{ "id": 6658085, "name": "Teresa CHANDLER (SPEED) v. James BAKER", "name_abbreviation": "Chandler v. Baker", "decision_date": "1985-12-11", "docket_number": "CA 85-239", "first_page": "253", "last_page": "257", "citations": [ { "type": "official", "cite": "16 Ark. App. 253" }, { "type": "parallel", "cite": "700 S.W.2d 378" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "278 Ark. 460", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748346 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0460-01" ] }, { "cite": "270 Ark. 996", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709321 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0996-01" ] } ], "analysis": { "cardinality": 446, "char_count": 7763, "ocr_confidence": 0.928, "pagerank": { "raw": 9.28369979962728e-08, "percentile": 0.5120149862018982 }, "sha256": "8bfe9b45796feedd14f6e08ffd35030cab8b167a99fbcf84548eba76d83a0ac6", "simhash": "1:26a5f91a1d2c53f0", "word_count": 1311 }, "last_updated": "2023-07-14T21:17:43.530792+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft, C.J., and Corbin, J., agree." ], "parties": [ "Teresa CHANDLER (SPEED) v. James BAKER" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nThis is an appeal from a decision of the circuit court, sitting without a jury, which held that appellee, James Baker, was not the father of appellant\u2019s children, Stanley and Ebony. We affirm.\nWithout detailing the evidence introduced, we think it sufficient to say that appellant testified that appellee was the father of the children; that there was some evidence to corroborate that possibility; and that appellee admitted a sexual relationship with appellant but testified that this relationship had ended more than a year before her first child was born.\nPursuant to an order of the court, appellant, appellee, and the two children were given blood tests to determine the likelihood of appellee\u2019s being the father. Through arrangements made by the Child Support. Enforcement Unit, blood samples were drawn in Blytheville, Arkansas, and sent to the National Paternity Laboratories, Inc., in Dayton, Ohio, for testing. The lab report stated that the test results indicated that appellee could not be excluded as a possible father of the children, and it was calculated that the likelihood he was Stanley\u2019s father was 190 to 1, and for Ebony the likelihood was 101 to 1.\nWhen this lab report was offered into evidence by appellant, the appellee objected unless the expert making the blood test was present for cross-examination. Appellant declined the option to seek a continuance so that the witness could be present and the court reserved ruling on the report\u2019s admissibility until briefs were filed after trial. After considering the briefs, the court ruled the report inadmissible and found for the appellee on the basis that appellant had failed to meet her burden of proof. The appellant argues that under Ark. Stat. Ann. \u00a7 34-705.1 (Supp. 1985), the report was admissible. That statute, which is the first section of Act 127 of 1955, as amended in 1981 and 1983, provides as follows:\nWhenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court may direct that the defendant, complainant and child submit to one (1) or more blood tests or other scientific examinations or tests, to determine whether or not the defendant can be excluded as being the father of the child, and to establish the probability of paternity if the test does not exclude the father [defendant]. The results of the tests shall be receivable in evidence. The tests shall be made by a duly qualified physician, or physicians, or by another duly qualified person, or persons, not to exceed three (3), to be appointed by the court. The costs of the test shall be taxed as other costs in the case or, in the court\u2019s discretion, may be taxed against the county. Such experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings.\nWe do not agree with appellant\u2019s argument that this statute makes the results of the tests admissible and that it simply permits the persons who performed the tests to be cross-examined after the court has caused them to disclose their findings. To the contrary, the statute clearly states that these experts shall be subject to cross-examination. Thus, we think the trial court was correct in ruling that the lab report was not admissible since the persons who performed the blood tests at the laboratory in Dayton, Ohio, were not available for cross-examination.\nWe also note that this statute may not even apply in this case since the appellant\u2019s abstract does not indicate that the persons (or person) who made the tests were appointed by the court. Furthermore, we are not unmindful of the fact that the second section of the 1955 Act was amended by the 1985 General Assembly to provide that a written report of the test results by a duly qualified expert performing the tests, certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in illegitimacy actions without calling such expert as a witness; and if either party desires to question the expert, the party shall have him subpoenaed within a reasonable time prior to trial. See Ark. Stat. Ann. \u00a7 34-705.2 (Supp. 1985). However, at the time this present case was tried, that section applied only to the State Medical Examiner, see Ark. Stat. Ann. \u00a7 34-705.2 (Repl. 1962).\nAppellant also contends the report of the test results should have been admitted because Unif. R. Evid. 803(24) provides that a statement having sufficient circumstantial guarantees of trustworthiness is admissible, even if hearsay, if the statement meets the criteria set out in the rule. There are at least two answers to this argument. In the first place, the criteria set out obviously grants the trial court broad discretion in determining whether such a statement should be admitted, and we cannot say that discretion was imprudently exercised in this case. Also, as we have already said, Ark. Stat. Ann. \u00a7 34-705.1, supra, expressly states that after the tests have been received into evidence, the persons performing them shall be subject to cross-examination, and Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980), held that the Uniform Rules of Evidence did not repeal the provisions of Ark. Stat. Ann. \u00a7 34-705.1. So, we cannot agree that the Uniform Rules of Evidence required the court to admit the lab report into evidence.\nAppellant\u2019s next argument is that the trial court erred by placing an incorrect burden of proof on her. This suit is a civil proceeding and it was the appellant\u2019s burden to prove her case by a preponderance of the evidence. McFadden v. Griffith, 278 Ark. 460, 647 S.W.2d 432 (1983). A preponderance of the evidence means the greater weight of the evidence \u2014 the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. See Arkansas Model Jury Instruction 202. Appellant\u2019s argument that the trial court applied the wrong burden of proof is based upon the judge\u2019s remarks made at the conclusion of the trial of this case. The judge stated:\n[E] ven though the scales were heavily tipped in favor of the plaintiff at the time she rested, which I suppose is always the case in every case. . . . Considering all the facts and circumstances, there leaves a question as to the burden of proof and the Court is of the opinion at this stage that the plaintiff has not met the burden. The lab report test concerning the paternity is, in the mind of the court, essential to this case.\nAfter the briefs were filed on the question of the admissibility of the report on the blood tests, the court held the report inadmissible and found that the appellant had not met her burden of proving appellee the father of her children.\nWe see nothing in the remarks of the court, or in the findings of fact set out in his opinion letter to the attorneys, or in the judgment entered of record to indicate that the court considered the appellant\u2019s burden of proof to be anything other than by a preponderance of the evidence. In fact, the judge\u2019s remark about tipping the scales is certainly in keeping with the concept of determining the weight of the evidence, which is the very essence of what the preponderance of the evidence means. However, under the provisions of ARCP 52(a), our problem is to determine whether the trial judge\u2019s finding of fact was clearly against the preponderance of the evidence. After a careful review of the evidence, we cannot find that it was.\nAffirmed.\nCracraft, C.J., and Corbin, J., agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "East Arkansas Legal Services, Inc., by; James O\u2019Connor, for appellant.", "Henry J. Swift, for appellee." ], "corrections": "", "head_matter": "Teresa CHANDLER (SPEED) v. James BAKER\nCA 85-239\n700 S.W.2d 378\nCourt of Appeals of Arkansas Division II\nOpinion delivered December 11, 1985\nEast Arkansas Legal Services, Inc., by; James O\u2019Connor, for appellant.\nHenry J. Swift, for appellee." }, "file_name": "0253-01", "first_page_order": 283, "last_page_order": 287 }