¶1(concurring in result).
¶2I generally concur in the result of the majority opinion and specifically concur in the disposition of the ineffective assistance of counsel issue.
¶3The majority opinion states that the first issue is whether there was sufficient evidence as to the values of the ties. I would hold that this was not an issue and certainly was not preserved for appeal. In fact, defense counsel in closing argument told the jury that value was not an issue in the case. In addition to the other value evidence articulated in the majority opinion, it must be remembered that the appellant himself admitted paying restitution in the amount of $240 for taking these specific railroad ties. The entire defense strategy centered around appellant’s alleged authority to sell the ties, not around the claim that taking the ties amounted to only petty theft.
¶4More importantly, I am not willing under these facts or in this case to commit myself to a new test for determination of harmless error. Whether we apply the “some effect” test or the “probably would have returned a different verdict” test, the result here would be the same. To assess a claim of prejudicial error the testimony giving rise to the claimed error must be viewed in its proper perspective. The testimony complained of in this case was as follows:
Q (BY MR. TELLIN GHUISEN) Brenda, do you recall a conversation with Midge Montgomery concerning the purchase or her prior purchase of railroad ties?
A Yes, I do.
Q And do you remember the number of ties that she told you she purchased?
MR. PUGH: Your Honor, I’m going to object. Its hearsay.
THE COURT: Overruled.
Q Do you recall?
A Yes.
Q How many ties did she indicate to you she had purchased?
A Forty ties previously.
¶5Considering other testimony and evidence admitted in this case, the foregoing hearsay was at worst cumulative. The following evidence was received prior to that point and without objection:
1. Mr. Trembath, owner of the business, testified as to the value of the ties and established his wife Brenda as an expert to also give an opinion as to value.
2. Trembath testified that appellant had made restitution to him for these ties in the amount of $240.
3. Brenda Trembath identified that she was familiar with the price of ties; that these ties were # 1 soft wood having a value of $6 — $8 a piece.
¶6I would merely hold that harmless error was committed in receiving the hearsay testimony without choosing which test shall be applied now and in the future for determining its existence.
¶7I am authorized to state that MORGAN and SABERS, JJ., join in this concurrence in result.