MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     FILED
court except for the purpose of establishing                             Apr 15 2019, 10:04 am
the defense of res judicata, collateral
                                                                              CLERK
estoppel, or the law of the case.                                         Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman                                  Curtis T. Hill, Jr.
Austin & Jones, P.C.                                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen Murry,                                            April 15, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2590
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Helen W. Marchal,
Appellee-Plaintiff.                                       Judge

                                                          Trial Court Cause No.
                                                          49G15-1703-F6-10608



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2590 | April 15, 2019                    Page 1 of 5
                                           Case Summary
[1]   On October 29, 2016, Stephen Murry threatened to burn down Tihiyya

      Brown’s home if she did not convince two of her relatives to comply with his

      requests to talk. Murry was subsequently charged with and convicted of Level

      6 felony intimidation. Murry appeals his conviction, contending that the trial

      court committed fundamental error by admitting an audio recording of the

      threat. Specifically, Murry claims that the audio recording was of such poor

      quality that the jury was left to speculate as to its contents. Because we

      conclude otherwise, we affirm.



                            Facts and Procedural History
[2]   Prior to October 29, 2016, Brown received a series of calls from Murry. Brown

      had known Murry for a few years and recognized his voice on the phone. After

      receiving “the first couple” calls, Brown downloaded “an app on [her] phone”

      that “would record … any phone call that took place on [her] phone.” Tr. p.

      34. On October 29, 2016, Brown received and recorded a call from Murry

      during which Murry threatened to burn down her home if he was unable to “get

      ahold of” her uncle and cousin. Tr. p. 36. Brown reported Murry’s threat to

      police.


[3]   On or about March 20, 2017, Murry was charged with Level 6 felony

      intimidation. A jury trial was held on August 15, 2017. During trial, the State

      sought to introduce an audio recording of the October 29, 2016 call. Murry


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2590 | April 15, 2019   Page 2 of 5
      objected, arguing that the State failed to properly authenticate the recording.

      The trial court admitted the recording over Murry’s objection. At the end of

      trial, the jury found Murry guilty of the charged offense. Murry was

      subsequently sentenced to 545 days, with 180 days executed in the Marion

      County Jail and 365 days on home detention.



                                 Discussion and Decision
[4]   Murry contends that the trial court erroneously admitted the audio recording of

      his threat to Brown because the recording was inaudible or unintelligible. In

      raising this contention, Murry acknowledges that his counsel did not object to

      admission of the recording on the grounds that it was inaudible or unintelligible

      at trial and that, as a result, he must prove that admission of the recording

      resulted in fundamental error. See Delarosa v. State, 938 N.E.2d 690, 694 (Ind.

      2010) (providing that while a failure to raise a contemporaneous objection on

      the grounds argued on appeal results in waiver, the issue can be reviewed on

      appeal if the reviewing court determines that fundamental error occurred).


              The fundamental error exception is extremely narrow, and
              applies only when the error constitutes a blatant violation of
              basic principles, the harm or potential for harm is substantial,
              and the resulting error denies the defendant fundamental due
              process. The error claimed must either make a fair trial
              impossible or constitute clearly blatant violations of basic and
              elementary principles of due process. This exception is available
              only in egregious circumstances.


      Id. (internal quotations omitted).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2590 | April 15, 2019   Page 3 of 5
[5]   The foundational requirements for admission of a recording made in a non-

      custodial setting are: “1) that the recording is authentic and correct, 2) that it

      does not contain evidence otherwise inadmissible, and 3) that it be of such

      clarity as to be intelligible and enlightening to the jury.” McCollum v. State, 582

      N.E.2d 804, 811–12 (Ind. 1991). “The trial court has wide discretion in

      determining whether these criteria have been met.” Id. at 812. In considering

      the admissibility of audio recordings, the Indiana Supreme Court has also held

      that “[e]very recorded word need not be intelligible for we only require that,

      taken as a whole, the [recording] be of such clarity that it does not lead to jury

      speculation as to its content.” Hestand v. State, 440 N.E.2d 1121, 1122 (Ind.

      1982). Murry claims only that the recording was of such poor quality that the

      jury was required to speculate as to its contents.


[6]   The trial court reviewed the recording before admitting it into evidence. With

      respect to the recording’s clarity, the trial court noted “I actually was surprised

      by the clarity. I didn’t hear a lot of background noise. Now there are certainly

      moments in the communication where it is unintelligible. I give you that but

      there were things that to me, I heard fairly clearly.” Tr. pp. 23–24.


[7]   Upon reviewing the recording, we find the trial court did not abuse its

      discretion in admitting the recording. While some words are indeed

      unintelligible, the portion of the recording containing Murry’s threat is of

      sufficient clarity to be intelligible and enlightening to the jury. See McCollum,

      582 N.E.2d at 811–12. The listener is able to hear the threat being levied by the

      voice that was identified as belonging to Murry. Thus, with respect to the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2590 | April 15, 2019   Page 4 of 5
      threat, the jury need not have speculated as to what Murry said. Because the

      relevant portion of the recording is of such clarity that the listener can decipher

      the threat levied by Murry, we conclude that the trial court did not err, much

      less commit fundamental error, by admitting the recording into evidence at

      trial.1


[8]   The judgment of the trial court is affirmed.


      Crone, J., and Tavitas, J., concur.




      1
        Murry also argues that without the recording, there is insufficient evidence to sustain his conviction.
      However, given our conclusion that it was not error to admit the recording into evidence, we need not
      consider this additional claim.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2590 | April 15, 2019                       Page 5 of 5
