Sollie Nance v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Aug 12 2015, 9:16 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sollie Nance, August 12, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1501-CR-12
v. Appeal from the Marion Superior
Court.
The Honorable Amy M. Jones,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 49G08-1411-CM-50520
Barteau, Senior Judge
Statement of the Case
[1] Sollie Nance appeals from his conviction and sentence for theft, as a Class A
misdemeanor. Ind. Code § 35-43-4-2 (2014). We affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-12 | August 12, 2015 Page 1 of 9
Issues
[2] Nance presents two issues for our review, which we restate as:
I. Whether the trial court erred by admitting certain
testimony at trial.
II. Whether the trial court erred in sentencing Nance.
Facts and Procedural History
[3] On November 6, 2014, Nance was in the Burlington Coat Factory. Cochate
Barnes, the Loss Prevention Officer for Burlington, saw Nance in the men’s
coat department. Barnes recalled seeing Nance in Burlington two days before
wearing the same clothes. Upon seeing Nance again, Barnes went into the loss
prevention office and began watching live video of Nance on the store’s security
cameras. Barnes watched Nance select five coats, leave the department, and
proceed toward the back exit of the store. Barnes exited his office and watched
Nance run out the back exit of the store. Barnes followed Nance through the
back exit and saw Nance drop the coats in the parking lot and run. Barnes
called the police, and, when they arrived, he took Officer Stanley to his office
where they viewed the security video. After watching the video, Officer Stanley
provided a description of Nance to officers in the area. Later, Barnes received a
call that the police had apprehended a man, and he was asked to identify him.
Barnes positively identified Nance as the person who had stolen the coats.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-12 | August 12, 2015 Page 2 of 9
[4] Based on this incident, Nance was charged with theft, as a Class A
misdemeanor. Over defense counsel’s objection at trial, Officer Stanley testified
as to what he saw on the security video. Nance was found guilty, and the court
sentenced him to serve 365 days. Nance now appeals.
Discussion and Decision
I. Admission of Evidence
[5] Nance first contends that the trial court erred by admitting Officer Stanley’s
testimony of what he saw on the video in Barnes’ office. The trial court is
afforded broad discretion in ruling on the admissibility of evidence, and we will
reverse its ruling only upon a showing of an abuse of discretion. Paul v. State,
971 N.E.2d 172, 175 (Ind. Ct. App. 2012). An abuse of discretion occurs when
a decision is clearly against the logic and effect of the facts and circumstances
before the court. Id.[6] At trial, Nance’s counsel objected to Officer Stanley describing what he saw on
the security video. Defense counsel argued that Officer Stanley’s testimony
should not have been admitted because the content of the video was not within
his personal knowledge. On appeal, Nance acknowledges this Court’s decision
in Pritchard v. State, 810 N.E.2d 758 (Ind. Ct. App. 2004) but claims it is
distinguishable because Officer Stanley viewed the video recording of the
incident after it had occurred rather than watching the security video as the
incident was occurring.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-12 | August 12, 2015 Page 3 of 9
[7] In Pritchard, a battery occurred inside the jail. Upon discovering the injured
inmate, a jail officer and the jail nurse reviewed the recording from the jail
security cameras. At trial, over the defendant’s objection, the officer and the
nurse both testified as to what they observed on the security camera recording.
The video recording was never admitted into evidence. A panel of this Court
affirmed the trial court’s admission of the testimony stating that “this is no
different than if they had been standing on cell block E-5 observing the incident.
They clearly can testify to things that are within their personal knowledge.” Id.
at 760. In so holding, the Court cited to Indiana Rule of Evidence 602 and
stated that this rule permits the witnesses “to testify to things that are within
their personal knowledge, such as what the video recording showed.” Id. at 760
n.3.
[8] Thus, Nance is mistaken in his belief of a distinguishing factor between the facts
of his case and those of Pritchard as a reason for us not to rely on Pritchard in our
resolution of the present case. The jail officer and the nurse in Pritchard did not
view the battery occurring on live video as Nance suggests in his brief. Rather,
they, like Officer Stanley, reviewed the video recording of the incident after it
occurred. We conclude, as did the Pritchard panel, that the content of the video
recording was personally observed by Officer Stanley and therefore is within
Officer Stanley’s personal knowledge, to which he may testify.
[9] Additionally, in his brief Nance notes that, generally, under Indiana Rule of
Evidence 1002 an original recording is required in order to prove its content.
However, Indiana Rule of Evidence 1004 states that in the event that all
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-12 | August 12, 2015 Page 4 of 9
originals are lost or destroyed, and not by the proponent acting in bad faith, an
original is not required and other evidence of the content of a recording is
admissible. Without definitively alleging that the State acted in bad faith,
Nance states that “no effort was made to preserve the original video” and that
“it is negligent at the very least and may very well be bad faith.” Appellant’s
Brief pp. 5, 6.
[10] At trial, Barnes was asked about the existence of the video:
Q [Deputy Prosecutor]: Okay. And was there a point in time
when the prosecutor’s office requested a copy of the videotape?
A [Barnes]: Yes.
Q: And were you able to provide the prosecutor’s office with a
copy?
A: No.
Q: And can you explain to the jury why you were unable to do
that?
A: Um, we got a new system and the new system that we have
records in 360. So each camera records everything around it. So
it takes up more data. So by the time I tried to burn it, it ha[d]
already been overlapped. The old system — we used to have an
old system where we wouldn’t have had that problem but the
new system records so much data that it overlapped at the time
that they had requested the video.
Q: And at the time that the prosecutor’s office requested it, um,
did you know you weren’t going to be able to burn a copy?
A: No.
Q: So you weren’t even aware of that until you tried to?
A: Yes.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-12 | August 12, 2015 Page 5 of 9
Tr. pp. 33-34. The circumstances explained by Barnes, while suggesting a less
than desirable level of attention to preserving evidence, do not amount to bad
faith. Further, other than his bare allegation of the possibility of bad faith on the
part of the State, Nance provides no argument and points to no evidence of bad
faith.
[11] Finally, we note that even if the trial court had erred by admitting Officer
Stanley’s testimony, there would be no harm to Nance. Prior to Officer
Stanley’s testimony and without objection by Nance, Barnes testified to what he
saw as he watched Nance on the store’s security cameras. Therefore, Officer
Stanley’s testimony was cumulative of Barnes’ testimony. See Purvis v. State,
829 N.E.2d 572, 585 (Ind. Ct. App. 2005) (harmless error results when
erroneously admitted evidence is merely cumulative of other evidence), trans.
denied.
II. Sentence
[12] Nance was convicted of a Class A misdemeanor and sentenced to a term of 365
days. Pursuant to Indiana Code section 35-50-3-2 (1977), a person who
commits a Class A misdemeanor shall be imprisoned for a fixed term of not
more than one year. On appeal, he argues the trial court erred in sentencing
him to the maximum penalty.
[13] Sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). An abuse
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-12 | August 12, 2015 Page 6 of 9
of discretion occurs if the decision is clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom. Id.[14] Nance takes issue with the trial court’s failure to recognize the mitigating factor
of the minimal, if any, pecuniary loss to the victim. A trial court is not required
to articulate and balance aggravating and mitigating circumstances before
imposing sentence on a misdemeanor conviction. Cuyler v. State, 798 N.E.2d
243, 246 (Ind. Ct. App. 2003), trans. denied. Further, the trial court is not
required to issue a sentencing statement for misdemeanor offenses. See
Anglemyer, 868 N.E.2d at 490 (applying sentencing statement requirements to
felony convictions only). Here, Nance received 365 days, which is an
authorized sentence under the statute for his misdemeanor conviction. At the
time he committed this offense, Nance was on parole for felony burglary and
escape, and his criminal history includes felony burglary, felony criminal
confinement, felony battery, and felony resisting law enforcement. This history
more than justifies the sentence imposed by the trial court. We find no abuse of
discretion.
[15] In addition, Nance claims that his sentence is inappropriate in light of the
nature of the offense and his character. We may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we determine
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender. Ind. Appellate Rule 7(B). However, “we must and
should exercise deference to a trial court’s sentencing decision, both because
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-12 | August 12, 2015 Page 7 of 9
Rule 7(B) requires us to give ‘due consideration’ to that decision and because
we understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App.
2007). A defendant bears the burden of persuading the appellate court that his
sentence has met the inappropriateness standard of review. Anglemyer, 868
N.E.2d at 494.
[16] Although Nance’s crime is unremarkable — a simple theft where the stolen
items were recovered — his character is quite remarkable. As the trial court
noted at sentencing, Nance was on parole for felony burglary and escape when
he committed this offense. Additionally, he has several felony convictions on
his record.
[17] It is clear that prior brushes with the law have proven ineffective to rehabilitate
Nance. Consequently, when he was given the opportunity to re-enter the
community and be a productive citizen, he squandered the opportunity and
continued with his pattern of illegal activity. Nance’s actions here are proof
that a longer period of incarceration is appropriate. Nance has not carried his
burden of persuading this Court that his sentence has met the inappropriateness
standard of review. See id.
Conclusion
[18] For the reasons stated, we conclude that the trial court did not err in admitting
Officer Stanley’s testimony at trial. In addition, the trial court did not abuse its
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-12 | August 12, 2015 Page 8 of 9
discretion in sentencing Nance to 365 days, and Nance’s sentence is not
inappropriate in light of the nature of the offense and his character.
[19] Affirmed.
[20] Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1501-CR-12 | August 12, 2015 Page 9 of 9