Lisa L. Baker v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Aug 14 2015, 6:16 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey S. Jacob Gregory F. Zoeller
Jacob, Hammerle & Johnson Attorney General of Indiana
Zionsville, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lisa L. Baker, August 14, 2015
Appellant-Defendant, Court of Appeals Case No.
06A01-1501-CR-11
v. Appeal from the Boone Superior
Court
State of Indiana, The Honorable Rebecca S.
Appellee-Plaintiff McClure, Judge
Trial Court Cause No.
06D02-1307-FD-485
Baker, Judge.
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[1] Lisa Baker appeals her conviction for class D felony Theft,1 arguing that the
trial court erroneously admitted certain exhibits. Baker also contends that the
trial court abused its discretion in sentencing her and that her sentence is
inappropriate in light of the nature of the offense and her character. Finding no
errors and finding that the sentence is not inappropriate, we affirm.
Facts
[2] In January 2013, Baker was employed as a certified nurse’s aide (CNA) by
Hearth at Tudor Garden (Hearth), an assisted living facility in Zionsville. At
that time, Janice Lingenfelter’s mother, Mary Ann Burnett, was a resident at
Hearth. Burnett suffered from Alzheimer’s disease. Twice a week, Lingenfelter
visited her mother and they would have lunch together. Burnett typically had
cash on hand to pay for the lunches. At some point, Lingenfelter became
suspicious that someone was stealing cash from her mother. Therefore,
Lingenfelter and her husband installed a hidden motion-activated video camera
in Burnett’s room.
[3] On January 4, 2013, Lingenfelter and Burnett had lunch together. Lingenfelter
noticed that, although she had taken her mother to the bank earlier that week,
Burnett did not have any cash. Lingenfelter put $75 in Burnett’s purse upon
1
Ind. Code § 35-43-4-2(a). We apply the version of the statute in effect at the time Baker committed the
offense.
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returning to her room. Lingenfelter checked the camera to make sure that it
could record events taking place near Burnett’s purse.
[4] When Lingenfelter returned to visit Burnett on January 7, 2013, she noticed
that $40 was missing from Burnett’s purse. Lingenfelter took the video camera
home so that she could review the footage. When she plugged the camera into
her television and watched the footage, she observed a person, later identified
as Baker, taking money from Burnett’s purse on January 6, 2013.
[5] Lingenfelter reported the theft to Hearth employees, who confirmed that Baker
had worked on January 6. On January 13, 2013, Baker viewed the video
recording in the presence of her employer, Lingenfelter, and a Zionsville Police
officer. She admitted that she had taken something from Burnett’s purse, but
claimed that it was a tissue. She denied taking any money out of the purse.
[6] On July 30, 2013, the State charged Baker with class D felony theft. Baker’s
jury trial took place on December 9, 2014, and the jury found her guilty as
charged. On December 30, 2014, the trial court sentenced Baker to two years
of incarceration. Baker now appeals.
Discussion and Decision
I. Admission of Evidence
[7] Baker first argues that the trial court erred by admitting the video footage, an
enhanced version of the footage, and a photographic still taken from the footage
into evidence. The decision to admit evidence is within the trial court’s sound
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discretion, and an abuse of discretion occurs only when the trial court’s decision
is clearly against the logic and effect of the facts and circumstances before it.
Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App. 2009).
A. Video Footage
[8] Baker contends that the State failed to lay a proper foundation for the
admission of the video footage. Video recordings and photographs may be
admitted as substantive, as opposed to demonstrative, evidence under a “silent
witness” theory. Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014). As applied to
video recordings, admission under the “silent witness” theory requires the
following:
“‘[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) (quoting McHenry v. State,
820 N.E. 124, 128 (Ind. 2005)), trans. denied. This standard is applied “where
there is no one who can testify as to [the recording’s] accuracy and authenticity
because the [recording] must ‘speak for itself’ and because such a ‘silent
witness’ cannot be cross-examined.” Edwards v. State, 762 N.E.2d 128, 136
(Ind. Ct. App. 2002). Our Supreme Court has recently held that in cases
involving this theory, a “witness must provide testimony identifying the scene
that appears in the image sufficient to persuade the trial court . . . of their
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competency and authenticity to a relative certainty.” Knapp, 9 N.E.3d at 1282
(internal quotation marks and citations omitted) (emphasis original).
[9] In this case, Lingenfelter testified that she and her husband set up the automatic
video camera behind a flower arrangement in Burnett’s room. She further
explained that the camera stored its images internally, was motion activated,
would record whenever it detected motion, and was focused on a particular
place in the room where Burnett kept her purse. Lingenfelter averred that she
took the video camera home and plugged it into her television to watch the
footage, and that the video shown at trial was identical to what she had seen on
her first viewing. She did not alter the video in any way, either before or after
her viewing. Lingenfelter then turned over the video equipment and the
footage to Zionsville Police officers. The officers gave detailed testimony as to
how they downloaded the video and burned an accurate and unaltered copy to
DVD, later introduced as Exhibit 1 at Baker’s trial.
[10] This testimony suffices to meet the required strong showing of authenticity and
competency. It also establishes the way in which the video camera was
operated, the location in which Lingenfelter placed it, and the chain of custody
from the time it was recorded until the time the DVD was introduced at trial.
Moreover, we note that Baker’s own testimony at trial confirms the authenticity
of the video. Baker admitted that she was the person in the video and that the
footage accurately showed her reaching into Burnett’s purse; she merely
claimed that she had retrieved a tissue rather than money. The testimony of
Lingenfelter, the officers, and Baker herself suffice to establish that the video
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footage was what the State claimed it to be, which is sufficient for purposes of
authentication. We decline to find error based on the admission of Exhibit 1.
B. Enhanced Video Footage and Photo Still
[11] Next, Baker argues that the trial court erred in admitting Exhibits 2 and 3 into
evidence. Exhibit 2 was a version of the original video where an experienced
Indiana State Police Detective had enlarged the center of the video image and
sharpened colors and contrast from the original footage. The detective testified
that nothing material in the video was substantially altered or changed and that
no colors were changed in the enhanced version. He testified in detail as to the
way in which he processed the video using Adobe Premier Pro.
[12] Baker contends that an inadequate foundation was laid for this video, but we
disagree. The video was not materially altered or distorted. Moreover, the jury
and trial court also viewed the original footage and could compare any
alterations to weigh the testimony regarding the video’s reliability. Baker’s
arguments regarding this exhibit go to the weight of the evidence rather than its
admissibility, and we decline to find error on this basis. See Knapp, 9 N.E.3d at
1281-82 (holding that enlarged photographs were properly admitted as
evidence); Arlton v. Schraut, 936 N.E.2d 831, 837-38 (Ind. Ct. App. 2010)
(holding that the trial court should have admitted enhanced photographs that
were accurate representations of the evidence).
[13] Exhibit 3 is a photographic still of a single frame taken from the video. The
same detective testified that the photograph was in no way altered, and was
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instead a basic image capture from one frame of the video. We can only
conclude that because the video was properly authenticated as substantive
evidence, the photograph taken from that video was likewise properly
authenticated. We find no error in the admission of Exhibit 3.
II. Sentencing
A. Lack of Remorse as an Aggravating Factor
[14] With respect to Baker’s sentence, she first argues that the trial court abused its
discretion by finding her lack of remorse as an aggravating factor. Sentencing
decisions rest within the trial court’s sound discretion and are reviewed on
appeal only for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007).
One of the ways in which a trial court may abuse its discretion is to consider
reasons that are improper as a matter of law. Sloan v. State, 16 N.E.3d 1018,
1027 (Ind. Ct. App. 2014).
[15] Lack of remorse is a proper aggravating factor, but it is to be regarded only as a
modest aggravator when applied to a defendant who insists upon her
innocence. Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997); Cox v. State, 780
N.E.2d 1150, 1158 (Ind. Ct. App. 2002). In this case, there is no evidence that
the trial court considered Baker’s lack of remorse to be more than a modest
aggravator. Even if we were to find error, however, Baker challenges none of
the remaining aggravators, including Baker’s violation of a position of trust,
Burnett’s elderly age, Baker’s criminal history, and Burnett’s mental infirmity.
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Given the other, substantial, aggravating factors, we decline to reverse based
upon the finding of Baker’s lack of remorse as an aggravator.
B. Appropriateness
[16] Finally, Baker contends that her sentence is inappropriate in light of the nature
of the offense and her character. Indiana Appellate Rule 7(B) provides that this
Court may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. We must “conduct [this] review with
substantial deference and give ‘due consideration’ to the trial court’s decision—
since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and
not to achieve a perceived ‘correct’ sentence . . . .” Knapp, 9 N.E.3d at 1292
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[17] At the time Baker committed the offense, a person convicted of a class D felony
faced a sentence of six months to three years, with an advisory sentence of one
and one-half years imprisonment. Ind. Code § 35-50-2-7(a). Here, Baker was
sentenced to two years imprisonment—six months greater than the advisory
term.
[18] As to the nature of Baker’s offense, she was a CNA whose job was to care for
elderly people in an assisted living facility. She took advantage of one of her
charges, who also suffered from Alzheimer’s disease, by stealing money from
her purse. The reprehensible nature of this offense does not aid Baker’s
appropriateness argument.
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[19] As to Baker’s character, she lied to the trial court and the presentence
investigation investigator when she reported having no prior criminal history.
In fact, she was convicted for theft in Georgia in 1998, and was arrested in
Illinois for theft and false reporting in 2001. Although Baker’s criminal history
is not the worst of the worst, her repeated dishonesty about that history speaks
volumes about her character. Given the particularly contemptible nature of the
offense, as well as Baker’s criminal history and dishonesty, we find that the
two-year sentence imposed by the trial court is not inappropriate in light of the
nature of the offense and her character.
[20] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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