Coltan A. Perryman, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
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
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.
and Procedural Posture
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.
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.
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.
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
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.
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.
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.
[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
Tr. p. 406.
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.
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.
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.
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.
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,
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.
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.
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.
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.
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
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.
Admission of A.G.'s C.A.C. Interview Was Not Error
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
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.
Reliability of A.G.'s C.A.C. Interview Under the
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
In evaluating the time, content, and circumstances of the
statement for sufficient ...