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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.

FILED
Jan 28 2011, 8:36 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MATTHEW D. BARRETT Logansport, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TRAVIS R. RUSH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 09A02-1006-CR-637

APPEAL FROM THE CASS SUPERIOR COURT The Honorable Richard Maughmer, Judge Cause No. 09D02-0805-FC-8

January 28, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Travis R. Rush appeals his conviction for battery, as a Class C felony. Rush raises two issues for our review: 1. Whether the trial court abused its discretion when it admitted into evidence an audio recording of Rush and his wife, Vicki. Whether the State presented sufficient evidence to support Rushs conviction.

2.

We affirm. FACTS AND PROCEDURAL HISTORY In 2001, Rush and Vicki married. They lived in Logansport with their three minor children. In April of 2008, Rush and Vicki separated after their relationship became strained and tense. At the time, Vicki was working twelve-hour shifts from 6:00 p.m. to 6:00 a.m. at Tyson Foods in Logansport. While she was at work, Rush would watch after the children. It was not unusual for Rush to call Vicki at work. On April 25, 2008, Rush called Vicki at work. That phone call was recorded by Vickis supervisor, Jamie Simmons. Simmons informed Vicki that he had recorded the call, and Vicki authorized Simmons to record any future phone calls. On April 29, Rush again called Vicki at work. That call was also recorded by Simmons, although Simmons was unable to capture the beginning of the conversation. During the phone call, Rush became angry at Vicki and threatened her. And, after the conversation, Vicki left work and went home out of concern for the safety of her children.

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En route to her home, Vicki called the Logansport Police Department and requested that an officer meet her at her residence. However, Vicki arrived home before an officer arrived, and, while still on her cell phone with the dispatcher, she entered her house. As she stepped over the threshold, she saw Rush standing to her right. Rush said something to her and then struck her in the face with his fist. The dispatcher heard Vicki scream and also heard a loud, angry male voice. Rush then took Vickis cell phone out of her hand, and the dispatcher got disconnected. After Rush struck her in the face, Vicki retrieved her car keys and attempted to run. However, as she passed her kitchen sink, Rush grabbed her from behind, pulled her to the floor, and raised his foot over her as if he were going to stomp on her. Vicki rolled onto her left side and curled up her body. She then lost consciousness. Logansport police arrived shortly thereafter. Officer Parmeter was the first to arrive on the scene. As he entered the residence, he observed a large amount of blood on the kitchen floor. He also saw Vicki staggering around the kitchen, bleeding profusely from her face and head. Rush was sitting at the kitchen table, and when Officer Parmeter ordered Rush to place his hands on his head, Rush instead lit a cigarette. Other officers then arrived and arrested Rush. Paramedics then arrived on the scene and immediately transported Vicki to the hospital. There, Vicki was in severe pain and appeared confused at times. Medical staff performed CT scans on her head and face. As a result of the battery, Vicki had facial injuries and lacerations around her nose, mouth, and the left side of her head, accompanied by bruising. One of the lacerations on her nose required sutures to close, as
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did a laceration around her left eyebrow. Her nose was fractured in several places and was displaced, requiring surgery to repair. As a result, Vicki now has trouble with her sense of smell. Vicki also suffered a concussion, and upon her discharge from the hospital she was prescribed antibiotics and pain medication. On May 2, 2008, the State filed an information against Rush charging him with, among other things, battery as a Class C felony. On March 24, 2010, Rush filed a motion to suppress the April 25, 2008, and April 29, 2008, recorded telephone conversations. In support of the admissibility of those conversations, Vicki testified that, after Simmons had recorded the April 25th conversation, she gave him permission to make future recordings, although she did not specifically tell him to record the April 29th conversation. The trial court ruled that the April 25th conversation was of poor quality and, therefore, inadmissible. However, the court concluded that the April 29th recording was authorized, clear, and admissible. The court held Rushs jury trial on April 14-15, 2010. Rush objected to the States request to admit the April 29th recording, but the court overruled Rushs objections. However, when the recording was played to the jury, the court informed the jury that that recording was "being offered for the limited purpose of proving or tending to prove that Mr. Rush was angry during the telephone conversation that occurred prior to the incident. I caution you that the language used[,] while offensive[,] is not an element of the offense as charged." Appellants App. at 318. At the close of the States case, Rush moved for a directed verdict, which the court denied. Rush then rested his case without presenting evidence and moved for a judgment on the evidence, which the court denied. The jury
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found Rush guilty of battery, as a Class C felony, and the court entered the judgment of conviction and sentence accordingly. This appeal ensued. DISCUSSION AND DECISION Issue One: Admission of Recordings Rush first argues that the trial court abused its discretion when it admitted into evidence the April 29 recorded conversation. Our standard of review of a trial courts admission of evidence is an abuse of discretion. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007). A trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court. Id. In reviewing the admissibility of evidence, we consider only the evidence in favor of the trial courts ruling and any unrefuted evidence in the defendants favor. Dawson v. State, 786 N.E.2d 742, 745 (Ind. Ct. App. 2003), trans. denied. Rush contends that the trial court abused its discretion for three reasons. First, Rush asserts that the recordings lacked sufficient foundation. Second, Rush argues that the recording violated the Indiana Wiretap Act. And, third, Rush suggests that the admission of the recordings violated his Sixth Amendment right to confront witnesses against him. None of Rushs arguments are persuasive. As our Supreme Court has held: The foundational requirements for the admission of a tape 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. Kidd v. State, 738 N.E.2d 1039, 1042 (Ind. 2000). Rush asserts that none of those three requirements were met here.
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Rush first asserts that a proper foundation was not established because the recording proffered at trial was a copy, and therefore not "authentic," and that the recording omitted the beginning of the conversation, and therefore not "correct." But Indiana Evidence Rule 1003 generally permits duplicates to be offered in lieu of originals, and Rush does not explain why that Rule should not apply here. Further, Vicki testified that the recording played for the jury was the same conversation that she had held with Rush on April 29, even though the beginning of the conversation was missing. Her testimony authenticated the recording. See Ind. Evidence Rule 901(a). Rush also claims that the recording only contained evidence which was unfairly prejudicial and therefore inadmissible under Indiana Evidence Rules 402, 403, and 404. But the trial court gave the jury a limiting instruction before it permitted them to hear the recording, and the conversation was not irrelevant. We are not, therefore, persuaded by Rushs assertions to the contrary. Third, Rush asserts that the State lacked a proper foundation for the recording because it lacked clarity. But Rush acknowledges that "the audio of the conversation could be understood." Appellants Br. at 12. Rushs argument on this issue is simply a request for this court to reweigh the evidence, which we will not do. See Dawson, 786 N.E.2d at 745. Rush next contends that the trial court abused its discretion in admitting the audio recording because Simmons obtained the recording in violation of the Indiana Wiretap Act ("the Act"). Under the Act, "[a] person who knowingly or intentionally intercepts a communication in violation of this article commits unlawful interception, a Class C
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felony." Ind. Code

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