Larry C. Perry, Jr., Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
from the Allen Superior Court Trial Court Cause No.
02D06-1512-F5-347 The Honorable Samuel Keirns, Magistrate
Attorney for Appellant Gregory L. Fumarolo Fort Wayne,
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Ian McLean Deputy Attorney General Indianapolis,
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. This case also
highlights the limits of circumstantial evidence in proving a
criminal defendant's guilt beyond a reasonable doubt.
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.
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.
and Procedural History
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. 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. According to the doctor, Lydia's
bruises "seemed consistent" with a two-day-old
injury. Id. at 151.
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. 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
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 3rd." Id.
at 184. 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.
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.
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); Count 2, level 6 felony battery (for a
battery resulting in moderate bodily injury committed between
December 2 and 3); Count 3, level 6 felony strangulation
(committed between December 2 and 3); 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); 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.
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
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.
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
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, the
detective considered Lydia to be the suspect and Perry to be
the victim, but that assessment changed. Lydia told the
detective that Perry "had put his hands around her
throat[, ]" which was "painful" and caused her
to have a "raspy" voice, and that she "pushed
him away." Tr. Vol. 1 at 202, 203. Ultimately, no
charges were filed against either Perry or Lydia as a result
of that incident.
On the evening of the first day of trial, Perry again
violated the no-contact order by calling Lydia from jail.
See State's Ex. 15 (recording of call). The call
was recorded, and the recording was played for the jury the
next day. During the call, Perry mentioned the March 9
incident and suggested that Lydia not dispute his initial
"victim" status if she were recalled to the stand.
Id. Lydia told Perry that she was
"traumatized" because the prosecutor "kept
coming at [her] with those pictures of [her] face and sh*t
and that sh*t was really bothering [her.]" Id.
Perry assured Lydia that his attorney was not going to do the
same thing that the prosecutor did, claimed that his attorney
wanted her to "keep doing what [she was] doing, "
and told her that he would be "out tomorrow" if he
The State rested its case, and Perry moved for a directed
verdict on Counts 1 through 4 based on the State's
alleged failure to prove venue. The trial court denied the
motion. Perry did not testify, and the defense rested without
calling any witnesses.
The jury found Perry guilty on all counts. At the July 29
sentencing hearing, the trial court merged Counts 2 through 4
with Count 1 based on double jeopardy concerns. The court
imposed a six-year sentence on Count 1, with a six-year
habitual offender enhancement, and imposed a consecutive
two-and-a- half-year sentence on Count 5, for an aggregate
sentence of fourteen and a half years executed. Under a
different cause number, Perry had been charged with and pled
guilty to four counts of level 6 felony invasion of privacy
based on his multiple violations of the no-contact order, and
he received an additional four-year executed sentence at the
same hearing. The trial court issued a no-contact order as
part of Perry's sentence in both cases, which Perry
refused to acknowledge with his signature. He also stated
that he was not "worried" about violating the
orders or losing "good time credit" or being held
in contempt of court as a result. Sent. Tr. at 23.
Perry now appeals his convictions and sentence in the instant
case. Additional ...