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Lancaster v. State3/28/2002
evidence is not admissible, and that its prejudicial effect upon the appellant is "obvious" where the primary issue was the credibility contest between Hanson and the appellant. In Hernandez v. State, 976 P.2d 672, 676 (Wyo. 1999), we described the process of reviewing claims of this nature:
Before evidence can be admissible, it must be relevant. W.R.E. 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.R.E. 401. In criminal cases, "[e]vidence is always relevant if it tends to prove or disprove one of the elements of the crime charged." Grabill v. State, 621 P.2d 802, 809 (Wyo.1980). See also Geiger v. State, 859 P.2d 665, 667 (Wyo.1993).
Relevant evidence may be excluded, however, if "its probative value is substantially outweighed by the danger of unfair prejudice." W.R.E. 403. Victim impact testimony must not be permitted "unless there is a clear justification of relevance." Justice v. State, 775 P.2d 1002, 1011 (Wyo.1989). For this Court to conclude that the trial court admitted unduly prejudicial evidence in violation of W.R.E. 403, [the appellant] must demonstrate "that the evidence had little or no probative value and that it was extremely inflammatory or introduced for the purpose of inflaming the jury." Apodoca v. State, 627 P.2d 1023, 1027 (Wyo.1981). See also Geiger, 859 P.2d at 668.
[ ] The charge in Hernandez was aggravated assault with a deadly weapon. We found in that case that, though some of the individual questions and answers "might have been irrelevant," the testimony at issue describing the pain and problems suffered by the victim after a stabbing was relevant as proof that the defendant inflicted bodily injury with a deadly weapon, one of the elements of the crime charged. Hernandez, 976 P.2d at 676. The Geiger case cited in Hernandez involved a charge of attempted murder. In Geiger, under a plain error analysis, we concluded that victim impact testimony describing the victim's injuries, his feelings at the time, and his remarks concerning a potential civil action against the defendant were relevant as proof of the element of intent to kill. Geiger v. State, 859 P.2d 665, 668 (Wyo. 1993).
[ ] In Justice v. State, 775 P.2d 1002, 1010-11 (Wyo. 1989), another case cited in Hernandez, we addressed victim impact evidence that was not found to be relevant:
It is clear that the testimony offered by the victims of this crime with respect to how it affected them in connection with their lives after the crime is absolutely irrelevant with respect to the issues before the jury. Their discussion of the impact of the crime upon them could not in any way serve to establish any of the elements of the crime of aggravated robbery. The only purpose must have been to attempt to arouse the passions of the jury. Consequently, we are satisfied that the admission of such evidence is error, and the trial courts are cautioned not to permit such evidence to be presented unless there is a clear justification of relevance. In the context of this case, however, we are persuaded that such evidence was harmless. Given the other evidence against Justice, which the trial court aptly described as overwhelming, the admission of the testimony about the impact on the victims did not constitute prejudicial error. See Hyde v. State, 769 P.2d 376 (Wyo.1989); Ortega v. State, 669 P.2d 935 (Wyo.1983).
[ ] Applying these standards to the facts of this case, we conclude that the questioned testimony is quite similar to that involved in Hernandez, in that, while some of it "might be irrelevant," the testimony in totality is rel
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