Rhodes v. State

MATTINGLY-MAY, Judge,

concurring in result.

Although I agree that Rhodes is entitled to a new trial, I would decide this case under a slightly different analysis. I am not convineed, as is the majority, that "Itlhe flood of irrelevant and prejudicial evidence did not just make a fair trial unlikely, it made it impossible." (Op. at 1256.) I do believe, however, that the introduction of this evidence was error and was not harmless.

*1258In Pierce v. State, 761 N.E.2d 826, 829 (Ind.2002), error in admitting evidence that was "substantially more prejudicial than probative" was found to be harmless where there was "significant, uncontested evidence of Pierce's guilt." In Trammell v. State, 751 N.E.2d 283, 288 (Ind.Ct.App.2001), we determined the admission of objectionable evidence of a prior bad act was not reversible error where another witness had testified without objection about the same incident.

Here, the evidence as to whether Rhodes was driving the car was not uncon-troverted. In fact, only one witness-Officer Salazar-testified that Rhodes was both intoxicated and driving the car. Both Rhodes and Ralston testified that Rhodes had not been driving the car. Because Rhodes's jury did not have before it the "significant, uncontested evidence of ... guilt" we noted in Pierce, I believe the impact on the jury of the objectionable evidence may not have been "sufficiently minor so as not to affect the substantial rights of the parties." Fleener v. State, 656 N.E.2d 1140, 1142 (Ind.1995).