Andrew J. Lessing v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 08 2015, 10:05 am
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 ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew J. Lessing, April 8, 2015
Appellant-Defendant, Court of Appeals Case No.
38A02-1407-CR-466
v. Appeal from the Jay Circuit Court.
The Honorable Brian D. Hutchison,
Judge.
State of Indiana, Cause No. 38C01-1404-FB-10
Appellee-Plaintiff
Baker, Judge.
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[1] Andrew J. Lessing appeals his convictions for class B felony Criminal
Confinement1 and class C felony Battery.2 Lessing argues that the trial court
erroneously admitted a recording of the victim’s 911 call, that there is
insufficient evidence supporting the convictions, and that the convictions
violate double jeopardy principles. Finding no error, we affirm.
Facts
[2] In April 2014, Lessing was in a romantic relationship with Hillary Wagner.
Lessing and Wagner were living together at a Budget Inn near Portland. On
April 4, 2014, Wagner and Lessing were in their room and began to argue.
Lessing had a machete in his possession. At 3:47 a.m., Wagner called 911 but
kept the phone in her pocket because she was afraid of Lessing. On the
recording, Wagner can be heard repeatedly saying “please don’t hurt me.”
Lessing tells Wagner, “if you go outside, you ain’t coming back in,” “if you
leave, you’re done,” “I’m gonna kill you,” “I’ll chop your fucking head off,”
and “[i]f you don’t go inside—the police tell me I’m going to jail, whenever I
get out I will hurt you [and] your family.” Tr. Ex. 1.
[3] Portland Police Officer Todd Wickey and Jay County Sheriff’s Deputy Tony
Lennartz responded to the 911 call. Officer Wickey was the first to arrive and
found Wagner by the motel’s front desk. Wagner, who was upset and crying,
1
Ind. Code § 35-42-3-3. All citations to the criminal code are to the statutes that were in effect at the time
these crimes were committed.
2
I.C. § 35-42-2-1.
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told Officer Wickey that Lessing had been swinging a knife and threatening her
with it. She stated that Lessing had picked up the machete and swung it,
striking her hand and her knee. Officer Wickey and Deputy Lennartz both
observed cuts to her wrist and her knee. Officer Wickey also noticed a red
mark on Wagner’s neck.
[4] Officer Wickey and Deputy Lennartz then proceeded to the motel room, and
Lessing gave them permission to enter. Lessing lay face-down on the bed,
apparently intoxicated. The officers found a machete underneath the bed.
[5] Officer Wickey and Deputy Lennartz arrested Lessing. After that occurred,
Wagner then refused to sign a battery affidavit and was unwilling to provide a
written statement of what had happened. Wagner did tell the officers that
during the altercation, she stepped out of the room, and Lessing then grabbed
her by the hair and neck and pulled her back into the room. It was at that point
that she called 911.
[6] On April 8, 2014, the State charged Lessing with class B felony criminal
confinement and class C felony battery. Lessing’s jury trial took place on May
28, 2014. At the trial, Lessing objected to the admission of the 911 call because
its “insufficient quality” would cause the jury “to conjecture and fill in the
blanks as to what’s being said.” Tr. p. 15-16. The trial court overruled the
objection. Before playing the recording for the jury, the trial court gave the
following limiting instruction:
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Ladies and gentlemen of the jury[,] portions of this audio recording are
not—they’re not easily understood. If you do not understand what’s
being said—if you can not determine what’s being said do not engage
in conjecture or supposition. Just listen to the parts that you know and
the parts that you can understand okay.
Id. at 18-19. Officer Wickey, Deputy Lennartz, and Wagner testified at the
trial. Wagner testified to a different version of events than what she had
originally told the officers. She further testified that she was engaged to marry
Lessing and did not want to see him get in trouble.
[7] The jury found Lessing guilty as charged. On June 24, 2014, the trial court
sentenced Lessing to twelve years for confinement and to six years for battery,
to be served concurrently. Lessing now appeals.
Discussion and Decision
I. Admission of 911 Call Recording
[8] Lessing argues that the trial court erred by admitting the 911 call into evidence.
The admission of evidence is within the discretion of the trial court, and we will
reverse only if the trial court’s decision was clearly against the logic and effect
of the facts and circumstances before it. Lanham v. State, 937 N.E.2d 419, 421-
22 (Ind. Ct. App. 2010).
[9] The sole basis for Lessing’s argument is the poor quality of the recording. He
directs our attention to caselaw holding that the quality of an audio recording
may be “so poor as to negate whatever probative value it might otherwise have
had.” Lamar v. State, 258 Ind. 504, 510, 282 N.E.2d 795, 799 (Ind. 1972).
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[10] In this case, the trial court acknowledged that certain portions of the recording
are unintelligible. It also, however, observed that there were multiple audible
portions, noting that “much of the audible and comprehendible portions of the
exhibit are relevant and material.” Tr. p. 16; see also Dearman v. State, 743
N.E.2d 757, 762 (Ind. 2001) (holding that not every word spoken on a
recording must be intelligible for it to be admissible); Benavides v. State, 808
N.E.2d 708, 711 (Ind. Ct. App. 2004) (holding that the recording as a whole
must be “intelligible enough to be probative of the purpose for which it is being
offered”). We see no basis to second-guess the trial court’s conclusion that
sufficient portions of this recording were intelligible enough to render it
probative and admissible as a whole.
[11] Lessing also contends that “the context in which an allegedly threatening
remark is made is critical in determining whether a person may be held
criminally liable for such a statement,” and argues that context is missing in this
recording because of the inaudible portions. Appellant’s Br. p. 8. In this case,
the parties’ tone of voice was more important than their precise words. The
recording was relevant and probative because it revealed that Wagner was
tearful and afraid, and Lessing was shouting in an angry tone. Thus, even
though some of the parties’ spoken words were unintelligible, the recording as a
whole tended to show that Lessing was attacking Wagner rather than
threatening to harm himself as Wagner claimed at trial.
[12] In any event, because Lessing had based his objection on a concern that the
jurors would speculate about the content of the inaudible portions of the
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recording, the trial court provided a limiting instruction that explicitly
cautioned them not to do so. That instruction cured any unfair prejudice that
may have otherwise been present. See Pruitt v. State, 622 N.E.2d 469, 473 (Ind.
1993) (holding that “[w]e must presume on appeal that the jury followed the
instruction of the trial court and considered [the] evidence for that limited
purpose only”). In sum, we find that the trial court did not abuse its discretion
in admitting this evidence.
II. Sufficiency of the Evidence
[13] Next, Lessing argues that the evidence supporting his convictions is insufficient.
When we review a challenge to the sufficiency of the evidence, we neither
reweigh the evidence nor assess witness credibility. McClellan v. State, 13
N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied. Instead, we consider only
the probative evidence supporting the conviction and the reasonable inferences
to be drawn therefrom. Id. If there is substantial evidence of probative value
from which a reasonable factfinder could have drawn the conclusion that the
defendant was guilty beyond a reasonable doubt, then the verdict will not be
disturbed. Id.A. Criminal Confinement
[14] To convict Lessing of class B felony criminal confinement, the State was
required to prove beyond a reasonable doubt that he knowingly or intentionally
confined Wagner without her consent while armed with a deadly weapon.
I.C. § 35-42-3-3. Lessing’s sole argument on appeal is that the evidence was
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insufficient to prove that Wagner was confined. To “confine” means “to
substantially interfere with the liberty of a person.” I.C. § 35-42-3-1.
[15] The 911 recording reveals that Lessing repeatedly threatened Wagner with
harm and demanded that she remain in the motel room. Specifically, he
threatened her that “[i]f you leave, you’re done” and “I’m gonna kill you.” Tr.
Ex. 1. At one point, he begins to count down from ten, demanding that
Wagner “come inside” or be “done.” Id. At another point, he told her that if
she would not come back inside, he would hurt her and her family. Id. Wagner
told Deputy Lennartz that she had left the motel room during the altercation
but Lessing grabbed her by the hair and neck and pulled her back into the room.
Officer Wickey observed a red mark on her neck, which was consistent with her
contemporaneous description of what had occurred. We find that all of this
evidence together supports a reasonable inference that Wagner was confined
during the altercation. See Spivey v. State, 436 N.E.2d 61, 63 (Ind. 1982)
(cautioning that “[t]he fact that the [victim could] break away from the
confinement does not negate the determining factor that a jury could find,
beyond a reasonable doubt, that a nonconsensual confinement took place”).
[16] Lessing focuses on Wagner’s testimony at trial, which differed from what she
told the officers at the scene. The jury, however, was free to discount this
testimony and conclude that Wagner was an unreliable witness given her
engagement to Lessing and her stated desire that he not get into trouble.
Lessing’s argument amounts to a request that we reweigh the evidence and
reassess witness credibility, which we will not do. We find that the 911
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recording and the testimony of Deputy Lannertz and Officer Wickey are
sufficient to support Lessing’s conviction for class B felony criminal
confinement.
B. Battery
[17] Next, Lessing challenges the sufficiency of the evidence supporting his battery
conviction. To convict Lessing of class C felony battery, the State was required
to prove beyond a reasonable doubt that he knowingly or intentionally touched
Wagner in a rude, insolent, or angry manner by means of a deadly weapon.
I.C. § 35-42-2-1(a)(3). The sole argument Lessing makes on appeal is that the
evidence is insufficient to prove that he touched Lessing knowingly. A person
engages in conduct knowingly if, when he engages in the conduct, he is aware
of a high probability that he is doing so. Ind. Code § 35-41-2-2(b). A
defendant’s mental state is ordinarily a matter of circumstantial proof and may
be “inferred from the defendant’s conduct and the natural and usual sequence
to which such conduct reasonably points.” Boling v. State, 982 N.E.2d 1055,
1057 (Ind. Ct. App. 2013).
[18] In this case, Wagner told Officer Wickey that Lessing had been swinging a
knife and threatening her with it. She told Deputy Lennartz that Lessing had
picked up the machete and swung it, striking her hand and knee. Both officers
observed cuts to Wagner’s wrist and knee.
[19] Lessing swung a knife at Wagner while the two were engaged in a heated
argument. The “natural and usual sequence to which such conduct reasonably
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points” is that Lessing was aware of a high probability of touching Wagner with
the knife. A reasonable jury could find based on this evidence that Lessing
acted knowingly and, therefore, committed class C felony battery.
[20] Lessing again directs our attention to Wagner’s testimony at trial in support of
his contention that the evidence is insufficient. We note, again, that we will not
reweigh evidence or assess witness credibility on appeal. Furthermore, to the
extent that Wagner testified or told the officers that Lessing did not knowingly
batter her, such testimony would have constituted an impermissible legal
conclusion or opinion about Lessing’s guilt or innocence. Ind. Evidence Rule
704(b) (providing that “[w]itnesses may not testify to opinions concerning
intent, guilt, or innocence in a criminal case . . . ; or legal conclusions”). We
find the evidence sufficient to support Lessing’s battery conviction.
III. Double Jeopardy
[21] Finally, Lessing argues that his convictions violate the prohibition against
double jeopardy. Two or more offenses are the same offense in violation of
Article 1, Section 14 of the Indiana Constitution if, with respect to either the
statutory elements of the challenged crimes or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense. Richardson v. State, 717 N.E.
2d 32, 49 (Ind. 1999).
[22] Turning first to the elements of the offenses, we again note that to prove
confinement, the State needed to show that Lessing knowingly or intentionally
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confined Wagner without her consent while armed with a deadly weapon.
I.C. § 35-42-3-3. To prove battery, the State needed to show that Lessing
knowingly or intentionally touched Wagner in a rude, insolent, or angry
manner by means of a deadly weapon. I.C. § 35-42-2-1(a)(3). The essential
elements of class B felony confinement do not establish the essential elements of
class C felony battery, and the reverse is also true. Therefore, the convictions
do not run afoul of the statutory elements test.
[23] Turning next to the actual evidence test, we note that to prevail on this issue, “a
defendant must demonstrate a reasonable possibility that the evidentiary facts
used by the fact-finder to establish the essential elements of one offense may
also have been used to establish the essential elements of a second challenged
offense.” Richardson, 717 N.E.2d at 53. There is no double jeopardy violation
where “the evidentiary facts establishing the essential elements of one offense
also establish only one or even several, but not all, of the essential elements of a
second offense.” Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008).
[24] The following evidence was used to prove that Lessing committed confinement:
 Lessing was brandishing a machete;
 Lessing repeatedly threatened Wagner with harm if she left the motel
room;
 At one point, Wagner left the room, at which point Lessing grabbed her
by the hair and neck and pulled her back into the room;
 Officer Wickey observed a red mark on Wagner’s neck.
The following evidence was used to prove that Lessing committed battery:
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 Lessing was brandishing a machete;
 Lessing was swinging the machete around;
 Lessing struck Wagner with the knife on her hand and knee;
 Officer Wickey and Deputy Lannertz both observed cuts on Wagner’s
hand and knee.
[25] While there is overlap between the evidence proving these two offenses, there is
not a complete overlap. Specifically, evidence that Lessing was threatening
Wagner if she left the room and then grabbed her to pull her back in the room,
leaving a red mark, established confinement but not battery. And evidence that
Lessing was swinging the machete around and struck Wagner with the
machete, causing cuts to her hand and knee, established battery but not
confinement.
[26] We find that there is not a reasonable possibility that the jury used the same
facts to convict Lessing of the two offenses. Therefore, we find that these
convictions do not violate the actual evidence test and, correspondingly, that
there is no double jeopardy violation.
[27] The judgment of the trial court is affirmed.
Najam, J., and Friedlander, J., concur.
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