Larry C. Perry, Jr. v. State of Indiana
78 N.E.3d 1
| Ind. Ct. App. | 2017Background
- Lydia Perry exhibited fresh and older bruising and a bloody lip; medical records showed a concussion and facial swelling after a reported "motor vehicle collision," and police observed injuries when responding to a December 6 911 call at a Coliseum Inn room in Allen County.
- On December 6 officers encountered an angry Larry Perry and a frightened, crying Lydia; Lydia told officers and a detective that Larry had just hit her in the face (admitted as substantive evidence for Count 5), but at trial she largely recanted and claimed other causes for her injuries.
- Perry was charged with five counts based on alleged incidents Dec. 2–3 (Counts 1–4: batteries, strangulation, domestic battery) and Dec. 6 (Count 5: domestic battery), and the State sought a habitual-offender enhancement; Perry repeatedly violated a protective no-contact order.
- At trial some of Lydia’s out-of-court statements were admitted only for impeachment (not as substantive evidence) because they were not qualified as excited utterances; the jury saw photographs of her injuries and heard conflicting explanations.
- The jury convicted Perry on all counts and found him a habitual offender; the trial court merged several counts, imposed an aggregate executed sentence, and Perry appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perry) | Held |
|---|---|---|---|
| Sufficiency of evidence for convictions | Evidence (officer testimony, 911 call, injuries, Lydia’s Dec. 6 statements) supports all convictions | Lydia recanted; evidence insufficient and jury impermissibly speculated | Affirmed conviction only for Count 5 (Dec. 6 domestic battery); reversed Counts 1–4 for insufficient evidence |
| Venue for Counts 1–4 | Venue in Allen County established circumstantially (treatment at local hospital, injuries) | State failed to prove venue by preponderance | Reversed Counts 1–4 for insufficient evidence of venue |
| Denial of mistrial after detective testified about Perry’s father denying alibi | Statement was hearsay; trial court struck the testimony and instructed jury to disregard; mistrial unnecessary | The hearsay comment created incurable prejudice and warranted mistrial | Trial court did not abuse discretion in denying mistrial; admonition cured prejudice |
| Appropriateness of sentence for remaining conviction (App. R. 7(B)) | Maximum executed sentence appropriate given history and facts | Sentence inappropriate; mitigation (e.g., child, victim forgiveness) warrants reduction | Appellate court affirmed two-and-a-half year executed sentence for Count 5 as not inappropriate |
Key Cases Cited
- Cockrell v. State, 743 N.E.2d 799 (Ind. Ct. App. 2001) (due process requires proof beyond a reasonable doubt of every element)
- Bean v. State, 818 N.E.2d 148 (Ind. Ct. App. 2004) (appellate duty to ensure sufficiency when claimed)
- Bell v. State, 31 N.E.3d 495 (Ind. 2015) (do not reweigh evidence or assess credibility on appeal)
- Hoskins v. State, 441 N.E.2d 419 (Ind. 1982) (rules of evidence and trial procedures meant to eliminate speculation)
- Peters v. State, 959 N.E.2d 347 (Ind. Ct. App. 2011) (circumstantial evidence may support conviction but need not overcome every reasonable hypothesis of innocence)
- Semenick v. State, 977 N.E.2d 7 (Ind. Ct. App. 2012) (circumstantial evidence can support conviction)
- Weisheit v. State, 26 N.E.3d 3 (Ind. 2015) (conviction unsustainable if essential element rests solely on successive inferences)
- Mediate v. State, 498 N.E.2d 391 (Ind. 1986) (inference of guilt must be more than suspicion or conjecture)