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LEWIS v. GUBANSKI

September 13, 1995

CATHY LEWIS
V.
REBECCA GUBANSKI, RODNEY WYATT, AND WERNER ENTERPRISES, INC.



Appeal from Pulaski Circuit Court; Morris Thompson, Judge, and Larry Dunklin, Special Judge; reversed and remanded.

SYLLABUS BY THE COURT

1. EVIDENCE — ADOPTIVE ADMISSION — SUFFICIENT FOUNDATIONAL FACTS MUST BE FOUND — QUESTION OF ACQUIESCENCE LEFT TO JURY. — Arkansas Rule of Evidence 801(d)(2)(ii) provides that a statement offered against the party "of which he has manifested his adoption or belief in its truth" is not hearsay; such a statement is called an "adoptive admission"; a trial court must find that sufficient foundational facts have been introduced so the jury can reasonably infer that the accused heard and understood the statement and that the statement was such that, under the circumstances, if the accused did not concur in the statement he would normally respond; once such a foundation has been established, the question is left to the jury to determine whether the accused acquiesced in the statement.

2. EVIDENCE — ADMISSIBILITY DETERMINED BY TRIAL COURT — TRIAL COURT COULD HAVE FOUND ADEQUATE FOUNDATION. — Preliminary questions concerning the admissibility of evidence, such as whether a proper foundation has been laid, are determined by the trial court; the trial court's determination in this regard is reversed only if there is an abuse of discretion; under the circumstances in the present case, the trial court could have properly found that an adequate foundation for admissibility of appellant's husband's out-of-court statement had been laid; the evidence was such that the jury could have reasonably inferred that appellant had heard her husband's statement, and the jury could have found that she acquiesced in it.

3. EVIDENCE — BALANCING OF PROBATIVE VALUE AGAINST PREJUDICE — MATTER LEFT TO SOUND DISCRETION OF TRIAL JUDGE. — The balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and a trial judge's ruling on this issue will not be disturbed absent a showing of manifest abuse; the appellate court could not say that the trial judge abused his discretion in allowing the adoptive-admission evidence in the present case.

4. EVIDENCE — PROFFER NOT REQUIRED IF SUBSTANCE OF EVIDENCE IS APPARENT FROM CONTEXT. — Arkansas Rule of Evidence 103(a)(2) provides that no offer of proof is required if the substance of the The opinion of the court was delivered by: Melvin Mayfield, Judge.

This is an appeal from a judgment entered on a jury verdict against the appellant Cathy Lewis and in favor of the appellees. The lawsuit was filed as a result of an accident involving three vehicles. Although the cause of action is a tort, the appeal is in this court because it does not present "a question" about the law of torts as required by Arkansas Supreme Court and Court of Appeals Rule 1-2(a)(16). The only issues presented involve questions about the admissibility of evidence.

Appellant's first point on appeal states that "the trial court made a reversible error in admitting the out-of-court statement of Earl Medley into evidence as an adoptive admission." [50 ArkApp Page 257]

The accident occurred in September 1991, and the case was tried in August of 1993. At the time of the accident the appellant was driving one of the vehicles, and her husband, Earl Medley, was a passenger in that vehicle. The appellee Rebecca Gubanski was driving another vehicle, and the suit was filed by her against the appellant and the driver and the owner of the third vehicle. The jury found for Gubanski against the appellant but not against the driver or owner of the third vehicle. At the time of the trial the appellant and her husband were divorced, and he was living in another state and was not present at the trial. The appellees, however, offered the testimony of John Goodsell, a truck driver who was present at the scene of the accident. They sought to elicit from Goodsell testimony that shortly after the accident he talked with Earl Medley in the appellant's presence, and that Medley said the accident was the appellant's fault. This testimony was offered as an adoptive admission under Arkansas Rule of Evidence 801(d)(2) (ii).

The court heard Goodsell's testimony in chambers to determine if a sufficient foundation had been laid. Goodsell testified:

After the accident we parked [at a] wide place and came back down to where it was all at. I walked around and talked to people after the accident. I talked to Ms. Lewis' husband. When I had the conversation with him Ms. Lewis was standing there. We were all standing there just at the Jeep, all together there. The tone or loudness of the conversation in my opinion Ms. Lewis would've heard what was said. He said she was nervous and [he] told her to go ahead and that she had all kind of room to make it and that it was her fault when it was all over with. Ms. Lewis didn't say nothing.

I don't know whether or not this lady heard the conversation. If she didn't, she needs a hearing aid.

[1] The trial court ruled that a sufficient foundation had been laid and allowed this testimony. We do not think the court erred in this ruling. Rule 801(d)(2)(ii) provides that a statement offered against the party "of which he has manifested his adoption or belief in its truth" is not hearsay. Such a statement is called an "an adoptive admission." See Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). In Wilson v. City of Pine Bluff, [50 ArkApp Page 258]

6 Ark. App. 286, 641 S.W.2d 33 (1982), it was pointed out that prior to the adoption of our Rules of Evidence we recognized what the Rules now refer to as an adoptive admission as a "tacit admission" and allowed it in evidence as an exception to the hearsay rule. The admissibility of such evidence is tested by whether a reasonable person, under the circumstances, would have been expected to deny the statements if they were in fact untrue. Morris said a trial court must find that sufficient foundational facts have been introduced so the jury can reasonably infer that the accused heard and understood the statement and the statement was such that, under the circumstances, if the accused did not concur in the statement he would normally respond. Once such a foundation has been established, the question is left to the jury to determine whether the accused acquiesced in the statement. 302 Ark. at 537, 792 S.W.2d at 291.

[2] Preliminary questions concerning the admissibility of evidence, such as whether a proper foundation has been laid, are determined by the trial court. See Ark. R. Evid. 104(a). The trial court's determination in this regard is reversed only if there is an abuse of discretion. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). Under the circumstances in the instant case we think the trial court could have properly found that an adequate foundation for admissibility had been laid. The evidence was such that the jury could reasonably infer that the appellant heard Medley's statement, and the jury could find that she acquiesced in it.

[3] The appellant also argues that the statement of Medley should have been excluded under Ark. R. Evid. 403 which provides that evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or other considerations mentioned in the rule. The only consideration argued by appellant here is unfair prejudice. In Weger v. State, 315 Ark. 555, 559, 869 S.W.2d 688, 690 (1994), our supreme court said, "We have repeatedly held that the balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and a trial judge's ruling on this issue will not be disturbed absent a showing of manifest abuse." We cannot say the trial judge abused his discretion in allowing this evidence in this case, especially in light of our holding on the next point argued by the appellant. [50 ArkApp Page 259]

Appellant's next point is that "the trial court committed reversible error in refusing to admit, as rebuttal evidence, the statement given by Earl Medley to the insurance investigator. . . ."

[4] The appellees' first response to this point is that there was not an adequate proffer of this statement. We do not agree. Arkansas Rules of Evidence 103(a)(2) provides that no offer of proof is required if the substance of the evidence sought to be introduced is "apparent from the context within which questions were asked." See also Billett v. State, 317 Ark. 346, 348, 877 S.W.2d 913, 914 (1994) ("[P]roffer is not necessary when the substance of the offer is apparent.").

Here, the appellant's abstract shows that after an attorney for Mr. Wyatt (the driver of the third vehicle), who is one of the appellees, had elicited from the witness John Goodsell his testimony of what the appellant's husband said in the appellant's presence about the automobile accident being her fault, the appellant testified in rebuttal that her husband "did not say anything remotely resembling" what Goodsell testified her husband said. Appellant then stated, "He provided a statement to the investigators for Mr. Wyatt within a few days after the accident." At this point Mr. Wyatt's attorney objected and appellant's attorney told the trial judge that the statement referred to was taken by Mr. Wyatt's insurance company and "is inconsistent to what Mr. Goodsell has said here." Appellant's attorney then explained that he was being put in a position where the jury was going to be able to rely on Goodsell's testimony about what appellant's husband said, and "yet, I am not allowed to even bring up the fact that he [meaning the appellant's husband] obviously had a prior inconsistent to that."

The court then ruled on the objection by Mr. Wyatt's attorney by stating that the appellant could deny that the statement (which Goodsell said appellant's husband had said) was ever made in the appellant's presence, "but to allow her to start testifying to what a non-party said in a statement is improper."

As we have pointed out, previous to this ruling the trial judge had heard testimony in chambers and had ruled that Mr. Goodsell's testimony about what appellant's husband had said in the appellant's presence would be admissible under Arkansas Evidence Rule 801(d)(2) as "a statement in which one party has [50 ArkApp Page 260]

manifested a belief in its truth." Therefore, taking into consideration all the above circumstances, we cannot agree that the substance of the evidence that appellant's attorney wanted to introduce was not known to the trial judge. He clearly knew that the appellant was going to testify about the statement that her husband had given to the insurance investigator, and her attorney told the judge that it was inconsistent with what Goodsell had testified the husband had said shortly after the accident.

We now turn to a discussion of the trial court's ruling that to allow appellant "to start testifying about what a non-party said in a statement is improper." We first call attention to the fact that the Publisher's Notes, following Ark. R. Evid. 101, state that the Arkansas Rules of Evidence started with the adoption of the Uniform Rules of Evidence at an invalid session of the legislature and were then adopted under the statutory and rule-making authority of the Arkansas Supreme Court. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). Previous to Ricarte, the court said in Rhodes v. State, 276 Ark. 203, 210, 634 S.W.2d 107, 111 (1982), that "we desire to maintain an interpretation of the Uniform Rules that is reasonably consistent with other states as well as with the Federal Rules of Evidence."

Therefore, we start with a comparison of Arkansas Rule of Evidence 801(d)(2) and Federal Rule of Evidence 801(d)(2). Arkansas Rule 801(d)(2) provides that a statement is not hearsay if:

The statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

And Federal Rule 801(d)(2) provides that a statement is not hearsay if:

The statement is offered against a party and is (A) his [50 ArkApp Page 261]

own statement, in either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

It is obvious that the only difference between these two rules is that the Arkansas rule uses (i), (ii), (iii), (iv), and (v) to designate its categorical references, and the Federal rule uses (A), (B), (C), (D), and (E).

Next, Arkansas Rule of Evidence 806 provides:

If a hearsay statement, or a statement defined in Rule 801[d] (2) (iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay ...


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