Cozad v. State , 303 Ark. 137 ( 1990 )

Tom Glaze, Justice.

Appellant was charged under the rape statute, Ark. Code Ann. § 5-14-103 (1987), with engaging in deviate sexual activity with a person under fourteen years of age. The victim is the daughter of Cathy Lewellyn, who held herself out to be Cozad’s wife at the time of the crime. Appellant was convicted of rape and sentenced as a habitual offender to forty years imprisonment.

In his appeal, the appellant argues that the trial court erred in overruling his asserted privilege under Ark. Code Ann. § 17-39-107 (1987) involving a conversation he had with a certified licensed social worker. The trial court ruled that, pursuant to Ark. Code Ann. § 12-12-511 (Supp. 1989), the social worker could testify about her conversation with the appellant. In addition, the appellant argues that the trial court erred in not ruling that A.R.Cr.P. Rule 36.4 is unconstitutional. We find no error and therefore affirm.

Since the appellant does not challenge the sufficiency of the evidence, only the following information is needed in resolving the privilege issue he argues on appeal. On the evening of Friday, August 19,1988, Cathy Lewellyn said that she came home early from work and discovered that a sexual movie was being played on the television and her thirteen-year-old daughter was performing oral sex on the appellant. Mrs. Lewellyn testified that, shortly after she discovered the appellant with her daughter; the appellant called someone on the phone, and told that person that “he needed help, that that wasn’t what normal people do.”

The following Monday, the appellant and Mrs. Lewellyn went to see Gwyn Price-Pickard, a social worker at Professional Counseling Associates. At trial, Ms. Price-Pickard testified that the appellant told her that he was in a stupor or unconscious condition that Friday evening and that prior to, and at, the time his wife walked in, he was not aware of what was taking place. This testimony was admitted into evidence over appellant’s strenuous objections that it was a privileged communication. The appellant’s defense at the trial was that he was in Oklahoma working at the time the crime was alleged to have been committed. The appellant conceded that on the following Monday, he did take Mrs. Lewellyn to “her” appointment with Ms. PricePickard, but when asked, he told the social worker that he had no knowledge of the episode Mrs. Lewellyn claimed occurred on the prior Friday.

In the appellant’s first issue, we are asked to address the conflict, if any, between Ark. Code Ann. §§ 12-12-511 and 17-39-107. Below and on appeal, the appellant argues that, under the terms of § 17-39-107, his conversation with the social worker is privileged. This privilege is contained in the Social Work Licensing Act, Act 791 of 1981, and provides the following:

No licensed certified social worker, licensed master social worker, or licensed social worker or his secretary, stenographer, or clerk may disclose any information he may have acquired from persons consulting him in his professional capacity to those persons. . . . (Emphasis supplied.)

The foregoing provision continues to list four exceptions where the information would not be privileged, but none are applicable here. ¹

The state argued successfully below that § 12-12-511 was in existence when § 17-39-107 was enacted, and specifically provides that no privilege exists “at any proceeding” involving the sexual abuse of children. Section 12-12-511 is part of the Child Abuse Reporting Act, Act 397 of 1975, and provides as follows:

Any provision of the Arkansas Uniform Rules of Evidence notwithstanding, any privilege between husband and wife or between any professional person, except lawyer and client including, but not limited to, physicians, ministers, counselors, hospitals, clinics, day care centers, and schools and their clients shall not constitute grounds for excluding evidence at any proceeding regarding child abuse, sexual abuse, or neglect of child or the cause thereof (Emphasis supplied.)²

The appellant argues that §12-12-511 was intended to apply only to civil, and not criminal proceedings. We disagree.

A primary rule in statutory construction is to ascertain and give effect to the intent of the General Assembly and this intent is obtained by considering the entire act. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979). In determining the legislature’s intent in passing § 12-12-511, we must look at other parts of the Child Abuse Reporting Act. See State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). To begin with, we look at the Act’s purpose which provides the following:

It is the purpose of this subchapter, through the use of complete reporting of child abuse, to protect the best interests of the child, to prevent further harm to the child, to stabilize home environment, to preserve family life, and to encourage cooperation among the states in dealing with child abuse.

Next, we note that “sexual activity” is defined by the Act as any act of deviate sexual activity, sexual intercourse, or contact as set out and defined in the Arkansas Criminal Code and its amendments. The Act also mandates that written reports concerning instances or allegations of child abuse, sexual abuse and neglect be given to the prosecuting attorney’s office and appropriate law enforcement agency. Ark. Code Ann. § 12-12-507(c) (Supp. 1989); see also Ark. Code Ann. § 12-12-508(f) (Supp. 1989). Furthermore, § 12-12-507(d) (Supp. 1989) provides that a written report from persons or officials required by this Act shall be admissible in evidence in “any proceeding” relating to child abuse, sexual abuse or neglect.

In the same Act, §12-12-513 by its language applies to only dependency or neglect cases. That provision allows for a court ordered examination by a physician, psychologist, or psychiatrist of the parents or custodian after a finding of dependency or neglect. The information obtained from the court ordered examination is excluded from use in any subsequent criminal proceedings against the person or custodian concerning the abuse or nonaccidental injury of the child. Ark. Code Ann. § 12-12-513(c).

On the other hand, notably missing from § 12-12-511, and from 12-12-507, is language providing an exclusion of such information from use in criminal proceedings. Unlike § 12-12-513, § 12-12-511 contains no limiting language to its use in criminal proceedings, but instead uses the term, “any proceeding.” Also, it does not concern court ordered examinations. In addition, a reading of § 12-12-510, which provides that a person who in good faith makes a report of child abuse shall be immune from civil or criminal liability, shows that the legislature was contemplating criminal as well as civil proceedings.

While this court has never addressed this issue before, we have previously indicated that the Child Abuse Reporting Act applied to criminal proceedings. See Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986). The appellant, in Poyner, was appealing from a conviction of two counts of rape and two counts of incest involving his son and daughter. In this case, we suggested that statements made by the children to the witnesses would be admissible under A.R.E. 803(25)(A) and Ark. Code Ann. § 12-12-507(d) and 12-12-511.

Further, the rules of statutory construction applied to conflicting provisions do not mandate a different result. We have held that a general statute does not apply when there is a specific statute covering a particular subject matter. Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987). Here, § 17-39-107 provides a general privilege for a person consulting with a social worker in his or her professional capacity. But, § 12-12-511 is a specific statute that applies an exception when dealing with proceedings regarding child abuse, sexual abuse or neglect of a child. In addition, we have often stated that it will be presumed that the legislature intended to use words in their usual and natural meanings. Simmons First National Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986). Thus, “any proceedings” regarding sexual abuse of a child should include a criminal prosecution for rape.

In the appellant’s second issue, he argues that the trial court erred in not ruling A.R.Cr.P. Rule 36.4 unconstitutional. Rule 36.4 was enacted after A.R.Cr.P. Rule 37 was abolished; it provides for a defendant to make his or her argument regarding ineffective assistance of counsel on direct appeal. Specifically, the appellant contends that he would be prejudiced by having this court consider his ineffective assistance of counsel claim with his arguments on the merits of his case on appeal. While the appellant had a hearing below pursuant to Rule 36.4, the appellant did not argue his case for ineffective assistance of counsel. Instead, he handed a sealed envelope to the trial judge which contained the proffered testimony of the appellant’s former attorney, rather than requesting an in camera hearing on these matters under A.R.Cr.P. Rule 19.6. Appellant presented no evidence or testimony to the court below, and we are unable to consider evidence for the first time on appeal.

We first note that the appellant has cited the court no authority to support his contention that the procedure of Rule 36.4 is unconstitutional. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). It is well settled that the party challenging the statute has the burden of proving that it is unconstitutional. Dutton v. State, 299 Ark. 503, 774 S.W.2d 830 (1989). Secondly, since the appellant did not argue his ineffective assistance claim below, we cannot address his Rule 36.4 arguments on appeal. As ve have repeatedly stated, we do not issue advisory opinions.

For the reasons stated above, we affirm.

Newbern and Price, JJ., dissent.

1 We note the state’s inference that the exception in § 17-39-107(2) would apply here. This exception applies when the communication reveals the contemplation of a crime or harmful act. There is no showing in the record that the appellant revealed plans for a future crime or harmful act to the social worker, so this exception clearly would not apply.

2 This provision was later amended by Act 421 of 1989 which added an exception for the privilege between a person confessing to or being counseled by a minister except in dependent/neglect cases or child custody cases.