The opinion
LUMPKIN, Judge,
concurs in result.
¶ 1 I concur in the Court’s decision to affirm the judgments and sentences in this case. However, I have some disagreement in how the Court arrives at those decisions.
¶ 2 I disagree with the Court’s decision as to the admissibility of the 911 tape. The Court says it finds no relevance to the tape. However, what can be more relevant than the reporting of the crimes in question and the events surrounding it? Regretfully, the Court engages in an after the fact analysis of whether the State needed the evidence in determining whether it was relevant or not. It is hard to know what the jury thought was necessary in their decision making, but it is undeniable they would have at least wanted to know how the crime was discovered and the actions that were taken in reporting it. This 911 tape falls directly within the scope of admissibility approved by the U.S. Supreme Court in Davis v. Washington, 547 U.S. 813 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006). It would appear this action is just another attempt to sanitize the horrific nature of this crime for the defendant’s benefit. Because I believe it was admissible in the first place, it was not necessary to perform a harmless error analysis.
¶ 3 While I concurred in Walker v. State, 1994 OK CR 66 , 887 P.2d 301 , I have since that time become concerned regarding the Court’s proclivity for after the fact determination of what was necessary for the proof in cases at trial. See Lowery v. State, 2008 OK CR 26 , 192 P.3d 1264, 1273-1275 (Lumpkin, J.: Concur in Part/Dissent in Part). What may seem unnecessary to meet burden of proof requirements after the fact of a conviction by a jury may have been extremely important in the jury’s decision making process. The Oklahoma Evidence Code provides “‘Relevant evidence’ means evidence having 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 evi *690 dence’.” 12 O.S.2001, § 2401. I would submit that a 911 tape that qualifies for admission pursuant to Davis v. Washington, supra, is admissible as relevant evidence for the jury to consider in their deliberations.
¶ 4 I also disagree with the Court’s analysis of the victim impact evidence presented by Tessa Amaro. While the Court spends much time discussing the “immediate family” provision of 22 O.S.2001, § 984(2), it fails to recognize the “or” in the statute that allows “or person designated by the victim or by family members of the victim” to testify to the impact as set out in Section 984(1). While the opinion recognizes Amaro testified as a representative and that the testimony was proper, the opinion makes the mistake of thinking the testimony is restricted to impact on the immediate family when Section 984(1) says the impact can be on immediate family “or person designated by the victim or by family members of the victim”. Section 984(1) defines victim impact statements and Section 984.1 states who may present victim impact statements. The opinion apparently has confused the two and failed to recognize that section 984(1) allows for the victim impact statement to include the impact on a “person designated by the victim or family members of the victim” and that is what was done here. Therefore, I find the testimony of Tessa Amaro to be allowed by 22 O.S.2001, § 984 and § 984.1.