dissenting. I would deny rehearing and let stand our original decision to reverse and remand this case. The simple fact of the matter is that, on a number of occasions, Arkansas appellate courts have upheld lay-opinion testimony in clearly analogous situations where the evidence has been submitted by the State. Simpson’s counsel made this argument to the trial court, and specifically cited the trial court one of these cases, Mathis v. State, 267 Ark. 904, 591 S.W.2d 679 (Ark. App. 1979).
On appeal, Simpson argues that the trial court erred in refusing to allow the opinion testimony of the eyewitness to the shooting, the victim’s brother, James Lytle. I cannot disagree with the well-settled proposition that the decision on whether to admit relevant opinion evidence rests in the sound discretion of the trial court, and the trial court’s ruling will not be reversed absent an abuse of discretion. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). However, Arkansas Rule ofEvidence 701 (2002) permits lay witnesses to testify in the form of opinions or inferences, as long as those opinions or inferences are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. Testimony in the form of an opinion or inference that is otherwise admissible is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact. Ark. R. Evid. 704 (2002); Marts v. State, supra. Although opinion testimony on the ultimate issue is admissible, if the opinion mandates a legal conclusion or “tells the jury what to do,” the testimony should be excluded. Marts v. State, supra (citing Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990)).
Simpson contends that the proffered opinion in this case, which was that the shooting was accidental, was rationally based on James Lytle’s perception, that it would have been helpful-to a clear understanding of his testimony or a determination of a fact in issue, and that it does not mandate a legal conclusion. As support for his argument, Simpson cited to the trial court and to this court Mathis v. State, supra. In Mathis, the defendant was convicted of second-degree murder for the shooting death of his girlfriend. According to the testimony of an eyewitness, the parties were arguing, and the defendant went to get his gun. The witness placed herself in between the defendant and his girlfriend, and she testified that the defendant then reached around and shot his girlfriend. The witness was allowed to testify that in her opinion, the shooting was not accidental. On appeal, the defendant argued that the trial court erred in allowing an opinion on the ultimate issue. He also argued that her opinion was not rationally based on her perception because it went to his state of mind and not to something that could be perceived by her senses. This court held that the opinion was properly admitted, finding that the opinion was rationally based on her observations of the struggle and that it was helpful to the trier of fact to know whether the eyewitness felt the shooting was accidental. Id. We stated that opinion testimony is no longer viewed as “usurping the function of the trier of fact” and that the “trier of fact considers the opinion along with the other evidence and determines the weight to be attached to the testimony.” Id. at 907, 591 S.W.2d at 681.
Also, in Salley v. State, supra, police officers were allowed to testify that the defendant appeared to be “shooting to kill” when he pointed the handgun at one of the officers. The supreme court found that this type of testimony is admissible and is different from an expert who utilizes established facts and from those facts makes a conclusory statement that the actor was “negligent” or “guilty of malpractice.” Id. at 283, 796 S.W.2d at 338; see also Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984) (finding officer’s testimony that the defendant was intoxicated admissible although it embraced the ultimate issue, since it did not mandate a legal conclusion); Tillman v. State, 275 Ark. 275, 630 S.W.2d 5 (1982) (finding that the trial court properly admitted a witness’s opinion that a car had backed out of a driveway just before he saw it, where the witness’s observations as to the car’s position relative to the driveway and its movement provided a rational basis for his opinion).
Here, Lytle testified that he observed eveiy moment of the events leading up to the shooting by Simpson, and that he observed Simpson’s fall and the discharge of the gun. Lytle described the fall and the subsequent shooting as happening so quickly that he was not sure if Simpson had even hit the ground when the gun fired. Thus, the proffered opinion that the shooting was accidental is rationally based on Lytle’s perception of the events. In addition, this opinion would have been helpful to a clear understanding of his testimony describing the shooting, since he testified that “it happened so fast” that he could not say whether the shot went off before or after Simpson fell to the ground. Given Simpson’s defense that the shooting was accidental, this opinion testimony would also have been helpful to a determination of a fact in issue, namely, whether Simpson committed first-degree murder or some other lesser-included offense. Therefore, this opinion testimony is proper under Ark. R. Evid. 701.
The trial court’s ruling that it would have “invaded the province of the jury” for Lytle to testify as to the ultimate conclusion in this case is contrary to the holding in Mathis v. State, supra. As in Mathis, the opinion in this case would not have mandated that the jury reach a certain conclusion. Instead, the jury should have been able to consider this opinion along with all of the other evidence and determine the weight to be attached to the testimony. Id. The trial court abused its discretion in excluding this testimony by ignoring precedent from both our supreme court and this court. In this regard, I would suggest that a trial court does not exercise discretion in a vacuum, but must do so in reference to existing law on the subject at hand. I find persuasive the observation of the concurring judge in Caldwell v. Jenkins, 42 Ark. App. 157, 856 S.W.2d 37 (1993):
‘Abuse of discretion’ is discussed in 1 Childress & Davis, Federal Standards of Reviews § 4.21 (2d ed. 1992).The second citation in the discussion is to a case which states:
“Abuse of discretion” is a phrase which sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.
In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954). The discussion of abuse of discretion is summed up as follows:
It appears, therefore, that often an abuse of discretion standard in civil and criminal appeals should not be equated with a test for unreasonableness. The appellate court must defer to true exercises of discretion but should not wait, in many contexts, until the judge had been wholly unreasonable or whimsical before reversing. After all, even a deferential abuse yardstick does not insulate the judge from accountability. It still allows the appellate court to check for an injustice (much like the clearly erroneous rule), based in turn on the trial court’s own duty to use Asound discretion, exercised with regard to what is right and in the interests ofjustice.And an appellate court is not bound to stay its hand and place its stamp of approval on a case when it feels that injustice may result. Federal Standards of Review at 4-160 (citations omitted).
Id. at 165, 856 S.W.2dat 41. There can be no more “relevant factors” for a trial court to consider than the rule of evidence at issue and the case law interpreting such rule, and no better example of a “clear error of judgment” than when a trial court simply chooses to ignore such precedent.
Finally, I note that other jurisdictions use a different and, in my estimation, better approach when considering whether lay opinion testimony is admissible under analogous circumstances. United States v. Skeet, 665 F.2d 983 (9th Cir. 1982) (holding witness should not be allowed to give opinion as to whether shooting was accidental where jury could be put into a position of equal vantage with the witness for drawing the opinion); State v. Turner, 136 Idaho 629, 38 P.3d 1285 (2001) (holding that opinion testimony that shooting was accidental was properly struck where witness testified to facts and circumstances surrounding the shooting, and jurors from their common experience and knowledge could draw their own conclusions about whether shooting was an accident); State v. Parks, 71 Or. App. 630, 693 P.2d 657 (1985) (holding witness’s opinion that shooting was an accident not admissible where witness was not better able than jury to reach a conclusion on that issue); Fairow v. State, 943 S.W.2d 895 (Tex. Ct. App. 1997) (holding opinion from witness as to whether shooting was accidental not admissible because it would not be helpful from a witness able to articulate his perceptions in great detail, thus increasing the likelihood that the jury could form its own opinion). These authorities, while soundly reasoned, are not in line with the holdings in Mathis v. State, supra, and Salley v. State, supra, where admission of opinion testimony about the accidental nature of a shooting was upheld even though the witness appeared to testify to sufficient facts and circumstances to allow the jury to form its own opinion. This is a better and more objective approach to addressing the admissibility of the kind of opinion testimony offered in Mathis, Salley, and now the case before us, but it has not been employed by our appellate courts where the State has been successful in admitting such testimony. In the absence of a fair and objective analysis as is used in the other cited jurisdictions, I must conclude that to affirm this case is to tacitly agree that trial courts may apply a double standard in considering the admissibility of this kind of witness testimony, and admitting it when it is helpful to the State’s case, but excluding it when it is exculpatory or favorable to the defendant. I cannot agree that a trial court has such unfettered discretion, and I would deny rehearing.
Hart and Neal, JJ., join.