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Perryman v. State

Court of Appeals of Indiana

July 7, 2017

Coltan A. Perryman, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Boone Superior Court The Honorable Matthew C. Kincaid, Judge Trial Court Cause No. 06D01-1510-F3-146

          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

          Mathias, Judge.

         [¶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.

         Facts and Procedural Posture

         [¶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.

Tr. p. 406.

         [¶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 charged.

         [¶18] On March 9, 2016, the third day of trial, the jury returned to try the habitual offender charge. Before the jury was seated, Perryman moved for a mistrial on the grounds that, earlier that morning, he had been put in sight of one to three jurors while standing handcuffed in the breezeway of the courthouse. The trial court denied Perryman's motion after asking the jury "whether anything ha[d] happened since . . . yesterday . . . that cause[d] anybody any concern about whether they can be fair and impartial in this case[, ]" and receiving no response. Tr. p. 533. The jury found Perryman to be a habitual offender.

         [¶19] On April 26, 2016, Perryman was sentenced to a twenty-six-year term, twenty-three years executed in the Department of Correction and three years suspended to probation. The court imposed concurrent sentences of thirteen years on the Level 3 felony battery charge with three years suspended, and two years on the Level 6 felony neglect charge, fully executed. The court enhanced Perryman's sentence by thirteen years, fully executed, on the habitual-offender charge.

         [¶20] Perryman now appeals, raising the following restated issues. As to A.G.'s C.A.C. interview, Perryman claims that it was inadmissible under the protected-person statute, and in the alternative that admission under the statute violates the confrontation clause of the Sixth Amendment to the federal constitution. As to the trial court's other evidentiary rulings, Perryman claims that the nurse's testimony on the social worker's statement was inadmissible hearsay; the forensic biologist's testimony and her report were inadmissible for failure to establish chain of custody; and the evidence presented by Perryman's jailer and booking records was inadmissible for late disclosure. Perryman claims further that the evidence supporting both convictions was insufficient, and finally that being in view of one to three jurors while standing handcuffed in the breezeway of the courthouse entitled him to a mistrial.

         Discussion and Decision

         I. Admission of A.G.'s C.A.C. Interview Was Not Error

         [¶21] Perryman challenges the admission of A.G.'s C.A.C. interview on statutory and constitutional grounds. The decision to admit 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). The trial court abuses its discretion by ruling in a way clearly against the logic and effect of the facts and circumstances before it, or by misinterpreting the law. Id. at 703. Such broad discretion notwithstanding, because the protected-person statute "impinges upon the ordinary evidentiary regime . . . [, ]" it imposes on the trial court "a special level of judicial responsibility." Id.

         [¶22] As relevant here, the protected-person statute protects victims of battery and neglect, I.C. §§ 35-37-4-6(a)(2), (5), who are younger than fourteen. Id. § (c)(1). The victim's otherwise inadmissible statement "concern[ing] . . . a material element of [the] offense, " id. (d)(2), may be admitted for its truth against the accused if certain conditions are satisfied: if the trial court finds the child is unavailable to testify at trial because testifying would cause the child serious emotional distress such that the child cannot reasonably communicate, id. § (e)(2)(B)(i); if the trial court finds the child's statement sufficiently reliable after a hearing attended by the child, id. § (e)(1)(B); and if the child was available for cross-examination at the hearing. Id. § (f)(1). Both parties agree that A.G.'s C.A.C. interview was otherwise inadmissible unless admissible under the statute.

         A. Reliability of A.G.'s C.A.C. Interview Under the Protected-Person Statute

         [¶23] Perryman challenges the trial court's determination that A.G.'s C.A.C. interview was reliable. As a predicate for admission under the protected-person statute, the trial court is required to find in a hearing attended by the child that "the time, content, and circumstances of the statement . . . provide sufficient indications of reliability." I.C. § 35-37-4-6(e)(1)(B). The hearing gives the trial court "the opportunity to consider the competency and credibility of the child[.]" A.R.M. v. State, 968 N.E.2d 820, 825 (Ind.Ct.App. 2012). This opportunity is critical because the trial court's findings here "act as the sole basis for finding the trustworthiness that permits introduction of otherwise inadmissible hearsay." Pierce v. State, 677 N.E.2d 39, 44 (Ind. 1997).

         [¶24] In evaluating the time, content, and circumstances of the statement for sufficient ...


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