Court of Appeals of Indiana | Memorandum Decision 18A-CR-2590 | April 15, 2019 Page 1 of 5

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

Karen Celestino-Horseman

Austin & Jones, P.C.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Benjamin J. Shoptaw

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Stephen Murry,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 15, 2019

Court of Appeals Case No.

18A-CR-2590

Appeal from the Marion Superior 

Court

The Honorable Helen W. Marchal,

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 2 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 3 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). 
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[5] The foundational requirements for admission of a recording made in a noncustodial 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 5 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.