ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR02-1300

SEPTEMBER 17, 2003

JAMES J. MURPHY AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

v. [CR99-4186]

STATE OF ARKANSAS HONORABLE MARION HUMPHREY, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

This is the second appeal in this case. In Murphy v. State, CA01-91 (December 5, 2001), we affirmed the trial court's denial of a motion to transfer. Appellant now appeals his first-degree murder conviction, arguing that the trial court erred "in granting the State's hearsay objection to defense counsel's question to State's witness Lakeisha Webb on cross-examination concerning whether she overheard appellant and Maurice Kelly talking about why they believed the victim, Brian Hornes, had a gun." Because the testimony was not proffered, we affirm.

A trial court has wide discretion in evidentiary rulings, and its ruling on a hearsay question will not be reversed unless the appellant can demonstrate an abuse of discretion. Winbush v. State, ___ Ark. App. ___, 79 S.W.3d 273 (May 28, 2003). To challenge a ruling excluding evidence, an appellant must have proffered the excluded evidence so the appellate court can review the decision, unless the substance of the evidence is apparent from the context. Copeland v. State, 343 Ark. 327, 37 S.W.3d 567 (2001). Absent a proffer of the testimony sought to be admitted, the appellate court cannot tell how the precluded testimony differs from that which the trial court ruled admissible. Id. Where an appellant fails to proffer the testimony, he or she cannot claim on appeal that the trial court erred by excluding it. Id.

Brian Hornes was shot and killed on October 4, 1999. It was established that on that evening, Hornes's former girlfriend, LaKeisha Webb, was riding in a car with appellant and Maurice Kelly. Kelly was taking Webb to her home. Before arriving at her residence, Webb saw Brian Hornes's car parked in front of her house, and she told Kelly to keep driving because she thought there might be some trouble. Kelly kept driving, and Hornes followed them.

Kelly and Hornes were involved in a high-speed chase throughout a southwest Little Rock neighborhood. Following the chase, appellant got out of the car so that he could talk to Hornes. Appellant testified that he shot Brian Hornes because "Brian stuck his hand out the window with his pistol like he was fixing to shoot at [Kelly and Webb]." No weapons were found near the victim or his car.

During defense counsel's cross-examination of Webb, counsel asked Webb whether she remembered the appellant and Mr. Kelly saying that they believed Mr. Hornes had a gun. The circuit court sustained the State's objection to hearsay. Because the excluded testimony was not proffered nor is its substance apparent from the trial record, we cannot tell how the precluded testimony differs from that which the trial court ruled admissible. Therefore, as appellant failed to proffer the testimony, he cannot claim on appeal that the trial court erred by excluding it.

In any event, even if an error occurred, it was harmless in light of the overwhelming evidence of guilt, as set forth above. See Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002) (citing Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001)). Accordingly, we affirm.

Affirmed.

Robbins and Griffen, JJ., agree.