987) (the Supreme Court held that the phrase “thirteen years of age or under,” as used in a first-degree child molestation sexual assault statute, referred only to victims who were assaulted on or before their 13 th birthday, and not to victims who were between 13 and 14 years of age at the time of the assault); State v. McGaha, 306 N.C. 699, 295 S.E.2d 449 (1982) (the Supreme Court held that for purposes of the statute defining a sex offense in the first degree as engaging in sex with a child “of the age of 12 years or less,” that once a child passed his twelfth birthday he was over 12 years of age); and Knott v. Rawlings, 250 Iowa 892, 96 N.W.2d 900 (1959) (the Supreme Court held that under the statute prohibiting the commission of lascivious acts with “a child of the age of sixteen years, or under,” a child who was 16 years, 6 months and 3 days old, was not 16 years or under as that phrase was used in the statute).

In State v. Carlson, supra, the Supreme Court of Nebraska based its decision on the following rationale:

If “less, than fourteen years of age” or “under fourteen years of age” had been used in [the statute], the protection of that statute would terminate when a child reached the 14th birthday. Because “less than” or “under” is absent from [the statute], while fourteen years of age or younger” appears in the statute, the compelled logical conclusion is that the statute’s protection extends into and throughout the year immediately following a person’s 14th birthday. When the plain and unambiguous language of [the statute] is considered, to the ordinary person “fourteen years of age” means that one has passed the 14th birthday but has not reached the 15th birthday. Thus, “fourteen years of age” is a temporal condition existing on the 14th birthday and continuing until the 15th birthday. Any other construction of “fourteen years of age” would be a perversion of popular parlance.

(Citations omitted.)

We agree with this reasoning and hold that the phrase “twelve years of age or younger,” as used in section 5-13-202(a)(4)(C), designates persons whose age is less than or under twelve years, as well as persons who have reached and passed their twelfth birthday but have not reached their thirteenth birthday.

As an additional matter, Joshua contends in his brief that the State’s appeal should be dismissed because the State filed its notice of appeal sixteen minutes before the trial court filed its final order.

We noted in Edmonds v. State, 282 Ark. 79, 665 S.W.2d 882 (1984) (citing Caskey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981)), that a notice of appeal must be filed within 30 days from entry of the judgment, decree or order appealed from, and even if the appeal is filed before entry of judgment, it is treated as being filed on the date the judgment was entered. Consequently, the State’s notice of appeal was timely.

However, the United States Supreme Court has held in Finch v. United States, 433 U.S. 676 (1977), that jeopardy attached where the trial court held, on an agreed statement of facts, that the information failed to state an offense and dismissed the case without a formal finding of guilt or innocence. Here, as in Finch, the trial court held under the stipulated facts that the defendant did not come within the language of the statute at issue and dismissed the case. In substance, that was a judgment of acquittal on the facts, and once a defendant has been acquitted, he cannot be retried regardless of how “egregiously erroneous” the legal ruling leading to that acquittal may be. Sanabria v. United States, 437 U.S. 54, 75 (1978) (citing Fong Foo v. United States, 369 U.S. 141 (1962)).

Error declared.


text:
    Jessie TRAVIS and Connie Travis v. Richard HOUK, M.D.
    91-122
    817 S.W.2d 207
    Supreme Court of Arkansas
    Opinion delivered October 28, 1991

      Larry J. Steele, for appellants.

      Friday, Eldredge & Clark, by: C. Tab Turner and Scott H. Tucker, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves the procedural question of whether the appellants, Jessie and Connie Travis, may amend their complaint alleging medical malpractice against the appellee, Dr. Richard Houk, to comply with Ark. Code Ann. § 16-114-205 (1987), which prohibits the specification of an amount of damages in an action for medical injury.

On July 18,1990, the Travises filed their original complaint and claimed damages in the amount of $275,000.00, arising out of Dr. Houk’s alleged actions between August 12 to 14,1988. Dr. Houk answered and filed a motion to dismiss on August 13,1990, on the basis of non-compliance with section 16-114-205. The Travises subsequently amended their complaint to claim an unspecified amount of damages, as a result of which Dr. Houk then filed a motion to strike the amended complaint.

On March 18,1991, the trial court granted Dr. Houk’s motion to strike the Travises’ amended complaint and their original complaint was dismissed without prejudice. For purposes of appeal, a judgment is final if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Although the dismissal of the claim against the Travises was without prejudice, it was clearly a dismissal of the parties from this action and a final, appealable order. See Middleton v. Stilwell, 301 Ark. 110, 782 S.W.2d 44 (1990).

The Travises assert one point of error on appeal and argue that the trial court erred in striking the amended complaint and dismissing without prejudice their original complaint. We agree and reverse and remand.

Section 16-114-205 addresses the allegation of damages in medical malpractice actions and provides in pertinent part as follows:

(a) In any action for medical injury, the declaration or other affirmative pleading shall not specify the amount of damages claimed but shall, instead, contain a general allegation of damage and shall state that the damages claimed are within any minimum or maximum jurisdictional limits of the court to which the pleading is addressed.
* * * *

Arkansas R. Civ. P. 15(a) addresses amended pleadings and provides in pertinent part as follows:

(a) Amendments. With the exception of pleading the defenses mentioned in Rule 12(h)(1), a party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding. . . .

In Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989), we noted that a party should be allowed to amend absent prejudice, and an important consideration in determining prejudice is whether the party opposing the motion will have a fair opportunity to defend after the amendment.

Although we have required strict compliance with the medical malpractice provision regarding notice of intent to sue, Cox v. Bard, 302 Ark. 1, 786 S.W.2d 570 (1990); Ofili v. Osco Drug, Inc., 300 Ark. 431, 780 S.W.2d 11, (1989); and Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986), we premised our decisions on the legislature’s intent of encouraging “the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of malpractice insurance.” Ofili v. Osco Drug, Inc. (citing Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983)).

In this case, the Travises complied with the notice of intent to sue provision, yet violated section 16-114-105(a) by specifying their damages in the amount of $275,000.00, rather than alleging a general claim for damages. Dr. Houk obliquely claims that “ [i] f the amendment is permitted, the original complaint containing the figure of $275,000.00 is still of public record and open to the community in general. This public record would then be available for any reporter to inspect and, if he considered the matter newsworthy, to publicize.” However, Dr. Houk has not shown resulting prejudice or undue delay as a result of the filing of the amendment. We also find it important, in this case, that there is no showing that Dr. Houk will not have a fair opportunity to defend after the amendment.

Consequently, we find that the trial court misapplied Rule 15(a) and abused its discretion in this case by granting Dr. Houk’s motion to strike the Travises’ amended complaint and dismissing their original complaint without prejudice.

Reversed and remanded.


author: Robert H. Dudley, Justice.

text:
    Jerry C. CHAPMAN v. Hubert ALEXANDER
    91-33
    817 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered October 28, 1991

      Gill and Elrod, by: Victor A. Fleming, for appellant.

      Barber, McCaskill, Amsler, Jones & Fíale, P.A., by: Stephen Bingham, for appellee.
   Robert H. Dudley, Justice.

In June of 1986, Hubert Alexander, an attorney, represented Jerry Chapman in the sale of a business. In July of 1990, more than three (3) years after the sale had been completed, Chapman-sued Alexander for an alleged act of legal malpractice which occurred at the time of the sale. Chapman did not allege Alexander concealed the negligent act. Alexander pleaded the statute of limitations as a bar to the action. The trial court granted summary judgment in favor of Alexander. We affirm the summary judgment.

Since 1877, it has been our rule that the statute of limitations applicable to a malpractice action begins to run, in the absence of concealment of the wrong, when the negligence occurs, andnotwhenitisdiscovered. Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). Appellant Chapman acknowledges our long line of cases so holding and that they constitute the “general rule.” Even so, he asks us to abandon the general rule and retroactively adopt one of the “current trend” cases. Those cases primarily adopt one of three (3) approaches. First, is the “discovery rule.” Under this approach, the statute of limitations does not begin to run until the negligent act is discovered or should have been discovered. Second, is the “date of injury” rule. Under this view, the statute of limitations begins to run, not from the occurrence of the negligent act, but rather from the time injury results from the negligent act. Third, is the “termination of employment” rule. Under it, the statute of limitations does not begin to run until the attorney-client, doctor-patient, or other professional-client relationship has ended. See Annotation, When Statute of Limitations Begins To Run Upon Action Against Attorney For Malpractice, 32 A.L.R.4th 260 (1984). Some of the aforementioned “rules” are based upon statutes rather than case law. See id. at 266-67.

In ordinary tort and contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. This is also the case under our traditional rule. The “other rules” postpone the running of the statute of limitations in professional malpractice, that is, give the client a longer period of time in which to sue, because of the special nature of the relationship between the professional and his client. While each of the other approaches has some appeal, we found the most meritorious of the other rules to be the “discovery rule” adopted by the Supreme Court of California in Neel v. Magana, 6 Cal. 3d 176, 98 Cal. Rptr. 837, 491 P.2d 421 (1971). Still we do not abandon our traditional rule and adopt the “discovery rule.”

Our traditional rule has a countervailing fairness about it. First, everyone is .treated in the same manner. Second, an abstractor, accountant, architect, attorney, escrow agent, financial advisor, insurance agent, medical doctor, stockbroker, or other such person will not be forced to defend some alleged act of malpractice which occurred many years ago. The problem with the delay is that his or her records or witnesses may no longer be available. For example, in the oral argument of this case, it was developed that under the “discovery rule” an attorney could be forced to defend the validity of a mortgage 25 to 30 years after the preparation of the instrument, long after his records and witnesses are no longer available.

If this case were limited to deciding which rule was the most fair it would be a much closer case, but there is a good deal more to the issue. In a case identical to the one now at bar, we wrote:

Counsel for the appellants concede that it has long been the law in Arkansas that the statute of limitations in an action against an attorney for negligence begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered by the client. White v. Reagan, 32 Ark. 281 (1877); Wright v. Langdon, 274 Ark. 258, 623 S.W.2d 823 (1981). The same rule applies to an action brought against an abstractor for damages resulting from an omission in the abstract of title. St. Paul Fire & Marine Ins. Co. v. Crittenden Abstract & Title Co., 255 Ark. 706, 502 S.W.2d 100 (1973). Counsel argue that we should overrule our prior cases, because an injustice occurs when the statute has run before the error is discovered. That may be true, but a countervailing consideration is that the contrary rule would permit the plaintiff to bring suit many years after the damage had actually occurred and at a time when witnesses might no longer be available. If such a marked change is to be made in the interpretation of statutes that have long been the law, it should be done prospectively by the legislature, not retrospectively by the courts. [Emphasis added.]

Riggs v. Thomas, 283 Ark. 148, 149, 671 S.W.2d 756, 757 (1984).

In another identical case, with the exception that it.involved an accountant, we wrote:

Our decisions have settled this limitation question in professional malpractice actions, and our rule is considerably more restrictive than any of the cases cited and relied on by appellant. In Arkansas malpractice cases, concerning attorneys and physicians, we have consistently held that the statute of limitations begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered. Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989); Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). In fact, Arkansas courts have followed this rule, as it pertains to professional malpractice actions, for well over one hundred years. See White v. Reagan, 32 Ark. 281 (1877) (quoting from Howell v. Young, 5 Barn. & Cress. 259). That being so, we see no compelling reason why we should adopt a different rule to be used in accounting malpractice cases. Accordingly, since appellee’s erroneous advice or negligent conduct occurred in August 1974, appellants’ suit filed on September 8,1981, was clearly beyond the three-year limitation statute. We observed in Riggs v. Thomas, supra, that if such a marked change is to be made in statutes that have long been the law, it should be done by the legislature, not the courts. [Emphasis added.]

Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 429, 773 S.W.2d 90, 92-93 (1989).

We have made it clear that we are not going to retroactively change our rule and that, if it is to be changed, the change must come from the General Assembly. It would be incongruous for us, rather than the legislature, to now change it. More importantly, the issue is one of statutory construction and, since 1877, we have construed our statute under the “traditional rule.” Legislative silence after such a long period gives rise to an arguable inference of acquiescence or passive approval of our construction of the statute. Actually, we find even stronger legislative approval. In 1979 the General Assembly amended the medical malpractice statute to provide: “The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.” The statute further provides that the above sentence shall control unless the doctor conceals a foreign substance in the patient’s body, and then the statute of limitations begins to run when the foreign substance is discovered or should have been discovered. Ark. Code Ann. § 16-114-203(b) (1987). This legislative expression in the medical malpractice statute is consistent with the way we have long construed the malpractice statute of limitations. We can only conclude we are interpreting the statute as the legislature intends.

There is yet another significant reason we do not retroactively adopt the “discovery rule,” “date of injury rule,” or “termination of employment rule.” Many abstractors, accountants, architects, attorneys, and other similar professionals surely have relied on our traditional and longstanding rule. In doing so, they had no reason to keep records for longer than three (3) years. As a consequence, if we retroactively changed the rule, they might easily have no materials to use in their defense. Similarly, most professional people insure themselves against malpractice suits. The terms of malpractice insurance policies may have changed over the last 25 years, so that a professional person who was insured years ago might not be covered today under a retroactive application of the statute of limitations. The General Assembly is best suited to hold hearings on such issues and determine whether a change, if any, should be made and whether it should be made retroactively, prospectively from the date of the change, or prospectively from some future date which would give all professional people time to acquire adequate insurance under a different statute of limitations.

Accordingly, we decline to retroactively overrule our cases construing the statute of limitations in malpractice actions. Affirmed.

Brown, J., not participating.