Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1951 | April 30, 2018 Page 1 of 16

MEMORANDUM DECISION

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

Karen Celestino-Horseman

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Supervising Deputy Attorney 

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tammi Lacy,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 30, 2018

Court of Appeals Case No.

49A02-1708-CR-1951

Appeal from the Marion Superior 

Court

The Honorable Matthew Tandy, 

Judge Pro Tempore

Trial Court Cause No.

49G18-1503-F6-8366

Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1951 | April 30, 2018 Page 2 of 16

Case Summary

[1] Tammi Lacy appeals her conviction for Level 6 felony theft. We affirm.

Issues

[2] The restated issues before us are:

I. whether the trial court properly admitted evidence related 

to the retail store victim’s internal investigation of the 

theft; and

II. whether the trial court properly allowed one of the store’s 

detectives to testify as to what he saw on a surveillance 

video recording of Lacy’s conduct.

Facts

[3] Lacy was employed as a cashier at an Indianapolis Meijer gas station. In 

October 2014, Meijer store detective Andy Neumeister received information 

that there were frequent cash shortages at the gas station where Lacy worked. 

To determine how this was happening and who was responsible for the 

shortages, Neumeister first determined on what shifts the shortages were 

occurring and who was working on those shifts. He then reviewed surveillance 

video footage from those shifts and saw evidence that Lacy was stealing during 

the process of removing money from the cash register and placing it in the store 

safe. For example, when reviewing a recording from October 24, 2014, 

Neumeister observed Lacy remove $160—eight $20 bills—from the cash 

register and place it into a deposit envelope. Before sealing the envelope, Lacy 
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went out of the surveillance camera’s view, then returned to the register shortly 

thereafter with the envelope sealed. When performing a proper cash deposit, an 

employee is supposed to seal the envelope immediately after putting money in 

it. Lacy wrote on the envelope that it contained $120 in cash, scanned it, and 

deposited it in the safe. Neumeister retrieved this envelope before it was 

unsealed and confirmed that it contained only $120, despite Lacy having 

originally put $160 in it before leaving the surveillance camera’s view.

[4] On October 25, 2014, Neumeister was watching live surveillance footage of 

Lacy and observed her carry out another improper cash “drop” or deposit, 

which was $40 short. He and Lacy’s supervisor then went to speak privately 

with Lacy. When Neumeister began talking about the frequent cash shortages 

at the gas station, Lacy initially said she was aware of them but denied that she 

was stealing. However, when Neumeister informed Lacy that her most recent 

deposit was $40 short and asked her for the money, Lacy took $40 from her 

pocket, gave it to Neumeister, and said, “[T]hat’s all I took today.” Tr. Vol. II 

p. 149. Lacy told Neumeister that she could not recall how long she had been 

stealing, but that she had used the money for medical bills, rent for herself and 

her daughter, a student loan, and paying off $2,000 in credit card debt. When 

Neumeister told Lacy that the total amount missing was approximately $4,000, 

she expressed surprise that it had been that much. Lacy then handwrote a 

confession that she had “taken several thousand dollars from Miejer [sic] and 

for reasons I really thought were okay.” Ex. 2. Lacy also signed a printed

confession that Neumeister had prepared, stating in part, “Over the past two 
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and a half months I have been taking money from my cash register, via my 

drops. Approximately two to three times a week, two or three times a day. . . . 

Over that time frame I took approximately $4000.00 dollars.” Ex. 3.

[5] On March 10, 2015, the State charged Lacy with Level 6 felony theft. Lacy 

deposed Neumeister on July 25, 2016. During that deposition, Neumeister said 

that he “went to our internal audit system and began running shortage reports 

for that store or that gas station and started narrowing down, you know, who 

was working, when the shortages were occurring, and who was on the 

registers,” before viewing surveillance footage from the gas station. Tr. Vol. II 

p. 74. As part of discovery, Lacy requested from the State documentation 

related to Neumeister’s theft investigation. Specifically, defense counsel 

emailed the deputy prosecutor, “The amount is in dispute. At the last taped 

statement one deponents [sic] mentioned that there was documentation 

showing exactly how much money was taken. . . . Do you have it?” App. Vol. 

II p. 56. When the State failed to produce that documentation, Lacy filed a 

motion to compel discovery on May 4, 2017. The motion requested that the 

State be compelled “to produce the internal investigation documentation and 

any other documentation related to this case.” Id. at 54. When the State still 

failed to produce this evidence, Lacy filed a motion to exclude it. On June 20, 

2017, the trial court held a hearing on this motion, at which the State 

represented that it had asked Meijer for the requested documentation four times 

but had not received it. The trial court granted Lacy’s motion to exclude 

evidence, specifically ruling “that all evidence related to the internal 
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investigation, any evidence deriving from the investigation including internal 

investigation documentation, and any undiscovered documentation related to 

this case be excluded from being introduced at trial.” Id. at 60.

[6] A jury trial was held on July 13, 2017, before a judge pro tempore who had not 

ruled on Lacy’s motion to exclude evidence. At the outset of Neumeister’s 

testimony, Lacy objected to him testifying about there being any cash shortages 

at the Meijer gas station, because his knowledge to that effect was based on 

internal reports and documentation that had been excluded by the trial court’s 

pretrial ruling and because those reports and documentation were hearsay. 

After preliminary questioning of Neumeister, the trial court overruled Lacy’s 

objection. It stated in part, “He didn’t rely on those documents to do his 

investigation, he created those documents during his investigation. It’s not 

based upon hearsay, it’s based upon work that he did.” Tr. Vol. II p. 75. The 

trial court did not directly address Lacy’s objection based on the pretrial ruling 

excluding evidence.

[7] Later in his testimony Neumeister began referring to what he had seen on the 

store surveillance footage. Before doing so, he (through the State’s questioning) 

explained that he had been trained on how to use and record from the 

surveillance system, that it was in normal operating condition on the days that 

he viewed it, that it accurately recorded and reproduced video images, that it 

records continuously, and that it stores footage for thirty days. As Neumeister 

began describing what he had seen on the surveillance footage, Lacy objected 

on the basis that footage had not been introduced into evidence. The trial court 
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overruled this objection, ruling that Neumeister could testify as to what he had 

seen on the footage without it being introduced. Neumeister testified that he 

was able to zoom in and out when watching the footage and that was how he 

was able to discern the denomination of bills Lacy was removing from the cash 

register and putting in the deposit bag. However, when a DVD recording of the 

surveillance footage was introduced into evidence, Neumeister testified that it 

was of lower quality than the footage he was able to watch and that recordings 

made from the surveillance system were always of lower quality than the 

original and lacked the ability to zoom in and out. In fact, it is not possible to 

see bill denominations on the DVD recording introduced into evidence due to 

its graininess. Lacy objected to the introduction of the DVD recording into 

evidence because it was not the same as the original footage, which had not

been provided to the defense in discovery. The trial court overruled this 

objection as well.

[8] The jury found Lacy guilty as charged, and the trial court convicted and 

sentenced her accordingly. She now appeals.

Analysis

I. General Admission of Evidence Related to Investigation

[9] We first address Lacy’s argument that essentially all evidence related to 

Meijer’s and Neumeister’s internal investigation of her theft should have been 

excluded at trial, in light of the trial court’s pretrial ruling purporting to exclude 

“all evidence related to the internal investigation, any evidence deriving from 
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the investigation including internal investigation documentation, and any 

undiscovered documentation related to this case . . . .” App. Vol. II p. 60. 

Such exclusion would have left the State with virtually no case to present, as no 

law enforcement agency conducted an independent investigation in this matter.

[10] We agree with the State that the pretrial ruling was not a final ruling on the 

admissibility of the evidence. It was more akin to the granting of a motion in 

limine or motion to suppress. A ruling on a motion in limine does not 

determine the ultimate admissibility of evidence. Herrera v. State, 710 N.E.2d 

931, 936 (Ind. Ct. App. 1999). “If error is committed by the trial court in 

admitting evidence that the defendant had sought to be excluded by a motion in 

limine, the error is in the admission of evidence at trial, not in its ruling on the 

pretrial motion.” Id. Thus, the proper question here is whether the trial court 

abused its discretion in admitting evidence at trial.1 Id. A trial court abuses its 

discretion in admitting evidence if its ruling is clearly against the logic and effect 

of the facts and circumstances before it, or if the court has misinterpreted the 

law. Perryman v. State, 80 N.E.3d 234, 247 (Ind. Ct. App. 2017).

[11] The basis of the pretrial ruling excluding evidence was the State’s failure to 

provide Lacy with documentation relating to Neumeister’s investigation into 

cash shortages at the gas station where she worked. In particular, Lacy wanted 

 

1 Additionally, prior to an entry of judgment, trial courts have the inherent power to amend, modify, or 

change an earlier ruling, even if there has been a change of judge between the original and subsequent 

rulings. See Serletic v. Noel, 700 N.E.2d 1159, 1161 (Ind. Ct. App. 1998).
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access to Meijer’s internal auditing reports that revealed the shortages and their 

extent, which in turn prompted Neumeister’s viewing of the surveillance 

footage and his identification of Lacy as the cause of the shortages. Although 

those reports were not introduced at trial, consistent with the pretrial ruling, 

Lacy asserts that all evidence or testimony flowing from those reports—i.e., the 

full extent of Neumeister’s testimony—should have been excluded at trial.

[12] The exclusion of evidence at trial because of a discovery violation by the State 

is an extreme remedy that is warranted only if the State’s actions were 

deliberate and its conduct prevented a fair trial. Kennedy v. State, 934 N.E.2d 

779, 784 (Ind. Ct. App. 2010). Here, although the language of the trial court’s 

pretrial ruling admittedly was very broad, the actual information or 

documentation that Lacy contended was erroneously not provided to her in 

discovery was much narrower. Specifically, as support for her motion to 

compel, Lacy attached a copy of an email her attorney sent to a deputy 

prosecutor, stating, “The amount is in dispute. At the last taped statement one 

deponents [sic] mentioned that there was documentation showing exactly how 

much money was taken. . . . Do you have it?” App. Vol. II p. 56. In fact, the 

State did not have that documentation because Meijer failed to provide it

despite repeated requests for it; the State did not engage in any deliberate 

misconduct in failing to provide this documentation to Lacy.

[13] Given the lack of malfeasance on the State’s part and the relative narrowness of 

what Lacy actually requested, it would have been a very draconian measure to 

exclude any and all evidence related in any way to Meijer’s and Neumeister’s 
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investigation. We also cannot say that the State and Meijer’s failure to provide 

the requested documentation prevented a fair trial. Lacy was able to depose 

Neumeister and so was able to prepare for trial. The relevance of the reports 

that triggered Neumeister’s investigation would have been limited in any event. 

Primarily, it was “course of investigation” evidence, or the reason why 

Neumeister began his investigation and how he came to focus his viewing of 

surveillance videos recorded during Lacy’s shifts. It was the viewing of those 

videos that was the crucial evidence of Lacy’s guilt and identified her as a thief, 

not the reports that led to the viewing. Despite the pretrial order being in place, 

it would have been illogical to prohibit Neumeister from testifying as to what he 

discovered during his investigation and the logical conclusions he drew from his 

discoveries.

[14] The internal audit reports might have had some evidentiary value as to the total 

amount of cash that went missing from the gas station. In order to sustain a 

conviction for Level 6 felony theft, as opposed to a Class A misdemeanor, the 

State was required to prove that she stole at least $750.00 from Meijer. See Ind. 

Code § 35-43-4-2(a)(1). The State established that amount through Lacy’s 

confession, plus Neumeister’s testimony regarding how often he saw Lacy 

stealing from the cash register over a thirty-day period. The internal audit 

reports would have been merely superfluous evidence on that point.2

 

2 Of course, if the reports revealed that less than $750 was stolen, that would be a different matter. There is 

no basis for speculating that they would have done so, however.
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[15] In sum, we conclude the trial court did not abuse its discretion in allowing 

Neumeister to testify about his investigation, despite the broad pretrial ruling 

that arguably could have been read as precluding such testimony. We 

recognize that, in discussing Lacy’s objection at trial, the judge pro tempore 

only addressed her hearsay objection to the evidence, not her argument about 

discovery violations by the State and the pretrial ruling. However, this court 

will uphold a correct legal ruling on the admissibility of evidence “even where 

based on incorrect, or absent, legal reasoning below.” Reaves v. State, 586 

N.E.2d 847, 857 (Ind. 1992).

II. Surveillance Video Recording

[16] Next, we address Lacy’s contention that the trial court erroneously admitted the 

DVD recording of the Meijer surveillance footage and erroneously allowed 

Neumeister to describe what he saw on the footage. Again, our review of the 

admission of evidence is for an abuse of discretion. Perryman, 80 N.E.3d at 247. 

To introduce a video recording into evidence, “‘[T]he proponent must produce 

evidence sufficient to support a finding that the item is what the proponent 

claims it is.’” McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017) (quoting 

Ind. Evidence Rule 901(a)). Where, as here, no witness contemporaneously 

observed what is depicted on a video, it may be admitted into evidence under 

the silent-witness theory. Id. “In order to authenticate videos or photographs 

using the silent-witness theory, there must be evidence describing the process or 

system that produced the videos or photographs and showing that the process 

or system produced an accurate result.” Id. (citing Ind. Evid. R. 901(b)(9)). 
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Generally, when a recording has been made by an automatic camera, “‘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.’” 

McHenry v. State, 820 N.E.2d 124, 128 (Ind. 2005) (quoting Edwards v. State, 762 

N.E.2d 128, 136 (Ind. Ct. App. 2002)). If a foundational requirement is 

missing, circumstantial evidence may be used to establish that it is more likely 

than not that the recording system produced an accurate result. McFall, 71 

N.E.3d at 388.

[17] Here, Neumeister testified that he had been trained on how to use and record 

from the surveillance system, that it was in normal operating condition on the 

days that he viewed it, that it accurately recorded and reproduced video images, 

that it records continuously, and that it stores footage for thirty days. He also 

testified that the DVD introduced at trial was in fact a recording of the 

surveillance footage he had viewed directly from Meijer’s surveillance system, 

although it was of a lesser quality than what he was able to see directly from the 

system. We are satisfied that this testimony was sufficient to authenticate the 

DVD recording of the surveillance footage as a “silent witness” and to make it 

admissible under Evidence Rule 901.

[18] Here, however, the question does not really seem to be whether the DVD was 

properly admitted. The recording from the Meijer surveillance system is rather 

grainy and it is not possible to directly observe Lacy committing theft on it. 

Thus, even if the DVD was erroneously admitted it was not prejudicial to Lacy. 
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Instead, Neumeister had to testify as to what he could observe when viewing 

the clearer surveillance footage at Meijer and had the ability to zoom in and 

out. That testimony—along with Lacy’s confessions—is what constituted proof 

of her guilt.3

[19] It appears to us that any complaint as to Neumeister’s testimony would be more 

accurately framed as a best evidence rule issue, although Lacy did not make an 

express objection on that basis.

4

 Instead, she made a more general objection 

about the original video not having been provided to the defense. Generally, 

under the best evidence rule, “An original writing, recording, or photograph is 

required in order to prove its content unless these rules or a statute provides 

otherwise.” Ind. Evid. R. 1002. The rule applies to video recordings. See Wise 

v. State, 26 N.E.2d 137, 143 (Ind. Ct. App. 2015) (analyzing admissibility of 

copies of cell phone videos under the best evidence rule), trans. denied.

5

 

 

3 Although it is tempting to say that any admission of Neumeister’s testimony was harmless in light of Lacy’s 

confessions, we must keep in mind the corpus delicti rule, as Lacy points out. Under that rule, a person 

cannot be convicted solely on the basis of a nonjudicial confession; there must be independent proof of the 

corpus delicti, meaning some independent evidence that someone committed the crime charged. Shinnock v. 

State, 76 N.E.3d 841, 843 (Ind. 2017). Without Neumeister’s testimony, there is only the challenged—and 

never directly admitted—evidence regarding Meijer’s internal audit reports as evidence that a crime was 

committed by someone.

4 The State contends that Neumeister’s testimony was harmless error because Lacy did not immediately 

object when he first testified regarding what he was able to see on the surveillance footage. This would 

appear to be more of a waiver argument than a harmless error argument. In any case, this testimony was 

given before it was made clear that the DVD recording of the surveillance footage was of lesser quality than 

the footage Neumeister had been able to watch, at which point Lacy objected. We do not believe 

Neumeister’s testimony could be said to be harmless error. 

5

Prior to 2014, Evidence Rule 1001(2) expressly stated that the best evidence rule applied to “photographs” 

and that that term included “videotapes.” The Rule thereafter was amended to state that a “photograph” is 

“a photographic image or its equivalent stored in any form” and it no longer expressly mentions video 

recordings. Ind. Evid. R. 1001(c). We do not believe that our supreme court intended to exclude video 
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Evidence Rule 1003 provides, “A duplicate is admissible to the same extent as 

an original unless a genuine question is raised about the original’s authenticity 

or the circumstances make it unfair to admit the duplicate.” It was arguably 

unfair to admit the DVD in this case because it was of significantly lower 

quality than the original viewed by Neumeister, and as a result of that lower 

quality the jury was unable to see the evidence of theft that Neumeister 

described seeing on the higher-quality original. See Belcher v. State, 797 N.E.2d 

307, 309-10 (Ind. Ct. App. 2003) (holding duplicate of document was 

erroneously admitted in violation of best evidence rule where duplicate was not 

fully legible, including in places that would have been relevant to determining 

guilt of defendant).

[20] However, Evidence Rule 1004 states:

An original is not required and other evidence of the content of a 

writing, recording, or photograph is admissible if:

(a) all originals are lost or destroyed, and not by the proponent 

acting in bad faith;

(b) an original cannot be obtained by any available judicial 

process;

(c) the party against whom the original would be offered had 

control of the original; was at that time put on notice, by 

 

recordings from the best evidence rule by this amendment absent a clear declaration that videos are not 

included within the rule.
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pleadings or otherwise, that the original would be a subject of 

proof at the trial or hearing; and fails to produce it at the trial or 

hearing; or

(d) the writing, recording, or photograph is not closely related to 

a controlling issue.

“Other evidence” to prove the content of an item may include “[t]estimony of a 

witness who recalls the content of the writing, photograph, or recording . . . .” 

Weissenberger’s INDIANA EVIDENCE COURTROOM MANUAL ch. 1004, p. 361 

(2011-2012 ed.).6

[21] Subparts (c) and (d) of Rule 1004 clearly would not apply here. Subpart (b) 

generally has been construed to refer to original items that cannot be 

subpoenaed because they are outside a court’s jurisdiction, which again does 

not appear to have been an issue here. See Weissenberger at p. 362. That 

leaves subpart (a) as a possible basis for allowing Neumeister to testify as to 

what he saw on the original surveillance video footage. It is unclear whether 

the original surveillance footage was “lost” or “destroyed” by the time of trial, 

given that the system normally only saved thirty days-worth of footage before it 

would record over the older material. However, Neumeister also indicated that 

 

6 Although not yet addressed in Indiana, other jurisdictions have held that a witness may not testify as to 

what they saw on a video recording without introduction of the video that the witness actually watched, 

unless the requirements of Evidence Rule 1004 or its equivalent are satisfied. See, e.g., T.D.W. v. State, 137 

So. 3d 574, 576 (Fla. Dist. Ct. App. 2014); State v. Teague, 64 S.W.3d 917, 922 (Mo. Ct. App. 2002); State v. 

Urbaschak, 342 P.3d 1108 (Or. Ct. App. 2015).
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he had made the DVD the day before trial—meaning the older footage would 

have been saved somehow on the Meijer surveillance system.

[22] This case presents an unusual circumstance not apparently foreseen by the 

drafters of Evidence Rule 1004, both here and in other jurisdictions. That is, 

Neumeister’s testimony indicated that it was an inherent technological flaw of 

the surveillance system that any recordings made from it were of lower quality 

than what can be seen on the system itself. It also does not appear that there 

was a practical way for the jury to see the original video, short of a field trip to 

watch the recordings directly from the Meijer surveillance system. There also is 

no indication that the failure to make a clearer DVD duplicate from the original 

video was the result of bad faith on the State’s or Neumeister’s part. Although 

this case may not fit precisely within the parameters of Evidence Rule 1004’s 

language, we note the following comment by the advisory committee that 

drafted Federal Rule of Evidence 1004, upon which Indiana’s rule is closely 

modeled: “Basically the rule requiring the production of the original as proof of 

contents has developed as a rule of preference: if failure to produce the original 

is satisfactorily explained, secondary evidence is admissible.” Fed. R. Evid. 

1004 (Advisory Committee notes). Here, the State and Neumeister provided a 

satisfactory explanation for why the original video could not be produced (or 

reproduced accurately on a DVD). As such, Neumeister could provide 

secondary evidence by testifying about what he was able to see on the original 

video.
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[23] To the extent there could have been more information presented about the 

surveillance video and the circumstances surrounding the DVD’s creation, we 

emphasize that Lacy did not make a best evidence rule objection to 

Neumeister’s testimony. Thus, the State was not given an opportunity to 

provide more of a foundation related to the best evidence rule. See Willis v. 

State, 510 N.E.2d 1354, 1357 (Ind. 1987) (noting State could not be faulted for 

providing inadequate foundation for introduction of evidence where defendant 

did not object on that basis and State was not given opportunity to establish 

foundation), cert. denied; State v. Nelsen, 183 P.3d 219, 223 (Or. Ct. App. 2008)

(noting that application of Evidence Rule 1004 is fact-sensitive and government 

had not been alerted by defendant’s objection that it needed to further develop 

the record on videotape’s admissibility), rev. denied. In sum, given the nature of 

Lacy’s trial objection and the record before us, the trial court did not abuse its 

discretion in allowing Neumeister to testify about what he was able to observe 

on the Meijer surveillance video recordings.

Conclusion

[24] The trial court did not abuse its discretion in allowing Neumeister to testify 

about his investigation into cash shortages at the gas station where Lacy worked 

and in allowing him to testify as to what he observed on surveillance video 

footage. We affirm Lacy’s conviction for Level 6 felony theft.

[25] Affirmed.

Najam, J., and Mathias, J., concur.