George v. State

Annotate this Case

813 S.W.2d 792 (1991)

306 Ark. 360

Arthur L. GEORGE, Appellant, v. STATE of Arkansas, Appellee.

No. CR91-100.

Supreme Court of Arkansas.

July 15, 1991.

*793 Carolyn Whitefield, Texarkana, for appellant.

Sandy Moll, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

This appeal arises from the conviction of the appellant, Arthur L. George, for first degree sexual abuse where the jury assessed a sentence of ten years. The victim was a young girl who was 2½ years old at the time of the offense and 3V2 years old at the time of the trial. When the events that are the subject of this appeal occurred, she was under the care of the appellant, who ran a private day care service with his wife in his home in the City of Texarkana. The appellant was age 68 at the time of the criminal charge. The primary issues on appeal relate to the confrontation rights of the appellant under the Sixth Amendment and the introduction into evidence of the appellant's prior conviction for a similar offense as part of the state's case-in-chief.

Paul and Ginger Oliver enrolled their daughter in day care with the appellant and his wife for approximately one year, from August or September 1988 to September 1989. The victim stayed with the Georges during work hours Monday through Friday. Because of the fact that there was only one other child at the Georges' in August 1989, the Olivers moved their daughter to a new day care facility in September named Tot's Landing where she could be with other children. The daughter, however, did return to the Georges' on occasion in September and October 1989 for visits, including a visit Halloween night on October 31. Mrs. Oliver testified that her daughter did not want to go to the Georges' on Halloween night but had wanted to go by for a visit two weeks earlier.

On the night of November 2, 1989, Mrs. Oliver was awakened by her daughter who was having a nightmare. She had had a series of nightmares recently, but on this occasion she complained of dinosaurs in her room which might bite her. The dinosaur fear apparently was inspired by a film that she had seen at Tot's Landing about dinosaurs entitled The Land Before Time. Mrs. Oliver tried to allay her'daughter's fears, but the daughter responded, according *794 to Mrs. Oliver, "Yes, there's dinosaurs in there and they are going to bite me and they are going to bite me like Papaw George bites me." Mrs. Oliver pursued what her daughter meant, and her daughter said, according to Mrs. Oliver, "He bites me on my tee tee." She then pointed to her genital area.

Mrs. Oliver asked her daughter again about George and she replied, according to her mother, "Yes, he bites me like the dinosaurs are going to bite me." Mrs. Oliver went back to bed, but about fifteen minutes later her daughter awoke and again brought up George and the dinosaurs.

Mrs. Oliver relayed her conversation to her husband who was incredulous, but the next morning he asked his daughter about the appellant, and she repeated for him, according to his testimony, that she was afraid the dinosaurs were going to bite her "like Papaw George" did. The father asked where she had been bitten, and the daughter "bent over and pulled up her dress and leaned over and pointed at her behind," according to his testimony.

On November 3, 1989, Mrs. Oliver made an appointment with a social worker for the Arkansas Department of Human Services, Evonne Fellers, to interview her daughter. Ms. Fellers used an anatomically correct doll and had the victim identify parts of the body. The victim played with the vaginal area of the doll and, in response to the social worker's question about what the appellant had done, "stood up, pulled her pants down, bent over, raised her buttocks and pointed to her buttocks." At that point Mrs. Oliver, who was in the room, interjected that her daughter usually said that "Papaw George bites her on the tee tee." During the interview the victim did not verbalize anything to the social worker.

The appellant was charged with first degree sexual abuse as a person over age eighteen who engaged in sexual contact with a person under age fourteen under Ark.Code Ann. § 5-14-108 (1987). Thereafter, the state filed a motion for a hearing to determine the trustworthiness of the victim's statements to her mother, father, and the social worker under Ark.R.Evid. 803(25), and that hearing was held on September 4, 1990. At the conclusion of the hearing, where the Olivers, the social worker and the victim testified, the court ruled that the victim's statements to Mr. and Mrs. Oliver were trustworthy based on the evidence presented by the state taken as a whole. Also, since the victim had testified and been cross-examined, the trial court found that the appellant was not denied his right to confront a witness against him.

The jury trial commenced on September 10, 1990, and lasted until September 12, 1990. At the trial the victim testified and was cross-examined, but she was largely unresponsive to defense counsel, and her testimony was confused and at times contradictory. At the conclusion of her testimony, the trial court ruled that the victim was incompetent to testify and instructed the jury to disregard her testimony. The victim's hearsay testimony, as related by her parents, was deemed admissible. The trial court also permitted the state to introduce as part of its case the appellant's prior conviction for first degree sexual abuse dated July 26, 1990. The prior acts which constituted that offense occurred between September 1987 and September 1989, presumably at the Georges' home, although this is not clear from the record.

Confrontation Clause

For his first argument, the appellant contends that he was effectively denied his right to cross-examine the victim due to her confusing and contradictory responses and, at times, outright refusal to answer questions. This rendered the victim unavailable for cross-examination, according to the appellant. In addition, he argues that the victim's statements to her parents were unreliable. When the right to confront witnesses under the Sixth Amendment is denied, so the argument goes, it is error for the trial court to admit hearsay statements into evidence under Ark.R.Evid. 803(25).

The U.S. Supreme Court has held that the Confrontation Clause in the Sixth Amendment assures the defendant the twin *795 rights of a face-to-face confrontation with his accuser and the right to cross-examination. See Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). At the same time the right to confrontation is not absolute, and the Confrontation Clause "does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause." Idaho v. Wright, 497 U.S.___, 110 S. Ct. 3139, 3145, 111 L. Ed. 2d 638 (1990).

In Wright the Court quoted from its prior holdings on the Confrontation Clause and concluded that the reliability of a hearsay statement could be met where the hearsay statement falls within a firmly rooted hearsay exception or where it is supported by particular guaranties of trustworthiness, which must be shown from the totality of the circumstances. See also Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986); Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Factors to examine in determining trustworthiness, according to the Court in Wright and based on state and federal court decisions, are a) spontaneity and consistent repetition, b) mental state of the declarant, c) use of terminology unexpected of a child of similar age, and d) lack of motive to fabricate. The Wright Court rejected other corroborative evidence of guilt, such as medical evidence of abuse, as having no bearing on the actual trustworthiness of the declarant's statement.

The facts in Wright were similar to the facts before us. There, the declarant involved was 2V2 years old at the time of the crimes charged, and the trial court found her unable to communicate to the jury, and thus unavailable. The trial court in the present case found the victim incompetent to testify, after her testimony to the jury which was contradictory, inconsistent, and at times non-responsive. Nevertheless, as the Court in Wright pointed out, a finding of inability to communicate did not render the victim's prior statement per se unreliable or even presumptively unreliable. The Court was only willing to say that this might have some relevancy in determining trustworthiness.

The victim's statements of child abuse in Wright had been made to a pediatrician. In determining the reliability of the victim's statements, the trial court had looked not only at the circumstances of the statements, but also at corroborative evidence of the abuse itself such as medical evidence, the opportunity of the defendant to commit the offense, and the sister's testimony that the abuse had transpired. Due to the trial court's consideration of factors, unrelated to the circumstances of the victim's statements, the Court excluded these statements as not firmly rooted in a hearsay exception and not possessing sufficient guaranties of trustworthiness under the Confrontation Clause.

In reviewing the factors set out in Idaho v. Wright for trustworthiness and applying them to the case before us, we look first at spontaneity and consistent repetition. The victim in the present case certainly satisfied the spontaneity criterion by blurting out her statement to her mother following a nightmare about dinosaurs. Moreover, she has consistently maintained that the appellant bit her in her genital area. This is confirmed by the statements she made to her mother and father, her demonstration of where she was bitten to her father and the social worker, and her statements and demonstrations at the pretrial hearing and trialthough admittedly her testimony at times was contradictory. For example, she once told defense counsel that her statement about being bitten was "wrong." Such contradictions, however, can easily be attributed to the impact of courtroom trauma on a 3V2 year old. The austerity of the judge, the presence of the appellant, the tension of her parents, and the subtle antagonism of defense counsel all contributed to a very unsettling environment for the child. By and large, however, she adhered to her story of being bitten in the genital area by the appellant.

Moreover, while she was excited at the time she told her mother the story, there is nothing to suggest that she was deranged or had any motive to fabricate the story *796 against the appellant, which are other Wright factors. Her story to her parents was unique and plausible and would not have been within the experience of a girl of such tender years. Mrs. Oliver confirmed that her daughter was unfamiliar with any kind of sexual experience which is certainly understandable at her age. Her demonstrations of where she was bitten added additional credence to her statements.

We hold, therefore, that though the victim was in effect unavailable to testify at trial due to the judge's finding of lack of competency, sufficient guarantees of trustworthiness existed in this case under the Wright criteria to support the trial court's finding that the parents' testimony of the victim's statements did not violate the appellant's confrontation rights. We thus follow the Wright case in holding that the victim's inability to testify effectively at trial did not presumptively invalidate the reliability of her statements to her parents. We further hold that the victim's statements to her mother (but not her father), qualify as an excited utterance under Ark. R.Evid. 803(2), because they were made at an unusually late hour following a nightmare that clearly terrified the victim.

Rule 803(25)

The holding in Idaho v. Wright does call Rule of Evidence 803(25), which was passed by the General Assembly in 1985, into question. The Court in Wright held that corroborative evidence unrelated to the circumstances of the victim's statements was irrelevant to a determination of the reliability of those statements. Yet, Rule 803(25) specifically contemplates the trial court's use of such corroborative evidence in deciding trustworthiness. Ark. R.Evid. 803(25)(1). Moreover, Rule 803(25) does not include the specific factors deemed important for trustworthiness in Wright and used in the case before us: a) spontaneity and consistent repetition; b) mental state of the declarant; c) use of terminology unexpected of a child of similar age; and d) lack of motive to fabricate.

The reasoning behind the admission of hearsay statements of an unavailable victim is that the statements are so trustworthy, cross-examination of the victim would be of little help to the defense. Hence, the Confrontation Clause rights of the defendant are not violated. In the present case we have held that the trial court appropriately found that the victim's statements to her parents were trustworthy, and we used the Wright factors to arrive at our conclusion. Though the trial judge clearly considered Rule 803(25), we do not find from our examination of the record that he used irrelevant corroborative evidence in reaching his decision. Nor was this specific point argued by the appellant at trial or on appeal, although the appellant did raise the issue of the constitutionality of Rule 803(25) generally. To the extent that the trial court did consider corroborative evidence (and, again, the record does not reflect that he did), we hold that it was harmless error.

Nevertheless, in light of the Wright case we no longer believe that Rule 803(25) passes constitutional muster. Under its terms a trial judge could rely heavily on corroborative evidence of the crime in admitting an unavailable victim's hearsay statements as trustworthy and, in doing so, run afoul of the Confrontation Clause. As the U.S. Supreme Court stated in Wright, the factors to be considered must relate to the circumstances of the hearsay declaration itself and not to mere proof of the crime. Impermissible factors are, therefore, included in Rule 803(25) and relevant factors, as specified in Wright, are not. Rule 803(25) is constitutionally defective on its face, and we so hold.

Prior ConvictionRule 404(b)

The appellant also contends that the introduction into evidence of his prior conviction for first degree sexual abuse was reversible error. The applicable rule reads in pertinent part:

(b) 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, *797 such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Ark.R.Evid. 404(b).

In a 1981 case where the crime charged was first degree sexual abuse, the defendant had tried unsuccessfully by pretrial motion to prevent the state from impeaching his credibility under Ark.R.Evid. 609(a) with a nolo contendere plea he had made to a rape involving a young boy. See Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981). The trial court denied the motion, and the defendant did not take the stand. We held that the ruling was wrong on the basis that the prior conviction "would have been of scant probative value as compared to its significantly prejudicial effect on the jury." 274 Ark. at 381; 625 S.W.2d at 472. We noted that the potential for prejudice was especially great in the sexual abuse context.

In 1987, however, we focused on Rule 404(b) and affirmed the admissibility of different deviate sexual acts perpetrated on the victim. See Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). In so holding we said that "we will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing `a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.'" 293 Ark. at 71; 732 S.W.2d at 455; quoting White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). We further held in Free that such evidence of similar acts assists in proving the depraved sexual instinct of the accused.

While there is the potential for prejudice resulting from the admission of similar crimes of sexual abuse, Rule 404(b) clearly establishes that such evidence of "other crimes, wrongs or acts" may be admissible to prove, not the bad character of the defendant, but his motive, plan, or intent. Here, the trial court admitted a sexual abuse conviction into evidence which had occurred less than two months before the trial that is the subject of this appeal. Neither the state's exhibit of the conviction nor the testimony at trial provide more particulars relating to the earlier conviction. Yet the trial court found that the appellant's conviction for a similar act was some evidence of intent and was admissible on that basis under the Rule.

The trial court did not abuse its discretion in so ruling. The prior conviction for first degree sexual abuse occurred within two months of the trial in this case. The prior offense also occurred within the same time frame as the offense here. Under such circumstances the prior conviction is probative of intent, motive, or plan. This is so even though the prior sexual abuse involved another person. See Baldridge v. State, 32 Ark.App. 160, 798 S.W.2d 127 (1990). (Prior sexual advances to a niece were probative of similar advances toward a nephew.)

We are, further, unable to draw a legitimate or reasonable distinction between introduction of a similar act to prove intent and introduction of a conviction for a similar act to prove intent. Rule 404(b), in referring to "crimes," does not make that distinction, and we question whether the distinction is meaningful when the real issue is the probative value of proof of an element of the offense weighed against its prejudicial impact.

We have held that a prior conviction is inadmissible to prove general intent to commit a crime, because the prejudice far exceeds the probative value. See Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). We also have held that in special circumstances where specific intent is an element of the crime, evidence of that intent is admissible. Id. We concluded in Alford that "our cases very plainly support the common sense conclusion that proof of other offenses is competent when it actually sheds light on the defendant's intent; otherwise it must be excluded." 223 Ark. at 338; 266 S.W.2d at 808. In the case of child abuse such as we have here, a depraved sexual instinct was involved, and our prior cases have noted that similar unnatural sex acts may shed light on such an instinct. See, e.g., Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1988).

*798 We, therefore, affirm the admissibility of similar child abuse acts as probative of motive, plan or intent under Rule 404(b). The case of Jones v. State, as discussed above, is distinguishable on its facts. Nevertheless, to the extent Jones is inconsistent with our holding today, we overrule it.

Lastly, we note that the trial court gave a cautionary instruction relating to the prior conviction:

The Court would further instruct you that you may consider the testimony relating to the prior conviction of the defendant only for the purpose of determining the intent the defendant may have had pertaining to the charge alleged.

We have previously held that proof of other criminal activity which is independently relevant to the main issue and tends to prove some material point rather than merely that the defendant is a criminal may be admissible with the proper cautionary instruction. See Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1988). This concept has been applied to show other sexual acts between the victim and accused. Id. We see no reason why it should not apply in the case before us.

Directed Verdict

The appellant moved for a directed verdict on three grounds: 1) the criminal information was vague and erroneous in stating that the event occurred "on or about November 2, 1989"; 2) the appellant's age was not proven which was an essential element of the crime charged; and 3) the victim's incompetency at trial rendered her hearsay statements to her mother presumptively inadmissible.

We have held that in an information reciting that a sexual abuse act occurred "on or about April 27,1985," the state need not specify a date beyond this unless the time was somehow material to the allegation. See Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987). We did not think that more specificity was required in that case, and that conclusion governs us in the case before us. The trial court was correct in denying a directed verdict on this point.

On the second point the state failed to prove before it rested that the appellant was above age eighteen as the first degree sexual abuse statute requires. The appellant was actually 69 years old at time of trial, and the trial court permitted the state to reopen its case to prove that the appellant was over 18, after the appellant's motion for directed verdict but before the appellant had put on his case. Such matters are discretionary with the trial court, and we will not reverse absent abuse of discretion. See Curtis v. State, 279 Ark. 64, 648 S.W.2d 487 (1983). (The recalling of a jury for additional evidence was discretionary with the trial court.) We find no prejudice on this point.

The third argument dealing with the competency of the victim to testify and the trustworthiness of her declarations has already been discussed. See Idaho v. Wright, 497 U.S. ___, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990).

Affirmed.

HOLT, C.J., and DUDLEY and NEWBERN, JJ., dissent.

DUDLEY, Justice, 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 *799 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 exceptions is based upon "consistent" out-ofcourt 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, identity, or absence of mistake or accident.

Under this rule, evidence of other crimes is admissible in the State's case-in-chief *800 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 crossexamination 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 it 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).

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 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.