MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                  Sep 28 2016, 8:30 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher J. Petersen                                  Gregory F. Zoeller
Elkhart, Indiana                                         Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Leon C. Sieg,                                            September 28, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A05-1512-CR-2144
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Evan S. Roberts,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D01-1402-FD-211



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016   Page 1 of 14
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Leon C. Sieg (Sieg), appeals his conviction for

      strangulation, a Class D felony, Ind. Code § 35-42-2-9(b)(1) (2013); and

      domestic battery, a Class D felony, I.C. §§ 35-42-2-1.3(a)(2),(b)(1)(A) (2013).


[2]   We affirm.


                                                    ISSUE

[3]   Sieg raises one issue on appeal, which we restate as follows: Whether the trial

      court abused its discretion in admitting certain audio recordings into evidence.


                           FACTS AND PROCEDURAL HISTORY

[4]   On February 26, 2014, at approximately 5:10 p.m., the Elkhart City Police

      Department received a 911 call. The caller, who identified herself as Amanda

      Elsworth (Elsworth), reported that she was located near the intersection of

      Division Street and Main Street in Elkhart, Elkhart County, Indiana, and was

      observing an ongoing altercation “in the middle of the street.” (State’s Exh.

      101). Elsworth stated that “there’s this couple . . . the guy has his hands around

      her neck and was beating on her.” (State’s Exh. 101). When asked for a

      description of the couple, Elsworth stated that “[t]hey both had coats on. She

      has shorter hair. He’s got a hat on.” (State’s Exh. 101). The Elkhart City

      Police Department subsequently dispatched Corporal Jason Runyan (Corporal

      Runyan) to investigate the report. When Corporal Runyan arrived at the area

      of Division Street and Main Street, nobody was there.



      Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016   Page 2 of 14
[5]   Approximately twenty minutes later, the Elkhart City Police Department

      received another 911 call. The caller, a male, urgently stated, “Y’all need to

      come over here to 303 Waterfall Drive cuz this man is beating the shit out of his

      woman.” (State’s Exh. 102). While attempting to glean more information

      from the caller, the dispatcher referred to two people who were “beating the shit

      out of each other.” (State’s Exh. 102). The caller quickly corrected the

      dispatcher, stating, “No he’s beating the shit outta the woman. I didn’t say

      nothing about each other. God damn y’all. . . . Get over here and get this man

      off this woman.” (State’s Exh. 102). The caller indicated that the altercation

      was occurring “in the hall” on the “first floor” but added that “the apartment

      number is 804.” (State’s Exh. 102). When the dispatcher asked for the caller’s

      name, he said, “I ain’t gonna give my business, I’m just . . . a witness.” (State’s

      Exh. 102). Again, Corporal Runyan was dispatched to respond to the call.


[6]   When Corporal Runyan arrived at the apartment complex at 303 Waterfall

      Drive, he did not observe any disturbances on the first floor, so he proceeded to

      Apartment 804. The door was either ajar or unlocked, so Corporal Runyan

      “went in to check and make sure everybody was okay[,] and there was nobody

      in that apartment.” (Tr. p. 225). However, a neighboring resident informed

      Corporal Runyan that “possibly the female was [in] [A]partment 901.” (Tr. p.




      Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016   Page 3 of 14
      225). When Corporal Runyan went upstairs to Apartment 901, he found

      Peachie New (New), 1 who “was visibly upset and crying.” (Tr. p. 226).


[7]   New informed Corporal Runyan that she and her fiancé, Sieg, had been at

      Bowly’s Bar, which is located at “Main Street and Freight Street, about a block

      south of Main and Division.” (Tr. p. 230). When they left the bar, Sieg “was

      mad. He grabbed the back of [New’s] hair and started dragging her down

      [Division] [S]treet.” (Tr. p. 232). “She said that the back of her head hurt.

      When he was pulling her, she hit her right shoulder and that her shoulder was

      hurting.” (Tr. p. 233). Sieg also “picked her up and put his hand around her

      throat, strangling her up against a building,” which temporarily obstructed her

      ability to breathe. (Tr. p. 233). Sieg continued to drag New down the street

      until they reached the Waterfall Drive apartment complex, where they lived.

      New stated that while in the elevator, Sieg threw her down and “punched her in

      the face several times.” (Tr. p. 233). When they reached their apartment,

      Apartment 804, Sieg “threw her on the bed, again, strangled her with his hands,

      [and] punched her a couple more times.” (Tr. p. 233). New again stated that

      she was unable to breathe when he had his hands around her neck. When New

      informed Sieg that she was going to call the police, “[h]e called her a bitch and

      took off.” (Tr. p. 234). Although New never personally called the police,

      “[s]he was scared,” and she went to Apartment 901 to hide from him. (Tr. p.

      234). Corporal Runyan observed that New “had some marks . . . on the right



      1
          By the time of trial, New had married the defendant and taken his name, Sieg.


      Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016   Page 4 of 14
      side of her neck—and then she also had a cut on the inside of her lip.” (Tr. p.

      234).


[8]   After obtaining a description of Sieg from New, Corporal Runyan radioed other

      Elkhart police officers to be on the lookout for him. Because Sieg was in

      possession of New’s cell phone when he left the apartment, a dispatch officer

      called the phone in an attempt to ascertain his location. Sieg answered, and

      after learning that the call was from the Elkhart City Police Department, he

      stated that he “didn’t do shit.” (State’s Exh. 103). However, when the dispatch

      officer explained that he was trying to ensure everybody’s safety, Sieg

      responded, “I’m alright, man, I left the house. I got angry and then I pushed

      her around . . . . I aggravated a few people in the apartment building and I’m

      sorry, but that’s it.” (State’s Exh. 103). When the dispatch officer asked for

      Sieg’s location, Sieg hung up. After the dispatch officer called back, Sieg yelled

      out a few strongly-worded insults before hanging up again.


[9]   Upon hearing the dispatch to be on the lookout for Sieg, Elkhart City Police

      Corporal Andy Chrobot (Corporal Chrobot) began searching areas near the

      apartment complex. “At Jackson and Johnson, [he] saw a subject that roughly

      matched the description of the accused.” (Tr. p. 273). Corporal Chrobot

      attempted to make contact, but the man continued walking. Corporal Chrobot

      closed in on him and loudly asked for his identification. The man responded,

      “Leon [i.e., Sieg]. . . . You got me.” (Tr. 274). Corporal Chrobot placed Sieg

      under arrest.



      Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016   Page 5 of 14
[10]   On February 28, 2014, the State filed an Information, charging Sieg with Count

       I, strangulation, a Class D felony, I.C. § 35-42-2-9(b)(1) (2013); and Count II,

       domestic battery, a Class A misdemeanor, I.C. § 35-42-2-1.3(a)(2) (2013). On

       January 22, 2015, the State amended the Information by adding an

       enhancement charge as Count III, domestic battery with a previous, unrelated

       domestic battery conviction, a Class D felony, I.C. §§ 35-42-2-1.3(a)(2),(b)(1)(A)

       (2013).


[11]   On October 14-15, 2015, the trial court conducted a jury trial. By this time,

       New, who was married to Sieg, had retracted her statement. Thus, to prove its

       case, the State relied primarily on the testimony of Corporal Runyan, who

       recounted the statements New made to him immediately after the incident

       while she was upset, as well as photographic evidence of the injuries New

       sustained. In addition, during the State’s case-in-chief, the trial court admitted,

       over Sieg’s objection, the audio recordings of the two 911 calls made by

       Elsworth and the anonymous man. Also over Sieg’s objection, the trial court

       admitted an audio recording of a March 18, 2014 telephone conversation

       between Sieg and another man while Sieg was incarcerated awaiting trial. In

       this phone conversation, Sieg expressed that he believed that he was likely to

       get time because of New’s statement to the police. Sieg stated, “I’ll admit that I

       put my hands on her. I didn’t do the other choke [(inaudible)]. No way. Fuck

       that shit. . . . Strangulation, fuck that, that’s three years. I’ll do the . . .

       domestic, that’s only a year, maybe six months. I could do that on my head,

       you know.” (State’s Exh. 104(b)).


       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016   Page 6 of 14
[12]   During the defense’s case-in-chief, New testified. Despite her contrary sworn

       statement, she claimed that Sieg never strangled or punched her. Instead, she

       stated that when she spoke to Sieg while he was in jail, he had reminded her

       that she was very intoxicated, and she nearly fell into the street, at which point

       Sieg had “grabbed [her] and he dragged [her] to the sidewalk” in order to save

       her from being hit by a vehicle. (Tr. p. 356). She thus testified that the

       observable marks on her body would have been the result of him pulling her out

       of the street to save her life, and that the cut on her lip was just a cold sore.


[13]   At the close of the evidence, the jury returned guilty verdicts as to both Counts I

       and II. Thereafter, Sieg stipulated that he had a prior conviction for battery,

       and the trial court found him guilty of Count III as well. On November 9,

       2015, the trial court held a sentencing hearing. The trial court vacated Count II

       and entered a judgment of conviction on Counts I and III, both Class D

       felonies. The trial court ordered Sieg to serve three years on Count I, fully

       executed in the Indiana Department of Correction. For Count III, the trial

       court imposed a consecutive one-year suspended sentence.


[14]   Sieg now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                             I. Standard of Review

[15]   Sieg challenges the trial court’s admission of certain evidence. A trial court is

       vested with sound discretion in ruling on the admissibility of evidence. Wise v.

       State, 26 N.E.3d 137, 140-41 (Ind. Ct. App. 2015), trans. denied. On appeal, we


       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016   Page 7 of 14
       will uphold an evidentiary ruling unless the trial court has abused its discretion.

       Id. at 141. A trial court abuses its discretion if its decision “is clearly against the

       logic and effect of the facts and circumstances before it.” Id. However, even if

       the trial court abuses its discretion, we will not disturb the judgment so long as

       the admission or exclusion of evidence results in harmless error, which is error

       that does not affect the defendant’s substantial rights. Duncan v. State, 23

       N.E.3d 805, 809, 811 (Ind. Ct. App. 2014), trans. denied.


                                              II. Audio Recordings

                                                   A. 911 Call

[16]   Sieg first claims that the trial court abused its discretion “by admitting into

       evidence the audio recording of a 911 call . . . in which the declarant on the

       recording spoke about a man engaged in a physical altercation with the

       woman.” (Appellant’s Br. p. 5). As the State points out, there were two

       separate audio recordings of 911 calls admitted into evidence, in both of which

       the caller reported that a man was beating up a woman. Thus, the State argues

       that Sieg has waived this claim for appeal because he has failed to specify to

       which recording he objects. We agree. See Ind. Appellate Rule 46(A)(8)(a)

       (requiring that a party’s argument be supported, in part, by “cogent reasoning”

       and citations to the record). Nevertheless, in his argument, Sieg contends that

       the caller refused to identify himself to the dispatcher. Because the first 911

       caller identified herself as Elsworth, we are able to discern that Sieg’s argument

       concerns the second 911 call made by the male from the apartment complex on



       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016   Page 8 of 14
       Waterfall Drive (i.e., State’s Exhibit 102). As such, we elect to address Sieg’s

       argument on the merits waiver notwithstanding.


[17]   According to Sieg, “the contents of the audio are inadmissible hearsay and . . .

       it is impossible to cross-examine this declarant.” (Appellant’s Br. p. 5).

       Because the unidentified caller was not available for cross-examination, Sieg

       maintains that “this falls under the ‘silent witness’ theory, requiring a

       heightened standard of authentication.” (Appellant’s Br. p. 5). Pursuant to

       Indiana Evidence Rule 901(a), “[t]o satisfy the requirement of authenticating or

       identifying an item of evidence, the proponent must produce evidence sufficient

       to support a finding that the item is what the proponent claims it is.”


[18]   Once again, the State argues that Sieg has waived his argument for appeal

       because Sieg has advanced a different theory on appeal than his grounds for

       objection during the trial. It is well established that “[a]n objection to the

       admissibility of evidence must state with specificity the grounds for the

       objection. Any other grounds not argued before the trial court with respect to

       that evidence are waived.” Porter v. State, 700 N.E.2d 805, 806 (Ind. Ct. App.

       1998) (citation omitted). In this case, Sieg objected to the admission of the 911

       call at trial on grounds of inadequate foundation and authentication,

       specifically asserting that the caller should have been identified. 2 Because Sieg




       2
         Sieg also raised a hearsay objection, contending that it would be highly prejudicial to the defense if the
       audio recording was published to the jury. However, we find that Sieg has waived any hearsay argument on
       appeal by failing to develop a cogent, appropriately-cited argument. App. R. 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016       Page 9 of 14
       challenged only the lack of the caller’s identification before the trial court and

       did not contend that the audio recording was not capable of being authenticated

       under the silent witness theory, the argument is waived. 3


[19]   Sieg’s silent witness argument aside, we find no merit in his contention that

       proper authentication of the 911 call required the caller’s identification. At

       trial, Sieg relied on King v. State, 560 N.E.2d 491, 494-95 (Ind. 1990), in which

       our supreme court discussed a longstanding requirement

                that a caller’s identity be established as a foundation for the
                admission of the content of [a] telephone call. The identity of the
                caller need not be proved beyond a reasonable doubt; identity of
                the declarant may be established by circumstantial evidence; and
                conflicts in the proof of the identity go to the weight of the
                evidence and not the admissibility.


       However, in Young v. State, 696 N.E.2d 386, 389 (Ind. 1998), the supreme court

       stated that “[a] telephone call to a 911 system may not always require such

       authentication where the point of submitting it as evidence is not really to

       establish the identification of the caller.” In the present case, the caller’s

       identity was not at issue. Rather, the admission of the 911 call established how



       3
         We note that the silent witness theory allows for the admission of photographs and video recordings “as
       substantive evidence, so long as that evidence is also relevant.” Sheckles v. State, 24 N.E.3d 978, 986 (Ind. Ct.
       App. 2015), trans. denied. Our courts have not yet applied the foundational requirements of the silent witness
       theory to audio recordings of phone calls. The theory applies “where there is no one who can testify as to
       [the photograph’s or video recording’s] accuracy and authenticity because the photograph [or video
       recording] must ‘speak for itself’ and because such a ‘silent witness’ cannot be cross-examined.” Wise, 26
       N.E.3d at 141. Admission under the silent witness theory requires “a strong showing of the photograph’s [or
       video recording’s] competency and authenticity.” Id.



       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016 Page 10 of 14
       the police discovered the crime scene. See id. At trial, Corporal Runyan

       identified the recording (i.e., State’s Exhibit 102) as the 911 call that the Elkhart

       City Police Department received at approximately 5:30 p.m. on February 26,

       2014. Based on the contents of this 911 call, Corporal Runyan was dispatched

       and reported to the apartment complex on Waterfall Drive, where he

       discovered a distraught and injured New. Accordingly, we find that the trial

       court acted within its discretion in admitting this audio recording.


                                            B. Jailhouse Phone Call

[20]   Sieg also claims that the trial court abused its discretion by admitting a portion

       of his jailhouse telephone conversation into evidence. During this call, Sieg

       made incriminating statements, including his admission “that [he] put [his]

       hands on [New].” (State’s Exh. 104(b)). On appeal, Sieg analogizes his

       jailhouse phone call to a custodial interrogation, in which the State is prohibited

       from the “use of those statements unless the State can demonstrate the use of

       procedural safeguards effect [sic] to secure the defendant’s privilege against self-

       incrimination.” (Appellant’s Br. p. 6). According to Sieg, the State failed to

       establish that certain procedural safeguards were in place during his telephone

       conversation, thereby rendering the contents of that conversation inadmissible.

       We disagree.


[21]   The Fifth Amendment to the United States Constitution provides that no

       person “shall be compelled in any criminal case to be a witness against

       himself.” This “privilege against self-incrimination prohibits admitting

       statements given by a suspect during ‘custodial interrogation’ without a prior

       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016 Page 11 of 14
       Miranda warning.” Gauvin v. State, 878 N.E.2d 515, 520 (Ind. Ct. App. 2007),

       trans. denied. Thus, “a person who has been ‘taken into custody or otherwise

       deprived of his freedom of action in any significant way’ must, before being

       subjected to interrogation by law enforcement officers, be advised of his rights

       to remain silent and to the presence of an attorney and be warned that any

       statement he makes may be used as evidence against him.” Id. “Statements

       elicited in violation of Miranda are generally inadmissible in a criminal trial.”

       Id. At the time of the phone call, Sieg was incarcerated and awaiting trial; thus,

       he was certainly in custody. See id. However, his voluntary phone call

       absolutely does not rise to the level of an interrogation by law enforcement

       officers and, therefore, does not necessitate a Miranda warning.


[22]   Nevertheless, the State contends that in Lamar v. State, 282 N.E.2d 795 (Ind.

       1972), our supreme court “laid out five requirements for the admission of a

       jailhouse call.” (State’s Br. p. 14). The Lamar court required that the admission

       of a sound recording should be preceded by a foundation disclosing, in relevant

       part, “[t]hat all required warnings were given and all necessary

       acknowledgements and waivers were knowingly and intelligently given.”

       Lamar, 282 N.E.2d at 800. Although we note that Lamar is distinct from the

       present case because it dealt with the admissibility of a tape recording of a

       defendant’s in-custody interrogation by police officers rather than a defendant’s

       freely-made jailhouse phone call, we nevertheless find that Sieg received

       adequate warnings before he made incriminating statements.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016 Page 12 of 14
[23]   At trial, Investigator Ron Harvey (Investigator Harvey) of the Elkhart County

       Sheriff’s Department testified that the policy of the Elkhart County Jail provides

       that “[a]nytime [the inmates are] out of the cell and they want to use the phone,

       they’re allowed to use it as long as they have money on the books to make the

       phone call or they can make a collect call.” (Tr. p. 331). Investigator Harvey

       explained that when an inmate makes a phone call, he or she knows that the

       conversation is being recorded. Specifically, at the beginning of the call,

       “[t]here’s a preempt message telling—from Securus telling them that they are

       being recorded and it will be monitored by law enforcement and personnel at

       the jail. Also, the person who is receiving the call hears that same prompt. So

       they also know it’s being recorded.” (Tr. p. 330).


[24]   State’s Exhibit 104(b), which was played for the jury, included only an excerpt

       from Sieg’s phone conversation. This excerpt did not include the warning

       message. Although not admitted as evidence, a full version of the telephone

       conversation, which did include the warning message, was made part of the

       record. During the trial, Sieg objected to the admission of Exhibit 104(b) based,

       in part, on the fact that the excerpt omitted the warning message. He did,

       however, indicate that the warning message “is standard procedure with that

       system” and noted that he did not “want to put the . . . jury through a long—if

       they have to play a longer version of it.” (Tr. pp. 333, 335). Moreover, Sieg

       himself testified during his case-in-chief he heard the warning prior to his phone

       call but nevertheless “was talking to [his] boss” and stated that he “put [his]

       hands on [New]” even though, at trial, he claimed he did so to save her life.


       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016 Page 13 of 14
       (Tr. p. 424; State’s Exh. 104(b)). Accordingly, we find that Sieg voluntarily

       made incriminating statements despite receiving a warning that his phone call

       would be monitored and recorded by law enforcement. Therefore, the trial

       court acted within its discretion in admitting the audio recording into evidence.


                                               CONCLUSION

[25]   Based on the foregoing, we conclude that the trial court acted within its

       discretion by admitting the challenged audio recordings into evidence.


[26]   Affirmed.


[27]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 20A05-1512-CR-2144 | September 28, 2016 Page 14 of 14
