¶1concurring in the result.
¶2I would defer to the trial court’s determination that a sufficient foundation had been established by the State to admit the videotape into evidence. The thrust of the defendant’s argument relates to the playback of the videotape during the trial. In his brief, the defendant characterizes his argument in part as follows:
Surveillance video recordings such as those at issue here are different from normal videotaping, however, because they involve the taking (and playback) of substantially fewer photographs and at a much different rate, so as to permit the use of less videotape to cover a longer period of time without the need to change videotape cassettes. Hence, ‘time-lapse’ videography.
At this trial, the state offered absolutely no evidence at trial to explain the time-lapse videography recording process or playback process, and no evidence which explained why the playback was so problematic. The state admits that the problem was with their use of the wrong machine, but they never cured the problem either. There can be no question but that the videotape playback was the heart and soul of the state’s case, relying upon it to prove a negative, that the defendant never left the store.
The most telling evidence of the total lack of description of the process or system by which such a time-lapse videotape was produced, and the unmitigated absence of a showing that the process produced an accurate result came from the jury itself which, during deliberation, questioned the court about (1) the missing gaps of footage, and (2) which of the machines was faulty ....
¶3Again, the trial court is in the best position to assess whether the playback of the videotape under the circumstances would aid the jury in its decision.