MAY, J.
. . . Miller returned to the counter with another bottle of alcohol, and Gellinger rang up the sale.
Miller was standing three feet from Gellinger as she rang up the items and placed the liquor and cigarettes in a bag. Miller pointed a shotgun at her face and told her not to move or he would shoot. He ordered Gellinger to lie on the floor. Miller held the gun on Gellinger and made his way around the counter. Miller struggled to open the cash register and ordered Gellinger to open it. . . . .
. . . .
The trial court permitted the State, over Miller’s objection, to show the jury a YouTube video during closing argument. The video was created for school administrators to see “how easy it was to conceal a weapon inside clothing.” (Br. of Appellee at 6.) At trial Miller’s counsel described it as showing “an individual who has probably anywhere from ten to twelve, thirteen handguns that are removed from the pocket of the individual . . . .” (Tr. vol. II at 112.) The prosecutor described it as showing a man “removing several pistols and short guns uh from his clothing and also removing a long gun towards the end of the video.” (Id. at 114.)
Experiments and demonstrations may be permitted during the trial if they will aid the court and jury. Peterson v. State, 514 N.E.2d 265, 270 (Ind. 1987). But our Supreme Court has recognized experiments and demonstrations in the courtroom can “pose peril to the fairness of a trial.” Id. In deciding whether to permit a demonstration, a court should consider such factors as the ability to make a faithful record of the drama for appeal purposes, the degree of accuracy in the recreation of the actual prior conditions, the complexity and duration of the procedures, other available means for proving the same facts, and the risk the conduct of such a procedure may pose to the fairness of the trial. Id.
. . . .
In the case before us, by contrast, the “unreasonableness or arbitrariness in the ruling of the trial court,” id., is apparent under the Peterson standard. The video could not possibly “aid the court and jury.” As the prosecutor noted before playing the video:
this is a video off of You-Tube, this has nothing to do with this case. . . . you will see that the person has several pistols on them [sic] as well. In no way, shape, or form, are we saying that Terrence Miller had a pistol. There‘s absolutely no evidence that that occurred. The video is being given to you to, uh, demonstrate how easy it is to hide weapons inside bulky clothing.
(Tr. vol. 2 at 139-140.) (Emphasis supplied.) On appeal the State concedes the prosecutor was “not suggesting that the video was connected to this case or intended to depict the same events that occurred in this case.” (Br. of Appellee at 17-18.) The State goes on to note Miller’s “theory of the defense was one of mistaken identity – he claimed he was not the person in the liquor store. . . . Therefore, the whole issue about the ability to hide weapons under clothing was ultimately unimportant.” (Id.) We find the court and jury could not have been aided by a video demonstrating something “ultimately unimportant” that “has nothing to do with this case.” (Id. at 19.)
Nor do the other Peterson factors justify the use of the video. There was no “degree of accuracy in the recreation of the actual prior conditions,” Peterson, 514 N.E.2d at 270; the prosecutor so conceded. Whether there were “other available means for proving the same facts,” id., is inapplicable, as the fact the robber had a concealed weapon was not challenged at trial. But “the risk which the conduct of such a procedure may pose to the fairness of the trial,” id., was substantial. We agree with Miller that the video “had the effect of bringing alive the passions of the jury . . . and suggested Miller was not only the robber but that he also had multiple firearms on his person and intended to use them to cause injury or death. This caused the jury to view Miller in a negative and highly prejudicial light . . . and was irrelevant, prejudicial, and confused issues . . . .” [Footnote 2: We will not reverse a conviction if the State can demonstrate beyond a reasonable doubt that the error complained of was harmless – that is, it did not contribute to the verdict. Spivey v. State, 761 N.E.2d 831, 836 (Ind. 2002). For the reasons explained above, we decline the State‘s invitation to hold the presentation to the jury immediately before deliberations of a concededly irrelevant but highly prejudicial video could not have contributed to the verdict. The presentation of the video was not harmless error.] (Reply Br. of Appellant at 8.)
. . . .
We note the “general rule” that only exhibits that are properly admitted into evidence may be shown to the jury during final arguments. White v. State, 541 N.E.2d 541, 548 (Ind. Ct. App. 1989), trans. denied. The State acknowledges the video was not offered or admitted as evidence: “the prosecutor used as a demonstrative aid a video that was not part of the evidence” to illustrate “that it was possible to conceal weapons inside clothing and thus that the victim‘s testimony to the effect was not implausible or unbelievable.” (Br. of Appellee at 17.) The trial court explicitly noted the video was “not evidence in this cause of action, that‘s clear.” . . . The State treats the video as a “courtroom demonstration,” which is admissible subject to the trial court‘s discretion. (Br. of Appellee at 17) (citing Andrews v. State, 532 N.E.2d 1159, 1165 (Ind. 1989), reh’g denied).
Andrews does not support a departure in the case before us from that general rule. In Andrews, the State used a chart showing the dates necessary to prove Andrews‘s prior convictions as an aid during final argument in the habitual offender portion of trial. The court permitted use of the chart for demonstrative purposes. Andrews acknowledged any exhibit properly admitted during the trial may be used during closing, but argued the chart the State used was not an admitted exhibit and was therefore improper for use in argument.
The State characterizes Andrews as “reject[ing] the idea that ‘only admitted exhibits may be shown to the jury, or that evidence only in its admitted form may be displayed to the jury.'” (Id.) (quoting Andrews, 532 N.E.2d at 1165)). The Court’s approval of the use of the charts the State offered in Andrews does not permit the use of the video in the case before us. The Andrews Court noted “[c]harts and diagrams may be received into evidence after laying a proper foundation, if the fact to be evidenced by the chart or diagram is itself otherwise relevant, material and competent . . . [t]hus, the use of admitted evidence in different forms during summation has been permitted for demonstrative purposes.” 532 N.E.2d at 1165 (emphasis added).
In Andrews, the facts on the chart had been properly admitted during the trial. “The State was permitted to present its admitted evidence during final argument in a format it felt would aid the jury,” so the trial court did not abuse its discretion in allowing use of the chart. Id. The video the State presented in the case before us, by contrast, was not merely a presentation, in a different format, of evidence that had already been admitted; indeed, the video presumably could not have been properly admitted into evidence in light of its conceded irrelevance and obviously prejudicial effect.
BAKER, C.J., dissenting with separate opinion:
I respectfully dissent. Although I fully agree with the majority‘s conclusion that it was error for the trial court to permit the State to show the jury the video, I do not agree that it was reversible error. Miller’s defense was mistaken identity—he argued that he was not the person in the liquor store. As the State points out, Miller “did not dispute that someone was in the liquor store and pulled out a shotgun that had been concealed under that individual’s coat; he just claimed that he was not that man.” Appellee‘s Br. p. 19. Thus, the YouTube video, which concerned a person’s ability to hide weapons under his clothes, was not prejudicial to Miller. I cannot conclude that the video was so inflammatory that it would have altered the way in which the jury viewed Miller and the case as a whole, and given that the video was irrelevant to Miller‘s defense, I can only conclude that the trial court‘s decision to permit the State to show the video to the jury was harmless error.
BARNES, J., concurring with separate opinion:
I concur here because I believe that the introduction of the video was reversible error and not harmless. I acknowledge Judge Baker‘s stance that misidentification was the primary or even sole defense presented here and that the video is not directly relevant to that issue. The jury trial process, however, is supposed to be one which is fair to both the State and the defendant.
Although the ultimate question was decided by the jury, I am convinced that the video, which purported to show how weapons could be hidden under clothing, was the proverbial evidentiary harpoon that skewed the ability of the jury to fairly and impartially decide the case. The video potentially grouped Miller with a group of hypothetical “bad actors” who have special skill in hiding multiple weapons under their clothing. I am always reluctant to reverse jury verdicts, but I am never reluctant to attempt, as I view it, to ensure fairness. I do not think Miller got a fair shake here, and I vote with Judge May to reverse.