¶1dissenting.
¶2I respectfully dissent. It seems to me that the testimony of Westbrook does not support a reasonable inference that the defendant was aware of a high probability that Tamika Ballard would be killed as a result of her conduct.
¶3Even if I were to conclude that this evidence was sufficient to support such an inference, the inference would be so weak that at least one of what I perceive to be three trial court errors would require reversal. See Fleener v. State, 656 N.E.2d 1140, 1142 (Ind.1995) (trial court error assessed on basis of "its probable impact on the jury, in light of all of the evidence in the case"). I see no relevance, first, of the autopsy photograph or, second, the assault rifle demonstration. Because this evidence was admitted in violation of Indiana Evidence Rule 402 ("Evidence which is not relevant is not admissible."), the trial court abused its discretion in allowing it.
¶4Finally, I disagree with the majority that it was proper for a police officer to testify as to the "trigger pull" on the weapon the defendant fired. There was literally no foundation whatsoever for this testimony-the weapon was never found. Without any foundation, allowing this testimony was highly improper given that the defense here was accident and the officer's testimony on "trigger pull" was effectively an opinion on the likelihood of accident. Without the weapon, he did not have the requisite "facts or data" to give such an opinion. See Evid. R. 708.