Court of Appeals of Indiana | Memorandum Decision 38A02-1407-CR-466 | April 8, 2015 Page 1 of 11

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

Mark Small

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Andrew J. Lessing,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 8, 2015

Court of Appeals Case No.

38A02-1407-CR-466

Appeal from the Jay Circuit Court.

The Honorable Brian D. Hutchison, 

Judge.

Cause No. 38C01-1404-FB-10

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.