concurring. I, too, affirm Marks’s judgment and conviction because I cannot say that the admission of Howard’s testimony constituted reversible error. However, I do so because, despite the circuit court’s abuse of discretion in admitting the testimony, that error was harmless.
Here, a review of the record reveals that Howard testified to the following on direct examination: (1) that when Marks finished hitting Walker, Marks said that he was “going to run [Walker] over”; (2) that Marks then”[j]umped in the car”; (3) that Marks moved the car; (4) that the car ran over Walker; and (5) that he then left and went home. However, it was revealed on cross-examination that Howard did not see Marks run over Walker.1 Howard testified that “[w]hen [Marks] jumped in the car, that’s when I left.” He then confirmed that he “ran off before this incident.” Following this testimony, on redirect examination, Howard clarified his testimony, stating that he did not see Marks run over Walker, but heard a noise. In addition, Howard testified that he saw the car driving after him, which Marks was driving.
With respect to Rule 701, we have held that the rule today is not a rule against conclusions, but is a rule conditionally favoring them. See Moore v. State, 362 Ark. 70, 207 S.W.3d 493 (2005). Here, the majority attempts to interpret and construe the rule; however, we have already done so, and it is our prior interpretation that renders the admission of Howard’s testimony erroneous.
In Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991), we examined Felty’s argument that the circuit court erred in admitting the testimony of two lay witnesses because their statements were conclusions that could not be supported by personal knowledge. While ignored by the majority, this court specifically discussed the rule and the testimony it contemplates:
[The rule] provides that a lay witness may give an opinion with two (2) limitations. Limitation (1) is the requirement of firsthand knowledge or observation. Limitation (2) is phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not an opinion or conclusion. For example, if a witness is asked, “What kind of day was it?” he might respond, “Beautiful.” It would be an admissible opinion. He would not have to state it was a clear skied, sunny, 72 degree spring day with a slight breeze. The witness can respond in everyday language which includes his conclusion about the type of day. However, if attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the Rule. See Advisory Committee’s Notes to Federal Rule 701.
In sum, opinion testimony by lay witnesses is allowed in observation of everyday occurrences, or matters within the common experience of most persons. Statements by eyewitnesses that the victim was “scared” and “trying to get away” easily fit within the limitations imposed on lay witness opinion.
306 Ark. at 639-40, 816 S.W.2d at 875 (emphasis added). Under this court’s interpretation of the rule, it is clear that Howard’s testimony did not meet the requirements of the rule, as he lacked firsthand knowledge nor was his opinion, that Walker was run over, rationally based on his perception of an everyday occurrence.
According to Felty, Howard’s testimony was only admissible, pursuant to Rule 701, if it was rationally based on an observation of everyday occurrences or a matter within the common experience of most persons. I simply cannot agree that the sound “bl-bloom, bl-bloom” is an everyday occurrence or within the common experience of most persons, as is suggested by the majority’s analysis. For Howard to be permitted to testify that Marks did in fact run over Walker, when Howard did not witness such, was simply an abuse of discretion by the circuit court.
In sum, Howard’s testimony, here, “ran over,” had to be rationally based on a perception of an everyday occurrence. It is absurd, and clearly contrary to our case law, to suggest that an opinion based on the sound of “bl-bloom, bl-bloom” is the equivalent of an opinion regarding the weather or one’s impression of another, as set forth in Felty.2 Indeed, Howard’s statement that Marks ran over Walker is precisely the type of meaningless assertion amounting “to little more than choosing up sides” that the rule requires be excluded. Howard lacked personal knowledge, and further, his testimony was not rationally based on a perception of an everyday occurrence. For that reason, the circuit court abused its discretion in allowing Howard’s testimony.
That being said, Howard’s testimony was merely cumulative to that of Bobbie Riley and, further, the medical examiner. Riley testified that Marks and Claiborne beat and kicked Walker, and, afterward, Marks stated that he was going to run Walker over. She further stated that before Marks ran Walker over, he pulled Walker’s body to the middle of the road, behind the car, then started the car and ran over Walker. In addition, the medical examiner testified that Walker’s body surface showed “road rash,” which was indicative of an individual being run over by a motor vehicle.
We have repeatedly held that prejudice is not presumed and that no prejudice results where the evidence erroneously admitted was merely cumulative. See Wright v. State, 368 Ark. 629, 249 S.W.3d 133 (2007). Moreover, we do not reverse for harmless error in the admission of evidence. See id. Because the admission of Howard’s testimony was harmless due to its cumulative nature, I would affirm on this point. I, therefore, concur.
Corbin, J., joins.It is important to note that it was not until cross-examination that Howard testified that he did not actually see Marks run over Walker. Thus, there is no issue regarding preservation for our review, as Marks objected at the first opportunity.
Such a sound, as described, could just as easily been a blown tire or a car driving over the curb. Whatever inference was to be drawn from Howard’s testimony, prior to his statement that Marks ran over Walker, was within the jury’s province.