MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Feb 17 2015, 10:06 am
Memorandum Decision shall not be regarded as                               Feb 17 2015, 10:06 am




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
Karen M. Heard                                            Gregory F. Zoeller
Vanderburgh County Public Defender’s Office               Attorney General of Indiana
Evansville, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Reko Deprea Levels,                                      February 17, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1404-CR-177
        v.                                               Appeal from the
                                                         Vanderburgh Circuit Court
State of Indiana,
                                                         The Honorable Kelli E. Fink,
Appellee-Plaintiff.                                      Magistrate

                                                         82C01-1310-FD-1122




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 82C01-1310-FD-1122 | February 17, 2015           Page 1 of 8
[1]   Reko Deprea Levels was convicted after a jury trial of theft as a Class D felony,1

      adjudicated a habitual offender ,2 and sentenced to six-and-a-half years

      executed. He appeals his conviction and sentence raising the following issues:

                 I. Whether the trial court abused its discretion when it admitted
                 footage and still photographs from the store’s security cameras;


                 II. Whether a police officer’s statement to Levels that he would be
                 willing to write Levels a conversion ticket if Levels gave the officer the
                 stolen item constituted an enforceable plea agreement;


                 III. Whether the State presented sufficient evidence to support Levels’s
                 conviction for theft; and


                 IV. Whether Levels’s sentence was inappropriate in light of the nature
                 of the offense and the character of the offender.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Sometime after midnight on October 5, 2013, Levels, his girlfriend, and his son

      entered a Phillips 66 store where Tiffany Smith (“Smith”) was working as a

      cashier. Smith’s cellphone was sitting on the counter because she was using its

      built-in calculator as part of her duties. After stepping away from the counter to




      1
        See Ind. Code § 35-43-4-2(a). We note that, effective July 1, 2014, a new version of this criminal statute was
      enacted. Because Levels committed his crime prior to July 1, 2014, we will apply the statute in effect at the
      time he committed the crime.
      2
          See Ind. Code § 35-50-2-8(a).


      Court of Appeals of Indiana | Memorandum Decision 82C01-1310-FD-1122 | February 17, 2015            Page 2 of 8
      assist other customers, she returned to find that her cellphone was no longer on

      the counter. Smith called the police, and Officer Mark DeCamps (“Officer

      DeCamps”) of the Evansville Police Department responded.


[4]   Smith informed Officer DeCamps that she recognized Levels as one of the

      customers in the store at the time her phone was stolen. After getting in touch

      with the driver of the taxi that picked up Levels and his companions, Officer

      DeCamps went to Levels’s home. He handcuffed Levels and, without advising

      him of his Miranda rights, began questioning him. During the course of the

      questioning, Officer DeCamps told Levels that if he produced the stolen phone,

      he would write Levels a ticket for conversion rather than arrest him for theft.

      Levels retrieved the phone and was released from custody.


[5]   The State charged Levels with one count of theft as a Class D felony, and an

      additional count alleging that he was a habitual offender. Levels filed a motion

      to suppress, and an evidentiary hearing was held wherein Levels argued that his

      retrieval of the phone as well as any statements he made during the un-

      Mirandized interrogation should be suppressed. The trial court granted

      Levels’s motion.


[6]   At trial, the State presented evidence from the taxi driver that, as Levels and his

      companions entered the taxi, Levels said “if she didn’t want her cell phone

      stolen, she shouldn’t have left it on the counter and paid closer attention to it.”

      Tr. at 20. Over Levels’s objection, the State also introduced video footage and




      Court of Appeals of Indiana | Memorandum Decision 82C01-1310-FD-1122 | February 17, 2015   Page 3 of 8
       still photographs from the store’s thirteen security cameras that showed the man

       Smith identified as Levels taking her phone off the counter and leaving with it.


[7]    At the conclusion of the trial, the jury found Levels guilty of theft and of being a

       habitual offender. Levels was sentenced to two-and-a-half years executed for

       theft, enhanced by four years for being an habitual offender. Levels now

       appeals.


                                      Discussion and Decision

                I. Admission of Security Camera Photos and Video
[8]    The admission and exclusion of evidence falls within the sound discretion of

       the trial court, and we review the trial court’s decision only for an abuse of

       discretion. Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct. App. 2012). An

       abuse of discretion only occurs when the decision is clearly against the logic

       and effect of the facts and circumstances. Id.


[9]    Levels argues that the trial court abused its discretion when it allowed the State

       to present the footage and still photographs from the security cameras. He

       contends that the security footage and photos constituted fruits from the earlier

       un-Mirandized custodial interview and should, therefore, have been suppressed.

       Levels asserts that Officer DeCamps would not have requested the security

       camera footage had he not engaged in the un-Mirandized interview.


[10]   The trial court suppressed the evidence that it deemed was the product of

       officer’s interview, and there is nothing in the record before us to indicate that


       Court of Appeals of Indiana | Memorandum Decision 82C01-1310-FD-1122 | February 17, 2015   Page 4 of 8
       the security camera footage and stills were obtained by exploitation of that

       interview. Rather, the trial court’s decision to admit the challenged evidence

       was adequately based on routine police procedure, the victim’s statements to

       police that the phone was stolen inside the store and that she recognized Levels

       as one of the customers present when the phone was stolen, and the taxi

       driver’s testimony that Levels stated “if she didn’t want her cell phone stolen,

       she shouldn’t have left it on the counter and paid closer attention to it.” Tr. at

       20. The trial court’s conclusion that the security camera footage and still

       photographs were not the result of the exploitation of illegal conduct was not

       clearly against the logic and effect of the facts and circumstances before it, and

       we conclude that the trial court did not abuse its discretion in admitting the

       evidence.


                               II. Existence of a Plea Agreement
[11]   Levels also contends that Officer DeCamps’s offer to write him a ticket for

       conversion as a Class A misdemeanor allowing him to appear in court at a later

       time in exchange for Levels returning the stolen phone constituted a binding

       plea agreement and that, as a result, the trial court should have required the

       State to honor the terms of that agreement.


[12]   We begin by noting that, although Levels referenced during pre-trial hearings

       the promises made by Officer DeCamps, at no point during trial did he raise the

       issue of enforcement of the purported plea agreement. “The failure to object at

       trial results in the waiver of an issue for purposes of appeal.” Bruno v. State, 774


       Court of Appeals of Indiana | Memorandum Decision 82C01-1310-FD-1122 | February 17, 2015   Page 5 of 8
       N.E.2d 880, 883 (Ind. 2002). Because Levels did not raise this issue at trial, we

       conclude he has waived it for purposes of appeal.


       Waiver notwithstanding, he has no grounds to insist the State accept a guilty

       plea on a charge of conversion. Levels’s characterization of Officer DeCamps’s

       offer to write a ticket for conversion as being a promise to induce a guilty plea is

       misguided for two reasons. First, the offer made by Officer DeCamps was to

       retrieve the phone in exchange for a conversion ticket; it was not quid pro quo

       for a guilty plea. Second, Levels’s decision to accept the conversion ticket rather

       than be arrested did not constitute a guilty plea; Levels was not asked to admit

       guilt in any formal or legal sense. We, therefore, conclude that the actions of

       Officer DeCamps did not constitute a binding plea agreement.


                                 III. Sufficiency of the Evidence
[13]   When a defendant claims that the evidence presented at trial was insufficient to

       support a conviction, we neither reweigh the evidence nor judge the credibility

       of the witnesses; rather, we examine only the evidence most favorable to the

       judgment, together with all of the reasonable and logical inferences to be drawn

       therefrom. Woods v. State, 939 N.E.2d 676, 677 (Ind. Ct. App. 2010), trans.

       denied. A conviction may be sustained based on circumstantial evidence alone

       if that circumstantial evidence supports a reasonable inference of guilt. Maul v.

       State, 731 N.E.2d 438, 439 (Ind. 2000).


[14]   Levels argues that the State did not present evidence sufficient to prove beyond

       a reasonable doubt that it was in fact Levels who took the phone. Levels’s
       Court of Appeals of Indiana | Memorandum Decision 82C01-1310-FD-1122 | February 17, 2015   Page 6 of 8
       claim rests on the contention that the footage and stills from the security

       cameras catching him committing the crime are inadmissible, a claim which we

       reject. Therefore, we conclude that the evidence presented by the State was

       sufficient to support Levels’s conviction of theft as a Class D felony.


                             IV. Appropriateness of the Sentence
[15]   At the time Levels was sentenced, the advisory sentence for a Class D felony is

       one-and-a-half years, with a minimum of six months and a maximum of three

       years. Ind. Code § 35-50-2-7. For the adjudication as a habitual offender, the

       court may enhance sentence the sentence on the underlying offense by an

       additional term not less than the advisory sentence for the offense, nor more

       than three times that advisory sentence. Ind. Code § 35-50-2-8. Appellate courts

       may revise a sentence after careful review of the trial court’s decision if they

       conclude that the sentence is inappropriate based on the nature of the offense

       and the character of the offender. Ind. Appellate Rule 7(B). Even if the trial

       court followed the appropriate procedure in arriving at its sentence, the

       appellate court still maintains a constitutional power to revise a sentence it finds

       inappropriate. Hope v. State, 834 N.E.2d 713, 718 (Ind. Ct. App. 2005). The

       defendant has the burden of persuading the appellate court that his sentence is

       inappropriate. King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). While

       the trial court is not afforded excessive deference, “we must and should exercise

       deference to a trial court’s sentencing decision” in part because of the trial

       court’s unique perspective on sentencing decisions. Rutherford v. State, 866

       N.E.2d 867, 873 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 82C01-1310-FD-1122 | February 17, 2015   Page 7 of 8
[16]   Levels argues that his sentence is inappropriate because he has children, his

       offense was non-violent, and he showed remorse. In addition, Levels suggests

       this court should reduce his sentence because the victim was without her phone

       for only five hours, she did not receive any phone calls during that time, and the

       phone was returned undamaged.


[17]   Without regard to the nature of the offense, consideration of Levels’s character

       alone is dispositive. He has an extensive criminal history including multiple

       felony convictions spanning two states, including several violent felonies and a

       previous adjudication as a habitual offender. Levels’s criminal record indicates

       he is a career criminal, and we, therefore, conclude his sentence of two-and-a-

       half years for the theft enhanced by four years for being a habitual offender is

       not inappropriate.


[18]   Affirmed.


[19]   Friedlander, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82C01-1310-FD-1122 | February 17, 2015   Page 8 of 8
