## Facts

- Lester Bergner was charged in Indiana with sodomy involving his four-year-old daughter.
- The State’s main evidence consisted of two photographs depicting a female child performing fellatio on an adult male.
- At trial, the State offered testimony identifying Bergner as the adult male shown in the photographs and the child as Bergner’s daughter.
- No witness testified that the photographs were a “true and accurate” depiction based on personal observation of the depicted act at the time it occurred.
- Bergner’s ex-wife found the photographs in Bergner’s home (in or near a darkroom area) after being told they existed, and she turned them over to police.
- The ex-wife identified the setting in the photographs as part of the home she had shared with Bergner and identified Bergner by physical characteristics (including a hernia scar) and by a bathrobe shown in the images.
- A police detective testified about receiving the photographs and, during booking, observing a scar on Bergner that was consistent with the scar visible in the photographs.
- The State called a photographic examiner as an expert witness who testified that the photographs/negatives were authentic and had not been altered or composited.
- A jury found Bergner guilty, and the trial court entered judgment on the verdict.
- Bergner appealed, arguing that the trial court erred by admitting the photographs and also challenging related evidentiary and sufficiency matters.

## Issues

1. Whether photographs depicting the charged sexual act were admissible as substantive evidence when no eyewitness testified that the photographs accurately portrayed what they purported to show.
2. Whether the State laid an adequate foundation to admit the photographs under a “silent witness” theory, including proof of authenticity and reliability.
3. Whether the marital privilege barred Bergner’s ex-wife from testifying about discovering the photographs and identifying the people and setting shown.
4. Whether the evidence, viewed most favorably to the verdict, was sufficient to support the conviction.

## Decision

- The Indiana Court of Appeals affirmed the conviction.
- The court held the photographs were admissible as substantive evidence under the silent-witness theory because the State supplied an adequate foundation showing reliability and authenticity.
- The court rejected the marital-privilege argument because the ex-wife’s testimony did not concern protected confidential marital communications.
- The court held the evidence, including the photographs and supporting testimony, was sufficient for a reasonable jury to find Bergner guilty beyond a reasonable doubt.

## Legal Principles

- Photographs may be admitted as substantive evidence without “pictorial testimony” (i.e., without an eyewitness attesting that the image is a fair and accurate depiction), if an adequate foundation establishes that the photographic evidence is what the proponent claims it to be.
- Under the silent-witness theory, the trial court may admit photographic evidence when surrounding circumstances and testimony show reliability, such as identification of participants or location, chain of custody, and technical proof that the image was not altered.
- Authentication can be supported by corroborating details visible in the image (distinctive physical features, clothing, surroundings) and by expert testimony addressing manipulation or compositing.
- The marital privilege protects confidential marital communications; it does not bar a spouse (or former spouse) from testifying about non-communicative observations or physical evidence discovered and turned over to authorities.
- On appellate review of sufficiency, the court considers the evidence and reasonable inferences supporting the verdict and does not reweigh evidence or reassess witness credibility.

## Conclusion

Bergner v. State upheld a sodomy conviction where two photographs depicting the act were admitted as substantive proof under the silent-witness theory, based on identification testimony, corroboration of distinctive features, chain-of-custody evidence, and expert testimony that the photographs were authentic and unaltered; the court also found no marital-privilege bar and held the evidence sufficient to sustain the verdict.


Bergner v. State, 397 N.E.2d 1012 (1979)