¶1concurring in part and dissenting in part.
¶2I concur with the Majority except for their treatment of the Patterson Rule. I would consider the offering of a video tape reversible error where the witness is present in court to give testimony. Where a witness may not be as credible or persuasive on the witness stand as in a rehearsed, retake video, there is an immeasurable potential for prejudice. Too, the repetitiveness factor of a video exhibiting the same testimony reinforces those aspects of the State's case unduly and beyond the cumulative on the witness stand testimony.
¶3In Gaunt v. State (1983) Ind., 457 N.E.2d 211, cited by the Majority, the Indiana Supreme Court did not find reversible error because an affidavit by Stuckey which had been introduced in evidence without objection, stated the remarks made by Pick which the defense wanted in evidence. Therefore, the defendant could not have been harmed by the erroneous ruling of the trial court. However, the dissent in Gaunt aptly points out that: "The affidavit would be very weak in its persuasive force when compared to Stuckey's in-court testimony under oath ..." I would suggest that just the reverse would be true if instead of an affidavit it had been a video.
¶4Roop argues that the Patterson exception to the hearsay rule is not applicable. I agree. Being unable to assess the prejudice to Roop because of this evidentiary error, I would grant a new trial.