Tavitas, J.
Kenneth Kirby, III, appeals his conviction for arson, a Level 4 felony. Kirby argues that: (1) the trial court abused its discretion by denying his motion to dismiss; (2) the trial court abused its discretion by admitting testimony regarding the substance of a surveillance camera video recording that was not offered into evidence; and (3) the State presented insufficient evidence to support Kirby’s conviction. We find Kirby’s arguments without merit and, accordingly, affirm.
Kirby raises three issues on appeal, which we restate as: I. Whether the trial court abused its discretion by denying Kirby’s motion to dismiss. II. Whether the trial court abused its discretion by admitting testimony regarding the substance of a surveillance camera video recording that was not offered into evidence. III. Whether the State presented sufficient evidence to support Kirby’s conviction.
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Kirby first argues that, after the first trial resulted in a mistrial, the trial court abused its discretion by denying Kirby’s motion to dismiss the arson charge. We are unpersuaded.
The “double jeopardy” clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend 5. This clause restricts the government’s ability to try a criminal defendant twice for the same offense. Farris v. State, 753 N.E.2d 641, 645-46 (Ind. 2001). Our Indiana Supreme Court has explained, however, that a defendant’s motion for mistrial constitutes “‘a deliberate election on his part to forgo’” his right to be free from a second trial. Id. at 645-46 (quoting United States v. Scott, 437 U.S. 82, 93, 98 S. Ct. 2187, 2195 (1978)).
There is a narrow exception to this rule, and when it applies the defendant cannot be tried a second time regardless of the fact that the defendant requested a mistrial in the first trial. This exception applies only when the government’s “‘conduct in question’” was “‘intended to goad the defendant into moving for a mistrial.’” Id. at 646 (quoting Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 2088 (1982)). The subjective intent of the prosecutor is the “dispositive issue.” Id.
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Kirby argues that the prosecutor was “a highly experienced prosecutor who has tried multiple cases [and] would understand the danger of asking an open-ended question about whether a defendant was listed in a system which records an individual’s interactions with law enforcement.” Appellant’s Br. p. 17. In denying the motion to dismiss, however, the trial court implicitly found that the prosecutor did not intend to cause a mistrial, and we see no reason to disagree. We cannot say that the trial court’s finding regarding the prosecutor’s intent was clearly erroneous. Accordingly, we conclude that the trial court did not abuse its discretion by denying Kirby’s motion to dismiss.
Kirby next argues that, pursuant to the silent witness theory, the trial court abused its discretion by admitting the testimony of Detectives Jones and Mayer regarding their observations from the video. We first find that the silent witness theory applies here even though the video was not offered into evidence. We further find that the State laid a sufficient foundation for the detectives’ testimony and that, as a result, the trial court did not abuse its discretion by admitting that testimony.
The foundation required for the admission of a photograph or video offered as “substantive evidence” differs from the foundation required for the admission of a photograph or video offered as “demonstrative evidence.” Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014) (quoting Smith v. State, 491 N.E.2d 193, 196 (Ind. 1986)). Evidence offered for substantive purposes acts as a “silent witness[] as to what activity is being depicted” whereas evidence offered for demonstrative purposes is merely an “‘aid[] that assist[s]” in a human witness’s testimony.’” Id. (quoting Smith, 491 N.E.2d at 195-96). The silent witness theory is often invoked when a proponent seeks to introduce photographic or video evidence for the purpose of depicting certain events and no human witness testifies regarding their first-hand observations of those same events. See, e.g., McCallister v. State, 91 N.E.3d 554, 561 (Ind. 2018) (surveillance video); McFall v. State, 71 N.E.3d 383, 388 (Ind. 2017) (cell phone video recordings and photographs where cell phone owner did not testify).
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The State argues that the silent witness theory is inapplicable here because the video was not offered into evidence.4 Kirby, meanwhile, urges us to apply the silent witness theory’s heightened foundation requirements regardless of that fact. He argues that, “without the heightened foundational requirements, there are no assurances that the video was accurate, not altered, or even that it recorded the crime in question.” Appellant’s Br. p. 20.
Here, the detectives testified regarding their observations from a video that was a silent witness to the arson. We find no practical difference between admitting the video itself and admitting the video’s substance indirectly through this testimony. Accordingly, we are persuaded that the silent witness theory’s foundation requirements are applicable when, as here: (1) witnesses testified regarding the substance of a video; (2) the video recorded events that the witnesses themselves did not observe first-hand; and (3) the video was not offered into evidence. Several opinions of this Court and one case outside our jurisdiction inform our decision.
The State relies on Pritchard v. State, 810 N.E.2d 758 (Ind. Ct. App. 2004), to argue that a silent witness foundation was not required. In that case, the defendant was charged with battery of his cellmate. Id. at 760. At trial, witnesses testified regarding their observations from a jail surveillance recording, although the recording itself had been “purged” and was not offered into evidence. Id. The defendant challenged the witnesses’ testimony under the silent witness theory. Id. at 761 n.3. On appeal, a panel of this Court held in a short footnote that the silent witness theory was inapplicable because the recording itself was not admitted into evidence. Id. The panel further held that the witnesses could testify regarding their observations from the recording because those observations were “within their personal knowledge.” Id. (citing Evid. R. 602).
Since Pritchard, several decisions from this Court have suggested that Pritchard’s holding—that the silent witness theory is inapplicable when the silent witness evidence itself is not admitted—is incorrect. In Wise v. State, the defendant, Wise, was charged with rape and several counts of criminal deviate conduct for having sexual intercourse with his then-wife, M.B., after “sneak[ing] Xanax” into her beverages. 26 N.E.3d 137, 139-140 (Ind. Ct. App. 2015), trans. denied. Wise recorded several of these instances on his cell phone, which M.B. discovered. Id. at 139. “Not knowing how to retain videos directly from the phone, M.B. played the videos on Wise’s phone and recorded the playback with a second handheld camcorder.” Id. at 139-140.
At trial, the State offered the second-hand recordings into evidence but not the original recordings from Wise’s cell phone, which had been lost. Id. at 142. The trial court admitted the second-hand recordings over Wise’s silent-witness theory objection. Id. at 140, 142. On appeal, the panel recognized that the silent witness theory was “not an especially neat fit,” but nonetheless found that the theory “provide[d] an adequate framework” for the case. Id. at 142. The panel held that the State laid a sufficient foundation for the admission of the second-hand recordings based on the surrounding circumstances. Id. at 142-43.
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Here, although the video was not offered into evidence, like the secondary evidence in Stott and Connolly, the detectives’ testimony relied on a silent witness to events that no testifying witness observed first-hand. The silent witness theory’s heightened foundation requirements would have certainly been triggered had the video itself been admitted into evidence, and we see no reason why the fact that the video was not admitted relieves the State of the burden of proving the video’s reliability under the silent witness theory.
Indeed, the silent witness theory’s foundation requirements are even more appropriate in this case where, in contrast to Wise and Stott, the secondary evidence offered by the State is not merely a partial duplicate of the original silent witness evidence, but rather pure testimony of the detectives’ observations from the video. In Bergner, 397 N.E.2d 1017, when this Court first adopted the silent witness theory as a matter of Indiana law, we cautioned that silent witness evidence presents “the potential for distortive and misrepresentative images. . . .” In a case such as this, where the silent witness evidence is never itself admitted, those same concerns are still present and to a greater extent. The video is never available for the fact-finder to see and evaluate.
Moreover, it will be a tall order for even the most seasoned trial attorney to effectively cross examine a testifying witness’s account of evidence that is not admitted into evidence. That task is even more onerous where, as here, neither Defense counsel nor any witness other than the detectives ever saw the video. Thus, laying a strong foundation for the video’s reliability is all the more necessary.
Based on the foregoing, we conclude that the silent witness theory’s heightened foundation requirements apply in the instant case, and we disagree with Pritchard’s holding to the contrary. We turn now to whether the State laid a sufficient foundation for the detectives’ testimony and conclude that the State has met that burden.
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Kirby points out that Detective Jones admitted that he did not know “the way the DVR operates,” Tr. Vol. II p. 148, and that Detective Mayer testified that the timestamp on the video was “not accurate,” id. at 180. We cannot say, however, that these deficiencies are fatal. Today, home security cameras are widely accessible to the public and are not technically complicated to the average user. A lack of understanding regarding the inner mechanics of a home security DVR system does not necessarily render the footage stored therein unreliable. That is especially the case where, as here, Detective Jones understood that the video was stored on the DVR, and, indeed, observed the video being pulled up from the DVR hard drive. Further, as to the inaccuracy of the time stamp, it is not unheard of for a security camera’s internal clock to be inaccurate. Given that the video depicted the ignition of the very same garage that was burned to the ground on the day in question, we also do not think that the inaccuracy of the time stamp renders the video unreliable. Cf. Young v. State, 198 N.E.3d 1172, 1181 (Ind. 2022) (inaccuracy of surveillance video’s time stamp did not render the evidence against the defendant insufficient when “the rest of the web of facts” supported the jury’s verdict).
We find that the State laid a sufficient foundation for the detectives’ testimony regarding their observations from the video. Accordingly, we cannot say that the trial court abused its discretion by admitting the detectives’ testimony.
Lastly, Kirby challenges the sufficiency of the evidence to support his conviction for arson. We find the evidence sufficient.
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Additionally, we find Jackson’s holding inapplicable here. In Jackson, we observed that hearsay statements were “the only evidence” supporting Jackson’s conviction. 485 N.E.2d at 146. Here, however, Lindsey’s statements were corroborated by other evidence. In the 911 call, Lindsey reported that Kirby threatened to burn her house down and that Brandon was trying to stop Kirby. She further reported that she drove past her house and saw Kirby at her house shirtless and wearing shorts. Detectives Jones and Mayer testified that Lindsey’s cameras recorded two white men in her backyard, one of whom was shirtless, wearing shorts and white shoes, and who appeared to set the garage aflame. Kirby was arrested later that day at Brandon’s house, where law enforcement recovered a pair of shorts and shoes matching those worn by the shirtless man in the video, and laboratory testing identified gasoline on the shoes. The evidence against Kirby, therefore, did not consist solely of hearsay evidence, and the jury could have reasonably inferred that the shirtless man who set fire to the garage was Kirby. Accordingly, the State presented sufficient evidence to support Kirby’s conviction.
The trial court did not abuse its discretion by denying Kirby’s motion to dismiss, nor did it abuse its discretion by admitting the detectives’ testimony regarding their observations from the video. Additionally, the State presented sufficient evidence to support Kirby’s conviction. Accordingly, we affirm.
Affirmed.
Bailey, J., and Kenworthy, J., concur.