dissenting.
I respectfully dissent. I believe that the photograph at issue was not relevant and that its prejudicial effect greatly outweighed its probative value.
Here, outside the presence of the jury, the State proffered five photographs of the victim taken during the autopsy.8 Exhibit 73 was an 8% by 11-inch color photograph of the victim's face showing the entry wound made by the fatal bullet. Exhibits 74 and 75 were 8% by 11-inch black and white photographs of the victim's head taken during the autopsy. The photographs revealed Tony's empty brain cavity with both the top of his skull and his brain removed. The photographs also reveal the gloved hand of Dr. Kohr holding a ruler inside the brain cavity and pointing out the path of the bullet. The photographs were printed in black and white at the suggestion of Dr. Kohr. Exhibits 74A and T75B were 8% by 11-inch photographs depicting the same seenes as Exhibits 74 and 75, but were in color.9 Custis did not object to the admission of the color photograph showing the bullet wound in the vietim's face, but strongly objected to the admission of the photographs depicting the victim's empty brain cavity.
*1229Out of the presence of the jury, John Fubs, Custis's attorney, argued that the photographs were not relevant and questioned the pathologist as follows: |
MR. FUHS: Dr. Kohr, do you understand that the defendant is going to admit and has admitted that the bullet that came from the handgun that struck Tony Vanet resulted in the death.
DR. KOHR: Yes, sir.
MR. FUHS: Had Mr. Thomas [the State's attorney] told you that?
DR. KOHR: No, he had not.
MR. FUHS: Okay. Well, if I tell you that the cause of death is not an issue in this case, and assume that's true, and assume Exhibit 73 which is a frontal view comes into evidence, you're going to testify that the wound to the cheek caused the death of Tony Vanet?
DR. KOHR: Yes, sir.
Transcript at 656. Apparently, Dr. Kohr was not told until the trial that Custis agreed with Dr. Kohr's opinion as to the cause of death. When asked how the photographs of Tony's brain cavity were relevant, Dr. Kohr stated that they showed the position the decedent was assuming at the time of the shooting, ie., "whether he was trying to allude [sic] a shot or take it face on or whether he made any type of defensive posturing or movement." Transcript at 657.
Still outside the presence of the jury, Fuhs objected to the admission of the photographs as follows:
[The defendant has never asserted that he did not shoot Tony Vanet. In fact, he has maintained throughout the pretrial conferences, I think throughout my opening remarks and it's gonna [sic] be his testimony that he shot Tony Vanet. That the bullet which ... exited his handgun ... struck Tony Vanet. Exhibit 73, which is going to be shown to the jury, is going to show that the bullet entered Tony Vanet I believe in the right cheek area. Dr. Kohr, who did the autopsy, can certainly testify that that bullet wound was fatal, that that bullet wound caused the death of Tony Vanet. Mr. Custis does not dispute that. Mr. Custis says I was justified in firing that weapon. That's the issue for the jury. The issue for the jury is not whether the firing of that weapon killed Tony Vanet. So to show this jury these exhibits, specifically 74 and 75, which I'll characterize as gruesome, grotesque, is highly inflammatory, is going to allow sympathy and prejudice in the jury against the defendant. In these types of cases, the case law is clear that the court needs to balance the probative value of these pictures against the potential inflammatory nature and the prejudice to the defendant. If the defendant was saying I didn't pull the trigger or I shot him from fifty feet away, or he didn't die because of my shot, they would be relevant, and I wouldn't be making this objection. But he is not doing any of those arguments. He's saying I fired the shot, that shot resulted in Tony's death; therefore, there is no probative value to putting these gruesome pictures into evidence. I think the prejudice far outweighs any probative value in a case of this magnitude. Frankly, I don't know why Mr. Thomas, as an officer of the court, is offering them since we've conceded what the doctor's testimony is going to be on cause of death. We've conceded it was a straight-on shot. The evidence is going to be it was at close range.... I know the court has discretion in this regard and I know in some cases gory, gruesome photographs are proper.
Transcript at 661-63.
The State's argument that the photographs were relevant was as follows:
*1230Your Honor, I believe [Exhibits 74 and 75] are relevant on at least two aspects, especially in a self-defense issue which is, of course, an issue here. One being the path of the bullet and that leads secondly to the testimony about the relevance of defensive wounds or lack thereof, And Dr. Kohr testified that those photographs would help demonstrate that, so the relevance would be high. We've attempted to lessen the impact by submitting them as black and white photographs. And, Your Honor, I think also this would be extremely important when we have a trial based on self-defense which with the conflicting testimony already about the defendant waiving a gun in the air versus an eye witness who saw them standing face to face. These two issues, the path of the bullet and the lack of defensive wounds, will be directly relevant on the heart of this case....
Transcript at 665-66.
While I recognize that the trial court took care to evaluate the prejudicial impact of the photographs in this case, and I join the majority in commending the court for such care, I nevertheless believe that Exhibit 74 was not relevant under Ind. Evidence Rule 401 and that the trial court abused its discretion in admitting it. The State asserts that the photograph was relevant to show the trajectory of the bullet and whether Tony had defensive wounds. Although the parties disagreed about whether Custis took out his gun and waved it around before the shooting, both parties agreed that the actual shot that killed Tony was one that took the victim by surprise and was a straight shot to the face. Custis's theory was that the vietim would not stop charging at him, and he had to shoot in self-defense. The State's theory was that Custis pulled a gun out of his pocket and shot Tony without warning. A straight shot, with no defensive wounds to the victim, would be consistent with both of these theories. The photograph did not make any fact of consequence to the determination of the case more or less probable than it would have been without the evidence, and, thus, I believe it was irrelevant under Rule 401.
Even if relevant, Exhibit 74 should still have been excluded from trial because its probative value was substantially outweighed by the danger of unfair prejudice. Evid. R. 403. Exhibit 74 had very little, if any, probative value. Inspection of the photograph does not reveal how it could have contributed to the jury's understanding of the trajectory of the bullet or the existence of defensive wounds. After offering the photograph into evidence, Dr. Kohr admitted that it is "obviously difficult to orient unless you're familiar with neuro anatomy or skull anatomy." Transcript at 687. The jury had no such training. Dr. Kohr explained that the ruler in his gloved hand, pictured in the photograph, pointed to a darkened area showing the straight, front-to-back path of the bullet, which had no deviation left or right. The difficulty in orienting oneself to the inside of Tony's skull, plus the two-dimensional nature of the photograph, make it impossible to determine the trajectory of the bullet or the lack of defensive wounds. The debatable probative value, especially in light of the arguable lack of relevance, is substantially outweighed by the photograph's prejudicial nature. Thus I believe it was error to admit the photograph.
An error in the admission or exclusion of evidence may be disregarded unless the error affects the substantial rights of the parties. Wilson v. State, 770 N.E.2d 799, 802 (Ind.2002). Here, I cannot conclude that this is the case. The photograph was gruesome and the jury likely was impacted. Further, Custis requested, and, over *1231the State's objection, the trial court gave an instruction on the lesser-included offenses of murder, ie., voluntary manslaughter and reckless homicide. From this it can be inferred that the trial court believed the evidence could have supported a conviction of one of the lesser-included offenses. See Anderson v. State, 681 N.E.2d 703, 709 (Ind.1997) (where a charge is an inherently included offense of murder, a requested instruction on that charge should always be given in a case in which murder has been charged if the evidence warrants it). Since the prejudicial effect of the photograph may have caused the jury to unfairly reject the evidence of self-defense or the evidence that Custis was guilty of only a lesser-included offense, I cannot say that the erroneous inclusion of the photograph did not substantially affect his rights.
I would reverse Custis' conviction and remand for a new trial.
. Of the more than sixty photographs entered into evidence by the State to depict the scene of the crime, the victims, and the evidence associated with the crime, the vast majority of the photographs were 4 by 6 inches in size. It is interesting to note that the autopsy photographs were 8% by 11 inches in size.
. Although Exhibits 74A and 75B are described in transcripts of the trial, the color photographs are not part of the record before us. The State withdrew the color exhibits of Tony's brain cavity after the trial court determined that they were inadmissible.