Bassett v. State, 795 N.E.2d 1050 (Ind. 2003). · Go Syfert
Bassett v. State, 795 N.E.2d 1050 (Ind. 2003). Cases Citing This Book View Copy Cite
50 citation events (50 in the last 25 years) across 3 distinct courts.
Strongest positive: Marques Deon Hardiman v. State of Indiana (indctapp, 2023-11-02)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited as authority (rule) Marques Deon Hardiman v. State of Indiana
Ind. Ct. App. · 2023 · confidence medium
As our Supreme Court stated in Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003), the purpose behind Evidence Rule 404(b) is to “prevent[] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because . . . he has a tendency to commit other crimes.” (internal quotation omitted). [18] “The effect of Rule 404(b) is that evidence is excluded only when it is introduced to prove the forbidden inference of demonstrating the defendant’s propensity to commit the charged crime.” Laird v. State, 103 N…
cited Cited as authority (rule) Carl Gathright v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2020 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). [9] It is undisputed that Gathright raised an insanity defense.
cited Cited as authority (rule) Tammy Echeverria v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2020 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003).
discussed Cited as authority (rule) Gabriel E. Hallman v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2019 · confidence medium
Or, as stated in Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003), the purpose behind Evidence Rule 404(b) is to “prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because . . . he has a tendency to commit other crimes.” (Internal quotation omitted).
discussed Cited as authority (rule) Christopher L. Figgs v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2018 · confidence medium
Stated differently, the purpose behind Evidence Rule 404(b) is to “prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because . . . he [or she] has a tendency to commit other crimes.” Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). [24] In assessing the admissibility of evidence under Evidence Rule 404(b), the trial court must first determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the ch…
cited Cited as authority (rule) Myles Kendall McMahan v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2018 · confidence medium
Bassert v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). [24] Generally, we review the trial court’s ruling on the admission of evidence for an abuse of discretion.
discussed Cited as authority (rule) Daniel Lopez-Castillo v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2018 · confidence medium
To decide whether character evidence is admissible pursuant to Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2783 | May 31, 2018 Page 6 of 12 Rule 404(b), a trial court must determine “whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the person’s propensity to engage in a wrongful act,” and then balance “the probative value of the evidence against its prejudicial effect.” Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003) (citing Hauk v. State, 729 N.E.2d 994, 1001 (Ind. 2000); Monegan v. State, 721 N.E.2d 243, 248 (…
discussed Cited as authority (rule) Philip A. Garrett v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · confidence medium
In other words, the rule “prevents the State from punishing people for their character, and evidence of extrinsic Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1380 | April 26, 2016 Page 8 of 19 offenses poses the danger that the jury will convict the defendant because . . . he has a tendency to commit other crimes.” Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003).
cited Cited as authority (rule) James E. McGee v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2015 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003).
discussed Cited as authority (rule) Wells v. State
Ind. · 2013 · confidence medium
Rule 404(b) is that the jury is precluded from making the ‘forbidden inference’ that the defendant had a criminal propensity and therefore engaged in the charged conduct.”) (citation omitted); Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003)(noting the purpose behind Rule 404(b) is to “prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because ... he has a tendency to commit other crimes”) (quotation omitted).
cited Cited as authority (rule) Aaron Di-Shon Windom v. State of Indiana
Ind. Ct. App. · 2013 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003).
cited Cited as authority (rule) Tami L. Duvall v. State of Indiana
Ind. Ct. App. · 2012 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003).
discussed Cited as authority (rule) Camm v. State (2×)
Ind. · 2009 · confidence medium
If anything, the defendant's trial tactics were merely an attempt to defend himself against this allegation, and it is axiomatic that "the State cannot bootstrap . evidence into admissibility by putting it in, forcing a denial, and then claiming it was put in issue by the defendant." Bassett v. State, 795 N.E.2d 1050, 1052 (Ind.2003) (internal citations omitted).
discussed Cited as authority (rule) Davis v. State
Ind. Ct. App. · 2009 · confidence medium
The evidence admitted at trial that Davis challenges is a handwritten paper titled *1056 "April Show 2004," a receipt for trophies dated October 24, 2008, print outs dated 2002 from the internet of information on dog fighting, including rules of Cajun dog fighting, a printout of a blog dated 2008 discussing how other dog fighting operations had been "busted" by police, and testimony regarding the observations of neighbors of a gathering at Davis's home in February 2006. {20, 21] "To decide whether character evidence is admissible under Rule 404(b), the trial court must: (1) determine whether t…
cited Cited as authority (rule) Bassett v. State
Ind. · 2008 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1051 (Ind.2003).
cited Cited as authority (rule) Roberts v. State
Ind. Ct. App. · 2008 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003).
discussed Cited as authority (rule) McKinney v. State
Ind. Ct. App. · 2007 · confidence medium
Furthermore, “[a] trial error may not require reversal where its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect a party’s substantial rights.” Bassett v. State, 795 N.E.2d 1050, 1054 (Ind.2003).
cited Cited as authority (rule) Matthews v. State
Ind. Ct. App. · 2007 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003).
cited Cited as authority (rule) Samaniego-Hernandez v. State
Ind. Ct. App. · 2005 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.20083).
cited Cited as authority (rule) Gillespie v. State
Ind. Ct. App. · 2005 · confidence medium
Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003).
discussed Cited as authority (rule) Houser v. State (2×)
Ind. · 2005 · confidence medium
In any event, evidence admitted in violation of Evidence Rules 402, 403, or 404 will not require a conviction to be reversed "if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect a party's substantial rights." Bassett v. State, 795 N.E.2d 1050, 1054 (Ind. 2003) (citing Ind. Trial Rule 61; Stewart v. State, 754 N.E.2d 492 (Ind.2001)).
examined Cited as authority (rule) Camm v. State (3×) also: Cited "see"
Ind. Ct. App. · 2004 · confidence medium
"This rule prevents the State from punishing people for their character. ..." Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003).
discussed Cited as authority (rule) Pagan v. State
Ind. Ct. App. · 2004 · confidence medium
"This rule prevents the State from punishing people for their character, and 'evidence of extrinsic offenses poses the danger that the jury will convict the defendant because his "general character" is bad or ... he has a tendency to commit other crimes."" Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003) (quoting Gibbs v. State, 538 N.E.2d 937, 939 (Ind.1989).
cited Cited "see" Alejandro Gomez-Aviles v. State of Indiana
Ind. Ct. App. · 2013 · signal: see · confidence high
See Bassett v. State, 795 N.E.2d 1050, 1051-52 (Ind. 2003) (victim’s state of mind may be 11 relevant where put in issue by defendant).
examined Cited "see" Kien v. State (3×) also: Cited "see, e.g."
Ind. Ct. App. · 2007 · signal: see · confidence high
See Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003); Burks v. State, 838 N.E.2d 510, 519 (Ind.Ct.App.2005), trans. denied.
discussed Cited "see" Bryant v. State
Ind. Ct. App. · 2004 · signal: see · confidence high
See Bassett v. State, 795 N.E.2d 1050, 1052 (Ind.2003) (recognizing that the State could not admit then existing state of mind evidence where the defendant did not put the victim's state of mind in issue); see also Willey v. State, 712 N.E.2d 434, 444 (Ind.1999).
discussed Cited "see, e.g." Ja'Juan Hudson v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2020 · signal: see also · confidence medium
See also Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003) (recognizing that the purpose behind Evidence Rule 404(b) is to “prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because ... he has a tendency to commit other crimes.”) (internal quotation omitted).
discussed Cited "see, e.g." Shahid Iqbal v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · signal: see, e.g. · confidence medium
See, e.g., Bassett v. State, 795 N.E.2d 1050, 1051-52 (Ind. 2003) (holding that where defendant had not placed murder victim’s state of mind in issue, trial court abused its discretion by allowing witnesses to testify that victim had told them that she feared defendant and that defendant had threatened her); Willey v. State, 712 N.E.2d 434, 443-44 (Ind. 1999) (same). [23] That said, even assuming that Iqbal’s attorney performed deficiently by failing to raise the hearsay issue on appeal, raising the issue would not have resulted in the reversal of Iqbal’s convictions.
discussed Cited "see, e.g." Bradley E. Kennedy v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2015 · signal: see also · confidence medium
Id.; see also King v. State, 799 N.E.2d 42, 49 (Ind. Ct. App. 2003) (holding that because defendant objected at trial on relevancy grounds, he waived his Rule 404(b) argument on appeal), trans. denied. [17] “In any event, evidence admitted in violation of Evidence Rules 402, 403, or 404 will not require a conviction to be reversed ‘if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect a party’s substantial rights.’” Houser, 823 N.E.2d at 698 (quoting Bassett v. State, 795 N.E.2d 1050, 1054 (Ind. 2003)).
discussed Cited "see, e.g." Ryan Worline v. State of Indiana
Ind. Ct. App. · 2014 · signal: see also · confidence medium
Our Supreme Court has stated as follows about the goal of Evidence Rule 404(b): Rule 404(b) “is designed to prevent the jury from making the ‘forbidden inference’ that prior wrongful conduct suggests present guilt.” Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999); see also Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003) (noting the purpose behind Rule 404(b) is to “prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because . . . he has a tendency to commit other crimes�…
discussed Cited "see, e.g." Tyrice J. Halliburton v. State of Indiana
Ind. · 2013 · signal: see also · confidence medium
Rule 404(b) "is designed to prevent the jury from making the 'forbidden inference' that prior wrongful conduct suggests present guilt." Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.1999); see also Bassett v. State, 795 N.E.2d 1050, 10583 (Ind.2003) (noting the purpose behind Rule 404(b) is to "prevent[] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because . he has a tendency to commit other crimes") (internal quotation omitted).
cited Cited "see, e.g." State v. Lovett
Ind. Ct. App. · 2011 · signal: see, e.g. · confidence low
See, e.g., Bassett v. State, 795 N.E.2d 1050 , *413 1052 (Ind.2003) (noting “a victim’s state of mind may be relevant where it has been put in issue by the defendant”).
discussed Cited "see, e.g." State v. Lassiter (2×)
S.D. · 2005 · signal: see also · confidence medium
See also Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003); Bussell v. State, 113 S.W.3d 530, 541 (Tex.Ct.App., 2003) (“ ‘[T]o be admissible to show identity, an extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant’s handiwork.’” (citation omitted)); State v. Shippee, 839 A.2d 566, 572 (Vt.2003) (Skoglund, J., concurring); State v. DeVincentis, 150 Wash.2d 11 , 74 P.3d 119, 125 (2003) (“[Wjhen identity is at issue, the degree of similarity must be at the highest level and the commonalities must be unique[.]”).
Retrieving the full opinion text from the archive…
Robert J. BASSETT, Jr., Appellant (Plaintiff Below),
v.
STATE of Indiana, Appellee (Defendants Below)
03S00-0110-CR-548.
Indiana Supreme Court.
Sep 17, 2003.
795 N.E.2d 1050
Susan K. Carpenter, Public Defender of Indiana, J. Michael Sauer, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant., Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Dickson, Shepard, Sullivan, Boehm, Rucker.
Cited by 39 opinions  |  Published
- DICKSON, Justice.

In this direct appeal, the defendant challenges his convictions on four counts of murder. Finding that hearsay evidence and testimony about the defendant's prior criminal acts were improperly presented to the jury, we reverse and remand for a new trial.

The defendant, Robert Bassett, was convicted of the 1998 murders of Jamie En-gleking, her children Jessica Brown and Brandon Engleking, and Amanda Davis, a friend's daughter. He was sentenced to four consecutive terms of life without parole. The defendant contends that four items of evidence were improperly admitted at trial over his objection: (1) testimony of the victim's husband, Brandon En-gleking, that the victim told him that the defendant had raped her and threatened to kill her and her children if she told anyone; (2) testimony by Brandon's aunt, Karen Carroll, that the victim was afraid that the defendant was going to kill her, her children, and Amanda Davis; (8) testimony of two women that the defendant, while on probation, had raped and threatened to kill them in separate incidents more than ten years before the charged offenses; and (4) a letter, written by Jamie and addressed to "Bob," in which she expresses her fear that she might be pregnant.

As to the victim's husband's testimony that the victim told him the defendant had raped her and threatened to kill her and her children if she ever told anybody, and the husband's aunt's testimony that the victim told her she was afraid of the defendant because he had threatened to kill her and her children, the defendant contends the trial court erroneously overruled his hearsay objections at trial. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Hearsay is generally not admissible at trial,. Evid. R. 802. Because the statements were offered to prove that the defendant had threatened the victim and that she was afraid of him, they are hearsay, and inadmissible unless they fall under an exception of the hearsay rule.

The State argues that these statements were properly admitted under the "state of mind" exception to the hearsay rule, Evidence Rule 808), as evidence of the relationship between the parties and of the defendant's motive. Br. of Appellee at 7-8. In relevant part, this exception provides that the hearsay rule does not exclude "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health)." Evid. R. 8088).

Issues similar to those in the present case were presented in Willey v. State, 712 N.E.2d 484 (Ind.1999), and Hatcher v. State, 735 N.E.2d 1155 (Ind.2000). In Wil-ley the trial court overruled hearsay objections and permitted testimony that the victim had told witnesses that she feared the defendant and that he had threatened to kill her. We observed that evidence[*1052] under the Rule 808(8) state of mind exception must be relevant to the issues in the case, Evid. R. 402, and that a victim's state of mind may be relevant where it has been put in issue by the defendant. After reviewing the record and concluding that the defendant had not put in issue his relationship with the victim, we held that "the State cannot bootstrap this evidence into admissibility by putting it in, forcing a denial, and then claiming it was put in issue by the defendant." Willey, 712 N.E.2d at 444. We concluded that the victim's fear of the defendant was not relevant to any issue in the case and that the trial court erred in allowing testimony regarding the defendant's threats and the victim's fear of him. In Hatcher, the trial court permitted a witness to testify that she heard the victim say she was afraid that the defendant was going to kill her. Again noting that the nature of a relationship may be relevant to show motive, we emphasized that motive is not an exception to the hearsay rule and held that it was error to admit the victim's hearsay statement.

The victim's statements to others that the defendant had threatened her were first revealed to the jury during the State's opening statement. The statements were then presented in evidence during the State's case in chief, The defendant later took the stand and denied ever having a romantic or sexual relationship with the victim. The victim's statements reflected her then-existing state of mind, i.e. her fear of the defendant, but the defendant was not the party who put his relationship with the victim into issue. As evidence of the victim's relationship with the defendant, an issue not raised by the defense, the statements were thus not admissible under the state of mind exception to the hearsay rule.

The State contends that the statements were also admissible because the defendant had been subject to parole revocation if he engaged in a romantic or sexual relationship without permission of his parole officer. Because the State's theory was that the defendant killed the victims to avoid parole revocation, it argues that "the victim's state of mind regarding their relationship" was relevant to motive, an issue in the case. Br. of Appellee at 9. We disagree. The victim's "state of mind, emotion, sensation, or physical condition," Evid. Rule 808(8), at issue was that of fear. The victim's possible thoughts "regarding their sexual relationship" are not mental or physical conditions within the state of mind exception, and her fear is not logically relevant to the defendant's motive.

We find that it was error to admit over the defendant's objections the testimony of the victim's husband and the husband's aunt regarding the victim's prior declarations that she feared the defendant or that the defendant had threatened her.

The defendant next contends that the trial court improperly permitted two women to testify that, while on probation, the defendant raped and threatened to kill them if they told anyone about the rape. See Record at 2283-84, 2825. One of the women said she was told that the defendant had a knife, and the other testified that he had a shotgun. See Record at 2325, 2286, These rapes and murder threats occurred in 1982 and 1986. The defendant unsuccessfully sought to exclude this evidence by a motion in limine and by a timely objection at trial, arguing that it violated Indiana Evidence Rules 404(b) and 403. The defendant reasserts these claim on appeal, and argues that this evi-denee is not relevant to motive or identity and that any probative value was outweighed by the resulting unfair prejudice.

[*1053] The State responds that Rule 404(b) specifically permits proof of other crimes to show identity or motive. It argues that the two prior incidents were similar to the charged offenses because, when they occurred, the defendant was on probation and threatened to kill the victims to avoid detection and incarceration. Emphasizing that its theory was that the defendant killed the victims to avoid revocation of parole, the State urges that this evidence was not to prove that the defendant had a bad character but "it is evidence that the possibility of going back to prison was always on his mind." Br. of Appellee at 11. It asserts that this evidence makes it "more likely that this motive influenced his actions." Id.

Indiana Evidence Rule 404(b) provides, in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity or absence of mistake or accident....

This rule prevents the State from punishing people for their character, and "evidence of extrinsic offenses poses the danger that the jury will convict the defendant because his 'general character' is bad or . he has a tendency to commit other crimes." Gibbs v. State, 538 N.E.2d 987, 939 (Ind.1989) (quoting Williams v. State, 489 N.E.2d 53, 55 (Ind.1986)). To decide whether character evidence is admissible under Rule 404(b), the trial court must: (1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the person's propensity to engage in a wrongful act; and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Ind. Evidence Rule 403. Hauk v. State, 729 N.E.2d 994, 1001 (Ind.2000); Monegan v. State, 721 N.E.2d 243, 248 (Ind.1999).

We find that this testimony regarding the defendant's conduct twelve and sixteen years earlier, and not involving the present victim, does not bear sufficient similarities to support a reasonable inference that the person who engaged in the prior crimes against the two women is necessarily the one who committed the charged murders here. These were not "signature" crimes. As to the State's claim that the evidence is probative and relevant to the defendant's motive for the instant case, the probative value is also questionable. The State argues that the defendant's motive to threaten two women more than ten years earlier makes it more likely that this same motive influenced his actions in the present case. This is hardly different from arguing that the jury should convict the defendant because he has committed other crimes in the past, a rationale expressly rejected by our jurisprudence and known as the "forbidden inference." See 183 Robert Lowell Miller, Jr, Indiana Practices § 404.201 (2d. ed.1995); see also Garland v. State, 788 N.E.2d 425, 429 (Ind.2003); Bald v. State, 766 N.E.2d 1170, 1173 (Ind.2002); Oliver v. State, 755 N.E.2d 582, 587 (Ind.2001). We believe that the inference here is too strained and remote to be reasonable. The testimony regarding the defendant's prior crimes with two other women lacks probative value as proof of the charged crimes, and the defendant's objections should have been sustained.

The defendant's final contention is that the court erred in admitting, over his hearsay objection, a letter that the police found wadded up in the trash in the victim's apartment. It was not signed or dated, but was written by the victim and addressed to "Bob." The letter read:

[*1054] Hey. How are you doing? Me alright I guess. I called this morning because I have a lot on my mind that I wanted to talk to you about and since you are too busy to talk to me on the phone I guess I have to write you. I don't understand you at all. You told me when we first started messing around that you was thrown off about the idea of me being able to get pregnant, but you told me if you do get me pregnant, that you will take care of it. Well now here I might be pregnant and now you are telling me you can't have kids. I don't f[* * *ling understand. You tell me at first you can get a girl pregnant and now you can't, you are sterile. So what is the deal with that?

App. of Appellant at 300. The State argues that it was properly admitted under the state of mind exception to the hearsay rule. Again, it urges that "the victim's state of mind was relevant to the relationship between the parties and Defendant's motive for the crimes he committed." Br. of Appellee at 12. We previously addressed and rejected this claim. For the same reasons, we find that it was error to overrule the defendant's objection and admit this letter in evidence.

The State does not urge application of the doctrine of harmless error. A trial error may not require reversal where its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect a party's substantial rights. Ind. Trial Rule 61; Stewart v. State, 754 N.E.2d 492 (Ind.2001). Here, we cannot find that these errors were "harmless." Aside from the impermissible hearsay and character evidence discussed above, the record demonstrates that most of the evidence presented at trial was circumstantial, and is hardly overwhelming. Under the cireumstances, we find that the impermissible and highly prejudicial evidence undoubtedly affected the defendant's substantial rights.

The judgment of the trial court is reversed and this case is remanded for a new trial.

SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.