      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.



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                                                    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.




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[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.




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[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

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       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.



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       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

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       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

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       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



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       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.




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