dissenting. I believe that this case should be affirmed because Pryor did not proffer the testimony that he argues was erroneously excluded and, therefore, has not preserved for appeal the issue upon which the majority relies in reversing and remanding.
The majority has reversed and remanded this case, agreeing with Pryor’s argument that the trial court erred in failing to permit him to introduce into evidence, through the testimony of Robert Willis, an alleged prior inconsistent statement of Jeffrey Hubbard. Although I agree that Pryor should have been permitted to introduce the prior inconsistent statement made by Hubbard through the testimony of Willis, I do not believe the point was preserved for appeal. In order to preserve the error for appeal, it was incumbent upon Pryor to proffer the alleged inconsistent statement to which Hubbard would have testified. Without that proffer, we are unable to determine what statement Pryor alleges that Hubbard may have made that was allegedly inconsistent with his earlier statement. Unless statements forming the basis of an Ark. R. Evid. 613 argument are proffered, their exclusion is not an issue that is preserved for appellate review, Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995).
The majority opinion relies on Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994), Hill v. State, 54 Ark. App. 380, 927 S.W.2d 820 (1996), and Lewis v. Gubanski, 50 Ark. App. 255, 905 S.W.2d 847 (1995), to support its conclusion that Hubbard’s alleged inconsistent statement is apparent. I do not agree that those cases support the majority’s position. In Billett, the excluded testimony was apparent because it had been the subject of the State’s motion in limine to exclude evidence that a witness had been pregnant and had had three abortions. The court had granted the motion on grounds that such evidence was not relevant. When Billett’s attorney sought to elicit such evidence from the witness, the State objected, and the court sustained the objection. On appeal, Billett contended that the court’s exclusion of that evidence was erroneous, but the State argued that the issue had not been preserved for appeal because the witness’s testimony had not been proffered. The supreme court held that the issue was preserved, notwithstanding Billett’s failure to proffer the witness’s testimony, because the testimony excluded was set out by the prosecutor in the State’s motion in limine and clearly understood by the judge.
In Hill, supra, the evidence excluded by the trial court was also the subject of a motion in limine by the State. There, Hill desired to impeach the State’s witness, a police officer, through testimony that the officer had left the police force after filing a false police report and giving a false statement about his police car having been stolen. The court granted the State’s motion in limine. On appeal, the State contended that since Hill did not proffer the excluded testimony, the court’s error in excluding it was not preserved. We held that the issue was preserved because, “[ujnder these facts, there is no question about the substance of the testimony.” Hill, 54 Ark. App. at 381, 927 S.W.2d at 822.
Similarly, in Lewis v. Gubanski, supra, it was held that a proffer of a prior inconsistent statement was unnecessary to preserve for appeal the trial court’s erroneous exclusion of a prior inconsistent statement where the substance of the excluded testimony had been made known to the judge by appellant’s lawyer during the testimony, in chambers, of another witness. The court noted that, “taking into consideration all the above circumstances, we cannot agree that the substance of the evidence . . . was not known to the trial judge.”
The cases relied upon by the majority bear no similarity to the case at bar. In the case now before us, there was no motion in limine or in chambers hearing that would have had the effect of apprising the court of the substance of Hubbard’s alleged prior inconsistent statement. The substance of Hubbard’s alleged prior inconsistent statement, if there was one, is not at all apparent. While we can speculate that Pryor’s attorney thought he might know what the answer to his question would be (or else he might not have asked it), we have no way of knowing whether Willis would or would not have testified that Hubbard had earlier told him that the victim was intoxicated when he was robbed.
Contrary to the majority’s assertions, the substance of Willis’s testimony is certainly not apparent from the question that was asked of Hubbard. When Hubbard was asked whether he had earlier made a statement to Willis that Morales was drunk and passed out in his car on the morning he was robbed, Hubbard stated twice, unequivocally, that, “I did not tell him that.” According to the theory of the majority opinion, we should presume that because Hubbard twice denied making the statement, then when Willis was asked whether Hubbard made the statement, Willis must have been about to contradict Hubbard.
The substance of the excluded testimony is not apparent from defense counsel’s argument to the court. Defense counsel merely argued that he should be permitted to ask the witness about Hubbard’s alleged prior inconsistent statement. As I have already stated, I agree, but in order for the defense counsel to preserve the point for this court to address, he should have proffered the testimony. However, at no time did defense counsel advise the court of what he expected Willis’s testimony to be.
The effect of the majority opinion is to extend the holdings in Billett and Hill, supra, far beyond holding that a proffer need not be made to preserve an issue for appeal where the substance of the testimony is clear. Under the holding of the majority opinion, a proffer will no longer be required if the appellate court can speculate as to what the excluded testimony might have been had defense counsel received the answer for which he had hoped.
I respectfully dissent.
Jennings and Crabtree, JJ., join.
K. MaxKOONCE, II, Judge,dissenting. I agree with the . dissenting opinion of Judge Bird in his assertion that Pryor failed to proffer the testimony that was wrongfully excluded from evidence, and that this omission by Pryor disqualifies the issue from consideration on appeal. To challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so we can review the decision, unless the substance of the evidence is apparent from the context. Ark. R. Evid. 103(a)(2).
I further dissent from the decision announced in the majority opinion due to harmless error. Although I agree that the trial court erred in precluding appellant from impeaching Jeffrey Hubbard with a prior inconsistent statement, I think the error was harmless in light of all the evidence before the jury. When the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. See Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999); Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996).
The jury heard the victim’s testimony at trial in which he admitted that he had been drinking on the morning of the robbery, which was inconsistent with his pretrial statement and inconsistent with Hubbard’s trial testimony. Thus, the jury had before it evidence that would call into question both the victim’s and Hubbard’s credibility. Regardless of the discrepancies, inconsistencies, and contradictory evidence, matters of credibility are for the jury to determine. See Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996). In the instant case, the victim unequivocally identified appellant as the person who robbed him. Our courts have consistently held that the testimony of one eyewitness is sufficient to sustain a conviction. See Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997). Accordingly, I would affirm.