holding the Trial Court properly admitted the appellant’s prior conviction for first degree sexual abuse of an unidentified child when the victim in the case was entrusted to the appellant for babysitting care
How later courts described this case
- holding the Trial Court properly admitted the appellant’s prior conviction for first degree sexual abuse of an unidentified child when the victim in the case was entrusted to the appellant for babysitting care
- separate conviction for sexually abusing a child was admissible to prove motive, plan or intent of defendant
- supplemental opinion on denial of rehearing
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice. For his petition for rehearing,
the appellant argues that the trial judge used Ark. R. Evid. 803(25) in his decision to admit hearsay evidence and that because we held Rule 803(25) to be unconstitutional in our original opinion, the trial judge’s admission of the hearsay testimony constituted reversible error. The petition for rehearing is denied, and we reaffirm the conviction.
With respect to Rule 803(25), our original opinion is amended by plurality decision. The hearsay statements at issue on appeal are the child’s separate statements to her mother and father about the molestation. The child made the statements to her mother immediately after waking from a nightmare late at night and to her father the following morning. Both parents testified to those statements at trial. We recognized in our original opinion that since the child’s statements to her mother followed a nightmare that caused her to become extremely agitated, they were admissible under the excited utterance exception set forth in Ark. R. Evid. 803(2) as well as under the factors referenced in Idaho v. Wright, 110 S. Ct. 3139 , 111 L.Ed.2d 638 (1990). The father’s hearsay testimony the next morning, though largely cumulative to the mother’s, was only admissible under the Wright criteria.
In Wright, the Court identified four criteria that had been used in various jurisdictions to determine the trustworthiness of hearsay statements: a) spontaneity and consistent repetition; b) the mental state of the declarant; c) the use of terminology unexpected of a child of similar age; and d) the lack of a motive to fabricate. The Court specifically held in Wright that consideration of evidence corroborating the commission of the crime was irrelevant to the hearsay inquiry and, thus, was constitutionally impermissible.
We noted in our original opinion that there was no evidence corroborating the commission of the crime (such as medical testimony of physical trauma) that was used by the trial court in making its decision to admit the hearsay testimony. Defense counsel confirmed this at the Rule 803(25) hearing preceding the trial when she said:
Any other corroborative evidence of the act which is subject to the statement. Here we have the testimony of the parents and of [the social worker] that there was no medical indication of abuse. So, there is no outside corroborative evidence.
Without the existence of the impermissible corroborative evidence, the trial judge could not have considered it under Rule 803(25)(A)1./, despite his having made the general statement that he had considered all of the Rule 803(25) criteria. We did not reverse the appellant’s conviction in our original decision, though Rule 803(25) did contain the suspect corroborative evidence factor, because no corroborative evidence was introduced at trial or considered by the trial court.
We applied the Wright factors in our original opinion in affirming the admissibility of both the mother’s testimony and the father’s, although, again, the mother’s testimony also qualified under the excited utterance exception. One question left unanswered is the precise vehicle to be used for our application of these factors. Our Rules of Evidence state that hearsay is not admissible except as provided “by law or by these rules.” Ark. R. Evid. 802. The Wright factors have not been formally adopted by rule of this court. That raises the question of whether the factors as set out in Idaho v. Wright qualify as “law” under our Rule 802 and, further, whether our original opinion in this case is “law” for Rule 802 purposes. In 1990 we held that our rules of evidence are supreme in establishing hearsay exceptions. See State v. Sypult, 304 Ark. 5 , 800 S.W.2d 402 (1990).
What cannot be overlooked in this case is the fact that the Wright factors were present and were benchmarks for the trustworthiness of the child’s statements. To some extent they are embraced within the Rule 803(25) criteria, which the trial judge considered. They also are available for consideration by a trial judge under the Rule’s catch-all subparagraph which renders applicable “any other factor which the court at the time and under the circumstances deems relevant and appropriate.” Ark. R. Evid. 803(25)l.m. Spontaneity and consistent repetition figured in this case, as the prosecutor and social worker stated to the court at the Rule 803(25) hearing. No motive to fabricate was presented by the defense. At the age of 2l/i when the statements were made, the child had no knowledge of child/adult sexual activity, according to the mother. The description of the sexual act by the child was void of explicit sexual terminology. These were all matters that the trial judge had to consider because they were present in this case.
The Court in Idaho v. Wright held that corroborative evidence such as that contemplated in our Rule 803(25)(A) 1./ violates a defendant’s Sixth Amendment rights. Our Rule 803(25)(A) 1./ is, therefore, clearly constitutionally suspect. Our original opinion, accordingly, is revised to limit the invalidation of Rule 803(25) to the suspect subparagraph /. The balance of Rule 803(25) remains intact. By retaining the balance of Rule 803(25), this permits consideration of the Wright criteria as relevant factors at the trial court’s discretion under Rule 803(25)(A)l.m
Hays, Glaze, and Corbin, JJ., concur. Holt, C.J., Dudley and Newbern, JJ., dissent.