dissenting. The basic issue in this case is whether the appellant received a fair trial under the applicable laws. In my opinion there were two (2) significant errors which deprived him of a fair trial.
1. Admissibility of hearsay evidence
Before trial the prosecuting attorney recognized that he would have difficulty in proving the crime since the alleged victim was probably not competent to testify, and, in addition to proving a touching of the sex organ or the buttocks of the little child, he had to prove that the act of touching was for the purpose of gratifying the sexual desire of either the appellant or the alleged victim. As a result, he filed a motion pursuant to A.R.E. 803(25) for a hearing to determine the trustworthiness of the child’s statement to her mother, father, and social worker. He stated that at trial he would offer evidence of those statements and offer evidence of a prior conviction of appellant for sexual abuse. The trial court heard evidence on the 803(25) motion and ruled that the mother and father could testify about their conversations with the child, and, in addition, ruled that the prior conviction could be used to impeach the credibility of the accused.
At trial, over the appellant’s objection, the court allowed the child to testify. Her testimony was confused and contradictory, and, in truth, she was not competent to testify. See Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982) for the criteria for determining competency. The trial court then allowed the mother, father, and a social worker to testify about statements the child had made to each of them. Later in the trial, the trial court realized that it had made an error in declaring the child competent and allowing her to testify, so it reversed its ruling, and ordered the child’s testimony stricken. It further instructed the jury not to consider the child’s testimony. Thus, the sole testimony used to convict the appellant was the hearsay testimony of the mother, father, and social worker. As previously set out, their testimony was admitted under A.R.E. Rule 803(25).
The majority opinion agrees with the appellant’s argument that Rule 803(25) is unconstitutional and holds: “Rule 803(25) is constitutionally defective on its face, and we so hold.” Yet, the majority opinion affirms the trial court’s admittance of the hearsay statements of the mother, father, and social worker because the child’s statements were “spontaneous,” “consistent,” “plausible,” and “trustworthy.” Such a holding is without a basis under our rules of evidence.
The Arkansas Rules of Evidence govern the proceedings of courts in this State. A.R.E. Rule 101; Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). They are our sole rules of evidence. Rule 801 defines hearsay. Rule 802 provides: “Hearsay is not admissible except as provided by law or by these rules.” Rule 803(1) through (24) provides that the hearsay rule does not apply to those twenty-four (24) specific exceptions. Not one of those exemptions is based upon “consistent” out-of-court statements, “plausible” out-of-court statements, or “trustworthy” out-of-court statements. One exception, 803(2), can be said to apply to “spontaneous” statements, but the majority opinion tacitly concedes that even that exception is not applicable to the testimony of the father and social worker. Thus, the admission of the hearsay testimony of the father and social worker was unmistakably without a basis under our rules and was in error. As others have previously said, “I would reverse for the reasons set out in the majority opinion.”
In addition, and although it is not of consequence to this dissent, the “spontaneous” exception may not be applicable to the mother’s testimony since the alleged incident probably occurred at least two (2) days, and most likely two (2) weeks, before the child told her mother. (See appendix pp. A-18 to -21.) However, since that exception was not suggested or proven to be applicable by the prosecutor and was not relied upon by the trial court, the various dates were not fully developed. In addition, the general residual exception, Rule 803(24), would be insufficient in this case just as it was in the almost identical case of Idaho v. Wright, 497 U.S_, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).
2. Proof of prior conviction
The appellant did not receive a fair trial for a second reason. The trial court allowed proof of a prior conviction into evidence during the State’s case-in-chief. However, before discussing the specific error, it might be helpful to discuss generally the issue as embodied in the Arkansas Rules of Evidence.
The majority opinion interchangeably discusses Rules 404(b) and 609(a). They serve very different purposes, and should not be confused. Rule 404(b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident.
Under this rule, evidence of other crimes is admissible in the State’s case-in-chief when it furnishes part of the content of the crime. This case might well have been a good example of the application of the rule. Here, the accused worked with up to ten (10) young children, some as young as one year old, at a day care center. He probably changed diapers and changed wet underpants. In doing so, it was probably necessary for him to touch the children’s buttocks, but without a culpable intent. That would not have been a crime. The additional fact that would make it a crime would be the touching of the buttocks for the purpose of gratifying the sexual desire of at least one of the participants. See Ark. Code Ann. §§5-14-108,5-14-101(8), and original commentary thereto. If it could be shown that appellant had previously been convicted of gratifying his sexual desire by deviate sexual contact, it would tend to show his culpable mental state in this case. See Ark. Code Ann. §§ 5-2-202 to -204. Such proof necessarily requires proof of enough collateral details to show “a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.” See Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987) and cases quoted therein. The proof might have also been admissible to show the appellant had the opportunity at the day care center to molest these children. Of course, before testimony of another crime is admitted under Rule 404(b), the probative value of the evidence must be weighed against the danger of unfair prejudice. A.R.E. Rule 403.
On the other hand, Rule 609(a) does not come into play during the State’s presentation of direct evidence in its case-in-chief. Rather, it comes into issue during cross-examination and is not designed to furnish part of the content of the crime, but instead, is designed to allow the cross-examiner to attack the credibility of the witness. Subsection (a) of the rule is as follows:
General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [ 1 ] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
Subsequent subsections of the rule provide that, unlike a Rule 404(b) prior conviction, a prior conviction admitted pursuant to Rule 609(a) for impeachment purposes may not include collateral details and circumstances surrounding the conviction. Cotchett and Elkind, Federal Courtroom Evidence 53 (1986) (citing federal cases).
818 S.W.2d 951 SUPPLEMENTAL OPINION ON DENIAL OF REHEARING NOVEMBER 11, 1991 Carolyn Whitefield, for appellant. Winston Bryant, Att’y Gen., by. Sally Moll, Asst. Att’y Gen., for appellee.The case at bar involves proof of a similar crime which was introduced during direct examination of a State’s witness in its case-in-chief. Accordingly, it involves proof under Rule 404(b). However, the State did not offer any of the collateral details of the prior crime to the jury. Apparently, the jury was given only the case number and the fact that the accused had committed a prior felony. (Appendix D-27.) Therefore, the proof did not tend to show the culpable mental state of the accused during the touching; instead, it only showed that he was a bad person. Thus, this case should be reversed on this point also.
Unfortunately, the majority opinion discusses a Rule 609(a) prior conviction and, in affirming this case, goes so far as to overrule Jones v. State, 274 Ark., 379, 625 S.W.2d 471 (1981), a case involving A.R.E. Rule 609(a). Such a holding violates fair play. If the majority opinion is correct, and if the Jones case is applicable and must be overruled, it cannot be overruled ex post facto. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). If the Jones holding is involved in this case, it is now the law of the case and can be overruled only prospectively. Rhodes v. State, supra.
For the two (2) stated reasons, it is my opinion that the appellant did not receive a fair trial.
Holt, C.J., and Newbern, J., join in this dissent.