MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Oct 25 2016, 6:45 am

court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Stephen Miller                                        Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Homer T. Richards,                                       October 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1604-CR-824
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1509-F1-11



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016     Page 1 of 19
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Homer T. Richards (Richards), appeals his conviction for

      attempted murder, a Level 1 felony, Ind. Code §§ 35-41-5-1(a); -42-1-1


[2]   We affirm.


                                                    ISSUES

[3]   Richards raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court coerced Richards into forfeiting his right to self-

      representation; and

      (2) Whether the trial court abused its discretion by admitting a surveillance

      video-recording into evidence.


                           FACTS AND PROCEDURAL HISTORY

[4]   On August 18, 2015, Richards and his girlfriend of several years, April Miller

      (Miller), ended their relationship. At the time, Miller worked as a manager at

      Cap n’ Cork, a liquor store, located on Lewis Street in Fort Wayne, Allen

      County, Indiana. Approximately one week after her break-up with Richards,

      Miller began dating a long-time customer from Cap n’ Cork—Peter Major

      (Major). Richards, however, continued to contact Miller on a regular basis,

      even showing up at her house at night uninvited. After obtaining permission

      from her district manager, Miller informed Richards that he was no longer

      permitted inside Cap n’ Cork.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 2 of 19
[5]   For several weeks, Richards adhered to this ban, although he regularly waited

      outside the store in an attempt to talk to Miller on her way to and from work.

      On September 21, 2015, Miller arrived at Cap n’ Cork between 8:30 and 8:45

      a.m. in order to open the store at 9:00 a.m. Once again, Richards was waiting

      for her outside the store, but Miller proceeded directly inside. Later that

      morning, Miller left the store to empty the garbage. Richards approached her

      and attempted to discuss a reconciliation. Miller explained that she had no

      interest in resuming their relationship, but Richards argued with her.

      Eventually, Miller “didn’t want to listen to it anymore so [she] shut the door

      and went inside.” (Tr. p. 148). Thereafter, Richards repeatedly attempted to

      call Miller on her cellphone, but Miller refused to answer. Despite his ban from

      the liquor store, Richards went inside and began yelling at Miller for not

      answering her phone. As Miller tried to carry on with her tasks, the two argued

      about Miller’s refusal to reconcile and Richards’ insistence that she quit her job

      because “he has been around there longer.” (Tr. p. 151).


[6]   At approximately 12:30 p.m., Richards was still at Cap n’ Cork, arguing with

      Miller. At this time, Miller’s new boyfriend, Major, arrived at Cap n’ Cork,

      along with his brother, John Tinker (Tinker). Major asked Richards, “[W]hy

      do you keep fucking with her, why don’t you just leave her the fuck alone[?]”

      (Tr. p. 155). This inevitably led to an argument between Richards and Major,

      and upon realizing that Major was dating Miller, Richards invited Major to “go

      outside.” (Tr. p. 193). Instead of exiting the store, Major punched Richards

      multiple times, knocking Richards to the ground. Tinker intervened and pulled


      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 3 of 19
      Major away from Richards. Major ordered Richards to leave the store, and

      despite the fact that Tinker was holding onto him, Major managed to knock

      Richards to the ground once more. As Richards stood, he stated that he would

      leave and walked out the door. However, a few minutes later, Major saw

      through the window that Richards was walking back toward Cap n’ Cork—this

      time with a firearm in his hand. Before Major could lock the door, Richards

      pulled it open and was “[w]aving the gun around.” (Tr. p. 158). He then

      aimed the gun at Major and fired twice; Major dropped to the ground.


[7]   Miller rushed to Major’s side while calling 911, as Tinker tackled Richards and

      snatched the gun away from him. Outside the liquor store, a customer,

      Domonic Holliday (Holliday), heard the gunfire and immediately ran inside.

      Unaware of who fired the shots, Holliday jumped on Tinker’s back as Tinker

      wrestled with Richards. Assuming that Holliday was Richards’ cohort, Tinker

      turned and hit Holliday in the head with the gun. Tinker chased Holliday out

      of the store and even pulled the trigger to shoot at him as he fled, but there was

      no ammunition left in the gun. As Tinker turned back toward the liquor store,

      Richards was running away. Tinker dropped the gun on the floor and checked

      on Major, who was struggling to breathe. Tinker then ran to his vehicle and

      drove off in an attempt to locate Richards, but the police apprehended Tinker

      and took him into custody for questioning.


[8]   Major was transported by ambulance to Lutheran Hospital. He survived the

      shooting and was hospitalized for nearly two months. Major sustained a

      collapsed lung, and one of the bullets “traversed and injured his spinal . . .

      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 4 of 19
       column as well as his spinal cord.” (Tr. p. 286). As a result, Major is now

       paralyzed from the chest down and requires ongoing therapy.


[9]    During the investigation at Cap n’ Cork, police officers retrieved the handgun—

       a 9mm Luger, as well as two shell casings and a tactical stainless steel knife. In

       addition, Miller informed the officers that Cap n’ Cork was equipped with

       surveillance cameras and that a copy of the footage could be obtained from the

       main Cap n’ Cork branch located on Coldwater Road in Fort Wayne.


[10]   On September 25, 2015, the State filed an Information, charging Richards with

       Count I, attempted murder, I.C. §§ 35-41-5-1(a); -42-1-1; and Count II,

       aggravated battery, a Level 3 felony, I.C. § 35-42-2-1.5. The State also filed an

       Information for Application for Additional Fixed Term of Imprisonment (as

       Part II of Count II) based on Richards’ use of a firearm in the commission of his

       aggravated battery offense, I.C. § 35-50-2-11. At his initial hearing on

       September 29, 2015, Richards indicated that he would be hiring private counsel,

       but no attorney ever entered an appearance. On October 9, 2015, Richards,

       acting pro se, filed a motion to suppress and a motion to dismiss. On October

       14, 2015, while Richards’ pro se motions remained pending, the trial court

       appointed a public defender to represent him, and on October 21, 2015, John C.

       Bohdan (Attorney Bohdan) filed his appearance as defense counsel.


[11]   On November 30, 2015, Richards filed with the trial court a copy of a letter he

       had written to Attorney Bohdan. In his letter, Richards requested that Attorney

       Bohdan “please notify the court A.S.A.P. for a hearing for me to request


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 5 of 19
representing myself.” (Appellant’s App. p. 37). On December 3, 2015,

Richards filed with the court a copy of another letter making the same request.

On December 16, 2015, the trial court held a status hearing to discuss Richards’

requests to proceed pro se. At the hearing, Richards initially indicated that he

would be withdrawing his request to proceed pro se, but he subsequently

informed the trial court that he wanted to represent himself because he has


        two (2) pro se motions in front of the [c]ourt that has [sic] good
        merits, and I asked [Attorney Bohdan] to move it [sic] into
        context. [Attorney Bohdan] said that he does not want to—once
        again, he does not want to pursue the matter the way that I was
        trying to lead him in as far as to get that information to the
        [c]ourt and alert the [c]ourt that we have a problem here today.
        [The State is] basing [its] case on false information, and
        [Attorney Bohdan] does not seem to want to pursue it.


(Status Hrg. Tr. p. 4) (Italics added). Based on Richards’ intent to proceed pro

se, the trial court advised him of his rights and of the pitfalls of self-

representation. The trial court also informed Richards of its policy against

appointing standby counsel. The trial court questioned Richards about his

capabilities, and Richards indicated that he has his GED; he has done legal

work in his prior cases; and he has some experience studying to be a paralegal.

Richards also stated that he can read and write well; he is a good speaker; and

he could quickly become familiar with the rules and procedures for his trial.

Moreover, Richards verified that his decision to represent himself was not

influenced by promises of special treatment or threats of harm. Richards

articulated that he understood the disadvantages of self-representation but that


Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 6 of 19
       he wished to proceed pro se. However, after the trial court commenced a

       discussion about scheduling a suppression hearing, Richards privately consulted

       with Attorney Bohdan. As a result, both Attorney Bohdan and the trial court

       directed Richards that he needed to make a final decision about his

       representation. Richards determined that he was “going with [Attorney]

       Bohdan” and officially withdrew his request to proceed pro se. (Status Hrg. Tr.

       p. 15). The trial court subsequently returned Richards’ pro se motions to

       suppress and to dismiss, stating that it does not accept pro se motions from

       represented defendants.


[12]   On February 16-17, 2016, the trial court conducted a bifurcated jury trial.

       During the trial, to bolster the testimony of Miller, Major, and Tinker, the State

       offered the surveillance footage of the shooting as Exhibit 1. Richards objected

       to the admission of the video-recording based on his belief that it had been

       edited and was “not a true and accurate copy.” (Tr. p. 163). The trial court

       admitted Exhibit 1 over Richards’ objection. During his case-in-chief, Richards

       testified as to his version of events. He stated that after he was repeatedly

       punched by Major, he initially left the liquor store, but he was worried about

       Miller’s safety because he believed that Major and Tinker were planning on

       robbing Cap n’ Cork. Thus, he withdrew the firearm from his pocket and

       returned to the liquor store merely with the intent to ensure Miller’s safety.

       Richards testified that Major charged at him with a knife, so he fired a warning

       shot in the opposite direction. Richards claimed that “the gun went off” a

       second time when Tinker tackled him, but he never intentionally fired a shot at


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 7 of 19
       Major. (Tr. p. 389). At the close of the evidence, the jury returned a guilty

       verdict on both Counts. Thereafter, the jury made a separate determination

       that Richards used a firearm in the commission of the aggravated battery

       offense, thus warranting an additional fixed penalty.


[13]   On March 15, 2016, the trial court held a sentencing hearing. The trial court

       merged the aggravated battery charge into the attempted murder charge and

       entered a judgment of conviction for attempted murder, a Level 1 felony. The

       trial court imposed the advisory sentence of thirty years, fully executed in the

       Indiana Department of Correction. In addition, during the sentencing hearing,

       Major accepted responsibility for his role in the altercation with Richards; thus,

       he requested that Richards pay for only one-half of his medical expenses. The

       trial court agreed and ordered Richards to pay $23,500 in restitution.


[14]   Richards now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                        I. Right to Self-Representation

[15]   Richards claims that the trial court coerced him into forfeiting his right to self-

       representation by improperly advising him that he would not have access to

       legal materials. “The Sixth Amendment to the United States Constitution

       guarantees a criminal defendant the right to counsel.” Henson v. State, 798

       N.E.2d 540, 543 (Ind. Ct. App. 2003), trans. denied. This right is paramount

       because it “can affect a defendant’s ability to assert all his other rights and

       because most defendants do not have the professional legal skills necessary to


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 8 of 19
       represent themselves adequately.” Id. at 543-44. However, “a State may not

       ‘constitutionally hale a person into its criminal courts and there force a lawyer

       upon him, even when he insists that he wants to conduct his own defense.’”

       Sherwood v. State, 717 N.E.2d 131, 134 (Ind. 1999) (quoting Faretta v. California,

       422 U.S. 806, 807 (1975)). Thus, the Sixth Amendment also affords a criminal

       defendant the right to forego the assistance of counsel and proceed pro se.

       Henson, 798 N.E.2d at 544. “The decision to proceed pro se must be made

       knowingly and intelligently because, by asserting this right, the defendant

       simultaneously waives his or her right to the assistance of counsel.” Dobbins v.

       State, 721 N.E.2d 867, 871 (Ind. 1999). Nevertheless, “[t]he law ‘indulges every

       reasonable presumption against a waiver of [the] fundamental right’” to

       counsel. Henson, 798 N.E.2d at 544 (quoting Poynter v. State, 749 N.E.2d 1122,

       1126 (Ind. 2001)).


[16]   As a prerequisite to claiming that the right to self-representation has been

       denied, a defendant must “clearly and unequivocally assert his right of self-

       representation.” Dobbins, 721 N.E.2d at 871. Following such an assertion, the

       trial court must conduct a pre-trial hearing to determine whether the defendant

       is competent to proceed without counsel and to establish a record of the

       defendant’s knowing and voluntary waiver of his right to counsel. Id. at 872.

       As our supreme court has stated, “[w]hen a defendant asserts the right to self-

       representation, the court should tell the defendant of the ‘dangers and

       disadvantages of self-representation.’” Poynter, 749 N.E.2d at 1126 (quoting

       Faretta, 422 U.S. at 835). “There are no prescribed ‘talking points’ the trial

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 9 of 19
       court is required to include in its advisement to the defendant;” rather, the trial

       court “need only come to a considered determination that the defendant is

       making a voluntary, knowing, and intelligent waiver.” Id. (quoting Leonard v.

       State, 579 N.E.2d 1294, 1296 (Ind. 1991)).


[17]   In this case, the trial court advised Richards, in relevant part, as follows:

               You have the right to be represented by a lawyer. On the other
               hand, you have the right to represent yourself, but to do so you
               must first give up your right to have a lawyer. In order for you to
               give up your right to a lawyer I must be sure that you fully
               understand what you’re asking for and what you’re giving up. . . .
               Count 1 is [a]ttempted [m]urder, a Level 1 [f]elony. . . . Level 1
               carries a twenty (20) to forty (40) year term. A Level 3 [felony
               for aggravated battery] carries three (3) to sixteen (16) [years]. If
               the allegations pertain to the same victim they would—the
               [b]attery would merge in the [a]ttempted [m]urder, . . . [s]o really
               we’re talking about an [a]ttempted [m]urder, a Level 1 [f]elony,
               twenty (20) to forty (40) year term. As you know it’s the State’s
               obligation to prove the elements of the crime beyond a
               reasonable doubt. A person charged as you are may have one (1)
               or more defenses. There are legal factors that may increase or
               decrease a sentence from an advisory sentence. An attorney has
               developed skills and expertise to prepare and present a defense to
               the criminal charges against you. Those attorney skills include
               investigating and interrogating witnesses; gathering documents
               and other kinds of written evidence; finding favorable witnesses
               and obtaining testimony; preparing and filing motions before
               trial; presenting favorable opening and closing statements;
               examining and cross examining witnesses; recognizing
               objectionable and unfavorable evidence and promptly objecting
               to its use; preparing appropriate jury instructions and presenting
               favorable sentencing information; and attacking unfavorable
               sentencing information should that be necessary. Drawing on
               these skills and related knowledge an attorney can analyze the
       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 10 of 19
         strength and weakness of the evidence for or against you and give
         you expert advice on the benefits of any of negotiating with the
         prosecutor for dismissal of some or all of the charges, or a
         favorable sentence in return for a plea of guilty. You must
         understand that if you decide not to have an attorney you will
         not receive any special treatment with your defense. You will
         have to follow all of the same legal rules and procedures in your
         case as an attorney would have. Remember the State is going to
         be represented by an attorney and will have the advantage of all
         the skill and experience that a trained lawyer can provide. You
         have the right to decide against having an attorney, but deciding
         not to have one can turn out to be a very bad decision.
         Experienced lawyers understand this when they are prosecuted,
         they are almost always—an experienced lawyer decides to be
         represented by another lawyer.[ 1]


(Status Hrg. Tr. pp. 5-8). The trial court added:

         If I find that you understand your right to have a lawyer, that you
         understand the dangers and disadvantages of representing
         yourself, and that you have voluntarily decided to give up your
         right to a lawyer and wish to represent yourself, I will allow you
         to do so. Now, I need you to understand different courts do
         different things. Sometimes courts appoint standby counsel to
         assist pro se [d]efendants with the law. I’ve done enough reading
         [of] case law about those situations to understand that all that
         does is cause confusion among everyone, including the pro se
         [d]efendant and the lawyer who is trying his or her best to
         represent that pro se [d]efendant. It’s never clear exactly where
         the line is of where the responsibility of the pro se [d]efendant
         ends and where the obligation of the standby counsel begins. So



1
  As Richards recognizes, the trial court’s advisement generally follows the guidelines set forth in Dowell v.
State, 557 N.E.2d 1063, 1066-67 (Ind. Ct. App. 1990), trans. denied; cert. denied, 502 U.S. 861 (1991), for
establishing a knowing, intelligent, and voluntary waiver of a defendant’s right to counsel.

Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016             Page 11 of 19
               I do not appoint standby counsel. You will be on your own. The
               [c]ourt will issue subpoenas for you and see to it that they are
               served. I will not, nor will any court personnel do any
               investigation for you. [Attorney] Bohdan has access to
               investigators and folks to serve subpoenas and follow through on
               those sorts of things that you would not have if you were to
               represent yourself.


       (Status Hrg. Tr. pp. 10-11) (Italics added). As previously mentioned, Richards

       initially indicated that he understood the risks of self-representation and wanted

       to proceed pro se regardless. However, when pressed to make a final decision

       (and after being advised that he could not continue to change his mind on this

       matter), Richards elected to maintain representation by Attorney Bohdan.


[18]   Richards now contends that the trial court improperly advised him of the

       limitations surrounding his right to self-representation. Specifically, Richards

       argues that he was misled into believing that he would not have access to legal

       materials based on the court’s advisement that it would not appoint standby

       counsel or provide investigatory assistance. Richards acknowledges that “a

       defendant who chooses to proceed pro se must accept the burdens and hazards

       incidental to his position.” (Appellant’s Br. p. 15). Nevertheless, he contends

       that “there is a constitutional right to have access to the courts and this right

       may be protected by the appointment of standby counsel, if standby counsel is

       not refused by the [d]efendant.” (Appellant’s Br. p. 15). Richards relies on

       Engle v. State, 467 N.E.2d 712, 714 (Ind. 1984), in which a trial court denied a

       pro se defendant’s petition for direct access to legal materials. Our supreme

       court stated that “[t]he fundamental constitutional right of access to the courts

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 12 of 19
       requires prison authorities to assist inmates in the preparation and filing of

       meaningful legal papers by providing prisoners with law libraries or adequate

       assistance from persons trained in the law.” Id. at 715. In the case of Engle, the

       supreme court concluded that the defendant’s “right of access to the court was

       not undermined” because “[h]e had access to legal materials and legal

       assistance through his stand-by counsel.” Id. Thus, according to Richards,


               [b]y summarily denying [him] the appointment of standby
               counsel, without determining [Richards’] access to legal material,
               simply because the court believed that standby counsel does
               nothing more than cause confusion among everyone, the court
               not only denied [Richards] definite access to the court but abused
               its discretion by summarily refusing standby counsel. Perhaps
               more accurately stated, the court failed to exercise its discretion
               as it failed to even consider the appropriateness of standby
               counsel in this specific case.


       (Appellant’s Br. p. 16).


[19]   We agree with the State that Richards’ reliance on Engle is misplaced. Here,

       there is no indication in the record that Richards had been denied access to

       legal materials (i.e., a law library) or that he would be if he elected to proceed

       pro se. Furthermore, the appointment of standby counsel, while “an appropriate

       prophylactic device” for a pro se defendant, is entirely within the trial court’s

       discretion. Sherwood, 717 N.E.2d at 135 n.2; Jackson v. State, 441 N.E.2d 29, 33

       (Ind. Ct. App. 1982). In fact, although Richards did not request the

       appointment of standby counsel, “a defendant who proceeds pro se has no right

       to demand the appointment of standby counsel for his assistance.” Sherwood,

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 13 of 19
       717 N.E.2d at 135 n.2 (Italics added). Accordingly, we find that the trial court

       adequately apprised Richards “of the ‘dangers and disadvantages of self-

       representation.’” Poynter, 749 N.E.2d at 1126 (quoting Faretta, 422 U.S. at

       835). Based on the information he received, Richards was capable of making a

       knowing and intelligent decision, and he opted not to waive his right to

       counsel. We conclude that the trial court did not coerce Richards into

       foregoing his right to self-representation.


                                             II. Admission of Evidence

[20]   Richards next claims that the trial court abused its discretion by admitting into

       evidence the footage from Cap n’ Cork’s surveillance cameras (i.e., State’s

       Exhibit 1). 2 The admission or exclusion of evidence is reserved to the discretion

       of the trial court. Mays v. State, 907 N.E.2d 128, 131 (Ind. Ct. App. 2009), trans.

       denied. On appeal, we review a trial court’s evidentiary rulings only for an

       abuse of discretion. Id. It is an abuse of discretion if the trial court’s “decision

       is clearly against the logic and effect of the facts and circumstances.” Id.


[21]   During the trial, the State offered Exhibit 1 into evidence through Miller. As

       the store manager, Miller testified that she helped the police officers obtain a

       copy of the footage from its storage location at the Coldwater Road branch of

       Cap n’ Cork. Within half an hour of the shooting, Miller reviewed the footage

       with the officers at the liquor store. She testified that it was a true and accurate



       2
        Despite our best efforts, we were unable to access the files on the DVD. Nevertheless, we find that we are
       able to resolve this issue without reviewing the surveillance footage.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016         Page 14 of 19
       copy of what had transpired. She further stated that, to the best of her

       knowledge, the footage had not been edited. Richards objected to the

       introduction of State’s Exhibit 1 “as an overabundance of caution” because he

       believed that the video had been “edited . . . and that it is not a true and

       accurate copy.” (Tr. p. 163). The trial court ruled that the State “laid a proper

       foundation” and admitted Exhibit 1. (Tr. p. 163).


[22]   On appeal, Richards contends that the admission of the video recording

       “violated the best evidence principles and failed to comply with any exception

       to such principles.” (Appellant’s Br. p. 19). He further asserts that the video

       recording was not properly authenticated under the silent witness theory.

       Although Richards did not object to the admission of Exhibit 1 on these specific

       grounds during the trial, we will nevertheless address his arguments to the

       extent that they relate to his general objection that the video recording had been

       edited and was not a true and accurate portrayal of the events that it purported

       to depict. See Warren v. State, 757 N.E.2d 995, 999 (Ind. 2001) (noting that

       grounds not raised when evidence is presented at trial may not be raised for the

       first time on appeal).


[23]   With respect to Richards’ best evidence claim, he argues that the State failed to

       establish that Exhibit 1 “was not modified.” (Appellant’s Br. p. 19). The best

       evidence rule is codified in Indiana Evidence Rule 1002, which provides that

       “[a]n original writing, recording, or photograph is required in order to prove its

       content . . . .” See Lawson v. State, 803 N.E.2d 237, 240 (Ind. Ct. App. 2004),

       trans. denied. However, “[a] duplicate is admissible to the same extent as an

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 15 of 19
       original unless a genuine question is raised about the original’s authenticity or

       the circumstances make it unfair to admit the duplicate.” Ind. Evidence Rule

       1003. During the trial, Richards vaguely indicated that he believed that Exhibit

       1 was an edited copy of the recording, but he did not cite specific reasons to

       raise a genuine question as to its authenticity. He now points out, for the first

       time, that there is a discrepancy between the date the footage was purportedly

       obtained and the date that was used as a file name to save the footage on a

       DVD. He further argues that there was never “any showing that Exhibit 1 was

       compared to the initial video stored off site.” (Appellant’s Br. p. 19). Thus,

       Richards insists that the State failed to establish that Exhibit 1 was either an

       original or a duplicate of the original—i.e., that it was not an edited version.


[24]   We find no merit in Richards’ argument. Richards had the opportunity at trial

       to ask preliminary questions regarding any discrepancy between the date of the

       footage and the date used in the file name on the DVD, but he never mentioned

       this as an issue. Instead, Richards simply asked Miller whether the “copy being

       offered here as an exhibit today[] is . . . a true and accurate copy of the sequence

       surrounding the shooting incident” and whether “there [had] been any editing

       done as it relates to this copy.” (Tr. p. 163). As previously mentioned, Miller

       testified that the copy was a true and accurate depiction of events, and there

       was no editing done “to [her] knowledge.” (Tr. p. 163). She explained that the

       surveillance footage was stored at the main Cap n’ Cork location, and she

       assisted the police officers in retrieving a copy immediately following the

       shooting. Within approximately one-half hour following the shooting, Miller


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 16 of 19
       and the police officers reviewed the footage together. Thus, we decline to

       reverse the trial court’s evidentiary ruling based on Richards’ best evidence

       argument.


[25]   Richards also challenges the admission of the video-recording on the basis that

       it was not properly authenticated. Pursuant to “the ‘silent witness’ theory,” a

       video recording may be admissible as substantive evidence as long as there is “a

       strong showing of [the videotape’s] authenticity and competency.” Mays, 907

       N.E.2d at 131 (alteration in original) (quoting McHenry v. State, 820 N.E.2d 124,

       128 (Ind. 2005)). The recording acts as a silent witness “as to what activity is

       being depicted.” Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014) (quoting Smith

       v. State, 491 N.E.2d 193, 196 (Ind. 1986)). As such, a witness “is not required

       to testify that the [recording] is an accurate representation of the scene as it

       appeared—and indeed, often could not so testify since he or she was not

       necessarily there to observe the scene on that day.” Id. (internal quotation

       marks omitted). In order to meet the heightened foundational requirements,

               “[t]here must be a strong showing of authenticity and
               competency” and . . . when automatic cameras are involved,
               “there should be evidence as to how and when the camera was
               loaded, how frequently the camera was activated, when the
               photographs were taken, and the processing and changing of
               custody of the film after its removal from the camera.”


       Wise v. State, 26 N.E.3d 137, 141 (Ind. Ct. App. 2015) (ellipsis in original)

       (quoting McHenry, 820 N.E.2d at 128), trans. denied. “This standard is applied

       ‘where there is no one who can testify as to its [the recording’s] accuracy and

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 17 of 19
       authenticity because the photograph must ‘speak for itself’ and because such a

       ‘silent witness' cannot be cross-examined.’” Id. (alteration in original) (quoting

       Edwards v. State, 762 N.E.2d 128, 136 (Ind. Ct. App. 2002), trans. denied).


[26]   Richards appears to acknowledge that the “silent witness” theory is not

       particularly applicable in this case in light of the fact that Miller was present as

       a witness during the event, and she testified as to the recording’s accuracy and

       authenticity. Thus, the recording need not “speak for itself.” Id. Nevertheless,

       Richards argues that Miller’s “testimony does not account for the fact that

       during part of the [video recording] she was ducked down behind the counter

       and for at least that small segment she could not verify the accuracy of the

       [recording].” (Appellant’s Br. p. 18). We note that Tinker testified at trial that

       he also watched the video, and he stated that it accurately depicted what

       occurred at the time Major was shot. Richards further challenges the integrity

       of the recording based on his own testimony during the trial that Major charged

       at him with a knife, which was not depicted in the footage. Although police

       officers retrieved a knife from the floor, Miller and Tinker both testified that

       they never saw Major with a knife, and Major testified that he had never seen

       the tactical knife that was recovered, and he never brandished a knife at

       Richards. Thus, Richards’ self-serving testimony does little to convince our

       court that the surveillance footage was manipulated. Accordingly, we find no

       basis for reversing the trial court’s ruling on authentication grounds. We

       conclude that the trial court did not abuse its discretion by admitting State’s

       Exhibit 1.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 18 of 19
                                               CONCLUSION

[27]   Based on the foregoing, we conclude that the trial court properly advised

       Richards of the disadvantages of self-representation and did not coerce Richards

       into foregoing his right to act pro se. We further conclude that the trial court

       acted within its discretion by admitting Exhibit 1 into evidence.


[28]   Affirmed.


[29]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-CR-824 | October 25, 2016   Page 19 of 19
