Bailey, J.
The Indiana Supreme Court recently addressed the “silent witness” theory, and observed that “the foundational requirements … are vastly different [than] the foundational requirements for demonstrative evidence.” Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014) (citations and quotations omitted). In cases involving the “silent witness” theory, a witness need not testify that the depicted image is an accurate representation of the scene on the day on which the image was taken, and “often could not so testify since he or she was not necessarily there to observe the scene on that day.” Id. (citations and quotations omitted). Rather, the witness must provide testimony identifying the scene that appears in the image “sufficient to persuade the trial court … of their competency and authenticity to a relative certainty.” Id. (emphasis in original) (citations and quotations omitted).
Here, M.B. used a handheld video camera to record playback of videos that had been recorded on Wise’s cellular phone. By the time of trial, Wise apparently no longer possessed the phone, and thus the videos could not be retrieved directly from the device. Wise argues the State failed to establish a foundation for admission of the recordings made from the videos played on Wise’s phone. He points to M.B.’s changing of the titles of the videos, her lack of knowledge as to how the cellular phone worked and any effect that her use of the phone might have had on the integrity of the recordings, and the lack of testimony concerning the creation of the recordings or what might have happened to them between her initial viewing of them and their recording on the camcorder.
We note that the “silent witness” theory is not an especially neat fit here, because the present case does not present the kind of automated, unwitnessed video contemplated by Bergner. The foundation and confrontation aspects of the theory are largely on all-fours with the nature of the recordings here, however, and thus the “silent witness” theory provides an adequate framework for the present case.
Concerning the integrity of the re-recordings themselves, our review of the record reveals that M.B. testified concerning the circumstances under which she found and recorded the video from the phone. M.B. testified that the phone from which the video was recorded belonged to Wise and that the screensaver on the phone displayed a picture of the couple’s daughter. Wise testified at various points that the phone belonged to him or looked like one that belonged to him. M.B.’s renaming of the files did not erase time and date information for the videos; indeed, our review of the video recordings revealed that the date and time for the videos was displayed beneath the new names M.B. gave the recordings. M.B.’s testimony established a chain of custody for the VHS tape on which she made the recording of the videos from Wise’s cellular phone, as well as for the DVD onto which a neighbor copied the contents of the tape. And M.B. testified at trial that the videos played at trial were the same ones she had recorded, which were in turn in the same condition as she found them when she first played them on October 22, 2008.
Concerning the actual production of the recordings, M.B. testified that when she told Wise about her discovery, he did not deny that he made the recordings. Correspondence between M.B. and Wise included Wise’s statement to M.B. that she “has the film.” (Ex. 2 at 3.) Miller, a friend of Wise and M.B., testified that in a phone conversation Wise told her that he had been drugging M.B. for sex and recording his sex acts, and would later watch the videos. (Tr. at 303, 305.) And, crucially, M.B. unambiguously identified herself and Wise as having been depicted in their home in the recordings.
While we recognize that in some circumstances there might be difficulty authenticating recordings like those at issue in the instant case, in this case we find no abuse of discretion in the trial court’s determination that the State laid an adequate foundation upon which to admit the videos. Accordingly, we conclude that the testimony from M.B., Miller, Wise, and other individuals established a sufficient foundation upon which the trial court could admit the video recordings into evidence under the “silent witness” theory.
. . . .
In adopting the “silent witness” theory, this court in Bergner set forth requirements for the admission of automatic camera recordings, which requirements were congruent with the confrontation requirements that the Supreme Court would eventually propound in Crawford and its progeny. Specifically, the Bergner Court required a proper foundation for admission of photographic or video evidence, which in turn requires that a defendant have the opportunity to conduct a cross-examination before that evidence may be deemed admissible. Bergner, 397 N.E.2d at 1018. These requirements, rooted in confrontation concerns, address the specific difficulties associated with video or other recordings that come from automated systems not monitored by anyone who was a witness to the events portrayed in those recordings.
Here, the State produced M.B. to testify concerning the circumstances under which she obtained the video recordings. She testified that the phone itself belonged to Wise, that she had obtained it in their home, and that she had played recordings already on the device. She identified the location of the three recordings as being in the bedroom she shared with Wise, and she identified herself and Wise in the recordings. Wise subjected M.B. to cross-examination concerning these matters, and both the trial court and the jury were free to disregard M.B.’s statements. Neither did, and Wise’s arguments concerning M.B.’s inability to explain the precise functioning of either a cellular phone video camera or a handheld camcorder are little more than invitations to this Court to reweigh the decision of the trial court.
We decline to do so, and accordingly find no confrontation violation associated with admission of the video recording into evidence.
Robb, J., and Brown, J., concur.