                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4665


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBBIE PAUL HOWELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:10-cr-00011-RLV-DCK-1)


Submitted:   March 28, 2012                 Decided:   April 2, 2012


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Henderson Hill, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Following      a     jury    trial,    Robbie       Paul       Howell    was

convicted of kidnapping, in violation of 18 U.S.C. § 1201(a)(1)

(2006),    and    engaging       in     interstate     domestic        violence,     in

violation of 18 U.S.C. § 2261(a)(2) (2006).                    The district court

sentenced Howell to a total of 250 months’ imprisonment.                             The

sole issue on appeal is whether the Government elicited expert

testimony from Shari Gantt, a nurse, concerning the victim’s

injuries without disclosing or qualifying Gantt as an expert.

We affirm.

            We “review[] a district court’s evidentiary ruling for

abuse of discretion.”            United States v. Johnson, 617 F.3d 286,

292   (4th Cir. 2010).           A    court   abuses     its   discretion       if   its

decision    is    based   on     an   error   of   law    or   clearly       erroneous

factual    findings.       Id.        “Evidentiary     rulings       are   subject    to

harmless error review,” and we will find an error harmless if we

can “say with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the

judgment    was    not    substantially       swayed     by    the    error.”        Id.

(internal quotation marks omitted).

            We have observed that “the line between lay opinion

testimony under Rule 701 [of the Federal Rules of Evidence] and

expert testimony under Rule 702 is a fine one” and “not easy to

draw.”     United States v. Perkins, 470 F.3d 150, 155 (4th Cir.

                                          2
2006)    (internal         quotation       marks        omitted).      Generally,       a   lay

opinion “must be based on personal knowledge” whereas expert

opinion     may     be    based      on   personal         knowledge   but   must     involve

“some specialized knowledge or skill or education that is not in

possession of the jurors.”                     Id. at 155-56.          “Rule 701 forbids

the     admission         of    expert     testimony         dressed    in     lay    witness

clothing, but it does not interdict all inference drawing by lay

witnesses.”         Id. at 156.           The Advisory Committee’s notes explain

“that lay testimony results from a process of reasoning familiar

in everyday life, while expert testimony results from a process

of reasoning which can be mastered only by specialists in the

field.”            Fed.        R.    Evid.        701      advisory    committee       notes.

Accordingly, “a lay witness with experience could testify that a

substance appeared to be blood, but . . . a witness would have

to qualify as an expert before [s]he could testify that bruising

around      the    eyes        is   indicative        of    skull   trauma.”         Id.;   see

Perkins, 470 F.3d at 155.

              Our review of the record leads us to conclude that the

Government elicited expert testimony from Gantt because portions

of    her     testimony             required       specialized        knowledge       not   in

possession of the jurors and that the court’s admission of that

testimony was error.                 However, we are convinced that the error

was     harmless.              Relative      to    the     charged     offenses,      Gantt’s

testimony         supported         the   inference         that    Howell   had     severely

                                                  3
beaten   his     victim.        This    fact    was   well-established        by   other

physical       evidence        and     testimony,      including      Howell’s       own

admissions      to   police.         Accordingly,       we   can    say   “with      fair

assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was not

substantially swayed by the error.”                Johnson, 617 F.3d at 292.

               Based on the foregoing, we affirm the judgment of the

district    court.        We    dispense    with      oral   argument     because    the

facts    and    legal   contentions        are   adequately        presented    in   the

materials      before     the    court    and    argument     would     not    aid   the

decisional process.



                                                                               AFFIRMED




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