at the commencement of the investigation of distant past there exists that surveillance but it could have offered salad proof or lack there of asked whether smith committed residential burglary but due to police negligence this footage was not recovered it was not would have been that actual surveillance tape so our position is that it would have been the consecutive tape that officer again could have been had no reason not to record when he when he began investigating this case can't prove that the that the two other requirements of the best evidence rule were met which is the authenticity of the substance of it and most importantly the proponent was diligent and attempting to preserve the original and again this rolls that states that best evidence would have shown this were whether shown that despite what mr schmidt sad something did happen in the gaps between the video and so here are the best evidence some fashion you're saying we should have been allowed to have the complete video  doesn't it what it purports to show what a substitute purports to show would be everything that the full video would have shot here we don't have that because you don't know what happened between the clip between the gaps and the clip all we have is  evidence rule but the principles of the rules of evidence generally and their mission resulted in smith receiving enough air traffic i'd like i next like to address efficiency to prove residential state was presented with them the only question became whether or not we can find a way to use them because the state didn't have a hand in the creation of them but i agree that there's a disagreement on what analysis here but the best evidence  and essentially this day argues the same circumstances security here where we have video surveillance footage that's an alter is just not entirely recorded now our supreme court people versus taylor's recognized several pro create factors in determining whether proper foundation has been laid for the admission of that kind of surveillance tape in the state maintains this is what is at issue here whether or not the state laid a proper foundation for these two clips which it was presented with which you d not have a hand in creating because as a defendant pointed out the before the victim in this case decided to pursue charges or even inform that you know that this information been deleted now people st taylor talks about six factors are they calling an exhaustive list they emphasize very heavily that this is sort of a case by case analysis and these talk about the finances the devices capability for recording general i believe competency of the operator proper operation occurred in that time and we believe that you know as the trial court allowed they said you know we're going to lead a vigorous cross examination on this this evidence is admissible but it might not it might not have great weight because you could the defendant was well within its rights did argue hey what about all this missing time what about this missing time that was you know before the jury or something to consider but in the hearing on whether or not this evidence should be admitted the filmer of the evidence an attorney who was also the landlord he you know attested that nothing occurred except what are you know in there all the time period except what i showed and certainly the jury was free to doubt that and say well you know we don't we don't believe that that this is a  time and so if we operate under the assumption that the testimony is true which i believe has been written in those cases where the state is editing the defendants there and agrees a series what's been added out here that was done outside the defendant's present an apt absolutely just as fun but i would say the state also did not have the opportunity to have a say in this editing process the state was presented with these two clips you know from a rd party you know if they had been involved in a situation of me they might not have elected use a phone to record this recording or you know there's other ways that they might have tried to do because the landlord confesses to his ability that that was the his only manner of actually submitting that to the state  and so i just know that it's in this case the defendant wasn't really denied an opportunity that the state had advantages of neither side had an opportunity to really decide what clips were going to be preserved but we have testimony from the person who said i gave you everything that showed someone in that hallway or any kind of movement in that hallway and so then the argue became became are can we get these admin evidence in the trial court believe that they were at least worth presenting jury placed a lot of weight on these clips they wanted to see the during their deliberations that's one of the points raised so and nobody's accused state of any wrongdoing it just is of the landlord without any involvement of the state or the defendant or the court as to what is or was not what is was not relevant right yes sure i believe that's why people versed taylor so really and why that real issue here is whether a proper foundation was laid for these clips because the now susan taylor you know specifically deals with essentially a recording of a recording as you know when you deal with digital information that stored on different areas and i think that through those factors they talked about the reliability of then you have the ability to consider whether you think that this was handled in such a way that was  made it showed the entire offense being committed and there was also a legitimate reason for the lapse and the videotape the lapse in taylor was explained by the fact that that was how the recording device worked why no one was in the bit you know the device stopped recording it actually in taylor the fact that there was a gap even further supportive of the state's are human here these clips were highly prejudicial glamor it selected them gave his assurances of course that nothing happened in the clips but again i really want to emphasize that those assurances were positively were bided by the record the landlord said nothing else happened but mr whittington and the officer testified that the door was newly tampered with so the landlord your had missed something he had to have missed something happening at the door from the time that mr whittington left and from the time he was returned he returned also i would just like to point out it doesn't matter that the state didn't prepare the video clips state of the states argument that often the state for travel can edit out lapses in a video of course this does happen but ordinarily defense counsel would have gotten the entire video in discovery been able to look it over and at that he saw that there is damage to his door that hadn't been there before so that means that someone in some way had to damage the door this was not or they also said his window was damaged the screen was damaged so something could have happened there  if he laughed and he was not found incredible and if he lasts and there's no damage to the door he came back and there is damage to the door then we can hate the landlord statement that nothing happened as truth because something in some way had to have happened that damaged the door this is the problem with this evidence to be hacked we need the best evidence and we have the best evidence rule so that we don't have to speculate based on what the lamb lawrence says based on  have happened in the gaps we could have had the complete video the officer had the ability to record it he had time to record it either decided not to do so and for that reason the clips violated the