Perry v. State

• Decision Date: 11 May 2017
• Docket Number: Court of Appeals Case No. 02A04-1608-CR-1890
• Citation: 78 N.E.3d 1
• Parties: Larry C. PERRY, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

78 N.E.3d 1

Larry C. PERRY, Jr., Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 02A04-1608-CR-1890

Court of Appeals of Indiana.

May 11, 2017

Attorney for Appellant : Gregory L. Fumarolo, Fort Wayne, Indiana.

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, Indiana.

Crone, Judge.

Case Summary

[1] This case highlights the difficulties and frustrations encountered by members of the law enforcement community who investigate and prosecute domestic violence cases in which the victim recants her accusations against the abuser, an unfortunate and all-too-common occurrence.¹ This case also highlights the limits of circumstantial evidence in proving a criminal defendant's guilt beyond a reasonable doubt.

[2] Larry C. Perry, Jr.'s wife told police officers that Perry had beaten and strangled her over the course of several days and showed them bruises and other injuries to support her accusations, some of which were admitted as substantive evidence at trial and some of which were admitted solely to impeach her credibility. Perry was charged in Allen County with committing multiple crimes and with being a habitual offender. At trial, Perry's wife denied that Perry had assaulted her and denied telling that to the police, and she attributed her injuries to other causes. Nonetheless, the jury found Perry guilty of two counts of battery, one count of strangulation, and two counts of domestic battery, and also found him to be a habitual offender. The trial court merged several convictions based on double jeopardy concerns and sentenced him to six years on one count of level 5 felony battery, with a six-year habitual offender enhancement, and to two and a half years on one count of level 6 felony domestic battery, for an aggregate sentence of fourteen and a half years executed.

[3] On appeal, Perry raises four issues: (1) whether the State presented sufficient evidence to support his convictions; (2) whether the State presented sufficient evidence to prove venue on four charges, i.e., that the crimes were committed in Allen County; (3) whether the trial court abused its discretion in denying his motion for mistrial; and (4) whether his sentence is inappropriate in light of the nature of the offenses and his character. Based on our review of the record, we conclude as follows: (1) the State failed to present sufficient evidence for a jury to find that Perry committed any crime other than one count of level 6 felony domestic battery, which means that the habitual offender finding cannot stand; (2) the State also failed to present sufficient evidence to prove venue on four charges; (3) Perry has failed to establish that the trial court abused its discretion in denying his motion for mistrial; and (4) Perry has failed to persuade us that his sentence for level 6 felony domestic battery is inappropriate in light of the nature of the offense and his character. Therefore, we affirm his conviction and sentence on that count and reverse his remaining convictions and habitual offender finding.

Facts and Procedural History²

[4] The facts most favorable to Perry's convictions are that he and his wife Lydia checked into the Coliseum Inn in Allen County on or about November 30, 2015. On December 4, Perry and Lydia went to the triage desk at Parkview Regional Medical Center.³ Lydia told the nurse that she had been in a "motor vehicle collision" two days earlier but had not sought medical attention. Tr. Vol. 1 at 144. She had multiple bruises on both sides of her face and complained of pain in that area, but she reported no other bruising or pain. Lydia "complained of significant dizziness" to the emergency room doctor and told him that "she had been knocked unconscious for about a minute or somewhere around there." Id . at 149. A CT scan

detected "significant swelling" on the left side of Lydia's face, "but intercranially, or inside the brain, looked okay." Id . The doctor diagnosed her "with a concussion and facial injuries" resulting from a motor vehicle accident. Id .⁴ According to the doctor, Lydia's bruises "seemed consistent" with a two-day-old injury. Id . at 151.

[5] Shortly after noon on December 6, someone called 911 to report that a man was "being belligerent" and throwing a crying woman against a wall in a room at the Coliseum Inn. State's Ex. 1 (recording of 911 call). Fort Wayne Police Department Officers Michael DeLong and Joshua Roscoe responded to the call. They "heard a male yelling from inside the room" and "a female whimpering or crying possibly." Tr. Vol. 1 at 159-60. Officer DeLong knocked on the door, and Perry opened it. According to the officer, Perry appeared "[a]ngry," and Lydia was crying and appeared "[f]earful and frantic." Id . at 162. Lydia, who was standing behind Perry, waved Officer DeLong into the room, and the officer asked Perry to step outside. The officer saw that Lydia had a "bloody lip," and she told him that Perry had done that "[j]ust now" by "hitting her in the face." Id . at 164.⁵ The officer noticed bruising around Lydia's neck and the "top of her chest," and she told him "that there was an incident prior to that where she had some bruising to her thigh," which she showed him. Id . at 165. Perry told Officer Roscoe that Lydia "had been in a car accident a few days prior and that's how she had all of her injuries." Id . at 177. Perry denied touching Lydia.

[6] The officers arrested Perry and brought him and Lydia to the police station, where they were interviewed by Detective Jeff Marsee. Lydia told the detective that Perry "had hit her in the mouth when officers were knocking on the door." Id . at 183. She also said that she was dizzy and that "the bruising on her face and neck was from an incident that started on December 2, and went into the early mornings hours of December 3^rd." Id . at 184.⁶ Police took photographs of Lydia's bloody lip, bruises on her face

, throat, chest, and arms, and a bruise encircling a red mark on her thigh.

[7] Perry told Detective Marsee that "he may have accidentally hit [Lydia] in the mouth when he was trying to push her away" earlier that day. Id . at 185. Perry also told the detective that "the bruising and stuff on her face and neck was from a car wreck a couple days before," but Perry "did not believe that she was in a car wreck because she did not have a car [.]" Id . Perry claimed that he was with his father, not Lydia, on December 2 and 3.

[8] On December 10, Perry was charged in Allen Superior Court with five counts: Count 1, level 5 felony battery (for a battery resulting in serious bodily injury committed between December 2 and 3);⁷ Count 2, level 6 felony battery (for a battery resulting in moderate bodily injury committed between December 2 and 3);⁸ Count 3, level 6 felony strangulation (committed between December 2 and 3);⁹ Count 4, level 6 felony domestic battery (for a battery of a spouse resulting in bodily injury committed between December 2 and 3, with a prior domestic battery conviction);¹⁰ and Count 5, level 6 felony domestic battery (for a battery of a spouse resulting in bodily injury committed on December 6, with a prior domestic battery conviction). The State later alleged in Count 6 that Perry was a habitual offender based on four prior unrelated felony convictions.

The trial court issued a protective order prohibiting Perry from contacting Lydia, which he violated by calling her 176 times before his two-day jury trial in June 2016.

[9] On the first day of trial, Lydia testified that as of December 6, she and Perry had been staying at the Coliseum Inn "[f]or about a week." Id . at 103. She claimed that she had injured her lip

by tripping and hitting her mouth on a table while she and Perry were fighting over his phone, which she thought he was using to contact another woman. She claimed that her other injuries had been caused during a fight with two women in an Ohio park on the night of December 2 and that she had lied about being in a car accident because she did not want police to investigate the fight. According to Lydia, she drove her uncle's car to Ohio to visit her family on December 2, returned on December 3, and celebrated Perry's birthday that day by going to a restaurant with him. She claimed that she told Perry that she "got into a fight with a girl," and "[h]e said [she] shouldn't have gone." Id . at 107.

[10] Lydia denied telling Officer DeLong and Detective Marsee that Perry hit her. In response to this testimony, the trial court allowed Officer DeLong to testify that Lydia told him that Perry had "[p]unched her" and "attempted to choke her" and stabbed her in the leg with a fork "a few days" before December 6 (as generally alleged in Counts 1 through 4) and that Perry had told her to tell the medical center staff that "she was involved in a car accident [.]" Id . at 171, 172. But the court instructed the jury that the testimony could be considered only for impeachment purposes and not "as direct evidence of the offenses[.]" Id . at 170. The court did not admit the testimony as substantive evidence on the basis that Lydia's statements did not qualify as excited utterances under Indiana Evidence Rule 803(2). See n.5, supra .

[11] Lydia also said that she did not "want the charges against" Perry and claimed that she had not talked to him on the phone since December. Id . at 108, 137. She acknowledged writing a letter to Perry's counsel and the prosecutor stating that she had "lied on [Perry] out of madness over personal matters," i.e., suspicions that he was cheating on her. Defendant's Ex. A. She also wrote a letter to Perry in which she apologized for "lying" and stated that she "really didn't know how serious it was going to get." Defendant's Ex. B.

[12] To rebut this statement, the State called Detective Taya Strausborger, who testified that both Perry and Lydia were arrested after an incident on March 9, 2015. Initially,...