Mathias, J.
Antwon Stott was convicted in Marion Superior Court of two counts of resisting law enforcement, one as a Level 6 felony and one as a Class A misdemeanor, and he was found to be a habitual offender. Stott appeals, arguing that his two resisting-law-enforcement convictions violate the prohibition against double jeopardy and that the trial court erred in admitting certain evidence at trial. The State agrees with Stott that the two convictions constitute a substantive double-jeopardy violation. And we agree with Stott that admitting the challenged evidence was reversible error.
We reverse and remand for proceedings consistent with this opinion.
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Stott argues that the trial court committed reversible error by admitting certain evidence over objection at trial.
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The identity of the all-denim-wearing driver of the Dodge Ram was, as Stott aptly observes, “the critical issue in this case.” Appellant’s Br. at 19. Indeed, no witness testified either to seeing Stott dressed in denim on the day of the incident or to seeing Stott drive the truck that day. To tie Stott to the charged offenses, the State instead relied on the following: (1) police-radio traffic from after the traffic stop, in which anonymous witnesses relayed information to law enforcement; (2) Officer Augustinovicz’s cellphone photographs of McDonald’s surveillance footage; and (3) a cellphone, which officers found in the truck, that had the same phone number as a cellphone later recovered from Stott’s person.
Stott challenges the admission of the first two pieces of evidence. Specifically, he argues that the police-radio traffic—the only direct evidence that a man wearing denim ran from the crash scene—is inadmissible hearsay to which no exception applied. And he argues that the surveillance-footage photographs— the only direct evidence used to identify Stott as the man in the all-denim outfit—lacked sufficient authentication.
We address Stott’s claims in turn and determine whether admitting the challenged evidence was an abuse of the trial court’s discretion. Deciding that it was, we then apply harmless-error analysis to the erroneously admitted evidence. And because we conclude that its admission was not harmless error, we reverse and remand.
Before trial, Stott’s counsel and the State argued over the admissibility of an audio recording of police-radio traffic that began after the truck fled the traffic stop. The recording includes statements by responding officers and their recitation of information from unidentified civilian witnesses. See Ex. Vol. at 58, 60–65.3 The trial court determined that the State could use this evidence in part for identification purposes. See Supp. Tr. pp. 68, 70.4 And then, at trial, the court admitted the recording into evidence over Stott’s objection. Stott maintains this decision was an abuse of the court’s discretion, arguing that the “statements by officers relaying information provided by unidentified individuals . . . . is classic hearsay within hearsay for which no exception applies.” Appellant’s Br. at 23. On the unique facts of this case, we agree.
The State, which bears the burden to establish the recording’s admissibility, maintains that “[t]he statements on the radio traffic qualify under the ‘present sense impression exception’ to the hearsay rule.”
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The witnesses’ statements to police officers in the recording are not present sense impressions because the State has not established contemporaneity between the events perceived and the declarations about those events. The recording begins when the truck fled the traffic stop and lasts approximately twelve minutes. Importantly, however, the relay of information did not occur within a twelve-minute timeframe. Officer Reetz confirmed that the radio traffic was not a “constant communication.” And at one point an officer relays information from a witness but says “that was about twenty minutes ago.” Ex. Vol. at 64.; cf. State ex rel. J.A., 949 A.2d 790, 798 (N.J. 2008) (collecting cases in recognizing that “case law from other jurisdictions suggests that a delay measured in minutes will take a statement outside of the present sense impression hearsay exception”). In short, we are unable to ascertain when the witnesses’ statements were made and whether those declarations were made in temporal proximity to the events described. The State therefore has not established that the information was relayed “while or immediately after the declarant perceived” the event.
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Aside from the issue of when the statements were made in relation to the events described, it is also not apparent whether the anonymous witnesses personally observed those events.
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In short, the State has not established that the first layer of hearsay in the poli ce radio recording meets the requirements for the present sense impression exception to the rule against hearsay. It is unclear whether the witnesses made the statements to police during or immediately after the events described or whether the witnesses personally perceived those events. And at least one anonymous declarant had time to deliberate. These circumstances distinguish the police-radio evidence here from the properly admitted hearsay evidence in the cases relied on by the State. Cf. Amos v. State, 896 N.E.2d 1163, 1169 (Ind. Ct. App. 2008) (declarant perceived the event and there was “proximity in time” between the event and its description), trans. denied; Palacios v. State, 926 N.E.2d 1026, 1032 (Ind. Ct. App. 2010) (contemporaneity and “little possibility” of inaccuracy); Truax v. State, 856 N.E.2d 116, 125 (Ind. Ct. App. 2006) (same). We therefore conclude that the audio recording of police-radio traffic from when the truck fled the traffic stop is not admissible under the present sense impression exception. And because the State has not established that the recording is admissible under a different hearsay exception, the trial court erred when it admitted the recording into evidence. We now turn to Stott’s other evidentiary challenge.
As noted above, the only direct evidence identifying Stott as the all-denimwearing driver of the Dodge Ram was testimony in direct reference to Officer Augustinovicz’s cell-phone photographs of McDonald’s security-camera footage from the day of the incident. Both before and at trial, the court overruled Stott’s objections to admission of the photographs, finding the evidence admissible under the silent-witness theory, which we discuss below.
Stott maintains the court’s decision was an abuse of discretion, arguing “the State failed to present sufficient evidence to authenticate” the photos. Appellant’s Br. at 38. The State’s response is twofold. It first asserts that the photographs do “not fall under the silent witness theory.” Appellee’s Br. at 26. But the State then contends that “[e]ven if this evidence was governed by the silent witness theory,” there was sufficient authentication. Id. at 27.
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The State maintains that it did not need “to satisfy the ‘silent witness’ authentication requirements” for Officer Augustinovicz’s cell-phone photographs of the McDonald’s surveillance footage, noting that neither the actual video recording nor images extracted from that recording were admitted into evidence. Appellee’s Br. at 25–26. So, because the officer “personally watched the video and he personally took the photographs,” the State argues that “this was not a ‘silent witness’ case.” Id. at 26–27.
Though we acknowledge the logic in the State’s argument, accepting its position would require us to ignore the reality of what Officer Augustinovicz’s photographs intend to portray: people inside a McDonald’s restaurant at a specific time on a specific day. And the State used those photographs assubstantive evidence to identify Stott as the man wearing an all-denim outfit on the day of the incident. See Supp. Tr. p. 35, Vol. III, pp. 19, 198, 201–02, 242– 43. What matters for foundational purposes is that no testifying witness was inside the McDonald’s to observe the scene the photographs depict. The same is true of the actual surveillance footage; it captured a scene that no testifying witness was there to observe. Therefore, in this context, we see no practical difference between photographs of the footage and still-images extracted from the footage—both depict a scene that was not observed by any testifying witnesses. We refuse to elevate form over substance and in turn conclude that the silent-witness theory provides an adequate framework for evaluating the photographs’ admissibility.
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For the photographs to be admissible under the silent-witness theory, there must be adequate proof of the reliability of the process that produced what the photographs intend to depict, including proof that the evidence was not altered. See McCallister, 91 N.E.3d at 561–62; McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017). While we acknowledge that the circumstances in this case are unique, a survey of Indiana caselaw applying the silent-witness theory demonstrates that the State failed to meet the theory’s requirements here.
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…the State here did not produce any evidence about the McDonald’s security system or how it operated. Officer Augustinovicz, the sponsoring witness, had no knowledge of McDonald’s security system, exercised no control over the recording process, and could not attest to the accuracy of the footage. Tr. p. 212. Further, the State failed to produce any evidence that the surveillance footage had not been altered before it was reviewed by Officer Augustinovicz—the day after the incident.
It is no secret that it is increasingly easier in today’s digital age to manipulate or distort images. See, e.g., 2 McCormick on Evid. § 215 n.17 (8th ed. 2020). Without suggesting any malfeasance in this case, we reiterate that it is the proponent’s burden to establish the strong showing of authenticity and competency for the admissibility of photographs used as substantive evidence under the silent-witness theory. The State did not do so here. And thus, the trial court abused its discretion in admitting the cell-phone photographs of the surveillance-footage.
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…[W]e conclude that the erroneously admitted evidence likely had a prejudicial impact on the jury and contributed to its verdict. The errors were therefore not harmless, and Stott’s convictions must be reversed.
The trial court erred in admitting a recording of police-radio traffic and in admitting an officer’s cell-phone photographs of restaurant surveillance-footage. Because those errors were not harmless, we reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
Crone, J., concurs.
Riley, J., concurs in result without opinion.