author: RUSH, Justice.

text:
    Ralph ANDREWS, Appellant (Plaintiff), v. MOR/RYDE INTERNATIONAL, INC., Appellee (Defendant).
    No. 20S04-1406-PL-399.
    Supreme Court of Indiana.
    June 19, 2014.
    Rehearing Denied Aug. 11, 2014.

      Robert T. Sanders III, Elkhart, IN, Attorney for Appellant.
    Glenn L. Duncan, Lisa Gilkey Schoet-zow, Elkhart, IN, Attorneys for Appellee.
   On Petition to Transfer from the Indiana Court of Appeals, No. 20A04-1303-PL-141

RUSH, Justice.

Indiana significantly restricts recovery of common-law punitive damages, including a heightened burden of proof, a cap on their amount, and diverting 75% of such awards to the State. But we have held those restrictions do not reach statutory treble-damage awards under the Crime Victims Relief Act — and today, we reach the same conclusion as to mandatory “exemplary damage” awards under the Indiana Sales Representative Act. We therefore grant transfer and reverse the trial court.

Background

From 1996 until 2008, Ralph Andrews was an independent commissioned sales representative for Mor/Ryde International, Inc. After Mor/Ryde terminated Andrews’s contract, he sued, alleging that Mor/Ryde owed him unpaid commissions.

One count of Andrews’s complaint sought recovery under the Indiana Sales Representative Act. Ind.Code 24-4-7 (2007). The Sales Representative Act requires certain businesses to pay their commissioned wholesale sales agents all accrued commissions within fourteen days of terminating the principal-agent relationship. I.C. § 24-4-7-5(a). “A principal who in bad faith fails to comply” with that requirement “shall be liable, in a civil action brought by the sales representative, for exemplary damages in an amount no more than three (3) times the sum of the commissions owed to the sales representative.” I.C. § 24 — 4—Y—5(b).

On cross-motions for summary judgment that are not challenged here, the trial court ruled that Mor/Ryde had complied with the termination provisions of Andrews’s contract, and that the Sales Representative Act applied to its contract with Andrews. Mor/Ryde then moved the trial court to determine whether “exemplary damages” under the Sales Representative Act are subject to Indiana’s statutory restrictions on awards of “punitive damages,” including proof by “clear and convincing evidence” and diversion of three-quarters of the award to the State. I.C. §§ 34-51-3-2, -6 (2008) (generally, the “Punitive Damages Act” or just “the Act”). The trial court agreed with Mor/Ryde that the punitive-damage restrictions do apply, but granted leave for an interlocutory appeal.

The Court of Appeals accepted the interlocutory appeal, and a divided panel affirmed the trial court. The majority accepted Mor/Ryde’s reasoning that the terms “exemplary” and “punitive” are often used interchangeably to denote damages awarded not to compensate the claimant, but to punish the defendant — and that because exemplary damages under the Sales Representative Act meet that definition, they must be subject to the Punitive Damages Act. Judge Barnes dissented, agreeing with Andrews that the Act applies only to discretionary common-law punitive damage awards, not statutory damage awards like the Sales Representative Act — relying on our holding in Obremski v. Henderson that similar treble-damage awards as a civil remedy for certain crime victims are “regarded as distinct from recovery of common law punitive damages,” and thus not limited by the Act. 497 N.E.2d 909, 911 (Ind.1986). We agree with Judge Barnes, and therefore grant transfer and reverse the trial court.

Standard of Review

Because statutory interpretation is a question of law, we review such issues de novo, and do not defer to a trial court’s interpretation of the statute’s meaning. State v. Int’l Bus. Machines Corp., 964 N.E.2d 206, 209 (Ind.2012). That is, we “independently review the statute’s meaning and apply it to the facts of the case under review.” Id. (quoting Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind.2001)) (internal quotation marks omitted). Accordingly, we consider de novo whether the Punitive Damages Act’s restrictions apply to treble damages under the Sales Representative Act.

Discussion and Decision

Indiana first restricted common-law punitive damage awards in 1984, when it required them to be proved by “clear and convincing evidence.” I.C. §§ 34-4-34-1, -2 (Supp.1984). But the current Punitive Damages Act’s sweeping limitations were enacted in 1995, “as part of a comprehensive tort-reform package” aimed at “the tort and products liability fields.” Weinberger v. Estate of Barnes, 2 N.E.3d 43, 48-49 (Ind.Ct.App.2013), trans. denied (quoting Andrew P. Wirick & Ann Marie Waldron Piscione, Tort Law Reform (?) and Other Developments in Indiana Tort Law, 29 Ind. L.Rev. 1097, 1097 (1996)) (internal quotation marks omitted). The Act’s goals were to “discourage plaintiffs from bringing punitive damages claims,” to “decrease the plaintiffs windfall recovery” and “protect defendants from excessive punitive damage awards,” and generally to “combat perceived ills associated with the rising number of punitive damage awards.” Id. (citations omitted). And it used three mechanisms to accomplish those objectives: requiring proof by “clear and convincing evidence,” I.C. § 34-51-3-2 (2008); capping awards at the greater of three times compensatory damages or $50,000, I.C. § 34-51-3-4; and diverting three-fourths of the punitive damage award to the State, I.C. § 34-51-3-6. In each regard, the Act — both in its goals and its mechanisms — were targeted at the type of discretionary, open-ended punitive damage awards available at common law, which the Legislature had concluded were being sought and awarded too liberally. Since punitive damages are a creation of common law, limiting (or even prohibiting) their recoverability is within the Legislature’s discretion. Cheatham v. Pohle, 789 N.E.2d 467, 471-72 (Ind.2003).

By contrast, other causes of action and corresponding remedies are purely the Legislature’s own creation. One such example is the Crime Victims Relief Act, which permits the victims of certain crimes to bring an action for up to three times their pecuniary losses plus attorney fees. I.C. § 34-24-3-1 (2008 & Supp.2011). To the extent those awards exceed the victim’s actual damages, their purpose is no less “punitive” or “exemplary” than their common-law counterparts. Yet we held that such actions were not subject to proof by “clear and convincing evidence,” as the first version of the Punitive Damages Act required, because “recovery of treble damages under this section is regarded as distinct from recovery of common law punitive damages.” Obremski, 497 N.E.2d at 911. We agree with Judge Barnes that Obremski’s distinction between common-law punitive damages and statutory exemplary damages is controlling here. While the Punitive Damages Act was enacted to drastically restrict recovery in light of perceived abuses at common law generally, the Sales Representative Act’s treble-damage provisions at issue here — like the similar Crime Victims Relief Act provisions in Obremski — were enacted to increase recovery from what the common law would otherwise permit. We think it highly unlikely that the Legislature would expand a remedy with one hand (the Sales Representative Act or the Crime Victims Relief Act), while restricting it with the other (the Punitive Damages Act).

Moreover, there is a substantive distinction between statutory treble damages under the Sales Representative Act and common-law punitive damages. A claim for unpaid commissions sounds in contract. But Indiana follows “the rule of no punitive damages in contract cases,” Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind.1993), unless the claimant “pleadfs] and prove[s] the existence of an independent tort of the kind for which Indiana law recognizes that punitive damages may be awarded,” Miller Brewing Co. v. Best Beers of Bloomington, Inc., 608 N.E.2d 975, 984 (Ind.1993) (emphasis added). “Bad faith” breach of a contract will not support punitive damages unless there is a “special relationship” between the parties (such as the sometimes arms-length, sometimes-fiduciary relationship between an insurer and its insured) “to support imposition of a tort duty.” Hickman, 622 N.E.2d at 518. But the Sales Representative Act deviates from those common-law principles by permitting treble damages for a principal’s “bad faith” failure to pay commissions within the specified time. I.C. § 24-4-7-5(b). Since such a damage award would not have been available at common law, it cannot be the type of “common law punitive damages” that Obremski holds are restricted by the Punitive Damages Act.

Finally, the Legislature could readily have abolished Obremski’s distinction between common law and statutory punitive damages as part of the major 1995 amendments to the Punitive Damages Act, but it chose not to do so. While a single decision of this court may not be enough to establish “legislative acquiescence,” see Durham ex rel. Estate of Wade v. U-Haul Int’l, 745 N.E.2d 755, 768 (Ind.2001) (Rucker, J., dissenting), we find it instructive that an amendment that dramatically increased the reach of the Punitive Damages Act nevertheless did not include a change extending it to encompass statutory treble damages.

Conclusion

Like Judge Barnes, we “cannot discern why a different rule should apply to an award of treble damages under the [Sales Representative Act]” than the rule Obremski applied to such damages under the Crime Victims Relief Act. We therefore grant transfer, hold that treble damages under the Sales Representative Act are not subject to the Punitive Damages Act, and accordingly reverse the trial court.

DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ, concur.

      . Such public policy determinations are the Legislature’s prerogative, and we do not judge the wisdom or suitability of the laws it enacts to those ends. State v. Doe, 987 N.E.2d 1066, 1070 (Ind.2013).


source: Caselaw Access Project

license: Public Domain

text:
    Nick McILQUHAM, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    No. 49S05-1401-CR-28.
    Supreme Court of Indiana.
    June 20, 2014.

      Deborah Markisohn, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-1212-CR-631

RUSH, Justice.

Police responded to a report of a very young child, unsupervised and partially clothed, wandering near a pond at an apartment complex. Defendant, the child’s father, arrived shortly thereafter and agreed to let the police check the safety of his apartment before leaving the child with him. “Courts should not be reticent in enforcing the constitutional rule restricting the search of a person’s home -without a warrant or consent,” Hawkins v. State, 626 N.E.2d 436, 439 (Ind.1993) — but here, Defendant consented to police entry into the apartment, and the child’s mother who was the leaseholder consented to a full search. Because of their consents, the contraband found in the apartment was properly admissible, and we affirm the trial court.

Facts and Procedural History

At about 9:00 on the evening of July 5, 2011, two police officers responded to a call about an unsupervised toddler (identified as R.), naked from the waist down, wandering near an apartment-complex retention pond and trying to eat Cheerios off the ground. Shortly after they arrived, Defendant walked up, saying that he was her father and had dozed off while watching her. One officer told Defendant that police “needed to come back to [Defendant’s] apartment and make sure what the living conditions were for the child, make sure it was safe, and that [police] would probably end up getting ahold of CPS.” At the time, there was no discussion of exactly what such a “safety check” would entail, but Defendant and police appear to have had a common understanding — in a police interview - later that night, Defendant described the police request as “wanting] to come back to my house and make sure everything is fit,” and the officer testified that he intended to “look[ ] to see what the — how the apartment is, dirty, clean, if there is any food, if there is a bed for the child to sleep in. The whole purpose is for the safety of the child.” Defendant “said it was okay” and walked back to the apartment with the two officers, carrying R. part of the way.

When they arrived at the apartment, Defendant opened the door for police, then immediately “made a bee line for the kitchen” at a “very fast pace” and began making “very furtive movements from the [kitchen] counter to his pockets.” Because police could not tell what Defendant had grabbed, they performed a pat-down— finding no weapons, but that Defendant had instead “stuffed a bunch of ... marijuana into his pockets.” In plain view on the counter, there were also “some baggies that had been cut on the corners,” more marijuana, digital scales, and cash. Police then Mirandized Defendant and arrested him for possession of marijuana and child neglect. Defendant said he “sometimes” lived in the apartment, but was not on the lease and the leaseholder, R.’s mother, was at work.

Police then called Mother, who arrived thirty to sixty minutes later and was “very upset” to learn what police had found in the home. They advised her of her Miranda rights, told her that police had been called “for a welfare check,” and told her “that CPS would be notified [and] could determine whether [she] should or should not have [R.] ” and the decision was not the officers’ to make. They further explained that they wanted to see “[i]f the house was safe,” because they “didn’t want to take [R.] ” into CPS custody. They advised Mother of her “Pirtle rights,” and she signed a consent to search the apartment. In the back bedroom of the apartment, police found more marijuana, as well as a gun case under the bed with a loaded .22-caliber revolver inside. Defendant admitted that the drugs and the gun were his and that Mother was unaware of them.

Defendant was charged with Unlawful Possession of a Firearm by a Serious Violent Felon as a Class B felony (because of a 2009 C-felony conviction for battery causing serious bodily injury, for which he was still on probation), Neglect of a Dependent as a Class D felony, and Class A misdemeanors for dealing marijuana, possessing marijuana, and possession of paraphernalia. He waived jury trial, pleaded guilty to the neglect and marijuana-possession counts, and proceeded to bench trial on the firearm, dealing, and paraphernalia counts. During the trial, Defendant moved to suppress all evidence found during the pat-down and during the subsequent search, arguing that he never consented or that he and Mother consented only under the duress of threats to take R. into CPS custody. The trial court held those issues under advisement until conclusion of evidence and post-trial briefs, then denied the motion. The court then acquitted Defendant of dealing marijuana, found him guilty of the firearm and paraphernalia charges, accepted his guilty pleas to the neglect and marijuana-possession charges, and sentenced him to a total of six years.

Defendant appealed, arguing that the handgun and paraphernalia were obtained through an unconstitutional search — challenging the warrantless entry into the apartment, the validity of his or Mother’s consents to search, and sufficiency of the evidence for possessing paraphernalia. The Court of Appeals affirmed, holding that the searches were valid because the “community caretaking” exception to the Fourth Amendment permitted warrantless entry into the apartment to ensure the safety of unattended toddler R., and therefore declining to address whether the consents to search were valid. McIlquham v. State, 992 N.E.2d 904 (Ind.Ct.App.2013). We granted transfer, thereby vacating the Court of Appeals decision. McIlquham v. State, 2 N.E.3d 686 (Ind.2014) (table); Ind. Appellate Rule 58(A). We now affirm, holding that Defendant and Mother validly consented to the searches — and accordingly, we decline to address the community-caretaking rationale the Court of Appeals advanced. (As to affirmance of Defendant’s conviction for possession of paraphernalia, we summarily affirm the Court of Appeals.)

Standard of Review

We review a trial court’s ruling on a motion to suppress under a standard “similar to other sufficiency issues”— whether, without reweighing the evidence, there is “substantial evidence of probative value that supports the trial court’s decision.” State v. Richardson, 927 N.E.2d 379, 385 (Ind.2010). However, we not only “consider the evidence favorable to the trial court’s ruling,” but also “substantial uncontradicted evidence to the contrary, to decide whether the evidence is sufficient to support the ruling.” Holder v. State, 847 N.E.2d 930, 935 (Ind.2006). If the trial court made any findings of fact, we will review them only for clear error, Murphy v. State, 747 N.E.2d 557, 559 (Ind.2001); but the ultimate “ruling on the constitutionality of a search” is a legal conclusion that we review de novo, Garcia-Torres v. State, 949 N.E.2d 1229, 1232 (Ind.2011).

Discussion and Decision

I. Warrantless Searches and Consent Exception.

“Protection against unreasonable searches and seizures is one of the most essential constitutional rights” under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. Brown v. State, 653 N.E.2d 77, 79 (Ind.1995). A warrantless search violates the federal provision unless it falls within one of “a few specifically established and well-delineated exceptions.” Holder, 847 N.E.2d at 935 (internal quotation marks omitted). Our State constitutional provision, “although almost identical in text to its federal counterpart, nevertheless requires a different analysis that focuses on the totality of the circumstances,” State v. Washington, 898 N.E.2d 1200, 1205 (Ind.2008) — an inquiry that “turn[s] on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs,” as well as “other relevant considerations under the circumstances,” Litchfield v. State, 824 N.E.2d 356, 361 (Ind.2005). “A war-rantless search based on lawful consent is consistent with both the Indiana and Federal Constitutions.” Campos v. State, 885 N.E.2d 590, 600 (Ind.2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1978) and Perry v. State, 638 N.E.2d 1236, 1240 (Ind.1994)).

II. Validity of Defendant’s Consent to Enter or Search.

Under both the Fourth Amendment and the Indiana Constitution, the State carries “the burden of proving ‘that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.’ ” Campos, 885 N.E.2d at 600 (quoting Bustamonte, 412 U.S. at 248, 93 S.Ct. 2041, and citing Kubsch v. State, 784 N.E.2d 905, 917-18 (Ind.2003)). “ ‘Voluntariness is a question of fact to be determined from all the circumstances.’ ” Campos, 885 N.E.2d at 600 (quoting Bustamonte, 412 U.S. at 248-49, 93 S.Ct. 2041). And “a consent to search is valid except where procured by fraud, duress, fear, or intimidation or where it is merely a submission to the supremacy of the law.” Joyner v. State, 736 N.E.2d 232, 242 (Ind.2000).

If police imply that the defendant has no right to resist a search, any purported “consent” will be found invalid. Such coercion may be implied by what police say. For instance, asking for consent to search while also affirmatively telling the subject that the search is “necessary” renders consent invalid because it implies that refusing to consent is not an option. See Campos, 885 N.E.2d at 595, 600. Similarly, consent is invalid if police assert that they will get a warrant regardless of consent, as though a warrant were a foregone conclusion — though merely stating that they will seek a warrant may be permissible. Daniel v. State, 582 N.E.2d 364, 368-69 (Ind.1991). Actions, too, may imply coercion. If someone voluntarily opens the door for police, who then enter with guns drawn and begin searching with no further discussion, there is no valid “consent” to the search because in such circumstances, no reasonable person could interpret merely opening the door for entry as also implying consent to search the premises. Smith v. State, 889 N.E.2d 836, 838-40 (Ind.Ct.App.2008).

But even considering the undisputed facts that favor Defendant, we see no coercive words or actions here. Defendant argues that he was effectively “in custody” or under duress because, as he puts it, “[his] young daughter was in police custody and he had just been told police had to inspect the apartment for him to get his child back.” We disagree. First, it was Defendant who initially approached police and not vice-versa, so the encounter began as consensual. Second, police stating that they “would probably end up getting ahold of CPS,” with no assertions about what CPS would do, is no more coercive than stating that they will seek a warrant, as Daniel holds may be permissible. Third, we note that by Defendant’s own account in his post-arrest statement to police, he was allowed to carry R. as he led police back to the apartment — which we see as a strong sign of a non-confrontational, non-coercive encounter, and certainly inconsistent with R. being “in police custody” as he contends. Finally, we see little practical difference between police colloquially stating that they “needed to come back to [Defendant’s] apartment” to verify safe living conditions, rather than directly asking whether they may do so. Accordingly, when Defendant told police “it was okay” to check the apartment, we find no reason not to take his consent at face value.

Moreover, just as coercion may be implied, so may consent. “An explicit verbal consent or any other form of affirmative invitation to enter a dwelling is not necessary to constitute consent for purposes of the Fourth Amendment.” United States v. Villegas, 388 F.3d 317, 324 (7th Cir.2004) (internal quotation marks omitted). To the contrary, “[i]t is well established that consent may be manifested in a non-verbal as well as a verbal manner.” United States v. Walls, 225 F.3d 858, 863 (7th Cir.2000). When police identify themselves, ask permission to speak with a defendant, and do not threaten the defendant or brandish their weapons, opening the door and allowing them to enter has been held to “sufficiently manifest consent for the officers to enter.” Villegas, 388 F.3d at 325; see also Walls, 225 F.3d at 862-63 (consent to enter was validly given when “Walls opened the door and stepped back to allow [agents’] entrance” after they had identified themselves and what they were investigating). Likewise here, after giving express consent, Defendant led police back to the apartment, then opened the door for them — with no indication that he tried to prevent or delay their entry, or that police forced their way past him. His actions at the door were consistent with his express consent given at the pond, and further indicate his consent to police entering the apartment.

And immediately after he allowed them to enter, Defendant’s actions gave them independent cause for the pat-down that revealed the baggies of marijuana, no matter what might otherwise have been within the scope of the “safety check” to which he consented. Making a “bee line” to the kitchen, then furtively stuffing unknown objects into his pockets, amply warranted a pat-down for officer safety — and thus to discovery of the scales, cash, and additional marijuana that were in plain view on the counter. It was well within the trial court’s discretion to admit those items into evidence on the basis of consent, so we need not address the “community caretak-ing” rationale on which the Court of Appeals relied.

III. Validity of Mother’s Consent to Search.

Finding no federal or State constitutional defect with the evidence found through Defendant’s express consent, we turn to Mother’s consent. Defendant challenges whether Mother’s consent to search was validly obtained, similarly arguing that she was in custody or under duress — or in the alternative, that the search exceeded the scope of her consent. We reject each argument.

First, the evidence viewed consistently with the standard of review reveals that she was fully advised of her rights. She signed a business-card-sized “Consent to Search Warning” specifically stating in part, “You have the right to refuse to allow me to search your [apartment].” And at the same time, the officer advised her “that she did not have to sign this document, that she had the right to an attorney!,] and that she had a right to stop our search at any time until she talked to her attorney.” These “Pirtle warnings” are only required when the subject is “in police custody,” Pirtle, 263 Ind. at 29, 323 N.E.2d at 640 — so even if Mother were “in custody” as Defendant argues, her consent was valid.

Nor do we find duress in the encounter. Defendant again characterizes R. as being detained, so that Mother was implicitly compelled to consent to the search to get her child back. But while the police stated that they “didn’t want to take [R.] ” to child-welfare authorities, they also made no representations about what decision those authorities might make. Rather, they specifically stated that the decision was up to those authorities, and not a police determination. If police seeking consent to search may truthfully tell the subject of a criminal investigation that they will otherwise request a search warrant, see Daniel, 582 N.E.2d at 368-69, they may similarly tell the subject of a child-welfare investigation that they will otherwise request an inquiry by child-welfare authorities. In either event, as long as they do not treat the outcome of either request as a foregone conclusion, offering the choice is legitimate. Moreover, police testified that Mother appeared angry to learn that Defendant had brought drugs into the apartment, and our review of the record suggests that she was eager for their help in finding and confiscating anything that would be hazardous to R. Nothing in these circumstances appears coercive in our view.

Finally, police did not exceed the scope of Mother’s consent by asking permission to search for drugs, but then finding a handgun. “It is true that a consensual search allows a suspect to limit or restrict the search as he or she chooses,” Kubsch, 784 N.E.2d at 918, and that “the scope of a consent search [is] generally defined by the object of the search,” Krise v. State, 746 N.E.2d 957, 964 (Ind.2001). But that principle limits where police may look, not what they actually find. For example, consent to search a home for people who may be hiding inside does not extend to searching the contents of a small tin box in which no person could possibly hide. Buckley v. State, 797 N.E.2d 845, 849-51 (Ind.Ct.App.2003). And while consent to search for “guns, drugs, money, or illegal contraband” permits physically searching a cellular phone because it “is a container capable of hiding such items as drugs or money,” viewing the phone’s data or programming exceeds the scope of such consent. Smith v. State, 713 N.E.2d 338, 343-44 (Ind.Ct.App.1999), trans, denied.

On that logic, Defendant reasons that because police found the handgun in what was obviously a gun case, they were not permitted to search its contents for drugs. But drugs could be stored inside a gun case just as readily as — in fact, more readily than — inside a cellular phone. See id. “[T]he scope of a consensual search is measured by objective reasonableness and is determined by what a typical reasonable person would have understood by the exchange between the officer and the suspect,” Kubsch, 784 N.E.2d at 918 (internal quotations marks omitted) — and here, an objectively reasonable person giving consent to search for drugs would understand the contents of the gun case to be within the scope of that consent. Police were well within the scope of Mother’s consent when they found Defendant’s handgun, and the trial court did not abuse its discretion in admitting it into evidence, again without need to consider the “community caretaking” exception.

Conclusion

During a voluntary encounter with police, Defendant consented by words and actions to police entering the apartment. Then, his own furtive movements justified a pat-down, which in turn opened the door to the contraband found in plain view. And then police were entitled for R.’s sake to wait for Mother and seek her consent, which she validly gave, to search the rest of the apartment. We therefore affirm the trial court.

DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.

      . “CPS” refers to Child Protective Services, a branch of the Indiana Department of Child Services.

      . Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975) (''[A] person who is asked to give consent to search while in police custody is entitled to the presence and advice of counsel prior to making the decision whether to give such consent.”).


author: BAKER, Judge.

text:
    Jacquelyn Webster GREEN, as personal representative of the ESTATE OF Mary A. WEBSTER, deceased, Appellant-Plaintiff, v. HOUSING AUTHORITY OF the CITY OF GARY, Indiana, et al., Appellees-Defendants.
    No. 45A04-1307-CT-344.
    Court of Appeals of Indiana.
    Feb. 26, 2014.
    Ordered Published May 1, 2014.

      Elizabeth D. Tate-Norwood, Highland, IN, Attorney for Appellant.
    Rachel E. Yarch, Kathryn Birks Harvey, Kopon Airdo, LLC, Chicago, IL, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Appellant-plaintiff Jacquelyn Webster Green appeals the trial court’s grant of a motion to dismiss in favor of appellees-defendants the Housing Authority of the City of Gary Indiana (GHA) et al. More particularly, Webster Green contends that the trial court erred when it determined that the GHA had no duty to conduct “well-being” checks on its tenants, that employees of the Woodlawn Corporation were not employees of the GHA, and that Webster Green could not take advantage of relation back of amendments under Indiana Rule of Trial Procedure 15(C). We find that Webster Green’s complaint states facts that, even if true, would not support the relief requested, and affirm the judgment of the trial court.

FACTS

On June 9, 2009, Mary Webster entered into a lease with the GHA to rent an apartment at the Al Thomas Senior Citizen Center (Center) in Gary. The Center is an independent living facility for low-income senior citizens. The portion of the lease relevant to this action is as follows:

XII. Entry of Premises during Tenancy
(B) GHA Responsibilities
1. GHA shall give tenant 48 hours written notice that GHA intends to enter the unit. GHA may only enter at reasonable times.
2. GHA may enter Tenant’s dwelling unit at anytime without advance notification when there is a reasonable cause to believe that an emergency exists.

Appellant’s App. p. 66.

On January 13, 2010, Mary was scheduled to have two medical services appointments with Mutya Mubanay and Henry Akinbobuyi, employees with A Plus Home Health Care, Inc. (A Plus) at her apartment. When Maty did not report for her appointment, Akinbobuyi informed his supervisor, Tracy Janiga, that Mary did not keep her appointment. Janiga did not inform the GHA that Mary had missed her appointment until the next day. In her medical records at A Plus, Mary was listed as a fall risk.

The next day, January 14, 2010, A Plus repeatedly asked Jana Blood and Diana Starks, employees of Woodlawn Community Development Center (Woodlawn), to check on Mary. Woodlawn is a private entity that contracted with the GHA to provide on-site management, administration, and operation services for the apartment complex. When the Woodlawn employees did enter Mary’s apartment on July 14, 2010, they found her unresponsive. Mary died the next day of a heart condition.

On November 22, 2011, Webster Green filed a wrongful death complaint against the GHA (Count I) and A Plus (Count II), alleging that their negligence was the proximate cause of Mary’s death.- In her complaint, Webster Green argued that the GHA had assumed a duty to conduct wellness checks on its tenants. On April 9, 2012, the GHA filed a Rule 12(B)(6) motion to dismiss stating in part that Webster Green’s complaint failed to establish that the GHA had any duty to perform wellness checks. On May 15, 2012, after the statute of limitations had expired, Webster Green filed her amended complaint, adding Blood and Starks as defendants in Count III, and on June 4, 2012, the GHA filed a motion to dismiss, maintaining that the statute of limitations had run. On July 31, 2012, the trial court held a hearing, at which the GHA contended that Count I should be dismissed for failure to state a claim because the facts alleged in her amended complaint failed to establish that the GHA owed or assumed a duty to conduct wellness checks. The GHA also argued that Count III of the amended complaint that added Blood and Starks as defendants should be dismissed, as Webster Green had known of Blood’s and Stark’s identities and yet failed to join them before the litigation began. The GHA argued that this knowledge precluded Webster Green from utilizing Indiana Trial Rule 15(C), relation back of amendments, to add Blood and Starks after the statute of limitations had run.

On July 30, 2013, the trial court granted the GHA’s motion to dismiss Count I and III. It determined that:

There are no set of circumstances under which the Plaintiff would be entitled to relief, as it is clear on the face of the Plaintiffs Proposed Amended Complaint that Defendant GHA owed no duty to the Plaintiff and therefore could not act negligently (Count I) and that the additional defendants of Woodlawn Community Development Corporation, Jana Blood and Dianne Starks, were joined after the statute of limitations in this cause had expired, even though the Plaintiff knew fully of their identities prior to the commencement of litigation (Count III).

Appellant’s App. p. 84. Webster Green now appeals.

DISCUSSION AND DECISION

I.Standard of Review

A motion to dismiss under Indiana Trial Rule 12(B)(6) tests the legal sufficiency of the claim. Hosler ex rel. Hosler v. Caterpillar, Inc., 710 N.E.2d 193, 196 (Ind.Ct.App.1999). The complaint must be viewed in the light most favorable to the non-moving party with the issue being whether that complaint states any facts upon which the trial court could grant relief. Id. In determining whether any facts will support a claim, the court looks only at the complaint and the reasonable inferences to be drawn from it and may not rely on any evidence that is not in the record. Id. If a complaint states a set of facts which, even if true, would not support the relief requested, the case must be dismissed. Newman v. Deiter, 702 N.E.2d 1093, 1097 (Ind.Ct.App.1998).

II.Count I — Duty of the GHA

In Count I of her amended complaint, Webster Green argues the GHA’s negligence was the proximate cause of Mary’s death. Whether a legal relationship exists from which a duty of care arises is a matter of law for the courts to decide. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). In order to recover on a negligence theory, a lessee must prove a duty on the part of the lessor and show a breach of that duty. Houin v. Burger, 590 N.E.2d 593, 597 (Ind.Ct.App.1992).

Webster Green’s complaint alleges that the GHA assumed a duty to perform wellness checks, yet her complaint fails to establish that there was such a duty. The lease between Mary and the GHA clearly states that the GHA is required to give a lessee 48 hours’ notice before entering her apartment. Additionally, the lease states that the GHA may enter a lessee’s apartment if it has reasonable cause to believe that an emergency exists, but this certainly does not amount to a duty to perform wellness checks. Appellant’s App. p. 66.

Additionally, we believe that the trial court correctly determined that Blood and Starks were not agents of the GHA. The facts as asserted in Webster Green’s complaint do not establish that Blood or Starks were employees of the GHA. Rather, they establish that Blood and Starks were employees of Woodlawn. Appellant’s App. p. 20. As such, their actions do not impute liability to the GHA. Accordingly, the trial court correctly dismissed Count I.

III.Count III — Relation Back of Amendment

Webster Green contends that the trial court erred when it determined that the statute of limitations had run and dismissed Count III of her complaint against Blood and Starks. Webster Green added Blood and Starks as defendants after the statute of limitations for a wrongful death action had expired. Under Indiana Code section 34-23-1-1, the personal representative of a decedent must bring a wrongful death action within two years. Webster Green attempts to utilize Indiana Trial Rule 15(C), relation back of amendments, to relate her claim against Blood and Starks back to the original proceeding.

A party may employ Trial Rule 15(C) only if, within 120 days of the action’s commencement, the party to be brought in 1) had received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and 2) knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Here, Webster Green knew that Blood and Starks were involved on January 14, 2010, when Mary was discovered in an unresponsive condition in her apartment. She had all the information necessary to know that Woodlawn, Blood, and Starks were involved, and yet did not name them in her original complaint. Rule 15(C) allows relation back for an honest error that results in a mistake of identity, and was “not intended to save parties from the legal or tactical choices made by their lawyers.” Porter Cnty. Sheriff Dept. v. Guzorek, 857 N.E.2d 363, 366 (Ind.2006). Under Rule 15(C), the plaintiff must establish that the requirements are present for Trial Rule 15(C) to apply. Webster Green has not done so. The trial court correctly determined that Webster Green did not fulfill the requirements of Trial Rule 15(C) and that her claims against Blood and Starks are barred by the statute of limitations. Therefore, we conclude that Count III was correctly dismissed.

The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.

      . Count II is not under consideration here, and we do not venture to make any determination concerning the liability of A Plus or its employees.


text:
    Dustin E. McCOWAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 64A03-1305-CR-189.
    Court of Appeals of Indiana.
    April 23, 2014.
    Ordered Published June 10, 2014.

      Thomas W. Vanes, Merrillville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

After a three-week jury trial, appellant-defendant Dustin E. McCowan was found guilty of Murder, a felony. On appeal, we find that McCowan has waived the challenges that he made in his motion to suppress regarding the admissibility of his cell phone records including the text messages, and the location of the calls that were made because he failed to properly object at trial.

Waiver notwithstanding, we find that under the totality of the circumstances, McCowan’s rights to be free from unreasonable search and seizure under Article I, Section 11 of the Indiana Constitution were not violated when the police obtained McCowan’s cell phone records. Thus, the records were properly admitted, and any dispute about the accuracy of the location estimates and context of the text messages were for the jury to resolve. We also conclude that the trial court did not err in refusing to give McCowan’s tendered instruction on the presumption of innocence and that the trial court properly declined to recuse itself because there was no evidence of improper ex parte communication. Thus, we affirm the judgment of the trial court.

FACTS

McCowan and the victim, Amanda Bach, who lived in Portage, dated off and on before Bach was murdered in September 2011. Several individuals observed that the two fought constantly when they were together and that McCowan was verbally mean and abusive to Bach. Even Bach’s parents urged her to “move on” because they described McCowan as “psycho or bipolar.” Tr. p. 289.

Sometime near the end of August 2011, McCowan and Bach ended their relationship after Bach overheard McCowan tell others at a party that he was just “using Amanda” and that he was sleeping with someone else. Id. at 790, 845. After this incident, McCowan and Bach did not speak to each other.

Over the 2011 Labor Day weekend, McCowan’s best friend, Brandon Hutchins, returned from college. Hutchins and Bach were also close friends and began dating. McCowan believed that Bach was coming between him and Hutchins. At a bonfire during Labor Day weekend, McCowan sent Bach a text message telling her to never text him again because “you stole my best friend.” Id. at 794. McCowan told Hutchins’s sister that he hated Bach because she was ruining his life.

Around this same time, McCowan feared that Bach might be pregnant. He was “freaking out about it for the longest time.” Id. at 1192. McCowan repeatedly said that he could not be a father because it would destroy his life. McCowan also told Hutchins that he “would punch her in the stomach if she was [pregnant] because it would ruin his life.” Id. at 798. Although Bach took a pregnancy test that yielded a negative result, McCowan did not trust the test, continued to talk about it, and still believed that Bach might be pregnant. McCowan’s doubts continued for several weeks and lasted until Bach was killed, and one of McCowan’s friends was not sure that McCowan ever believed that Bach was not pregnant before she died.

McCowan and Bach exchanged text messages making amends and made plans for Bach to come to McCowan’s residence on the night of September 15, 2011. Bach waited for McCowan’s parents, who both worked nights, to leave for work and arrived at McCowan’s house around 11:00 p.m. Bach told McCowan that she did not want to see him anymore because she had spoken with her father, and he did not want her to be around him.

During that conversation, Bach was using her cell phone, which made McCowan angry, and he grabbed the phone from her. In the process, McCowan hit her in the nose, causing it to bleed. McCowan gave Bach an orange shirt that he had worn earlier in the day to stop the bleeding. In the early morning hours the next day, one of McCowan’s neighbors heard three gunshots. At approximately 1:00 a.m., McCowan’s next-door neighbor, Linda Phillips, heard voices outside her bedroom window, which faces McCowan’s house. Phillips heard a man say, “Amanda, get up. Amanda get up,” about fifteen times. Tr. p. 397. Phillips then “heard a female voice saying, T can’t believe this is happening.’ ” Id. at 396. Although Phillips went to her bedroom window and looked out, she could not recognize the male whom she saw because she was not wearing her glasses. However, she noticed that every light in MeCowaris residence was on, and she had never seen the house lit up like that. Id. at 398, 404.

At approximately 2:25 a.m., Michael Steege was driving to work. While Steege was driving northbound, he noticed McCowan walking southbound towards him on the road. A short distance up the road, Steege passed Dean’s General Store (the Store) in Wheeler and saw Bach’s vehicle in the parking lot. The evidence subsequently showed that McCowan took Bach’s vehicle to the Store and abandoned it around 2:30 a.m. Her vehicle was not in the parking lot at 1:50 a.m. when newspapers were delivered to the store, but it was there when Steege passed the store around 2:30 a.m.

When the store’s owner, Dean Marq-uart, arrived and saw Bach’s vehicle, he contacted the police. The driver’s side door of Bach’s vehicle was open, the interi- or dome light was on, and the hazard lights were flashing. The keys were in the ignition, Bach’s purse was on the front seat, and its contents appeared undisturbed. However, Bach’s cell phone was not in the vehicle. The front driver’s side tire of Bach’s vehicle was flat and would have been impossible to drive. The evidence showed that the tire had been slashed with a single-edged blade while the vehicle was moving forward.

At approximately 3:00 a.m. on September 16, 2011, the police telephoned Bach’s father, explaining that her vehicle had been found at the Store. When Bach’s father arrived at the scene, he immediately noticed that the driver’s seat was set too far back for Bach to have driven the vehicle. Bach was 5'2" tall and always drove with the seat pulled close to the steering wheel. The seat was also too far back for the 5' 10" officer at the scene to drive it. On the other hand, McCowan is 6'3" tall, and when he drove Bach’s vehicle, which he did regularly, he always pushed the seat nearly all the way back.

Bach’s father learned that his daughter had been with McCowan the night before and obtained McCowan’s telephone number. Officer Joseph Mendez telephoned McCowan. At that time, McCowan stated that Bach had left his house alone around 1:30 a.m. Although McCowan told Officer Mendez that he had been trying to contact Bach and could not reach her, the telephone records show that he only made two calls to her phone that were one minute apart at 4:36 a.m., after Bach went missing. Officer Mendez spoke with McCowan two more times over the next hour and one-half. On each occasion, McCowan repeatedly stated, “I’m scared, I’m scared.” Tr. p. 435. However, Officer Mendez thought that McCowan’s tones and emotions seemed “exaggerated.” Id. at 435-36.

McCowan told the police and some friends that Bach was at his house from 11:00 p.m. until approximately 1:30 a.m. The others thought that McCowan’s statement was strange because Bach had a 1:00 a.m. curfew, and they knew that she and McCowan nearly always fought.

Once word was out that Bach was missing, a search party was organized near the store for Saturday morning. McCowan did not join the group. Rather, at approximately 1:30 p.m., McCowan left Wheeler to attend a party with some friends at Indiana University in Bloomington. McCowan’s friends were surprised that he went because Bach was still missing. Although McCowan stated that Bach’s disappearance would ruin his time at I.U., he stated that he would “party in her honor.” Tr. p. 1229,1255.

Nicholas Prochno lived a few blocks from the Store and was engaged to the mother of one of McCowan’s friends and classmates. Prochno knew that Bach was last seen with McCowan. He also was aware that his fiancee had seen some children hiding on the railroad tracks near McCowan’s house in the early morning hours in the past.

Prochno noticed the police near his house on Saturday afternoon and told them that he knew Bach was last seen with McCowan. He suggested that they might look near some railroad tracks that ran close to his house. Prochno and some of his other friends were aware that McCowan would hide trash in that area after parties when his parents were not home.

Prochno led the officers to that area and at approximately 4:00 p.m. on September 17, Bach was observed lying on the ground. It was later determined that Bach was shot in the neck from close range, and the bullet lodged beneath the skin at the back of her throat. Bach’s body was found approximately 300 yards from McCowan’s home where, indeed, he had previously hidden trash. The tracks ran north of McCowan’s house and approximately two miles from the Store.

The evidence showed that Bach had been dragged a considerable distance and the position of her body appeared to be “staged” in a manner to suggest that she had been the victim of a sexual assault. Tr. p. 1045, 1753. However, there were no signs of sexual assault and no clear indications that she had been beaten or struck.

The police also found an orange shirt on the railroad tracks. Subsequent DNA testing revealed that it contained Bach’s DNA. McCowan was arrested, and it was determined that McCowan wore an orange shirt on Thursday. Following the arrest, McCowan was incarcerated in the Porter County Jail, where he and his cellmate, Charles Wade III, became friends. Wade exchanged telephone calls and letters with various members of McCowan’s family. At some point, McCowan admitted to Wade that he hit Bach in the nose and caused it to bleed. Thereafter, he gave Bach his shirt to stop the bleeding. McCowan explained that he and Bach continued fighting and McCowan took Bach’s telephone and hid it in an abandoned house.

About one year after his arrest, McCow-an told another inmate that he was in jail because he had “shot a girl” named Amanda because she had “crossed him.” Tr. p. 2120-22. McCowan bragged that no one could prove that he “shot the bitch” and [the police] would never find the gun because it was “buried so far” that nobody would find it. Id. at 2125.

The investigation revealed that Bach was shot with a Federal brand Hydra-Shok .38 hollow point bullet. McCowan’s father owned this type of gun with the type of ammunition that was used. McCowan knew about this gun and ammunition and would occasionally bring these out at parties and “show them off.” Id. at 1141. McCowan’s father last saw the gun on September 17, but had seen it on the previous Monday.

On Friday evening, when Bach was still missing, the police filed an exigent circumstances request to obtain telephone records for both McCowan and Bach. The request to Verizon for McCowan’s records asked for information about his activity from midnight on Friday to the current time. These records included data about the time, date, and phone numbers for all calls and text messages made and received during that period, information about the cell towers through which the activity was transmitted, and latitude and longitude coordinates for Verizon’s estimated location of the phone at the time of the transaction. The records included the content of the text messages.

On September 29, 2011, the police obtained a warrant and requested McCow-an’s cell phone records including text content and phone location information. However, the records that Verizon provided in response to the warrant did not contain the latitude and longitude phone locations.

Detective Gene Hopkins took McCow-an’s phone records and plotted the latitude and longitude locations provided by Verizon for 576 points of phone activity with a computer mapping program. The activity occurred between midnight and 6:30 p.m. and revealed a general pattern of activity near Wheeler followed by movement down Interstate 65 and into Bloomington.

Witnesses and other evidence established McCowan’s location many times, and the mapped phone activity generally clustered around those known locations. The activity between midnight and 2:12 a.m. generally clustered in the vicinity of McCowan’s home. After that, the location of the phone transmission moved north and switched to access a cell tower in Wheeler, and activity between 3:00 and 3:30 a.m. was clustered in an area only a few miles from McCowan’s residence and near where Bach’s vehicle was found before moving south again to the vicinity of McCowan’s home.

On the first day of the trial, McCowan filed a motion to suppress his phone records based on wiretap statutes and the Indiana Constitution. McCowan argued that exigent circumstances did not exist to “justify the invasion into ... McCowan’s privacy, ... that the Indiana Wire Tap Act required a showing of probable cause, and the “interception [of the electronic communication] was not approved” in a timely fashion. Appellant’s App. p. 215. In essence, McCowan asserted that “the cell site data intercepted from ... McCowan’s phone, and all evidence flowing therefrom, is inadmissible and should be suppressed.” Id. at 227.

Additionally, McCowan alleged that “the cell records obtained on the day of Bach’s disappearance were in fact used to build a case against McCowan, not locate the missing woman, and as such, without a warrant, the records were obtained via unreasonable police conduct.” Appellant’s Br. p. 10.

A hearing was held prior to the start of the trial, at which time McCowan also challenged the reliability of the location data within the records. The trial court noted the lateness with which McCowan had filed his motion to suppress, but entertained the motion and subsequently denied it. The trial court ruled that

[The] State was after ... historical data, nothing that was going on at the time it was going on; in other words, no conversations, nothing like that, as they were ongoing. They were getting that information in terms of an investigation for a missing woman. There was some evidence that there could have been foul play there, and it comes under the exigent circumstances. I think that would not require a warrant as to anything that they obtained during that first level.... It was past history that they were looking up and they wanted to track it, not ongoing conversations or any kind of electronic communications.
You say that there was an expectation of privacy. Well, you know in the days of cell phones, when you’re now talking about a wire connection directly from person to person, you hit the button on that send on the cell phone and you’re sending that to basically the whole world, not just another person. It goes to the tower, the cell phone tower company; the company keeps that as part of their records. I don’t know how there’s going to be an expectation of privacy by any person that uses a cell phone because they know that’s what’s going to be happening.... Anybody who uses a cell phone, they do that voluntarily.
Motion to suppress is going to be denied.

Tr. p. 242.

Immediately before Detective Hopkins testified at trial, McCowan moved to exclude his phone records and argued that the scientific principles that were used to produce the latitude and longitude coordinates were unreliable and that Detective Hopkins was unqualified to provide expert testimony about them. Detective Hopkins testified that the location data in the records was not GPS-based, that he did not know the algorithm by which the data was computed, that Detective Hopkins had no knowledge regarding scientific testing of the manner by which Verizon computed location coordinates, and that Verizon itself “could not and would not vouch for the accuracy of that data.” Tr. p 1870-79.

However, after hearing the evidence, the trial court determined that Detective Hopkins had sufficient training and knowledge to explain how cell phones are located through the signals transmitted to towers and that concerns about the accuracy of the results went to the weight rather than the admissibility of the evidence and “should be explored through cross-examination.” Tr. p. 1884. When the State moved to admit the cellular records, McCowan objected on the basis of “previously filed motions.” Id. at 1894. The trial court overruled the objection and allowed the evidence.

Following the evidence that was presented during a three-week jury trial that commenced on February 4, 2013, McCow-an tendered a jury instruction regarding the presumption of innocence that the trial court refused to give. McCowan contended that the trial court erroneously refused his instruction because it was obligated to instruct the jury 1) that the presumption prevails throughout the trial, and 2) that it is the jury’s duty to reconcile the evidence upon the theory of innocence if it can do so. McCowan argued that the trial court instructed on neither the continuing nature of the presumption nor the jurors’ duty to reconcile the evidence to the presumption.

McCowan was found guilty as charged. On March 28, 2013, he was sentenced to sixty years of incarceration. Thereafter, on April 18, 2013, McCowan filed a post-sentencing motion to correct error. The motion included an affidavit from McCow-an’s trial counsel, alleging that a jail recording of a telephone conversation between McCowan and another individual “might contain a threat” was given to the trial judge by the sheriff without notice to defense counsel. Appellee’s Br. p. 17. Thus, McCowan alleged that the transmission of the recording to the judge constituted an improper ex parte communication, and the trial court’s subsequent failure to recuse from the case amounted to reversible error. The trial court denied the motion on May 3, 2013, and McCowan now appeals.

DISCUSSION AND DECISION

I. Admission of Telephone Records

A. Waiver — Generally

McCowan claims that his conviction must be reversed because the trial court erred in admitting the cell phone records that were allegedly unreliable and obtained in violation of his right to be free from unreasonable search and seizure contrary to Article I, Section 11 of the Indiana Constitution. McCowan further contends that the trial court abused its discretion by admitting “dubious data” that was contained in the phone records. Appellant’s Br. p. 10.

In resolving this issue, we initially observe that because McCowan did not challenge the denial of his motion to suppress through an interlocutory appeal and waited until the completion of the trial to appeal, he is alleging that the trial court erred in admitting the evidence at trial. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003). The decision to admit or exclude evidence is within the trial court’s sound discretion and is afforded great deference on appeal. Carpenter v. State, 786 N.E.2d 696, 702 (Ind.2003). An abuse of discretion occurs when the trial court’s decision is clearly erroneous and against the logic and effect of the facts and circumstances before it. An error in the admission of evidence is only grounds for reversal if it affects a party’s substantial rights. Payne v. State, 854 N.E.2d 7, 17 (Ind.Ct.App.2006).

As a general rule, a party must continue to object and obtain a ruling for each individual instance of inadmissible evidence. Hutcherson v. State, 966 N.E.2d 766, 770 (Ind.Ct.App.2012), trans. denied. Also, a contemporaneous objection when the evidence is introduced at trial is required to preserve the issue for appeal, whether or not the appellant has filed a pretrial motion to suppress. Brown v. State, 929 N.E.2d 204, 207 (Ind.2010). When a defendant does not object to the introduction of evidence, makes only a general objection, or objects only on other grounds, the defendant waives the claim. Moore v. State, 669 N.E.2d 733, 742 (Ind.1996).

In this case, although McCowan objected at trial to the admission of the cell phone records, he made no objection to any other testimony about the content of his text messages and made no constitutional objection to the exhibits that transcribed the various portions of his messages that were offered at trial. Tr. p. 362, 446-47, 473, 677-81, 686-87, 702-17, 772. Rather, the focus of McCowan’s objections concerned the admission of the location estimates. To the extent that McCowan is now asserting on appeal any challenge to the admission of the records including the content of the text messages, he has waived that claim. Additionally, McCowan did not specifically object to each instance in which the challenged evidence was presented to the jury.

As noted above, McCowan objected to the admission of the phone records themselves “based on previously filed motions,” although he did not specify whether he was referring to his pretrial motion to suppress or his motion regarding the scientific reliability or both. Tr. p. 1894.

McCowan correctly points out that continuing objections are a “way to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors.” Hutcherson, 966 N.E.2d at 770. However, McCowan did not request, and the trial court did not recognize, a continuing objection to any of the testimony or exhibits that were derived from the phone records. See id. (recognizing that a continuing objection may substitute for repeated objections but only when requested and recognized by the trial court). Thus, we cannot agree with McCowan’s proposition that even though he did not explicitly seek and obtain the trial court’s permission to maintain a continuing objection, “he acted as if he had and the trial court had no apparent difficulty in treating objections as if continuing and had no apparent difficulty understanding the nature of the objection.” Appellant’s Reply Br. p. 4.

When the maps plotting the latitude and longitude locations that Verizon provided in those records were admitted, McCowan did not object on the basis of prior motions, scientific reliability of the method used to calculate the estimate, or the Indiana Constitution. Rather, McCowan only objected that the maps were not accurate because “they contained merely estimates and were unduly prejudicial.” Tr. p. 1899, 1902, 1906, 1908, 1910-26. McCowan did not object to Detective Hopkins’s testimony about the records but only to the maps and records themselves. Moreover, McCowan did not preserve his claims with timely and specific objections each time the evidence, including the maps, was presented to the jury, which was necessary for it to fully comprehend the coordinates.

For instance, the exhibit containing the challenged phone records is extremely thorough and difficult to comprehend because it contains tables of primarily coded or numerical data that comprises numerous pages as to each call or message. State’s Ex. 148. In fact, the maps — not the phone records — were the method for conveying the estimated locations to the jury because the phone records themselves contained only latitude and longitude coordinates that would likely have been meaningless to the jury without the maps. Id. at 148.

We also note that McCowan did not challenge the admissibility of the maps on constitutional grounds, so he has waived that claim. Likewise, his objections to the maps based on accuracy and prejudice were inadequate to preserve his challenge. More particularly, a claim that a technical process produced inaccurate results in a particular case is not the same as a challenge to either a witness’s qualifications or the scientific reliability of the technical process itself. See Hopkins v. State, 579 N.E.2d 1297, 1301-03 (Ind.1991) (holding that whether scientific process produced accurate results in a given case is not part of the threshold admissibility determination and is a subject for the fact finder to resolve). Because McCowan only objected to the accuracy of the location estimates plotted on each map, which is a subject properly addressed through cross-examination and left for the jury to decide, he has waived his challenge to the scientific reliability of the method that Verizon used to estimate the latitude and longitude of each call activity.

B. Admissibility in General

Waiver notwithstanding, concerning the reliability and accuracy of the information, it is apparent that Detective Hopkins merely summarized and presented the information that was contained in McCowan’s cell records. The evidence demonstrated that Detective Hopkins had attended four training sessions on cell phone technology between 2008 and 2012. Tr. p. 1872-73. He explained that Verizon uses a computer program to apply an algorithm to estimate location that is based on the time delay that it takes for a signal to be transmitted from the tower to the phone and back again, and the phone connects through particular antennae on one of the three sectors of a tower, which each cover 120 degrees of the area around that tower. Id. at 1874, 1878, 1902-03, 1913-14. Detective Hopkins observed that particular estimates were as close as twenty-one feet and as far as a mile or more from McCowan’s known location but that the estimates clustered around the known location. Id. at 1879, 1908, 1918, 1920-26, 1961-62,1965-66,1988.

Although Detective Hopkins did not personally perform any calculations or analysis to render an opinion about the location of McCowan’s phone, he provided contextual testimony explaining cell phone networks and location estimates and plotting estimated locations from Verizon’s record on maps. Detective Hopkins did not offer any expert opinion testimony, but testified based on his specialized training about general principles to help the jury understand the. information contained in Verizon’s records. However, he did not perform any calculations or analysis of McCowan’s cell phone records to reach an opinion about McCowan’s location.

Moreover, McCowan’s complaint that the estimates may have been influenced by factors such as signal strength and local topography are not so much challenges to the reliability of the method that Verizon used to estimate the location of the telephone as they are challenges to the accuracy of the particular results that process produced in this case. Indeed, McCowan does not so much dispute the scientific validity of mathematically calculating an estimate of the location of an object based on the time it takes for a signal to travel to and from a fixed point. Rather, McCow-an’s primary challenge is to whether those calculations produced accurate estimates of his locations at various relevant times.

In light of the above, it is apparent that the jury had more than sufficient information to assess the accuracy of particular location results or sets of results in this case. Therefore, we believe that the trial court correctly determined that any dispute regarding the accuracy of the estimates went to the weight rather than to the admissibility of the evidence and should be addressed through cross-examination. Tr. p. 1884.

And McCowan indeed challenged the accuracy of the estimates through both cross-examination and his own expert witness’s testimony. In fact, McCowan had engaged a former State Trooper who performed his own analysis to estimate the location of McCowan’s phone and was of the opinion that McCowan was actually at his residence during the period in which his phone appeared to have moved towards the Store and back. Tr. p. 2816-18. Such evidence permitted the factfinder to weigh the evidence and judge the witnesses. For these reasons, the trial court did not err in admitting Detective Hopkins’s testimony regarding the reliability and accuracy of the location of McCowan’s phone.

C. Indiana Constitution

We further note that even though McCowan has also waived his arguments under the Indiana Constitution, the trial court correctly determined that McCowan was not entitled to suppression of his phone records on this basis, even if proper objections had been made.

“The legality of a governmental search under our constitution turns on an evaluation of the reasonableness of police conduct under the totality of the circumstances.” Brooks v. State, 934 N.E.2d 1234, 1242 (Ind.Ct.App.2010), trans. denied. Under Article I, Section 11, several factors are considered in determining the reasonableness of a warrantless search: “1) the degree of concern, suspicion, or knowledge that a violation has occurred; 2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities; and 3) the extent of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind.2005).

In this case, the police developed a great degree of suspicion and knowledge that Bach was missing, in danger, or could possibly be dead, and that McCowan likely had information about Bach’s whereabouts. Bach disappeared under circumstances that strongly suggested foul play. Tr. p. 232-33, 1935. The evidence established that she was last seen with McCowan, and her vehicle was abandoned in the middle of the night, two to two and one-half miles from McCowan’s home, and in a manner that was staged to appear as though she had a flat tire. Id. at 300-01, 430, 434.

The evidence further demonstrated that Bach’s car door was open with keys in the ignition and her purse on the seat, but there was no trace of her. Bach had not driven there herself, as the evidence showed that it must have been driven by someone much taller, like McCowan.

As discussed above, McCowan admitted that Bach was still at his house around 1:00 a.m. McCowan’s neighbor heard a man repeatedly say, “Amanda, get up,” and heard a woman respond, “I can’t believe this is happening.” Tr. p. 396-98. The police knew that McCowan had left the county that afternoon, only hours after Bach was discovered missing. In light of these circumstances, the police had many reasons to believe that Bach had been the victim of a violent crime.

The evidence also demonstrated that the police had good reason to believe that information about McCowan’s communications and movements on the day of Bach’s disappearance would provide them with information about what happened to Bach. Moreover, the degree of intrusion into McCowan’s life was minimal. The police requested records maintained by McCow-an’s cell phone provider as a routine part of their recordkeeping. We agree with the trial court’s determination that this request did not require McCowan to surrender his phone and did not cause any intrusion upon his person or property. McCowan has not shown that the request disrupted his activities, as evidenced by the fact that he was attending parties in Bloomington at the time of the request. This amounted to a limited request for information that McCowan had essentially already provided to a third party. See In re U.S. for Historical Cell Site Data, 724 F.3d 600, 614 (5th Cir.2013) (holding that the government was not required to obtain a warrant to obtain certain cellular data including location information from the cell phone company because the phone user has no reasonable expectation of privacy in that information that they voluntarily convey to the service provider and that the provider maintains in its records for its own purposes).

In this case, the police only requested information about McCowan’s telephone activity between midnight and the time of the request, around 6:30 p.m., on Friday, the day that Bach went missing. Thus, the request and any resulting intrusion upon McCowan’s life were tailored to the exigencies of the situation and the compelling needs of law enforcement.

Additionally, the extent of law enforcement needs was great when the request was made, insofar as the police were searching for a recently missing individual who could be in danger or had been the victim of foul play. The request for the telephone information was made on the day that McCowan disappeared, while police were following various tips, trying to secure Bach’s car, searching for Bach, and organizing a ground search for the following morning.

In addition to the above, we reject McCowan’s reliance on Kirk v. State, 974 N.E.2d 1059 (Ind.Ct.App.2012), trans. denied. In that case, the police arrested Kirk, found his cell phone during a search of his person incident to arrest, and immediately opened the phone and began reading Kirk’s text messages. Id. at 1070-71. However, the officers had no reason to believe that the phone contained evidence of a crime, there was no particular explanation as to why they chose to look at the messages, and no need was established to access the content of the phone immediately rather than waiting to obtain a warrant. Id. at 1071.

Unlike the circumstances in Kirk, McCowan has not preserved a constitutional challenge to the police obtaining the content of his text messages through his telephone records in this case. Even more compelling, the police had the immediate need to act quickly without obtaining a warrant and to believe that McCowan’s phone records might produce evidence of a crime or Bach’s whereabouts. As a result, contrary to Kirk, law enforcement needs were great in this case, and the intrusion into McCowan’s life was minimal. In short, the emergency request for McCow-an’s phone records was reasonable and did not violate the Indiana Constitution.

For all these reasons, we conclude that even if McCowan had not waived the issue, the trial court properly admitted the phone records into evidence and McCowan’s rights were not violated under Article I, Section 11 of the Indiana Constitution.

II. Refused Final Instruction-Presumption of Innocence

McCowan next argues that the trial court erred in refusing to give his proffered jury instruction regarding the presumption of innocence. McCowan asserts that the trial court was specifically required to “inform the jury of its duty to reconcile evidence with the presumption if it can reasonably do so.” Appellant’s Br. p. 10. Because the trial court allegedly failed to satisfy that requirement in the instruction that it gave, McCowan asserts that his proposed instruction would have cured the defect.

In resolving this issue, we note that the trial court has broad discretion in the manner of instructing the jury, and we will review its decision only for an abuse of that discretion. Snell v. State, 866 N.E.2d 392, 395 (Ind.Ct.App.2007). The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Id. at 396. In determining whether the trial court abused its discretion by declining to give a tendered instruction, we consider: 1) whether the tendered instruction correctly states the law; 2) whether there was evidence presented at trial to support giving the instruction; and 3) whether the substance of the instruction was covered by other instructions that were given. Lampkins v. State, 778 N.E.2d 1248, 1253 (Ind.2002). The ruling of the trial court will not be reversed unless the instructions as a whole misstate the law or mislead the jury. Snell, 866 N.E.2d at 396.

Our Supreme Court has determined that “[a]n instruction ... which advises the jury that the presumption of innocence prevails until the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the theory of the defendant’s innocence if they could do so, must be given if requested.” Robey v. State, 454 N.E.2d 1221, 1222 (Ind.1983). McCowan’s proposed instruction in this case addresses the second concept, as follows:

You should attempt to fit the evidence to the presumption that the accused is innocent.
If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and once [sic] of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant’s innocence, and reject that which points to his guilt.
You will notice that this rule applies only when both of the two possible opposing conclusions appear to you to be reasonable. If, on the other hand, one of the possible conclusions should appear to you to be reasonable and the other to be unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the unreasonable, bearing in mind, however, that even if the reasonable deduction point to defendant’s guilt, the entire proof must carry the convincing force required by law to support a verdict of guilt.

Appellant’s App. p. 297.

In this case, the trial court refused the instruction because the substance of the instruction was covered by the court’s other instructions. Appellant’s App. p. 297, Tr. p. 2401. In Robey, our Supreme Court considered an instruction that was given by the trial court that contained, in part, the above language and held that the instruction as a whole adequately instructed the jury on the presumption of innocence. Robey, 454 N.E.2d at 1222. On the other hand, we have previously considered proposed instructions that contained only the first paragraph above and have determined that it is not a correct statement of the law without the accompanying second paragraph. Matheny v. State, 983 N.E.2d 672, 679-80 (Ind.Ct.App.2013), trans. denied.

In addressing McCowan’s claims, we note that the substance of the instruction that the trial court refused to give was, indeed, covered by other instructions. For instance, in both the preliminary and final instructions, the trial court instructed the jury on the presumption of innocence and the State’s burden to prove each element of the crime beyond a reasonable doubt. More specifically, the jury was instructed to “keep an open mind. You should not form or express any conclusion or judgment about the outcome of the case until I submit the case to you for your deliberations.” Appellant’s App. p. 260. The jury was also instructed to consider all of the instructions as a whole and not to single out or ignore any instruction. Id. at 263, 320. Furthermore, the trial court instructed the jury that:

Under the law of this state, a person charged with a crime is presumed to be innocent. To overcome the presumption of innocence, the State must prove the Defendant guilty of each element of the crime charged, beyond a reasonable doubt.
The Defendant is not required to present any evidence to prove his innocence or to prove or explain anything.

Id. at 267, 329. The jury was reminded in each instruction identifying the elements of the offense that “before you may convict the Defendant, the State must prove each of the [elements of the offense] beyond a reasonable doubt” and that if the State failed to prove any element beyond a reasonable doubt, “you must find the Defendant not guilty.” Id. at 265, 324. The trial court also provided guidance on the difference between a reasonable doubt and doubts that are merely speculative or unreasonable. The trial court explained that “[a] reasonable doubt is a fair, actual, and logical doubt based upon reason and common sense.” Id. at 268, 330.

The trial court’s instructions further explained that a “[reasonable doubt exists when you are not firmly convinced of the Defendant’s guilt, after you have weighed and considered all the evidence.” Id. at 268, 330. The trial court informed the jury that if they had a reasonable doubt, that they “must give the Defendant the benefit of the doubt and find the Defendant not guilty.” Id. at 268, 330.

Taken in conjunction with the remainder of the trial court’s instructions that provided additional context to the State’s burden of proof and the jury’s duty and power to judge and weigh evidence, we believe that the trial court adequately informed the jury of the essence of McCowan’s proposed instruction. Although the instructions may not have expressly stated that the jury “must attempt to fit the evidence to a theory of innocence,” we believe that the detailed instructions given as a whole satisfied the requirement set forth in Robey that the substance of the instructions that the trial court gave “adequately directed the jury to receive and evaluate the trial evidence while in the posture of presuming the defendant innocent and demanding of the State that it produce strong and persuasive evidence of guilt wholly at odds with innocence.” Robey, 454 N.E.2d at 1222.

Although this court in Lee v. State, 964 N.E.2d 859, 865 (Ind.Ct.App.2012), tram, denied, held that instructions are inadequate when they do not state that the jury must endeavor to fit the evidence to a theory of innocence, McCowan’s instruction would not have informed the jury that the presumption continues through trial. More specifically, the instruction tendered in Lee that the trial court refused to give provided that

Under the law of this state, a person charged with a crime is presumed to be innocent. This presumption continues in favor of the accused throughout the trial of this cause. To overcome the presumption of innocence, the [Sjtate must prove the Defendant guilty of each essential element of the crime charged, beyond a reasonable doubt.
The Defendant is not required to present any evidence to prove his/her innocence or to prove or explain anything. You should attempt to fit the evidence to the presumption that the Defendant is innocent.
If the evidence in this case is susceptible of two (2) constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the Defendant, and the other to his/her innocence, it is your duty, under the law to adopt that interpretation which is consistent with the Defendant’s innocence, and reject that which points to his/her guilt.

Id. at 863. The tendered instruction cited to our Supreme Court’s decision in Robey.

The instructions that were actually given by the trial court in this case were far more detailed than those given by the court in Lee. That said, we have recently determined that instructions nearly identical to those that the trial court gave in this case adequately conveyed the substance of the proposed instruction in other cases. Santiago v. State, 985 N.E.2d 760, 762 (Ind.Ct.App.2013), trans. denied. Put another way, in Santiago, it was determined that “Robey simply requires instructing the jury that it should fit the evidence to the presumption that a defendant is innocent.” Id. at 763. We reasoned that because the trial court’s instructions as a whole that were given in Santiago were very similar to the instructions given in this case and satisfied the requirement in Robey, the trial court did not err in refusing to give the precise instruction that McCowan had tendered. Id.

Like the instructions given in Santiago, the detailed instructions that the trial court gave in this case adequately explained that McCowan must be presumed innocent unless and until that presumption was overcome by evidence of each element proven beyond a reasonable doubt and that any reasonable doubt must go to McCowan’s benefit and result in a finding of not guilty.

Although we have recognized language like that contained in McCowan’s proposed instruction as an accurate statement of the law, it is apparent that the trial court’s instructions given in this case accurately and adequately informed the jury of the presumption of innocence, the State’s burden to prove all of the elements of the charged offense beyond a reasonable doubt, and the jury’s power and duty to evaluate the evidence. Thus, McCowan’s claim fails.

III. Recusal of Trial Judge

McCowan claims that the trial court should have granted his motion to correct error and recused itself from the case because it did not disclose an ex parte communication to him after it received the jury’s verdict but prior to sentencing. McCowan points out that a telephone recording between McCowan and a relative occurred prior to sentencing where the relative indicated that “since the police, the prosecution and the trial judge had in effect let the real murderer go free in this case, those parties deserved to have their own children murdered.” Appellant’s Br. p. 11. Because the sheriff had provided the trial court with the recording, McCow-an contends that it should have been disclosed to defense counsel, and that the failure to do so amounted to improper ex parte communication, was prejudicial, and that his conviction must be reversed.

It is within the discretion of the trial court to grant a change of judge at the sentencing stage of a criminal prosecution. Thakkar v. State, 644 N.E.2d 609, 611 (Ind.Ct.App.1994).

A reviewing court may reverse a denial of a change only for an abuse of that discretion. Johnson v. State 472 N.E.2d 892, 911 (Ind.1985). In Wallace v. State, 486 N.E.2d 445, 456 (Ind.1985), it was determined that reversal will lie for bias and prejudice where the trial judge has expressed an opinion upon the merits of the controversy before him.

At the sentencing hearing, the prosecutor referenced the call and stated

Dustin McCowan is the way he is because of the adults in his life. They are dishonest, cowardly, and frankly, pathetic. They’re pathetic because as this family grieves the loss of their child, this family wishes the murder of our children; your children, my children, Mr. Frost’s children and Commander Biggs’ children.

Sent. Tr. p. 7. Before pronouncing the sentence, the trial court responded to the State’s argument as follows:

And I look through this, and I heard the argument that Ms. Polarke gave, and I heard her make reference to the defendant’s family in one respect. And I don’t consider that at all in this decision that I’ll be making here shortly. But I will simply say that phone conversations from the Porter County Jail between a prisoner and anyone on the outside are recorded. Those people know that they are recorded before the recording begins. And in one of the recordings that was made of the telephone call to Mr. McCowan, the person on the other end indicated that it would be appropriate if the deputy prosecuting attorneys, Ms. Polarke and Mr. Frost’s children were killed so that they would know what this is all about. I think they also went further than that, and as I said, whenever the sheriff’s department determines that they hear something that could conceivably be a threat to the court or the participants in there, we are informed of that. And that’s what happened here. But that will not be considered by me in this sentencing because, Dustin, to his credit said, no, that he didn’t really think that would be the case. Not in that many words, but that’s what he said.

Id. at 48-49 (emphasis added).

McCowan did not object to the trial court’s reference to the phone call or to the trial court continuing to preside and impose sentence. Rather, McCowan waited three weeks and filed a motion to correct error alleging that the trial judge should have recused himself sua sponte.

The trial court denied the motion, finding that there was no improper ex parte communication, that no real threat existed, and that McCowan’s response to the statements was akin to a mitigating factor. The trial court’s order also indicates that the call was played for defense counsel in chambers.

We also note that McCowan has waived any claim that he was entitled to a change of judge in light of the provision under Indiana Criminal Rule 12 (Rule 12), which generally governs a request for a change of judge. More specifically, in a felony case, Rule 12 permits a party to request a change of judge for bias or prejudice by filing an affidavit listing the historical facts supporting a belief that the judge has a personal bias or prejudice against the party-

As noted above, McCowan did not request a change of judge or object to the judge’s decision to continue to preside at sentencing, even after he learned that the judge had been informed of his jail phone call. Instead, McCowan first raised the issue by way of a post-sentencing motion to correct error. McCowan also makes no argument on appeal that he was entitled to a change of judge under the rule or that the judge had personal bias or prejudice against him. Thus, McCowan’s claim is also waived on this basis. See Angleton v. State, 714 N.E.2d 156, 158 (Ind.1999) (holding that the failure to lodge timely objection to change of judge waives any claim of error on appeal).

However in an effort to avoid waiver, McCowan directs us to Indiana Code of Judicial Conduct Rule 2.11(A), which provides that

(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.

The appearance of bias and partiality requires recusal just as does the actual existence of those impediments. Patterson v. State, 926 N.E.2d 90, 94 (Ind.Ct.App.2010). The question is whether an objective person, knowledgeable of all the circumstances, would have a rational basis for doubting the judge’s impartiality. Id. In other words, the question is not whether the judge’s impartiality is impaired in fact, but whether there exists a reasonable basis for questioning a judge’s impartiality. Bell v. State, 655 N.E.2d 129, 132 (Ind.Ct.App.1995).

Generally, the Code of Judicial conduct prohibits a judge from engaging in ex parte conversations which relate to pending proceedings. James v. State, 716 N.E.2d 935, 940-41 (Ind.1999). Ex parte communications are a “generally prohibited communication between counsel and the court when opposing counsel is not present.” Worman Enterprises, Inc. v. Boone Cnty. Solid Waste Mgmt. Dist., 805 N.E.2d 369, 374-75 (Ind.2004). A judge has also been found to violate the prohibition when speaking and providing legal advice to a key witness against a defendant without informing the defendant of the substance of those conversations. Bell, 655 N.E.2d at 131-32.

In this case, there is no evidence that the trial court engaged in an extra-judicial discussion with counsel for either party or a witness during the proceedings. It is undisputed that it was the sheriff who informed the trial court that there was information about a possible threat contained in the jail call. Sent. Tr. p. 48-49; appellant’s app. p. 358. The call and potential threat were incidentally related to the proceedings. In other words, the communication did not concern any action that might need to be taken in the case itself, and there was no reason to suspect that the call’s existence or contents would become evidence in the case. The trial judge did not have any information that directly pertained to a matter over which he would preside or an issue about which he would have to render a ruling. In our view, this was simply not the kind of ex parte communication contemplated by the rule.

Also, this communication concerned an emergency, which is an exception to ex parte communications. James, 716 N.E.2d at 941. The trial court was informed about the call because the individual speaking to McCowan made statements that could be interpreted as threats against the children of a lead investigating detective, two prosecuting attorneys, and the judge. Also, there was no risk that either party would gain a practical or tactical advantage in the case as a result of the judge being informed of the call. Even more compelling, the circumstances in this case do not create any reasonable basis for doubting the trial court’s impartiality. And the potentially threatening and disparaging statements were not made by McCowan; rather, they were made by the unidentified caller to whom he was speaking. The trial court determined that the statements did not amount to actual threats. Furthermore, McCowan rejected the caller’s threatening statements, which is a reaction that the trial court found “to his credit.” Sent. Tr. p. 48-49.

As is apparent from the above, the trial court also expressly refused to consider any of that information or the prosecutor’s arguments about McCowan’s family at sentencing. Here, there was nothing about the situation that would cause a reasonable person to doubt the trial court’s impartiality, and the record clearly indicates that the trial court’s sentencing decision was not actually influenced by the information. For all these reasons, we conclude that the trial court properly denied McCowan’s motion to correct error, alleging that the trial court engaged in any improper ex parte communications.

CONCLUSION

In light of our discussion above, we conclude that McCowan has waived his challenges to the admissibility of his cell phone records including the text messages that were contained in those records because he failed to properly object to their admissibility. McCowan further waived his claims regarding the location estimates as to where the calls and texts were made for the same reason. Waiver notwithstanding, the trial court properly admitted the records, and found that any dispute about the accuracy of the location estimates were for the jury to resolve.

Additionally, under the totality of the circumstances and in light of the emergency situation, the police officers did not violate McCowan’s constitutional rights under Article I, Section 11 of the Indiana Constitution by conducting a warrantless search of his cell phone records.

We also conclude that the trial court did not err in refusing to give McCowan’s tendered instruction on the presumption of innocence because the trial court’s instructions as a whole adequately informed the jurors of the presumption of innocence and their duty to give McCowan the benefit of any reasonable doubt when deliberating. Finally, we conclude that the trial court did not engage in any improper ex parte communication and recusal was not required.

The judgment of the trial court is affirmed.

NAJAM, J., and BROWN, J., concur.

      . Ind.Code§ 35-42-1-1.

      . While the Code of Judicial Conduct prohibits a judge from engaging in ex parte conversations that relate to pending proceedings, we note that an exception to this general rule is found under Judicial Canon 2.9(A)(1), which permits ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters of a pending case. Under this exception, the judge must: (a) reasonably believe that no party will gain a procedural or tactical advantage and (b) promptly notify all other parties of the substance of the ex parte communication and allow an opportunity to respond.