Dale Smart was convicted of sexual abuse in the first degree for fondling an eight year old girl on June 27, 1987, in violation of Ark. Code Ann. § 5-14-108 (1987). Smart was convicted and sentenced to seven years, suspended to four, on the condition that he obtain counseling.
On appeal Smart argues that the use of the victim’s hearsay statements pursuant to A.R.E. Rule 803(25) and the victim’s live testimony at trial is cumulative and prejudicial. Additionally, Smart argues that the witnesses testifying to the victim’s hearsay statements under A.R.E. Rule 803(25) were allowed to testify about matters other than the alleged sexual abuse incident. Finding no merit in the arguments, we affirm the trial court’s judgment.
The state’s proof was that Dale Smart and his wife had a babysitting arrangement with the Thackers. Veronica Thacker and some of her cousins stayed with the Smarts while their parents worked. On the evening of June 27, 1987, Dale Smart came in from work and after a drink of whiskey retired to his recliner. Smart then called Veronica over to the recliner where he placed her in his lap. While Veronica was in his lap, he proceeded to unbutton and unzip her pants, and fondled the eight year old girl. Smart’s wife was not in the house when this incident occurred, and upon her return to the house, Smart obtained assurances from Veronica that she would not tell anyone about what just occurred. The following morning Veronica reported the incident to her mother and later in the afternoon Veronica told Ms. Paula Breashers, a volunteer SCAN worker and family friend. A week later Veronica spoke with Ms. Helen White, Deputy Sheriff of Pope County, about the incident.
At trial pursuant to A.R.E. Rule 803(25) the state notified Smart that Veronica’s statements to her mother, Ms. Breashers, and Ms. White would be offered at trial. The trial judge determined that these statements possessed a reasonable likelihood of trustworthiness and admitted them into evidence at the trial. Not only were these hearsay statements offered at trial, but Veronica Thacker herself testified.
A.R.E. Rule 803(25)(A) states that:
a statement made by a child under ten years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, provided:
1. The Court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria . . .
A.R.E. Rule 803(25) provides an exception to the hearsay rule in cases of sexual crimes with children under ten years of age. While it is true that this exception was enacted to alleviate the trauma and distress of child victims by not requiring direct testimony from the child, there is nothing in this rule which prohibits a child from testifying. The appellant argues that when the legislature enacted this hearsay exception it meant to create “an either/or situation,” that is, the child may testify or the child’s hearsay statements to others may be introduced at trial, but not both. However, the rule does not state that either the statements or the live testimony may be admitted, nor does any commentary on this rule.
In Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988), we recently addressed this issue. The appellant was convicted of second degree battery inflicted upon a six year old. The child/victim’s hearsay statements as to the origin of his injuries were allowed under A.R.E. Rule 803(25), and the child also testified at trial. The appellant argued that the hearsay statements should have been excluded at trial because they were cumulative and prejudicial. We said:
Our court has held that the mere fact that evidence is cumulative may be a ground for its exclusion, in the sound discretion of the trial judge, but it is hardly a basis for holding that its admission, otherwise proper, constitutes an abuse of discretion.
Therefore, in this case the trial judge did not abuse his discretion in admitting both the hearsay statements of the victim and the live testimony.
The appellant argues that when hearsay statements of children are admitted under A.R.E. Rule 803(25) the rule permits only “a statement made by a child . . . concerning any act or offense . . .” (Our emphasis). The appellant asserts that the testimony of Ms. Helen White was not confined to the mere sexual act of fondling, but she was permitted to relate statements by the child as to how she felt the next day and how she described the incident to her mother. We find little of consequence in this testimony, certainly nothing that warrants reversal. Veronica said the incident made her “uncomfortable” and that she told her mother she had a stomach ache, not from anything she had eaten, but from something that had been done to her. Assuming, without deciding, that Rule 803(25) is as narrow as appellant contends, there is nothing in this proof that could be regarded as substantially affecting the rights of the appellant. A.R.E. Rule 103.
The dissenting opinion asserts that the majority “evades the question of the constitutionality of A.R.E. Rule 803(25)(A).” There are clear and cogent reasons. The argument was not raised in the trial court, nor was it argued on appeal. Either omission, according to literally hundreds of our cases, many of which are authored by the dissenting justice, obviates our dealing with issues that are not presented. If we undertook to answer arguments that were raised neither here nor in the trial court, the process of appellate review would doubtless collapse under its own weight. New principles of appeal and error are more widely followed or firmly entrenched than the rule that we do not address arguments not raised by the litigants.
The dissent discusses at some length the confrontation clause of the United States Constitution and is mystified by our failure to discuss Coy v. Iowa, _ U.S. __ (June 29, 1988). The same answer prevails. Beyond that, Veronica Thacker gave her testimony regarding the sexual abuse she had experienced at the hands of the appellant in open court while directly confronting the appellant. Just how the confrontation clause was breached in this case is not explained in the dissenting opinion.
AFFIRMED.
Newbern, J., concurs. Purtle, J., dissents.