 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
                                                                       Sep 26 2014, 9:36 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
BRIAN J. MAY                                       GREGORY F. ZOELLER
South Bend, Indiana                                Attorney General of Indiana

                                                   RYAN D. JOHANNINGSMEIER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

LINUS JOHNSON,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )        No. 71A03-1405-CR-155
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                   APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable John M. Marnocha, Judge
                            Cause No. 71D02-1312-FD-1099


                                       September 26, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
      Linus Johnson (“Johnson”) was convicted in St. Joseph Superior Court of Class D

felony theft and ordered to serve thirty months executed in the Department of Correction.

Johnson appeals and raises the following three issues:

       I. Whether the trial court abused its discretion when it admitted testimony
       concerning the contents of a security videotape, which was not admitted at trial;

       II. Whether the trial court abused its discretion during sentencing when the court
       considered theoretical losses from the theft; and,

       III. Whether Johnson’s thirty-month sentence is inappropriate in light of the nature
       of the offense and the character of the offender.

       We affirm.

                              Facts and Procedural History

       On December 9, 2013, Chelsy and Jeff Parker took their son to the emergency

room of Memorial Hospital in South Bend, Indiana. While waiting to see a doctor,

Chelsy left the emergency room waiting area to feed her son. She left her purse in the

seat next to Jeff. Because of his growing discomfort with the number of sick individuals

in the waiting area, Jeff exited the waiting room to sit in the hallway. Jeff failed to

realize that he left Chelsy’s purse on the chair in the waiting room.

       When Chelsy was later asked for her insurance card by hospital personnel, she

realized that her purse had been left in the waiting area. Chelsy retrieved her purse, but

her wallet was missing. The Parkers reported the missing wallet.

       Craig Whitfield (“Whitfield”), the hospital’s security manager, reviewed the

footage of the waiting area recorded by the hospital’s security camera.          Whitfield

reviewed the videotape several times and recognized the man removing the wallet from


                                             2
Chelsy’s purse. Whitfield had spoken to Johnson an hour earlier and recognized his face.

Also, Johnson was seen carrying a garbage bag in the video, and he had been carrying a

garbage bag during his earlier confrontation with Whitfield.

       The theft was reported to the South Bend Police Department and Officer Jack Stilp

also viewed the video recording. Officer Stilp observed Johnson reaching into Chelsy’s

purse and removing an object.

       On December 20, 2013, Johnson was charged with Class D felony theft. A bench

trial was held on March 20, 2014. The State could not produce the hospital security

videotape at trial because the recording had been destroyed.          Johnson objected to

Whitfield’s and Officer Stilp’s testimony concerning the contents of the video, but his

objection was overruled.

       Johnson was found guilty as charged and a sentencing hearing was held on April

16, 2014. After considering Johnson’s extensive prior criminal history, the trial court

ordered Johnson to serve thirty months executed in the Department of Correction with

116 days credit for time served. Johnson now appeals. Additional facts will be provided

as necessary.

                                I. Admission of Evidence

       We review the trial court’s ruling on the admission of evidence for an abuse of

discretion. Jones v. State, 982 N.E.2d 417, 421 (Ind. Ct. App. 2013), trans. denied (citing

Noojin v. State, 730 N.E.2d 672, 676 (Ind. 2000)). We reverse only where the decision is

clearly against the logic and effect of the facts and circumstances. Id.



                                             3
        Johnson argues that the trial court abused its discretion when it allowed Whitfield

and Officer Stilp to identify Johnson as the individual they observed on the security video

stealing an object from Chelsy Parker’s purse. Johnson argues Whitfield’s and Officer

Stilp’s identification of Johnson as the person who stole the wallet “was not based on

personal knowledge by anyone who testified at trial.” Appellant’s Br. at 5.

        In Pritchard v. State, 810 N.E.2d 758 (Ind. Ct. App. 2004), the defendant was

convicted of battering a fellow inmate. The defendant’s entry and exit from the victim’s

jail cell was recorded on a surveillance video. The defendant argued that the witness’s

testimony concerning the contents of the video was inadmissible hearsay. We held that

the defendant’s conduct, as recorded on the surveillance video, “was not intended to be

an assertion by him within the meaning of our rules of evidence.”1 Id. at 761. Because

“no out-of-court statement was made, the recording was not hearsay.” Id.

        The videotape was not introduced into evidence because it had been “purged.” Id.

at 760.     Our court also concluded the trial court did not abuse its discretion when it

admitted the witness’s testimony recounting what he saw on a video recording because

the contents of the video were personally observed by the witness. Id. (citing Indiana

Evidence Rule 602 and stating that witnesses can “testify to things that are within their

personal knowledge). See also Vaughn v. State, 13 N.E.3d 873, 880 (Ind. Ct. App.

2014), trans. pending (concluding that a detective’s testimony concerning the contents of


1
  Indiana Evidence Rule 801(c) defines hearsay as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” “A
statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion.” Ind. Evid. R. 801(a). To be an assertion, the statement must allege a fact
susceptible of being true or false. Vertner v. State, 793 N.E.2d 1148, 1151 (Ind. Ct. App. 2003).
                                                     4
a video “was not hearsay because it was testimony based on the detective’s personal

observation and did not rely on an out-of-court statement”).

      Johnson acknowledges our Pritchard holding, but urges a change in the law.

Appellant’s Br. at 6-7. However, Johnson has not provided a compelling reason to depart

from established precedent. Johnson’s conduct as recorded on the video was not hearsay,

and Whitefield’s and Officer’s Stilp’s testimony recounting Johnson’s actions on the

video was based on their own personal observations. For the same reasons expressed in

Pritchard, we conclude that the trial court did not abuse its discretion when it admitted

Whitfield’s and Officer Stilp’s challenged testimony.

                                     II. Sentencing

      Johnson argues that the trial court abused its discretion when it ordered him to

serve a thirty-month executed sentence in the Department of Correction and that his

sentence is inappropriate in light of the nature of the offense and the character of the

offender.

      A. Abuse of Discretion

      Johnson argues that the trial court abused its discretion when the court considered

theoretical damage that could have resulted from his offense. “[S]entencing 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 (Ind. 2007). An abuse of discretion occurs if the decision is

clearly against the logic and effect of the facts and circumstances. Id. The trial court

may abuse its discretion in sentencing by:

                                             5
          (1) failing to enter a sentencing statement, (2) entering a sentencing
          statement that explains reasons for imposing the sentence but the record
          does not support the reasons, (3) the sentencing statement omits reasons
          that are clearly supported by the record and advanced for consideration, or
          (4) the reasons given in the sentencing statement are improper as a matter
          of law.

Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Anglemyer, 868 N.E.2d at

490-91).

          During his sentencing hearing, Johnson argued that the trial court should consider

that the monetary loss to the victim was only ten dollars. In response, the trial court

stated:

          It was a ten dollar offense just because that’s what was in the wallet. If
          there was a thousand dollars in the wallet, it would have been a thousand
          dollar offense. If there was a hundred dollars, a hundred dollar offense.
          There happened to be ten dollars.

Tr. pp. 56-57.

          Considered within the entire context of the sentencing hearing, the trial court’s

comments were a response to Johnson’s argument for a lesser sentence based the minimal

monetary loss the Chelsy Parker. The trial court’s statements at the sentencing hearing

do not support Johnson’s claim that the court considered a theoretical amount of money

that could have been stolen from Chelsy’s wallet when the court decided to impose a

thirty-month sentence. See e.g. Tr. p. 57 (stating “in light of the criminal history which

has been going on, . . . I think it’s a thirty-month sentence”).

          B. Inappropriate Sentence

          Under Indiana Appellate Rule 7(B), we may “revise a sentence authorized by

statute if, after due consideration of the trial court’s decision, the Court finds that the

                                               6
sentence is inappropriate in light of the nature of the offense and the character of the

offender.” Although we may review and revise a sentence, “[t]he principal role of

appellate review should be to attempt to leaven the outliers, and identify some guiding

principles for trial courts and those charged with improvement of the sentencing statutes,

but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895

N.E.2d 1219, 1225 (Ind. 2008). We must give “deference to a trial court’s sentencing

decision, both because 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.” Trainor v. State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011),

trans. denied (quoting Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007))

(internal quotation marks omitted).

       When we review the appropriateness of a sentence, we consider “the culpability of

the defendant, the severity of the crime, the damage done to others, and myriad other

factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant

has the “burden to persuade us that the sentence imposed by the trial court is

inappropriate.” Shell v. State, 927 N.E.2d 413, 422 (Ind. Ct. App. 2010).

       Johnson argues that his less than maximum thirty-month sentence is inappropriate

because the victim’s loss was minimal.2 However, Chelsy Parker suffered more than just

a ten dollar loss. Her credit cards and driver’s license were stolen, and those items were




2
 On the date Johnson committed his offense, a Class D felony conviction subjected the offender to a
sentence between six months and three years, with an advisory sentence of one and one-half years. See
Ind. Code § 35-50-2-7.
                                                 7
never recovered. Johnson’s offense has therefore subjected Chelsy to a substantial risk of

identity theft.

       Furthermore, Johnson’s extensive criminal history more than supports the thirty-

month sentence he was ordered to serve. Johnson’s prior criminal history dating back to

1973 consists of twenty-three misdemeanor convictions and five felony convictions,

which includes two prior Class D felony theft convictions. Johnson’s inability to lead a

law-abiding life is evident on the record before us.

       For all of these reasons, we conclude that the trial court did not abuse its discretion

in sentencing Johnson and his thirty-month executed sentence is not inappropriate in light

of the nature of the offense and the character of the offender.

                                        Conclusion

       The trial court acted within its discretion when it admitted testimony concerning

the contents of the hospital’s security video. We also affirm Johnson’s thirty-month

sentence in all respects.

       Affirmed.

RILEY, J., and CRONE, J., concur.




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