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.




Court of Appeals of Indiana | Memorandum Decision 06A01-1501-CR-11 | August 14, 2015          Page 1 of 9
[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.

      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-CR-11 | August 14, 2015              Page 2 of 9
      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


      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-CR-11 | August 14, 2015   Page 3 of 9
      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

      Court of Appeals of Indiana | Memorandum Decision 06A01-1501-CR-11 | August 14, 2015   Page 4 of 9
       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

       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-CR-11 | August 14, 2015   Page 5 of 9
       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

       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-CR-11 | August 14, 2015   Page 6 of 9
       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.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-CR-11 | August 14, 2015   Page 7 of 9
       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.

       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-CR-11 | August 14, 2015   Page 8 of 9
[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.




       Court of Appeals of Indiana | Memorandum Decision 06A01-1501-CR-11 | August 14, 2015   Page 9 of 9
