People v. Smith

                                                                       Digitally signed
                                                                       by Reporter of
                                                                       Decisions
                                                                       Reason: I attest
                                                                       to the accuracy
                       Illinois Official Reports                       and integrity of
                                                                       this document
                                                                       Date: 2022.02.10
                               Appellate Court                         13:57:10 -06'00'




                  People v. Smith, 

Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            CARL SMITH JR., Defendant-Appellant.



District & No.     Fifth District
                   No. 5-19-0066



Filed              November 1, 2021



Decision Under     Appeal from the Circuit Court of Jackson County, No. 18-CF-303; the
Review             Hon. Ralph R. Bloodworth III, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Douglas R. Hoff, and Adrienne E. Sloan, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Joseph A. Cervantez, State’s Attorney, of Murphysboro (Patrick
                   Delfino, Patrick D. Daly, and Max C. Miller, of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE VAUGHAN delivered the judgment of the court.
                   Justice Wharton specially concurred, with opinion.
                   Justice Cates dissented, with opinion.
                                              OPINION

¶1                                          I. BACKGROUND
¶2        This case arises from allegations that coins, pain medication, and jewelry were stolen from
     Michael Whittington’s apartment on July 29, 2018. After an officer viewed surveillance
     footage of the apartment building, defendant was suspected as the offender. On August 1, 2018,
     defendant was charged with residential burglary in knowingly and without authority entering
     into the dwelling of Whittington, with the intent to commit therein a theft (720 ILCS 5/19-3(a)
     (West 2018)).
¶3        On October 29, 2018, defense counsel filed a motion in limine to preclude the introduction
     of the two nonconsecutive iPhone clips, which depicted defendant walking away from
     Whittington’s apartment after touching the doorknob and then exiting Whittington’s apartment
     about 20 minutes later. He argued that the clips were unduly prejudicial without admitting the
     full original surveillance video, as the jury would likely speculate as to what may or may not
     be on the rest of the original surveillance video. The motion also argued that the clips violated
     the best evidence rule pursuant to Illinois Rules of Evidence 1001-1003 (eff. Jan. 1, 2011)
     because they were not duplicates where the 20- to 30-second clips did not “accurately
     reproduce the original” as required in Illinois Rule of Evidence 1001(4) (eff. Jan. 1, 2011).
¶4        Before trial, the court heard argument on defendant’s motion in limine regarding the iPhone
     clips. Defense counsel noted that the State did not provide the original surveillance video to
     the defense in discovery, and from talking with the State that morning, it was due to the State
     not being provided the original video by law enforcement. Counsel argued the two 20- to 30-
     second clips are prejudicial to defendant because there is no video of what happened in between
     the two clips, what happened before that time, or what happened after that time. Counsel
     acknowledged that edited clips of long videos are often admitted into evidence but asserted
     that the other side always has the original to use if necessary. Without the original, the jury is
     left to speculate as to what might be on the full surveillance video. Counsel further argued that
     the clips violated the best evidence rule because they are not the original nor are they duplicates
     under Illinois Rule of Evidence 1001(4) (eff. Jan. 1, 2011).
¶5        At that time, the State had no response but requested the court to reserve its ruling until it
     could have the witness who was to authenticate the video come testify the next morning, so
     the court could be fully informed of the foundation of the clips. Defense counsel and the court
     agreed.
¶6        The following morning—immediately before trial—the State called Pieter Schmidt to
     testify. Schmidt owned the apartment building in which Whittington and defendant lived.
     Schmidt stated that the apartment complex had a video surveillance system. He testified to his
     familiarity with the system, noting that he had previously reviewed surveillance video footage
     by pulling up the surveillance screen then selecting the appropriate icon to go forward,
     backwards, or to pick a specific date. He explained that there are four cameras that
     automatically record and save to a DVR for 48 hours. The cameras are positioned to look
     through the office windows into the hallway, to look down the hallway, and to look at the
     parking lot. Schmidt testified that the recordings are time-stamped and cannot be altered.
     Schmidt averred that this matter was the first time he had to retrieve surveillance video footage
     since installing the system the previous spring. He stated that he knew the video surveillance


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       was functioning properly on July 29, 2018, because the footage for that date was available for
       review.
¶7         Schmidt testified that, after Whittington left him a message that someone broke into his
       apartment and “robbed” him, he viewed the surveillance footage for July 29, 2018, for some
       time earlier than 1:53 p.m. until 2:24 p.m. Once Schmidt arrived at the apartment building,
       Whittington gave him a police officer’s card and informed him that the officer was interested
       in knowing if the video surveillance system worked. Schmidt verified that, based on his
       knowledge of how the system worked, the video displayed a fair and accurate depiction of
       what occurred in front of the cameras at that time. When asked if he was able to copy the
       footage, Schmidt stated, “I’m not competent enough apparently to do that. And we tried and
       we could not get it to download on a flash drive. So we recorded it on a cellphone. Basically I
       think they call that a screenshot.”
¶8         Schmidt testified that he and his wife recorded a couple of clips that they thought were
       important on his wife’s iPhone that were subsequently e-mailed to his iPhone. He then took
       his iPhone to an IT person at his law firm who put the clips onto a compact disc (CD), which
       he delivered to the Carbondale Police Department.
¶9         Schmidt averred that Whittington’s apartment was right outside the office where one
       camera is located. Schmidt testified that, in the footage, defendant went down the hallway and
       touched the doorknob of Whittington’s apartment. However, defendant just touched the
       doorknob and continued to walk further down the hallway. He then disappeared until roughly
       20 minutes later when he walked out of Whittington’s apartment. Schmidt verified that before
       he had his wife record the video footage on her iPhone, Schmidt viewed the entire footage and
       did not observe anything but an empty hallway during the period between the two recorded
       clips. Defendant never walked into Whittington’s apartment during that time. Schmidt also
       testified that he did not alter the recording at all. Schmidt clarified that the two clips showed
       the time to be about 1:53 p.m. and 2:14 p.m., respectively. He testified that the CD admitted to
       the court fairly and accurately depicted what occurred on the cameras near Whittington’s
       apartment.
¶ 10       On cross-examination, defense counsel asked if Schmidt could be considered a competent
       operator of the security system where he did not know how to export the footage. Schmidt
       responded that he could not download the footage to a flash drive but could operate the other
       functions of the system. He acknowledged that he had no formal training on the system. He
       read the instruction manual to try to see how to export a video but could not figure it out.
       Schmidt stated that he did not ask anyone from the police department or an IT person from his
       office to help him export the video. Schmidt also testified that no one from the police
       department attempted to retrieve and export the footage themselves. The footage would have
       been available from July 29, 2018, to July 31, 2018. Schmidt averred that while he observed
       the 20-minute period between the iPhone clips, he did not have any personal knowledge of
       what the cameras were recording.
¶ 11       Schmidt conceded that he could have recorded the entire original footage but did not
       because it would take too long. When asked if there were other people in the hallway, he
       averred that when defendant came out of Whittington’s apartment, a woman appeared from
       the stairwell around the corner. Schmidt clarified that no one else was around or in front of
       Whittington’s apartment that day except defendant and his wife, who were in front of the
       apartment earlier in the day.

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¶ 12       Defense counsel argued that the iPhone clips violated the completeness doctrine and the
       best evidence rules (Ill. R. Evid. 1001-1004 (eff. Jan. 1, 2011)) and were unduly prejudicial.
       Counsel contended that the State was allowed to cherry-pick two parts of the full video and
       precluded the defense’s fair shot to look at the whole original to decide if any portion would
       be beneficial to defendant. Counsel further argued that the police knew that the original would
       be deleted after 48 hours and had plenty of time—and the authority—to try to obtain the
       original. With respect to the best evidence rules, counsel claimed the iPhone clips were not
       originals or duplicates under the Illinois Rules of Evidence because they did not accurately
       reflect or reproduce the original’s data. A comparable situation would be admitting “two or
       three words of a multiple page contract,” which would also be objectionable. Counsel noted
       that while Illinois Rule of Evidence 1004 (eff. Jan. 1, 2011) allows other evidence of the
       contents of a recording if the original is lost or destroyed, the original here was destroyed with
       the knowledge of the State’s witness and the failure of law enforcement to obtain the original
       in time. By allowing the State to pick two nonconsecutive clips, defendant was denied the
       chance to obtain any exculpatory evidence.
¶ 13       Defense counsel also objected to the iPhone clips for insufficient foundation under silent
       witness theory. He argued that Schmidt conceded he was incompetent to export the
       surveillance footage. Counsel also contended that there was insufficient chain of custody where
       Schmidt’s wife was not present to testify to her part in transferring the recordings to Schmidt,
       and the IT person did not testify to how he burned the recordings from Schmidt’s e-mail to a
       CD.
¶ 14       In response, the State relied on People v. Taylor, 

, to argue that the iPhone
       clips were originals and therefore not subject to the best evidence rule. It contended that the
       clips—which copied the exact data from the surveillance hard drive as it played—is essentially
       that same as digital images transferred to a CD from a hard drive. See id. ¶ 43 (tape made by
       copying data stored on a hard drive of a DVR satisfies the definition of original). The State
       also argued that it did not cherry-pick evidence; rather, a neutral third party was in control of
       the copying process and determined what was relevant. As such, “[t]his really isn’t a case of,
       you know, law enforcement attempting to frame something or attempting to alter evidence.”
       As to the competency of the operator, the State claimed Taylor focuses on the competency to
       operate the recording device itself. Here, Schmidt provided sufficient testimony to how the
       surveillance system worked, that the system was operating properly, and what the cameras
       depicted. Schmidt also explained the entire copying process. The State argued that it need not
       present every link in the chain of custody when a witness testifies that its exhibit accurately
       displays what was originally recorded. Under such circumstances, any missing links go to the
       weight of the evidence, not the admissibility.
¶ 15       Based upon the arguments and Schmidt’s testimony, the court determined that the iPhone
       clips were admissible. It stated, “in a perfect world, we would have clear and complete videos
       of every situation, clear and complete and clean chain of custody. Unfortunately, we do not
       work in a perfect world and cases do not arise and are not handled in a vacuum or in a perfect
       world.” It further noted that defense counsel would have wide discretion on cross-examination.
¶ 16       At trial, Schmidt’s testimony regarding the surveillance cameras and video was
       substantially the same as his testimony during direct examination and cross-examination at the
       pretrial hearing on defendant’s motion in limine. Additionally, Schmidt testified that


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       Whittington informed him that his window had been damaged. Schmidt averred that no
       cameras faced Whittington’s window from the exterior.
¶ 17        During the direct examination of Schmidt, the State played the two iPhone clips. The first
       clip depicted the man that Schmidt identified as defendant going up to the door that Schmidt
       identified as Whittington’s apartment for a brief moment and then continuing down the
       hallway. The second clip, time-stamped roughly 20 minutes later, showed the same man
       exiting the door that he approached in the first clip while carrying a white bag.
¶ 18        The State next called Whittington to testify. Whittington testified that he had asked
       defendant and defendant’s wife to clean his apartment for payment, about three times over the
       past two years, when he did not feel well enough to clean it himself. He averred that defendant,
       however, was not allowed in his apartment when he was not home. On the day of the incident,
       Whittington asked defendant to clean his apartment. Defendant started cleaning the apartment
       around 10 a.m. and left about 12:30 p.m. Afterwards, Whittington met a couple of friends at a
       local bar. He testified that he locked his door when he left, as he always has. The door was able
       to be locked from the inside or outside. Whittington averred that he was at the bar from about
       1 p.m. to 6 p.m. and drank four to six beers.
¶ 19        Upon returning home, Whittington noticed that the doorknob was kind of bent, which made
       it difficult for him to unlock and open his door, which he found suspicious. Based on this
       suspicion, he checked his cup full of quarters that he kept on the stand for laundry and noticed
       all the quarters were missing. He also noticed that all the nickels and dimes were gone from a
       canister, in which he kept the rest of his coins. Whittington testified that he knew the coins
       were missing because he checked to see how many quarters he had before he left to go to the
       bar. He looked around further and realized that 40 or 50 tablets of his prescribed hydrocodone
       pain medication were also missing. Whittington then called his landlord and left a message
       that he believed someone broke into his apartment. He also called the police to make a report.
       Whittington testified that, at the time, he had no idea whom to pursue criminal charges against,
       so he just wanted to make a police report. He, however, informed the police that surveillance
       videotapes may be available because there were cameras in the building. Whittington admitted
       that he was “a little buzz[ed]” but was not drunk.
¶ 20        Over the next day or so, Whittington called the police again to inform that jewelry was also
       missing out of the top drawer of his chest and his window was broken. He testified that the
       missing jewelry was several pieces of turquoise jewelry, two of which were from his late
       mother. He knew the jewelry was in the drawer the day before the break-in because he saw it
       when he needed to check paperwork located in the same place. Whittington testified that he
       did not notice his window—located on the wall across from his front door—was pushed off
       the tracks at the bottom until his health care worker came over and raised the window to air
       the apartment out.
¶ 21        Whittington testified that he did not give people permission to come and go into his
       apartment as they pleased and did not allow anyone to come inside his apartment that
       afternoon. He also averred that he never found his missing jewelry.
¶ 22        On cross-examination, counsel impeached Whittington with a previous aggravated DUI
       conviction. Whittington agreed that he was not supposed to drink beer while taking
       hydrocodone, but occasionally did so. He testified that he took one hydrocodone pill before
       leaving for the bar that day. When asked if he believed drinking beer while taking hydrocodone
       affects his ability to recall details, he responded, “I don’t take that many pills.” Whittington

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       also did not believe that the beer and hydrocodone combination affected his ability to unlock
       his apartment.
¶ 23       Whittington acknowledged that he had known defendant for a couple of years, visited at
       defendant’s apartment a couple times, and considered them to be on friendly terms. He
       conceded that he had previously accused defendant and defendant’s wife of stealing from him
       but continued to let them clean his apartment after they denied doing so. Whittington also
       averred that, about a year prior, he allowed a homeless female friend to stay over for about a
       week. He stated that she took all her belongings when she left.
¶ 24       Whittington admitted that he had never opened his window before and always had his
       blinds shut, but that he did not believe it was broken because he “would have felt a breeze last
       winter.” When asked about the police’s actions on July 29, 2018, Whittington testified that the
       police did not take fingerprints, swabs for DNA, or foot impressions. He averred that the police
       told him they would contact the landlord and try to get the surveillance video.
¶ 25       The officer who was dispatched to Whittington’s apartment around 7 p.m. on July 29, 2018,
       Michael McCrary, also testified. Officer McCrary stated that Whittington seemed “kind of
       confused” because somebody had been in his apartment and took his stuff. He did not believe
       Whittington was intoxicated. After speaking with Whittington, Officer McCrary inspected the
       door handle, which was bent such that it was causing a problem to open the door. Officer
       McCrary stated that, at that time, Whittington did not suspect anyone in particular and was not
       really interested in pursuing charges. So, Officer McCrary left his card and asked Whittington
       to contact him if Whittington found anything else.
¶ 26       The next day, Whittington called Officer McCrary to say that he noticed some jewelry was
       missing. At that time, because Whittington seemed interested in pursuing charges, Officer
       McCrary dusted for fingerprints on the drawer from which the jewelry was missing and
       surveyed Whittington’s neighbors.
¶ 27       Officer McCrary testified that he contacted Schmidt on July 30, 2018, to inquire about the
       surveillance video, and Schmidt said he would make a copy of the video. The next day, on July
       31, 2018, Schmidt informed Officer McCrary the copy was ready. After collecting and
       reviewing the surveillance video, Officer McCrary suspected defendant. He averred that he
       located defendant at his apartment and placed him under arrest for burglary. After a search
       incident to arrest, Officer McCrary discovered $3000 and approximately 20 hydrocodone pills
       in a prescription bottle in defendant’s pockets.
¶ 28       On cross-examination, Officer McCrary acknowledged that the bottle of hydrocodone pills
       was prescribed to defendant. He also stated that if Whittington indicated an interest to press
       charges on July 29, 2018, he would have dusted for fingerprints on the doorknob and jars of
       coins at that time. For the same reason, Officer McCrary did not speak with the apartment’s
       owner until July 30, 2018, despite knowing the apartment had cameras on July 29, 2018.
¶ 29       Officer Ashley Noto, who inspected Whittington’s window, testified that Whittington’s
       window “was off of its hinges or off its tracks” towards the bottom. Officer Noto stated that it
       had been tampered with and pushed in, and the screen was busted. She noted the window was
       about five feet from the ground with an air conditioner unit “sort of almost under, a little bit to
       the side of the window.”
¶ 30       On cross-examination, Officer Noto testified that Whittington said he opens the window to
       let smoke out, and when he went to do so, he noticed the window was off its track. Officer


                                                    -6-
       Noto conceded that, at that point, she was not sure whether the window had anything to do
       with the burglary. She stated that she did not take any fingerprints, DNA swabs, or shoe print
       impressions.
¶ 31       For the defense, Tina Chappell, defendant’s wife, testified. She averred that Whittington
       was friends with her and defendant and that they would hang out about five or six times a
       month. Chappell testified that she had cleaned Whittington’s apartment a total of six or seven
       times, but defendant helped the last three times because her health made it more difficult. On
       more than one occasion, Whittington would let her into his apartment to clean while he went
       to the bar. Chappell stated that Whittington gave defendant permission to be in his apartment
       while she cleaned.
¶ 32       Chappell testified that a homeless woman lived with Whittington about three months prior
       to the date of the alleged burglary. This lasted for a couple of months. Chappell stated the
       homeless woman would knock on his window for him to let her in, “or she may have come
       through the window,” because you had to have a key to get in the apartment building. She also
       averred that about a month and half before defendant was arrested, Whittington had accused
       her of stealing a ring, but she informed him that she did not. About a month later, Whittington
       apologized to defendant and said he would apologize to Chappell for accusing her of stealing
       the ring because he later found the ring. When asked where he found it, Chappell replied, “It
       was in his apartment. Just probably like everything else is [sic] he’s accusing [defendant] of
       stealing right now.” She acknowledged she had a 2013 prior felony conviction for possession
       of controlled substance.
¶ 33       The defense last called Alek Rose to testify. Rose stated that Whittington—while under the
       influence of alcohol—falsely accused him of breaking into Whittington’s apartment a couple
       weeks before defendant was arrested. Rose testified that Whittington threatened if it happened
       again Whittington would kill him. Rose also averred that there was an empty apartment located
       a few inches away from Whittington’s apartment door, which the owner of the apartment
       building allowed Rose to use as temporary storage.
¶ 34       The State then recalled Schmidt as a rebuttal witness. He stated that he was certain the
       video depicted defendant standing in front of Whittington’s apartment and not the empty
       apartment next door. He also was certain that the second video depicted defendant exiting
       Whittington’s apartment, not the empty apartment. Schmidt stated that you could see defendant
       carrying something in his right hand as he exited Whittington’s apartment. Schmidt averred
       that the empty apartment was always kept locked and that no tenant had permission to use it
       nor a key to open it.
¶ 35       The State also recalled Whittington. He testified that after questioning defendant about a
       missing necklace, defendant and Chappell directed him to Rose, whom they saw jiggling his
       locks. Whittington admitted that, when he confronted Rose, he said “some things [he] probably
       shouldn’t have.” Whittington testified that he has not found any of the property that has been
       missing since July 29, 2018. He also clarified that the homeless woman, who had lived with
       him the year prior, never had a key to his apartment nor used his window to access his
       apartment. She would tap on his window so he knew she was there, and then he would let her
       in. The State played the second video, stopping it at the point where Schmidt testified you
       could see defendant exit the building and a woman coming from the stairwell. Whittington
       testified that the woman was not the homeless woman who lived with him. On cross-


                                                  -7-
       examination, Whittington acknowledged that, on July 29, 2018, he watched TV as defendant
       and Chappell cleaned his apartment and did not pay much attention to what they were doing.
¶ 36       The jury found defendant guilty of residential burglary. On November 28, 2018, defendant
       filed a motion for a new trial and judgment notwithstanding the verdict, challenging, inter alia,
       the sufficiency of the evidence and the admission of the iPhone video clips. The court denied
       both motions, and the matter proceeded to a sentencing hearing.
¶ 37       At the sentencing hearing, the court first noted that it received and reviewed the presentence
       investigation (PSI) report. The PSI report revealed that defendant reported he suffered from
       kidney and bladder disease, arthritis, and bipolar disorder. However, no documentary evidence
       was obtained to verify these diagnoses. The report indicated that defendant has used illegal
       substances from the age of 13. He graduated high school. While defendant did not have stable
       full-time employment, he worked odd jobs for people at his church.
¶ 38       The PSI report also revealed that defendant had several previous convictions, including
       convictions in different states. Spanning over 1975 to 2013, defendant accumulated two
       larceny convictions, one petty larceny conviction, two possession of stolen property
       convictions, two retail theft convictions, two theft convictions, a burglary conviction, one
       unlawful possession of vehicle conviction, a breaking and entering conviction, one
       unauthorized use of a vehicle conviction, two escape from the Illinois Department of
       Corrections convictions, an assault of an officer conviction, and one unlawful possession of
       cannabis conviction. Based on his criminal history, the court noted that while defendant was
       convicted of a Class 1 felony, he must be sentenced as a Class X sentencing offender pursuant
       section 5-4.5-95(b) of the Unified Code of Corrections (730 ILCS 5/5-4.5-95(b) (West 2018)).
¶ 39       Defendant counsel called Eileen Troutt-Ervin to testify. Troutt-Ervin and defendant were
       members at the same church. She averred that she hired defendant to help around her house
       and that he was a hard worker. Although she was a little leery at first—because defendant was
       an ex-convict—she trusted him. She never felt something would be missing and never knew
       anyone at the church that felt like defendant would take something. She recently gave
       defendant a key to her shed, and defendant had access to her house without supervision. Troutt-Ervin also stated that defendant volunteered at the church.
¶ 40       The defense further admitted several character witnesses’ letters from other members of
       defendant’s church that shared the same sentiments as Troutt-Ervin’s testimony. Collectively,
       they spoke to defendant’s eagerness to work and willingness to volunteer for whatever needed
       done at the church. The letters also revealed that defendant worked for several members of the
       church, and no one felt anxious or suspicious letting him into their homes. Some letters stated
       that defendant had the freedom to enter the house as necessary to complete his work and that
       the church members trusted him. All the letters expressed great satisfaction for defendant’s
       work. One letter also claimed that defendant suffered from the crime of being poor and the
       crime of being homeless.
¶ 41       The State argued that, before this incident, Whittington thought defendant was his friend
       and trusted him enough to invite him into his house, but defendant seized the opportunity to
       score from an easy target. While the medication and coins could be replaced, Whittington
       testified to the sentimental value of his jewelry that is irreplaceable. The State contended that
       this was a cold and calculated act perpetrated against a friend and neighbor. Defendant knew
       Whittington would be gone and took advantage, which reflects his true character. The State
       also noted defendant’s criminal history, including multiple theft offenses, as an aggravating

                                                   -8-
       factor (id. § 5-5-3.2(a)(3)). It also stated that defendant had shown no remorse or offered any
       type of apology to Whittington, that defendant had demonstrated that he is a deceitful and
       dishonest individual, and that “enough has to be enough.” As such, the State contended that
       the sentence would be necessary to deter others from committing the same offense (id. § 5-5-
       3.2(a)(7)) and requested a 10-year sentence.
¶ 42        Defense counsel argued that while it respected the jury’s verdict, the State’s argument
       relating to remorse would ring truer if defendant was actually guilty of this crime. Defendant
       should not be required to admit guilt for something that did not happen and has a right to
       maintain his innocence. Defense counsel highlighted that defendant pled guilty in his prior
       cases and this was the first case to go to trial because defendant admits when he is actually
       guilty. Defense counsel also noted the mitigating factor that imprisonment would endanger
       defendant’s health conditions of kidney and bladder disease (id. § 5-5-3.1(a)(12)). He argued
       that this factor should mitigate any consideration of a sentence that is longer than the minimum
       of six years because the Illinois Department of Corrections does not have a robust medical care
       system. Defense counsel also asserted the mitigation factors that defendant did not threaten or
       cause serious physical harm to another (id. § 5-5-3.1(a)(1), (2)). Accordingly, defense counsel
       requested the minimum of six years’ imprisonment.
¶ 43        Defendant also made a statement. In addition to raising his health concerns and the fact
       that no one from his church distrusted him, defendant spoke of his rough life, with his mother
       being murdered and his father committing suicide by the time defendant was 14 years old.
       While he was in and out of prison all of his life, defendant averred that he always admitted
       when he was guilty. He stated, “But I cannot stay up here and take seven years or anything that
       the state is trying to offer me for something I did not do.” After he married his wife, he did
       everything he could to keep them off the streets.
¶ 44        Defendant also questioned the State’s evidence, claiming he could not climb up a building
       at 65 years old. He also posed the question, “If I went into the window, why didn’t I come out
       of the window?” Defendant contended the trash bag that he carried out of Whittington’s
       apartment was filled with beer cans and toilet paper rolls because Whittington was a slob.
       Defendant further questioned Whittington’s credibility, claiming he was a drunk and pill head.
       Defendant noted Whittington’s previous criminal activity and asserted that Whittington falsely
       reported this incident so that he had an appropriate reason to get his pain medication refilled.
       He expressed his frustration with the criminal justice system, stating that he had no reason to
       steal Whittington’s jewelry because people at his church gave him watches, rings, and
       necklaces as gifts.
¶ 45        The trial court stated that it considered all the evidence before it, including the character
       letters, Troutt-Ervin’s testimony, and the PSI report. It also considered all the factors in
       mitigation and aggravation. In addition to those factors argued by the parties, the court further
       noted—to an extent—the character and attitude of defendant, indicating he is unlikely to
       commit another crime, and asked whether imprisonment would entail excessive hardship on
       his wife (id. § 5-5-3.1(a)(9), (11)). The court understood defendant’s position in maintaining
       his innocence, stating, “You’ve made a lot of progress during your time period since you were
       last incarcerated.” It, however, also averred that it was bound to some mandatory duties.
       Considering all the above, the court sentenced defendant to 6½ years’ imprisonment.




                                                   -9-
¶ 46                                        II. ANALYSIS
¶ 47       On appeal, defendant challenges the admission of the iPhone clips, the sufficiency of the
       evidence, and his sentence. 1 We address each in turn.

¶ 48                                  A. Admission of iPhone Clips
¶ 49        Defendant argues that the iPhone clips violate the best evidence rule, which requires
       production of the original to prove the content of a recording. Electric Supply Corp. v. Osher,
       

 (1982). 2 Although defendant concedes that Illinois Rule of Evidence
       1003 (eff. Jan. 1, 2011) allows duplicates to be admitted to the same extent as originals, he
       contends that the iPhone clips are not duplicates because they are not accurate reproductions
       of the original surveillance footage. According to defendant, the original was therefore
       required. Citing Osher, 

, defendant explains that if the original is not
       being introduced, the offering party can introduce evidence to prove the contents of an original
       where it is able to prove (1) the prior existence of the original, (2) the original is currently
       unavailable, (3) the authenticity of the substitute, and (4) the proponent’s diligence in
       attempting to procure the original. Defendant asserts that the State failed to prove the fourth
       requirement where the police knew that the surveillance footage existed from the
       commencement of the investigation but failed to practice due diligence in obtaining it. Instead,
       it relied on a lay person who was incompetent to accurately copy the footage.
¶ 50        The State contends that the iPhone clips were properly admitted because it laid a proper
       foundation under Taylor, 

. It argues that there is nothing to cast doubt on the
       capability of the system for recording or reliability. Schmidt testified that he was familiar with
       the system and explained how the system worked. Schmidt further testified that the video
       surveillance system was functioning properly and that the iPhone clips were a fair and accurate
       depiction of what occurred in front of the cameras. While Schmidt was not capable of exporting
       the videos directly from the system, he explained the copying process and that he—a
       noninterested third party—copied what he believed to be relevant. Schmidt assured that
       nothing occurred in the video during the elapsed time between the two iPhone clips. The State
       notes that Taylor held “given the particular circumstances of any case, alterations, deletions,
       or editing may be necessary.” Id. ¶ 44. It thus argues that, given the totality of the
       circumstances presented in this case, the admission of the video was not an abuse of discretion.
¶ 51        The parties misapprehend the relevant principles here. In Taylor, the supreme court clearly
       addressed the issue of whether the State laid a proper foundation under the “silent witness
       theory” for the admission of a surveillance videotape. Id. ¶ 1. In doing so, the court noted that
       the videotape in Taylor was an original as defined by Rule 1001(3). Id. ¶¶ 42-43. The best
       evidence rule and a potential duplicate copy was not at issue.

           1
             Defendant’s opening brief on appeal also argued that the trial court erred in allowing the jury,
       during their deliberations, to view the iPhone clips in the court room with the parties present. However,
       in his reply brief, defendant concedes the court did not err in this respect based on the Illinois Supreme
       Court decision in People v. Hollahan, 2020 IL 125091—which was published after defendant filed his
       opening brief. Accordingly, we do not address this issue.
           2
             We note that although defendant also argued the iPhone clips violated the completeness doctrine
       and lacked a proper foundation at trial, he fails to assert those arguments on appeal. We therefore
       address only whether the iPhone clips violated the best evidence rule.

                                                      - 10 -
¶ 52        If defendant had challenged the foundation of the iPhone clips on appeal, I agree with my
       colleagues that Taylor would be instructive. However, as apparent from his appellate briefs,
       defendant declined to present any argument regarding the foundational requirements in Taylor
       or that the clips should have been excluded based on a lack of foundation. Admittedly, the
       State argued that the iPhone clips were admissible under Taylor’s foundation requirements and
       that Illinois Supreme Court Rule 341(j) (eff. Oct. 1, 2020) confines an appellant’s reply brief
       to the arguments presented in the appellee’s brief. Yet, instead of disagreeing with the State’s
       application of Taylor to the facts here, defendant’s reply brief specially noted that “the
       foundation for the video is entirely beside the point” of his argument. The only issue on appeal
       concerning the iPhone clips is whether their admission violated the best evidence rule. Taylor
       therefore does not guide our analysis. People v. Johnson, 

 (if
       a party fails to raise an argument on appeal, it is forfeited). Nonetheless, I note that I agree with
       the special concurrence’s analysis of Taylor to the facts of this case.
¶ 53        Defendant also mistakenly relies on Osher. In that case, the First District addressed whether
       the admission of unexecuted copies of the trust receipt and wavier of lien violated the best
       evidence rule. Osher, 

. The court stated that where the original is shown
       to be unavailable, “the proponent must prove the prior existence of the original, its
       unavailability, the authenticity of the substitute and the proponent’s own diligence in
       attempting to procure the original.” 

. Because the plaintiff failed to show the
       original was unavailable and made no attempt to recover the original from the third party, the
       trial court erred in admitting the unexecuted copies. 

. While Osher analyzed a best
       evidence issue under the proper legal principles for that time, in 2010, Illinois adopted several
       rules concerning the use of an original, duplicate, and other means to prove documentary
       evidence. Ill. R. Evid. 1001 (eff. Jan. 1, 2011) (defining what constitutes an original and
       duplicate); Ill. R. Evid. 1002 (eff. Jan. 1, 2011) (explaining the requirement of an original to
       prove the content of a writing, recording, or photograph); Ill. R. Evid. 1003 (eff. Jan. 1, 2011)
       (explaining the admissibility of duplicates); Ill. R. Evid. 1004 (eff. Jan. 1, 2011) (explaining
       when other evidence of the contents of a writing, recording, or photograph may be admissible).
       Accordingly, Illinois Rules of Evidence comprise the proper guiding principles for this issue.
¶ 54        The decision to admit evidence lies within the sound discretion of the trial court and will
       not be reversed unless that discretion was clearly abused. People v. Jaynes, 

, ¶ 51. Although our evidentiary rules still require an original to prove the content of a
       writing, recording, or photograph, there are now exceptions. Ill. R. Evid. 1002 (eff. Jan. 1,
       2011). Since 2011, “[a] duplicate is admissible to the same extent as an original unless (1) a
       genuine question is raised as to the authenticity of the original or (2) in the circumstances it
       would be unfair to admit the duplicate in lieu of the original.” Ill. R. Evid. 1003 (eff. Jan. 1,
       2011). A duplicate is defined as “a counterpart produced by the same impression as the
       original, or from the same matrix, or by means of photography … by mechanical or electronic
       re-recording, or … by other equivalent techniques which accurately reproduces the original.”
       Ill. R. Evid. 1001(4) (eff. Jan. 1, 2011). Our rules also now provide that other evidence may be
       admissible to prove the contents of a writing, recording, or photograph if “[a]ll originals are
       lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” Ill. R.
       Evid. 1004(1) (eff. Jan. 1, 2011). Notably, these rules differ from defendant’s authority in that
       proponents need not prove their diligence in obtaining the original before destruction to admit
       a duplicate or other evidence of the contents of a recording. Ill. R. Evid. 1004(1), Committee


                                                    - 11 -
       Comments (adopted Sept. 27, 2010) (it is “no longer necessary to show that reasonable efforts
       were employed beyond available judicial process or procedure to obtain an original possessed
       by a third party”); see United States v. McGaughey, 

 (7th Cir. 1992)
       (diligent search for original is only relevant as “an avenue by which the larger issue of the
       document’s destruction may be proved”).
¶ 55        Even taking as true defendant’s argument that the iPhone clips are not duplicates under
       Rule 1001(4), the clips—along with Schmidt’s testimony—were admissible as other evidence
       to prove the contents of the recording unless the State lost or destroyed the original surveillance
       video in bad faith. Ill. R. Evid. 1004(1) (eff. Jan. 1, 2011). We note that there is no controlling
       precedent to guide us in determining whether the police’s actions in this case amount to bad
       faith under Rule 1004(1). In such circumstances, it is reasonable to look to federal cases
       interpreting and applying the practically identical Rule 1004 of the Federal Rules of Evidence
       (Fed. R. Evid. 1004). Diamond Mortgage Corp. of Illinois v. Armstrong, 

 (1988); see Leow v. A&B Freight Line, Inc., 

 (1997).
¶ 56        We find United States v. Maxwell, 

 (2d Cir. 1967), is factually similar to this
       case. In Maxwell, a customs agent dictated roughly 10 minutes of a 45-minute conversation
       between the defendants to a shorthand stenographer, whose notes were then typed. 

.
       The deleted portions “were either irrelevant, inaudible or repetitive.” 

 The agent
       subsequently determined that the transcript was accurate, based on his comparison of the
       transcript with the recording. 

. After a mistrial, the agent believed defendant would
       not be retried, so he returned the recordings to circulation where they were erased. 

.
       During retrial, the transcript was admitted into evidence. 

.
¶ 57        On appeal, defendants claimed that the admission of the transcript violated their rights
       under the due process clause of the fifth amendment because the accuracy of the transcript and
       whether it honestly reflects the whole conversation could not be ascertained. 

. The
       Second Circuit found the defendant’s argument presented a best evidence question. 

.
       It then found the transcript was admissible as secondary evidence where the agent testified that
       it accurately represented the recordings. 

 The court explained that while it did not approve
       of the government’s conduct in not handling the recordings more carefully while the charges
       against defendant were outstanding, there was evidence to show that the recordings were not
       erased to prevent their production for trial. 

 It was therefore within the trial court’s discretion
       to admit the transcript. 

.
¶ 58        In United States v. Ross, 

, 1513 n.5 (11th Cir. 1994), the admission
       of transcripts made by the Spanish National Police of tape-recorded conversations involving
       defendant was affirmed because the recordings were lost or destroyed through no fault of the
       United States government, even where the transcripts included only the important or interesting
       portions of the conversations. The Eleventh Circuit reasoned that the prosecution never had
       control of the tapes, the Spanish officers who initially transcribed the recordings were cross-examined by defense counsel, and defense counsel “had ample opportunity to attack the
       transcripts’ credibility before the jury.” 

. Similarly, in United States v. Workinger,
       

 (9th Cir. 1996), the Ninth Circuit found that a transcript of a videotaped
       deposition was admissible under Federal Rule of Evidence 1004(1) where the destruction of
       the videotape was “done in the ordinary course of business and not at the behest of the
       government.”


                                                    - 12 -
¶ 59       Indeed, the federal case law finds that other evidence to prove the contents of a writing,
       recording, or photograph is admissible “except where the unavailability [of the original] is
       caused by the proponent’s purposeful design to prevent production of the [original] evidence.”
       Maxwell, 

 n.3. The cases also demonstrate that other evidence is not unfair or
       inadmissible simply because there are deletions from the original and that the accuracy of the
       other evidence may be established by the testimony of witnesses who reviewed the original.
       

; Ross, 

.
¶ 60       Here, no evidence suggests that the police purposefully designed the prevention of the
       original surveillance video or delayed sending its own IT people to download the surveillance
       footage to avoid the original surveillance from being admitted at trial. Schmidt informed police
       that he would transfer the surveillance video onto a CD and a day later stated that it was ready.
       Nothing in the record indicates that the police directed Schmidt to transfer the video or that
       police knew Schmidt would be incapable of transferring the video in its entirety. Defendant
       concedes that it is not clear from the record whether police had time to download the
       surveillance footage in its entirety after it knew that Schmidt rerecorded only the portions he
       found relevant. The police therefore did not lose or destroy the original footage in bad faith
       and met the conditions of Rule 1004(1).
¶ 61       We further reject the contention that the admission of the iPhone clips was an error based
       on inaccuracy or unfairness. At trial, the State verified the accuracy of the iPhone clips through
       the testimony of Schmidt, who explained that he could not transfer the original footage from
       the surveillance system to a CD. He testified that he did not copy the entirety of the original
       footage on his wife’s iPhone because it would take too long and certain portions of the footage
       were irrelevant. He also clarified that there were no other people near Whittington’s door at
       any time nor anyone in the hallway during the missing period between the iPhone clips.
       Defense counsel cross-examined Schmidt regarding the iPhone clips and original footage twice
       and declined a third opportunity.
¶ 62       Defendant implies that this court should not take as true Schmidt’s testimony or
       Whittington’s testimony that defendant completed his authorized cleaning duties earlier that
       day as true, but these credibility determinations are better suited for the trier of fact. People v.
       Jackson, 

. While we would have preferred the State to ensure the original
       footage was memorialized in its entirety, we cannot find the trial court abused its discretion in
       admitting the iPhone clips based on this record.

¶ 63                                 B. Sufficiency of the Evidence
¶ 64       Defendant also challenges the sufficiency of the State’s evidence. To prove the offense of
       residential burglary, the State must prove that defendant knowingly and without authority
       entered or remained within the dwelling place of another with the intent to commit a felony or
       theft therein. 720 ILCS 5/19-3(a) (West 2018). Defendant argues that the State failed to prove
       that he entered Whittington’s apartment without authority and with the intent to commit a theft.
¶ 65       Specifically, defendant highlights that no evidence demonstrated that he reentered the
       apartment, no stolen property was recovered, and no forensic evidence or eyewitness tied
       defendant to this offense. Defendant also claims that nothing at trial established that
       Whittington actually checked for the items that were allegedly stolen before he left that day
       nor when he last checked the window. As such, Whittington’s broken window could have
       occurred at any time—especially where the defense put on evidence that a homeless woman

                                                    - 13 -
       was living with Whittington, she may have entered routinely through the window, and the
       allegedly stolen items could have been missing before that day. Moreover, defendant asserts
       that Whittington’s testimony is unreliable and circumstantial because he was admittedly
       intoxicated on that day and had a history of falsely accusing others of stealing. Therefore,
       according to defendant, Whittington’s timeline of the events is called into question. He further
       contends that, even assuming defendant did steal from Whittington, defendant could have done
       so when he was permissively in Whittington’s apartment earlier with the intent to clean.
¶ 66        It is the responsibility of the trier of fact to resolve conflicts in the testimony, weigh the
       evidence, and draw reasonable inferences from the facts. People v. McLaurin, 

. When reviewing the sufficiency of the evidence in a criminal case, it is not the reviewing
       court’s function to retry the defendant, nor should it substitute its own judgment for that of the
       trier of fact. People v. Swenson, 

. Instead, the reviewing court determines
       “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any
       rational trier of fact could have found the essential elements of the crime beyond a reasonable
       doubt.’ ” (Emphasis omitted.) McLaurin, 

 (quoting Jackson v. Virginia,
       

 (1979)). Under this standard, circumstantial evidence can be sufficient to
       sustain a conviction. Jackson, 

. The intent to commit a theft can be
       inferred from the surrounding circumstances, including “the time, place, and manner of entry
       into the premises; the defendant’s activity within the premises; and any alternative
       explanations offered for his presence.” People v. Maggette, 

 (2001). “A
       criminal conviction will not be set aside on a challenge to the sufficiency of the evidence unless
       the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the
       defendant’s guilt.” Jackson, 

. We draw all reasonable inferences in favor
       of the State. People v. VanHoose, 

.
¶ 67        At trial, the State presented iPhone clips that showed defendant touching the doorknob of
       Whittington’s apartment soon before Whittington discovered it was bent. The iPhone clips,
       along with testimony at trial, showed defendant exited Whittington’s apartment without
       defendant entering through the front door and during Whittington’s absence. That same day,
       Whittington discovered that his coins and pain medication were missing. A day later,
       Whittington also discovered that several pieces of jewelry were missing and that his window
       was broken, as if someone had tampered with it.
¶ 68        While no direct evidence tied defendant to this crime, the circumstantial evidence that
       defendant inexplicably accessed Whittington’s apartment—while Whittington was absent—
       and left Whittington’s apartment with unknown items can be sufficient to prove residential
       burglary where Whittington testified that defendant did not have permission to enter his home
       without Whittington’s presence. See People v. Toolate, 

 (1984) (“[P]roof
       of unlawful breaking and entering is sufficient to infer to commit theft.”); People v. Fico, 

 (1985) (same). Even taking defendant’s assertion that the window was
       broken prior to the day of the incident as true, a jury could reasonably infer that defendant used
       the window to access the apartment where the evidence demonstrated that defendant never
       entered through the front door.
¶ 69        Moreover, despite defendant’s contentions, Whittington testified to his observation that the
       missing coins were present in his home before leaving around 1 p.m. that day and recently
       observed the presence of his jewelry a few days prior. It can also be reasonably inferred that
       Whittington knew roughly how many prescribed pills were in his medication bottle when he

                                                   - 14 -
       testified that he recently had the prescription for 120 pills refilled and took one pill before
       leaving that day. While defendant, on appeal, provided a possible explanation that he could
       have taken the items while in Whittington’s apartment with authority to clean, the jury is not
       required to search for any possible innocent explanation and “ ‘elevate [it] to the status of …
       reasonable doubt.’ ” People v. Castile, 

 (1975) (quoting People v.
       Goodwin, 

 (1975)).
¶ 70       Defendant also requests reversal on the basis that Whittington was not credible. Defense
       counsel presented the same contentions of incredibility at trial as defendant raises on appeal.
       Indeed, the contentions call Whittington’s credibility into question. However, “[a] conviction
       will not be reversed simply because … the defendant claims that a witness was not credible.”
       People v. Gray, 

. It is in the purview of the fact finder to resolve questions
       of credibility. Jackson, 

. Moreover, the fact that a witness was under the
       influence of alcohol goes to the weight, not the admissibility, of his or her testimony. Gray,
       

. Accordingly, we do not find that no reasonable juror could have
       found all the essential elements of residential burglary beyond a reasonable doubt.

¶ 71                                       C. Excessive Sentence
¶ 72        Lastly, defendant contends that his sentence is excessive based on several mitigating
       factors. He further relies on the facts that his conviction was based on very thin evidence and
       involved a theft of minimal items. While defendant concedes that he failed to file a
       postsentencing motion to preserve this issue, he urges this court to apply plain error, which
       may be invoked if “(1) the evidence at the sentencing hearing was closely balanced, or (2) the
       error was so egregious as to deny the defendant a fair sentencing hearing.” People v. Hillier,
       

 (2010). Nevertheless, to obtain relief, defendant must first demonstrate
       that a clear error occurred. 

 We find defendant has not established that an error occurred in
       this case.
¶ 73        In determining the sentence, the trial judge must consider all relevant factors in mitigation
       and aggravation and “balance the retributive and rehabilitative purposes of the punishment.”
       (Internal quotation marks omitted.) People v. Weiser, 

.
       The trial judge is afforded substantial deference in sentencing because—unlike a reviewing
       court—it has an opportunity to weigh such factors as “defendant’s credibility, demeanor, moral
       character, mentality, environment, habits, and age.” People v. Snyder, 

.
       The defendant’s potential for rehabilitation, however, is not entitled to more weight than the
       aggravating factors. Weiser, 

. A reviewing court cannot
       reweigh the aggravating and mitigating factors in reviewing a sentence, nor can it “substitute
       its judgment for that of the trial court merely because it would have weighed these factors
       differently.” People v. Stacey, 

 (2000). Absent an abuse of discretion, a
       trial court’s sentence will not be altered on review. People v. Etherton, 

. A sentence that falls within the statutory limits is presumed proper. Id. ¶ 28. The
       presumption is rebutted only where a defendant demonstrates that the sentence imposed
       “greatly varies from the spirit and purpose of the law or is manifestly disproportionate to the
       nature of the offense.” Id.
¶ 74        From the outset, we note that defendant could have been sentenced to 30 years’
       imprisonment (730 ILCS 5/5-4.5-25(a) (West 2018)), but the court imposed a sentence that
       was six months over the minimum. Defendant contends it was an abuse of discretion to impose

                                                   - 15 -
       any more time than the statutory minimum of six years because the letters from his church
       members demonstrate that he had been restored to useful citizenship. While defendant’s
       character letters presented mitigating evidence, the State also presented aggravating factors of
       a lengthy criminal history—most of which involved theft—and the necessity to deter others
       from this crime.
¶ 75       Defendant’s arguments would require this court to reweigh the relevant factors, which we
       cannot do. It is the duty of the trial court to balance the mitigating and aggravating factors in
       imposing an appropriate sentence. Etherton, 

. The record
       makes clear that, in determining 6½ years’ imprisonment was the appropriate sentence, the
       court considered all the factors in mitigation and aggravation. It was not required to attribute
       more weight to defendant’s rehabilitative potential than to the aggravating factors. Weiser,
       

.
¶ 76       We also cannot say that the imposition of six months over the minimum was a great
       variance from the purpose of the law or manifestly disproportionate to the offense merely
       because defendant perceived the stolen items as insignificant. Defendant has not provided any
       authority to the contrary. Accordingly, we find the court did not abuse its discretion in
       imposing a term of 6½ years’ imprisonment.

¶ 77                                       III. CONCLUSION
¶ 78       Because the destruction of the original surveillance video was not by the State’s purposeful
       design, the trial court did not err in admitting two nonconsecutive iPhone clips of the
       surveillance footage where a witness testified to their accuracy compared to the original
       surveillance footage. Consequently, the State presented sufficient circumstantial evidence to
       prove that defendant committed residential burglary beyond a reasonable doubt. The trial court
       also did not abuse its discretion in sentencing defendant to 6½ years’ imprisonment.
       Accordingly, we affirm defendant’s conviction and sentence.

¶ 79      Affirmed.

¶ 80       JUSTICE WHARTON, specially concurring:
¶ 81       While I agree with the majority’s opinion that the trial court did not err in admitting the
       iPhone clips of the surveillance video, I would reach this conclusion on different grounds. First,
       I find that the defendant did not forfeit his right to argue the applicability of Taylor. I also
       conclude that Taylor is relevant and applicable to an analysis of the admission of the clips into
       evidence. Finally, I find that Taylor and other relevant factors support the admission of the
       video clips.
¶ 82       The dissent analyzes and concludes that the defendant did not forfeit a Taylor analysis
       simply because he did not include the issue in his initial brief on appeal. I agree. Illinois
       Supreme Court Rule 341(j) (eff. Oct. 1, 2020) provides that an appellant’s reply brief must be
       responsive to arguments present in the appellee’s brief. Therefore, I agree with the dissent that
       Taylor should be analyzed.
¶ 83       Initially I consider the applicable standard of review on this evidentiary issue. The trial
       court has substantial discretion in determining whether evidence is admissible. People v.
       Willigman, 

, ¶ 43 (citing People v. Becker, 

, 234


                                                   - 16 -
       (2010)). On appeal, the reviewing court should not reverse a trial court’s discretionary
       admission of evidence unless the court abused its discretion. 

 “An abuse of discretion occurs
       when the trial court’s ruling is arbitrary, fanciful, or unreasonable or where no reasonable
       person would agree with the position adopted by the trial court.” 

¶ 84       Although the supreme court in Taylor relied upon six factors in its determination that
       videotapes could be introduced as substantive evidence under the “silent witness” theory, those
       six factors are not exclusive. Taylor, 

. The six factors utilized by the court
       in Taylor, argued by the State in this case, and analyzed by the dissent are as follows:
                “(1) the device’s capability for recording and general reliability; (2) competency of the
                operator; (3) proper operation of the device; (4) showing the manner in which the
                recording was preserved (chain of custody); (5) identification of the persons, locale, or
                objects depicted; and (6) explanation of any copying or duplication process.” 

¶ 85       Based on the following analysis, I conclude that the totality of the evidence presented in
       this case supports the admissibility of the video clips as substantive evidence. I find persuasive
       the State’s arguments regarding the relevancy in this case of the six factors utilized by the
       Taylor court. I also find that there are additional factors that merit consideration based upon
       the unique facts of the instant case. I will briefly examine the six Taylor factors and additional
       factors.

¶ 86                A. Capability of the Device for Recording and General Reliability
¶ 87       In this case, the recording system was clearly capable of recording. The owner of the
       building, Schmidt, testified to his purchase and installation of the system, as well as the ability
       to review the recordings from a mobile phone. The system consisted of four cameras hardwired
       to a digital video recording device. The four cameras automatically recorded. The recordings
       were date and time stamped and incapable of being edited. The recordings were automatically
       saved for 48 hours and then deleted.

¶ 88                                  B. Competency of the Operator
¶ 89       I also find that considering the totality of Schmidt’s testimony, he was a competent
       operator. Schmidt was successful in setting up the surveillance system. He was also successful
       in locating the precise date and time of the suspected crime. He testified that to the best of his
       knowledge, the clips reflected a fair and accurate depiction of what was in front of the cameras.
       Although Schmidt lacked expertise in exporting the video clips, his testimony adequately
       established his general competence with the system and in providing a copy of the clips to law
       enforcement.

¶ 90                            C. Proper Operation of the Device
¶ 91      Based upon Schmidt’s testimony, I find that there is no question that the system operated
       properly.

¶ 92                                      D. Chain of Custody
¶ 93       In this case, the chain of custody evidence presented was sufficient given this unique
       factual setting. Schmidt was an independent witness and not a member of law enforcement. He
       testified that he reviewed the recorded footage on the primary system and was present when

                                                   - 17 -
       his wife recorded the two clips on her iPhone. Schmidt testified to the process his wife used to
       record the clips and forward them to his business e-mail. Schmidt testified about how he
       retrieved the clips from his e-mail, how the clips were transferred onto a CD by an employee,
       and how he delivered the CD to law enforcement. To the extent that this chain of custody is
       lacking in some capacity, “gaps in the chain of custody go to the weight of the evidence, not
       its admissibility.” Id. ¶ 41.

¶ 94                  E. Explanation of the Process of Any Copying or Duplication
¶ 95        Turning to the explanation of the copying process, I note that Schmidt was a noninterested
       party. He was the owner of the building and had access to the recordings created from the
       surveillance cameras he installed. He reviewed the recordings, found only two relevant clips,
       copied the clips to the best of his ability, and then provided the clips to law enforcement. At
       trial, he acknowledged his technological limitations in copying the clips. However, while his
       technological limitations required him to copy the footage in an indirect manner, the process
       utilized did not result in an inaccurate copy. I find that this case differs from Taylor in that the
       copy of the video in Taylor was made by law enforcement and not by a private individual.
       Moreover, even though the State did not explain its copying process in Taylor, the supreme
       court concluded that the police report summary—stating that a copy of the relevant video
       surveillance was copied from the hard drive onto a VHS tape—provided a proper explanation
       of the copying process because this “evidence” addressed the preliminary question of
       admissibility. Id. ¶ 40 (preliminary questions, such as the admissibility of evidence, are “not
       constrained by the usual rules of evidence” (citing Ralph Ruebner, Illinois Criminal Trial
       Evidence 3 (4th ed. 2001), and 11 Ill. Prac., Courtroom Handbook on Illinois Evidence § 104.1
       (2001))).

¶ 96                                        F. Additional Factors
¶ 97       I also find that Schmidt’s familiarity with the location of the cameras and what the camera
       recordings depicted, as well as the location of the defendant’s apartment, supports the
       admissibility of the iPhone video clips. See id. ¶ 35 (stating that “additional factors may need
       to be considered”). Schmidt was the owner of the building at issue. He was also familiar with
       the victim and the defendant. Schmidt identified the defendant, the defendant’s location in the
       building, the defendant’s proximity to the victim’s apartment based upon his past interactions
       with the defendant and the victim, the location of the cameras, and the footage obtained. I find
       that Schmidt’s personal knowledge enhanced his testimony about the accuracy and reliability
       of the video recordation and review process.
¶ 98       In addition, I find that the lack of bad faith by the local police department relative to the
       video recording is an additional relevant factor supporting admission of the video clips. Id. As
       noted by the majority, Schmidt notified the police that he would transfer the video on to a CD.
       No evidence suggests that the police asked Schmidt to create a copy. Additionally, there is no
       indication that the police knew that Schmidt was only going to transfer clips and not the entirety
       of the surveillance video. The evidence also fails to support a conclusion that the police
       purposefully prevented the preservation of the entire surveillance video. Initially, the victim
       did not want to pursue a criminal case. With no victim to pursue the case, coupled with the
       building owner’s offer to provide a copy of the original surveillance video, I believe those facts


                                                    - 18 -
        provide a context for the police department’s decision not to collect the complete surveillance
        video.
¶ 99        In reviewing this issue, I am reminded that the ultimate issue, regardless of the number of
        relevant factors considered, “is the accuracy and reliability of the process that produced the
        recording.” Id. The defendant does not dispute that he is depicted in these two clips. However,
        the defendant objected to the fact that the clips were excised from the much longer surveillance
        video. The supreme court addressed this concern in Taylor, noting that editing would not
        necessarily result in the evidence being inadmissible. Id. ¶ 44. The editing would go to the
        weight accorded the evidence. Id. (citing 16 Am. Jur. Proof of Facts 3d § 17 (1992) and 44
        Am. Jur. Trials § 31 (1992)). The party offering the video as evidence should remove irrelevant
        or unimportant material from the video. Id. “The more important criteria is that the edits cannot
        affect the reliability or trustworthiness of the recording. In other words, the edits cannot show
        that the recording was tampered with or fabricated.” Id. In this case, Schmidt “edited” the
        recordings by omitting the irrelevant portions and limiting the clips to the two appearances of
        the defendant. Schmidt’s court testimony established that the recorded clips shown in court
        were part of the complete recording that he and his wife reviewed. Thus, I would find that there
        was no evidence that the video clips had been fabricated or otherwise altered in some manner
        that would render the clips inadmissible.
¶ 100       Additionally, I conclude that admission of the video clips was supported by Illinois Rule
        of Evidence 1003 (eff. Jan. 1, 2011). As noted by the majority, Rule 1003 provides that a
        duplicate is admissible as an original unless there is a genuine question as to the authenticity
        of the original or if the admission of the duplicate under the circumstances would be unfair. Id.
        Here, testimony of the building owner established that there was no issue of the authenticity
        of the original recording. Moreover, I find that admission of the duplicate under this case’s
        unique facts was not unfair. The video clips were captured by an uninterested party, and there
        was adequate testimony of the process followed by the owner of the building and its recording
        system. In addition, the defendant did not dispute that his image was captured by the recording
        system.
¶ 101       Overall, I find that the totality of the evidence presented in this case supports the
        admissibility of the video clips. I concur with the result reached in the majority’s opinion and,
        if Taylor is inapplicable through the defendant forfeiting his foundational argument, I further
        concur with the majority’s analysis of the best evidence rule. I also concur with the majority’s
        conclusion that the State proved the defendant’s guilt of residential burglary beyond a
        reasonable doubt and that the defendant’s 6½-year prison sentence was not excessive.

¶ 102       JUSTICE CATES, dissenting:
¶ 103       The State’s case rises and falls on the admissibility of two short clips made from a
        surveillance video. Other than the lens of a camera, there were no eyewitnesses to this
        residential burglary. There were no fingerprints or other types of forensic evidence for the jury
        to consider. None of the items allegedly reported stolen were recovered or even connected to
        the defendant. Thus, the authenticity and reliability of the video clips at issue were key to the
        State’s case. In fact, as demonstrated by the record, these videos clips were of such significance
        that the jury requested the opportunity to view them again during their deliberations. Inasmuch
        as the original surveillance video was not preserved, and the owner of that system did not
        appreciate how to operate his own equipment, such that the chain of custody for the creation

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        of these video clips was not clear, it is my view that the trial court abused its discretion in
        allowing these clips to be viewed by the jury as substantive evidence. Therefore, I must
        respectfully dissent.
¶ 104       On August 1, 2018, the defendant was charged with a residential burglary that occurred on
        July 29, 2018, at the home of Michael Whittington. On October 29, 2018, the first day of trial,
        defense counsel filed a motion in limine to preclude the introduction at trial of two short iPhone
        video clips that were captured by the wife of Pieter Schmidt, the owner of the apartment
        complex where Whittington lived. In the written motion and in arguments before the trial court,
        the defendant claimed that the video clips were unduly prejudicial in that the complete
        surveillance video recording had not been preserved by law enforcement and made available
        to the defense. The defendant also claimed that the two video clips—each 20 to 30 seconds
        long—were segments from a longer, now nonexistent, video recording and that there was no
        way to determine how or why these particular clips were extracted from the complete video
        surveillance footage. The defendant explained that the video clips were actually videos of a
        video, in that the clips were made using the iPhone camera of Schmidt’s wife to capture the
        images as the surveillance video recording was played on a DVR, and that each video clip
        included a date and time stamp. Because the original video was not preserved, the defense had
        no way to determine what occurred before, after, and between those two clips and whether the
        video clips were fair and accurate representations of the images recorded in the original video.
¶ 105       Relying upon Rules 1001-1003 of the Illinois Rules of Evidence, the defendant also argued
        that the video clips violated the best evidence rule, as the original recording was not produced.
        He claimed that the video clips were not duplicates of the original and that the 20- to 30-second
        clips did not “accurately reproduce the original,” as defined in Rule 1001(4) (Ill. R. Evid.
        1001(4) (eff. Jan. 1, 2011)), “because they are not the whole data on the original.”
¶ 106       On the second day of trial, the State made an offer of proof in response to the defendant’s
        motion in limine. The State called Pieter Schmidt to authenticate the video clips. Schmidt
        owned the apartment complex where both the defendant and Whittington lived. The apartment
        complex was equipped with a video surveillance system. Schmidt and his wife had recently
        purchased the surveillance system, and they, with the assistance of their maintenance man,
        installed it at the apartment complex. Schmidt testified he was familiar with the surveillance
        system to the extent that he could access it through his cellphone. He had not been trained on
        the use of this system and described his familiarity as “learn as you go.” Schmidt stated that
        he had never had the occasion to retrieve a video from the surveillance system prior to this
        occasion.
¶ 107       Schmidt testified that the system consisted of four cameras that were “hardwired to a
        DVR.” Two of the cameras were located outside of the building. Another was located in the
        office, directed through the office windows and into the hallway, and the fourth camera was
        pointed down the hallway. The cameras recorded “whatever passe[d] in front of them.”
        Schmidt believed that the recorded activities were saved on the DVR for a period of 48 hours.
        He indicated that the video recordings contained a date and time stamp, and he explained that
        if he wanted to view a specific recording, he could input the date and time, and the video would
        play. The person viewing the video recording could not alter or edit it.
¶ 108       Schmidt testified that the video surveillance equipment was operating properly on July 29,
        2018, the date of the burglary. He knew the equipment was functioning properly on that date
        because he was “able to review the videotape and see images on it and see the date and the

                                                    - 20 -
        time.” Schmidt recalled that he and his wife viewed the video from that date after receiving a
        phone message from a tenant. The tenant reported that he had been “robbed” and that the police
        “were interested in knowing if the video surveillance system worked.” The tenant indicated
        that a police officer had left his card for Schmidt.
¶ 109       Schmidt testified that he tried to download the video footage from the surveillance system
        but was unable to do so. “We, I attempted to put it onto a flash drive, but I’m not competent
        enough apparently to do that. And we tried and could not get it to download on a flash drive.
        So we recorded it on a cellphone. Basically, I think they call that a screenshot.” Schmidt stated
        that his wife recorded the video on her iPhone. She then “transferred it to my iPhone, and then
        I took it to my office where I had put it on a compact disc, which I then delivered to the
        Carbondale Police Department.” When asked if he recorded the complete video footage from
        1:53 p.m. to 2:14 p.m. on that date, Schmidt replied, “No, we did not.” Schmidt explained,
        “We would have had to stand there for 20 some minutes, 25 minutes holding a cellphone
        recording, so we recorded just a couple of clips that we thought were important.” In response
        to further questioning about what was occurring on the video from 1:53 p.m. to 2:14 p.m.,
        Schmidt stated that “the hallway was empty for quite a period of time.”
¶ 110       Schmidt testified that he reviewed the content of the compact disc prior to the day of trial.
        He stated that the disc contained the same two video clips that he and his wife copied from the
        video surveillance system and that the video clips fairly and accurately depicted what he saw
        on the surveillance video the day he viewed it. After presenting this testimony, the State offered
        a copy of the compact disc as People’s exhibit No. 1.
¶ 111       During cross-examination, Schmidt acknowledged that he had never been formally trained
        on the video surveillance system. He stated that the system had an instruction manual and that
        he had read parts of it. When asked if he read the manual in an effort to export the entire video
        footage to a flash drive, Schmidt replied, “Yeah. We actually did on the, trying to figure out
        how to put it [video] on the flash drive, but we couldn’t figure it out.” Schmidt also
        acknowledged that he did not ask the Carbondale police for help in downloading the
        surveillance video from the afternoon of the burglary. Schmidt testified that he asked his “IT
        person” to burn the video clips onto a compact disc, but he did not ask the IT person to export
        the complete video from the surveillance system. Schmidt testified that the video surveillance
        recording would have been available for 48 hours, but no one from the police department or
        the prosecutor’s office asked to retrieve it.
¶ 112       With regard to the clips that were made from the cellphone, Schmidt testified that there
        were two clips—one at approximately 1:45 p.m. and one at about 2:10 p.m. Schmidt
        acknowledged that approximately 20 minutes of footage between the two clips was not
        preserved, but he indicated that he watched that footage as the video recording was played.
        Schmidt testified that his wife e-mailed the video clips from her iPhone to his business e-mail
        account and the IT person transferred the e-mailed clips to the compact disc. This testimony
        regarding the duplication process was somewhat different than what Schmidt had said during
        his direct examination.
¶ 113       After some back and forth between the State and defense counsel regarding the 20-minute
        gap between the two video clips and what was displayed on the original video footage, the
        following brief exchange occurred between defense counsel and Schmidt:
                    “[DEFENSE COUNSEL]: But on the original that was on the camera system, are
                there other people captured on that recording for that day walking in the hallway?

                                                    - 21 -
                     [SCHMIDT]: Yes. There’s, there are a lot of people on that.”
¶ 114        On redirect, Schmidt was asked whether the defendant was in front of Whittington’s
        apartment. Schmidt stated that, prior to 1:53 p.m., the defendant and his wife were in front of
        Whittington’s apartment door and that, between 1:53 p.m. and 2:14 p.m., no one, other than
        the defendant, was seen in front of Whittington’s apartment. 3
¶ 115        At the conclusion of Schmidt’s testimony, defense counsel objected to the introduction of
        the two video clips. Defense counsel argued that the admission of two 20-second video clips,
        taken out of an entire day of surveillance footage, violated the completeness doctrine because
        the defense did not have access to the entire, original surveillance video. Counsel claimed that
        the defense was left with two videos that had been “cherry-pick[ed]” when the Carbondale
        Police Department could have obtained the entire video footage. Counsel also claimed that the
        admission of these two clips was prejudicial because the jury would not be afforded the
        opportunity to view the entire video.
¶ 116        Defense counsel further argued that the two iPhone clips were not originals or duplicates
        under the Illinois Rules of Evidence because they did not accurately reflect or reproduce the
        original’s data. Counsel relied upon Rules 1001 through 1004 of the Illinois Rules of Evidence
        (Ill. Rs. Evid. 1001-1004 (eff. Jan. 1, 2011)), all of which pertain to the admission of recordings
        and duplicates, in support of his argument. Counsel described the two, nonconsecutive clips as
        “a recording of a recording that got recorded on a DVR, then got recorded on his wife’s iPhone,
        who’s not here to testify, then it got recorded or e-mailed to Mr. Schmidt’s iPhone, then that
        was transferred to a DVR.” Counsel claimed that the Illinois Rules of Evidence required
        production of the original or an exact duplicate of the original and that, here, there was “less
        than 40 seconds out of a whole 24-hour video.” Counsel further claimed that the entire video
        constituted the “original,” and that the failure to produce the entire video denied the defense a
        chance to view exculpatory evidence.
¶ 117        Defense counsel next argued that the admission of the two video clips was barred under
        Illinois Rule of Evidence 1004 (eff. Jan. 1, 2011) because the original surveillance video was
        lost or destroyed as a result of inaction by the investigating officer. Counsel asserted that
        Detective Michael McCrary, a member of the Carbondale Police Department, was on the case
        as of July 29, investigating the circumstances of the alleged residential burglary, and yet never
        requested the entire original surveillance video. Counsel concluded that the police made no
        effort to preserve the original video recording during the time that recording was under the
        control of Schmidt.
¶ 118        Finally, defense counsel objected to admission of the video clips, arguing that the State
        failed to lay a sufficient foundation under the “silent witness” theory. Summarizing Schmidt’s
        testimony, defense counsel pointed out that Schmidt admitted that he was not competent to
        export the entire video, that Schmidt tried to read the instruction manual but could not figure
        out how to export the entire video from the DVR, and that Schmidt did not request help from
        his own IT person. Defense counsel claimed there was no real “chain of custody,” as the entire

            3
             At one point, Schmidt testified that the video showed the defendant touching the doorknob,
        presumably of Whittington’s apartment, and then showed the defendant walk down the hallway.
        Schmidt further testified that the defendant was not seen again on the clips until “the next thing you see
        is him [the defendant] walking out of the apartment, which was a little confusing because you never
        see him go in.”

                                                       - 22 -
        process—from copying the images to an iPhone, then sending the images by e-mail, and then
        getting the images from the e-mail or Schmidt’s iPhone to the compact disc—involved other
        persons who had not testified. Two of the witnesses—the defendant’s wife and the IT person—
        were missing witnesses in the series of events that ultimately resulted in the creation of these
        two video clips.
¶ 119        At the conclusion of the arguments by counsel, the trial court admitted the two video clips,
        stating,
                 “Based upon what the Court’s considered, in a perfect world, we would have clear and
                 complete videos of every situation, clear and complete and clean chain of custody.
                 Unfortunately, we do not work in a perfect world and cases do not arise and are not
                 handled in a vacuum or in a perfect world.”
        The court made no other findings as to defense counsel’s arguments regarding the
        completeness doctrine, the Illinois Rules of Evidence, or the silent witness theory.
¶ 120        In my view, there are two critical issues before this court. The first is whether there was an
        adequate foundation for the admission of the two, 20-second video clips under the “silent
        witness” theory. The second is whether, under the Illinois Rules of Evidence, the admission of
        the video clips was unfairly prejudicial to the defendant. After reviewing the record, I find that
        an adequate foundation was lacking in that Schmidt was not competent to operate his video
        surveillance system, there was insufficient explanation regarding the copying and duplication
        of the video clips, and the chain of custody was not clearly established. In addition, under the
        circumstances presented in this case, the admission of the video clips was unfair to the
        defendant. As a result, I find that the trial court erred in admitting the video clips into evidence.
¶ 121        In considering the admissibility of the video clips, I believe that People v. Taylor, 

, is instructive in this analysis (supra ¶ 52). Taylor is the seminal case on the
        admissibility of surveillance video recordings, and I do not agree that a discussion of the Taylor
        factors has been waived or forfeited. In the defendant’s brief, the defendant claimed that the
        trial court erred in admitting the video clips because the clips violated the best evidence rule
        and were highly prejudicial. In response to the defendant’s claims, the State argued that video
        clips were properly admitted because the prosecutor laid a proper foundation under Taylor.
        The State then engaged in a lengthy discussion of the Taylor factors. In the reply brief, the
        defendant addressed the State’s argument, and initially asserted that Taylor was
        distinguishable. The defendant next asserted that the best evidence doctrine concerned an
        entirely different set of factors than those discussed in Taylor. On appeal, as in the trial court,
        the State invoked the foundational requirements in Taylor in support of its position that the
        video clips were admissible, and thereby invited our consideration of the Taylor factors. The
        defendant offered his responses to the State’s arguments. 4 Therefore, I conclude that the
        admissibility of the video clips, including the foundational requirements, are before us and that
        the Taylor analysis offers guidance on those issues.
¶ 122        In Taylor, a police detective was assigned to investigate a series of thefts from an office in
        a high school. Taylor, 

. In the course of the investigation, the detective
        purchased a wireless, motion activated digital camera that was concealed within a clock radio
        and a DVR. The employee who sold the equipment to the detective showed him how to set up

            4
             Rule 341(j) permits the appellant to reply to the arguments presented in the brief of the appellee.
        See Ill. S. Ct. R. 341(j) (eff. Oct. 1, 2020); People v. Whitfield, 

 (2007).

                                                      - 23 -
        and use the system. The detective also read the instructions that came with the system. He
        testified that the “ ‘camera sends a signal to the wireless transmitter which is connected to the
        DVR which is a digital video recorder, just like a computer drive and that records the images
        that the camera sees.’ ” Id. ¶ 4. The detective also testified that he tested the equipment and
        made sure that the camera recorded a good picture to the DVR.
¶ 123        The detective then explained that he periodically checked to see whether the surveillance
        system had recorded any activity. When he reviewed the first recording made by the camera,
        he discovered that the images on the recording were not visible due to insufficient light. To
        correct the problem, he placed a small lamp near the camera. When he checked the equipment
        a few days later, he found that the DVR had recorded a theft. The detective, along with two of
        the school’s employees, viewed the video images and identified the defendant, Teryck Taylor,
        as the individual in the recording. Taylor worked at the school as a night watchman. Several
        days after viewing the original surveillance footage, the detective “ ‘made a copy of the video
        surveillance on the hard drive, specifically the segment where Taylor was in [the] office,’ ”
        and placed it onto a VHS tape, which was then secured in an evidence locker until the trial. Id.
        ¶ 9.
¶ 124        Prior to trial, Taylor filed a motion in limine to bar the State from using the tape at trial,
        but the motion was denied. At trial, the State sought to admit the video depicting Taylor in the
        office. Taylor objected, claiming that there was a 30-second “skip” in the video and there was
        an inadequate foundation for admitting the recording. The video at issue contained two
        segments. The first showed Taylor crouching behind a desk, opening a drawer, and removing
        a bank pouch. While doing this, Taylor was looking around. The second segment on the tape
        showed Taylor rising, turning, and exiting the frame of the video to the right. The detective
        testified that the “skip” in time occurred because there was no motion and so the recording
        stopped. As soon as the camera sensed motion, it started again. As to its authenticity, the
        detective indicated the recording had not been altered in any way. Id. ¶¶ 15-18. After
        considering the arguments of counsel, the trial court denied the objections and admitted the
        video recording. Taylor was convicted of misdemeanor theft, and he appealed. The appellate
        court reversed the conviction, finding that the trial court erred in admitting the video recording,
        and the State filed a petition seeking leave to appeal in the Illinois Supreme Court.
¶ 125        Our supreme court, in a case of first impression, held that under the “silent witness” theory,
        photographs and videotapes may be introduced as substantive evidence so long as a proper
        foundation is laid. Id. ¶ 32. The supreme court addressed the question of what factors should
        be considered when determining whether a proper foundation has been laid for the admission
        of surveillance video footage as substantive evidence. Id. ¶ 33. In answering this question, the
        supreme court set forth the following factors:
                 “(1) the device’s capability for recording and general reliability; (2) competency of the
                 operator; (3) proper operation of the device; (4) showing the manner in which the
                 recording was preserved (chain of custody); (5) identification of the persons, locale, or
                 objects depicted; and (6) explanation of any copying or duplication process.” Id. ¶ 35.
        The supreme court cautioned that the list of factors was nonexclusive. “Each case must be
        evaluated on its own and depending on the facts of the case, some of the factors may not be
        relevant or additional factors may need to be considered.” Id. The court further stated: “The
        dispositive issue in every case is the accuracy and reliability of the process that produced the
        recording.” Id.

                                                    - 24 -
¶ 126       Turning now to the facts of this case, Schmidt, like the detective in Taylor, had only
        recently purchased the video surveillance system. Schmidt did not offer testimony about how
        the surveillance system was set up to record. He did not testify about the surveillance system’s
        general reliability, except to say that he knew the system was working because he could access
        and view recordings on his phone. While the evidence was scant, to say the least, I find that it
        was sufficient to show that the system was functioning and generally capable of recording.
¶ 127       As to the second factor, however, the testimony of Schmidt clearly indicated he was not a
        competent operator of his own equipment. While it was true that Schmidt stated that he could
        view the surveillance video recordings on his iPhone, he was not able to download or preserve
        those recordings from the surveillance system itself. He had no training on the operation of the
        system, and he had only read parts of the instruction manual. Schmidt attempted to download
        the entire video from the DVR onto a flash drive, but he was unable to do so, even after
        referencing the instruction manual. Then, instead of seeking assistance from the police or from
        his own IT person, Schmidt chose to have his wife use her iPhone to film two 20- or 30-second
        excerpts of the surveillance video and thereafter e-mail those excerpts to other devices. In
        addition, while Schmidt testified that the video system included a time and date stamp, he did
        not offer testimony as to how he set the “time and date stamp” function. There was no
        testimony or other evidence to indicate that the date and time stamp was correctly set when the
        system was installed or that the system kept accurate time. Assuming, arguendo, that the date
        function could be used to pull up the video footage from the date of the burglary, no one
        testified that the time stamps on the video clips accurately corresponded with what Schmidt
        and his wife viewed. When it came to the operation of the video surveillance system, Schmidt’s
        level of understanding and skill was well below that of the detective in Taylor.
¶ 128       The third and fourth factors to be considered in determining the admissibility of these video
        clips pertain to the proper copying and duplication of the videos, as well as the chain of custody
        involved in making the video clips. In this case, the facts are muddled as they relate to the
        production of these video clips and their transfer from the original equipment to the compact
        disc. As previously noted, the evidence regarding whether the device was operating properly
        was scant. As to the preservation of the video, the entirety of the footage was not preserved
        because Schmidt could not figure out how to download it onto a flash drive. Instead, Schmidt
        (and/or his wife) chose to film only two selected segments that they considered important. The
        result was that two 20-second clips were made, initially, using the wife’s iPhone. Notably,
        Schmidt’s wife did not testify, so there is no evidence indicating how she preserved the two
        video clips and no evidence indicating whether those clips were edited in any way. Schmidt
        testified that his wife e-mailed the video from her iPhone to Schmidt’s business e-mail account.
        This is where the facts are truly murky. Schmidt testified that the images were on his iPhone
        at one point, although it is not clear how the images ended up there. It is not known how the
        images were transferred from Schmidt’s phone to his e-mail account, or vice versa, and then
        to a compact disc. Indeed, Schmidt could not explain this because his IT person performed the
        task of burning the compact disc and the IT person was not called as a witness. This confusing
        sequence of events, in my view, eviscerates any reliability pertaining to the creation of the
        video clips and the chain of custody.
¶ 129       The lack of factual clarity also undermines the sixth Taylor consideration, which pertains
        to an explanation of the copying process. While the video may depict the defendant, there was
        also inconsistent testimony indicating that footage in the original surveillance video revealed


                                                    - 25 -
        the presence of another woman, along with several people up and down the hallway. None of
        these people were captured in the two video clips at issue here. Based upon the testimony
        offered, there is simply no way to know what was actually depicted in the original surveillance
        video footage. The fact that other people were present at various times in the hallway compels
        one to question why Schmidt chose to record and preserve only those segments of the
        surveillance video that contained images of the defendant in the vicinity of the victim’s
        apartment, while excluding other persons who were also in the vicinity. Schmidt was not a
        trained investigator, and his decisions regarding what content to record and what to omit from
        the original surveillance video footage raise questions about the reliability and the
        trustworthiness of these video clips and whether they accurately portray the entirety of what
        occurred on the afternoon of the burglary.
¶ 130        In light of the foregoing, I do not believe Schmidt’s testimony was sufficient to lay a
        reliable foundation for the admissibility of the two 20-second video clips. I agree with my
        colleague’s point, in the special concurrence, that “the ultimate issue” is “ ‘the accuracy and
        reliability of the process that produced the recording’ ” (supra ¶ 99 (quoting Taylor, 

)), but, for the reasons stated herein, I respectfully disagree with my colleague’s
        conclusion that this process was accurate and reliable. I would further note that the two video
        clips were not derived from simply “editing” a lengthy video to exclude unimportant and
        irrelevant material. Rather, because Schmidt was not trained or experienced in operating his
        system, he was unable to export and preserve the complete surveillance footage. The two video
        clips were made using an iPhone camera—and there was no evidence as to the capability of
        that camera. In the absence of a reliable foundation, I find that this evidence was irreparably
        tainted and inadmissible and that the trial court erred in admitting it.
¶ 131        The defendant also argued that the admission of the two video clips violated the best
        evidence rule. I agree that each video clip constitutes a “duplicate” as defined in Illinois Rule
        of Evidence 1001(4) (eff. Jan. 1, 2011). Illinois Rule of Evidence 1003 (eff. Jan. 1, 2011)
        provides that “[a] duplicate is admissible to the same extent as an original unless (1) a genuine
        issue is raised as to the authenticity of the original or (2) in the circumstances it would be unfair
        to admit the duplicate in lieu of the original.” Each clip is a 20-second snapshot produced from
        an original surveillance video. The record indicates that the original video was recorded on the
        video surveillance system’s DVR. The video surveillance system was set to save the recordings
        for a period of 48 hours. The original video recording was not preserved by Schmidt or by law
        enforcement. Schmidt did not know how to download the video footage or otherwise save it,
        and he did not want to take the time to make an iPhone video of the complete surveillance
        footage. The responding police officer did not obtain a copy of the complete video because the
        victim had initially declined to prosecute. As a result, the video clips are snippets in time and
        were selected by a person who had no apparent training in criminal investigation. Considering
        all of the circumstances, including the lack of foundation for the video clips discussed earlier,
        I conclude that the admission of the duplicate video clips was unfair to the defendant.
¶ 132        For the reasons stated, I find that the admission of the video clips was error and that the
        error resulted in unfair prejudice to the defendant. I would vacate the defendant’s conviction
        and remand the case for a new trial without the two video clips.




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