Perryman v. State
| Decision Date | 07 July 2017 |
| Docket Number | Court of Appeals Case No. 06A01-1605-CR-1049 |
| Citation | 80 N.E.3d 234 |
| Parties | Coltan A. PERRYMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant : Alexander S. Kruse, Giddings Whitsitt Williams & Nooning, P.C., Lebanon, Indiana
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, Indiana
[1] Coltan A. Perryman ("Perryman") was convicted of Level 3 felony battery causing serious bodily injury to a child younger than fourteen and Level 6 felony neglect of a dependent after a jury trial in Boone Superior Court. Perryman was sentenced to an aggregate executed term of twenty-three years in the Department of Correction with an additional three years suspended. In this appeal, Perryman challenges the admission of the child victim's videotaped statement under Indiana's protected-person statute, other evidentiary rulings, the sufficiency of the evidence, and the denial of his motion for mistrial.
[2] We affirm.
[3] In September 2015, Perryman lived with his girlfriend Syreena Schooler ("Schooler") and A.G., Schooler's eight-year-old son by another man, in Lebanon, Indiana. They lived in the house of Leeann Barnes ("Barnes"), Schooler's mother, together with Barnes and the couple's three-year-old daughter R.P. Barnes worked days and Schooler worked nights, but Perryman was unemployed. The care of the children therefore often fell to him. Among other contributions, he would help A.G. with his homework and put him to bed at night.
[4] On the evening of September 30, 2015, Schooler was at work while the children were home with Barnes and Perryman. Around 7:00 p.m., Barnes, who is hard of hearing and uses hearing aids in both ears, woke up from an unaccustomed after-work nap in the downstairs living room and rushed to get supper ready by 7:30 p.m. Perryman and the children were upstairs. When supper was ready, Barnes called upstairs for Perryman and the children to come down and eat. R.P. came down, but A.G. and Perryman did not. Perryman called downstairs that he and A.G. were working on homework. This was unusual; Perryman did not always eat with the rest of the family, but A.G. always did.
[5] A.G. took medicine with his food every night and Barnes was anxious that he eat. After she and R.P. were finished eating, Barnes went upstairs to insist that A.G. eat as well. Perryman intercepted Barnes at the top of the stairs and waved her off. Behind him, Barnes could see A.G., his back to her, walking down the hall from Perryman's bedroom to his own. Barnes relented and went back downstairs. She played with R.P. outside until around 9:00 p.m., the children's bedtime. Unusually, A.G. again did not join them. When Barnes came back inside, she noticed the plate of food she had left out for A.G. was gone, presumably taken upstairs by Perryman. Barnes did not see Perryman or the children again before she went to bed between 10:00 p.m. and 11:00 p.m.
[6] Schooler got home from work around 1:30 a.m., October 1, 2015. She found Perryman and A.G. upstairs sitting on her and Perryman's bed. The left half of A.G.'s face was bloodied and bruised, and his right shoulder was bruised. Perryman was holding a washcloth to A.G.'s face. Frantic at the sight of her battered eight-year-old son, Schooler demanded to know what had happened. Perryman told A.G. to answer his mother. A.G., nearly unable to speak from his cut and swollen mouth, said that he had hit himself. Schooler rushed downstairs and woke Barnes, who had not seen A.G. since waking up from her after-work nap, except briefly from behind in the upstairs hallway, and did not know what had happened.
[7] Perryman told Schooler she was overreacting and should calm down. Schooler wanted to take A.G. to a hospital immediately. Perryman responded that injuries like A.G.'s look worse than they are, that the swelling would be much better by morning, and that taking A.G. to a hospital risked having the Department of Child Services ("DCS") take A.G. away. Schooler, confused and exhausted, finally agreed not to take A.G. to a hospital that night. The three fell asleep in Schooler and Perryman's bed.
[8] In the light of the next morning, still October 1, 2015, it became clear that Perryman was wrong: A.G. looked worse. Other than to say he had hit himself, A.G. would give no explanation as to how or why he had been injured. Schooler decided she could no longer put off taking A.G. to the doctor. Perryman volunteered to come along. The three drove to a children's hospital in Indianapolis.
[9] At the hospital, the nurses and doctors examining A.G. did not believe his injuries were self-inflicted. The injuries were too severe; A.G.'s hands bore no trace of the force necessary to inflict them; A.G. was right-handed but the injuries were to the left side of his face; and A.G. had no history of the developmental or psychiatric disorders that could drive a child to such extreme self-harm. The doctors believed A.G.'s injuries were such that he suffered "significant" pain when they were inflicted. Tr. p. 415.
[T]here was clearly blunt force trauma and ... multiple blows. [A.G.] had marked swelling, disfiguring of his lips, specifically his lower lip. He had ... a two centimeter laceration on his inner lip.... His lips were crusted and oozing.... [I]t was alarming.... [His lips] were painful to the touch.... [T]he whole left side of his face was bruised, above his eye, below his eye, his cheek, [and] his forehead. And then he had a bruise on his right upper arm.
[10] A social worker on staff at the hospital notified DCS that A.G. was a possible victim of child abuse. A DCS case worker was dispatched to the hospital, who in turn notified a detective of the Lebanon Police Department. The detective was a member of Boone County's "multi-disciplinary team," a group tasked with investigating child abuse and other crimes. Tr. p. 247. The DCS case worker and the detective headed to the hospital. Until then, Perryman had been in A.G.'s constant presence since the previous evening. Once informed of DCS's impending arrival, Perryman quickly departed.
[11] A.G. was subjected to numerous medical tests, including a CAT scan
of his head, which showed no internal bleeding or other internal injury. Early the next morning, October 2, 2015, A.G. was discharged from the hospital in Schooler's custody, on the DCS-imposed condition that Perryman not be allowed back into Barnes's home.
[12] Later the same day, Schooler took A.G. to Boone County's Child Advocacy Center ("C.A.C."), where investigators are specially trained in the difficult, delicate task of interviewing child witnesses. Specifically, C.A.C. interviews are "open narrative interviews" designed "to [e]licit information from children ... in a non-leading fashion" by asking "non-leading questions" in an environment that is "child friendly so that children aren't scared when they come in." Tr. p. 32. Boone County C.A.C. interviews are tape-recorded and observed by members of Boone County's "multi-disciplinary team." With great difficulty, A.G. told his C.A.C. interviewer that it was Perryman who had hit him with a closed fist twenty minutes before supper on September 30, 2015, because Perryman was "mad." Ex. Vol., State's Ex. 1, 10:16:16 a.m.
[13] On October 2, 2015, the same day as A.G.'s C.A.C. interview, Perryman was charged by information in Boone Superior Court with Level 3 felony battery causing serious bodily injury to a child younger than fourteen and Level 6 felony neglect of a dependent. Perryman was further charged with being a habitual offender.
[14] On January 13, 2016, the State gave notice of its intent to offer the video recording of A.G.'s C.A.C. interview at trial under Indiana's "protected-person" statute. Ind. Code § 35-37-4-6. On February 24 and 29, 2016, the trial court held a hearing required by the statute to determine the interview's admissibility. A.G. testified and was cross-examined by defense counsel; Schooler, A.G.'s therapist, and the therapist's supervising psychiatrist testified as well. On March 1, 2016, the trial ruled A.G.'s C.A.C. interview admissible under the protected-person statute. On March 4, 2016, the trial court granted Perryman's motion to admit an audio recording of A.G.'s cross-examination on February 24, 2016.
[15] Perryman's case was tried to a Boone County jury over three days, from March 7, 2016, to March 9, 2016. On the first day of trial, the video of A.G.'s C.A.C. interview was played for the jury over Perryman's objections on statutory and constitutional grounds. The jury then heard the audio of A.G.'s cross-examination on February 24, 2016.
[16] On March 8, 2016, the second day of trial, a nurse at the children's hospital testified over Perryman's objection to what the hospital's on-staff social worker told her on October 1, 2015, as follows: "I believe that [A.G.] told the social worker that [Perryman] had hit him with a closed fist." Tr. p. 393. The same day, a forensic biologist of the Indiana State Police Laboratory testified over objection to her serological analysis of some of the clothes A.G. and Perryman were wearing on September 30, 2015, as well as of the washcloth Perryman held to A.G.'s face. The trial court admitted over objection the biologist's report concluding that the items carried A.G.'s blood and Perryman's DNA. Finally, the same day, the State called a late-disclosed witness, one of Perryman's jailers at the Boone County jail, and offered a late-disclosed exhibit, Perryman's booking records at the jail. That evidence was admitted over objection and showed Perryman to be right-handed. During trial, however, Perryman had been observed taking notes with his left hand.
[17] At the end of the second day, the State rested, Perryman rested without presenting evidence, and the jury found Perryman guilty of battery and neglect as...
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