Coltan A. Perryman v. State of Indiana , 2017 Ind. App. LEXIS 290 ( 2017 )

FILED
Jul 07 2017, 5:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Alexander S. Kruse Curtis T. Hill, Jr.
Giddings Whitsitt Williams & Attorney General of Indiana
Nooning, P.C. George P. Sherman
Lebanon, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Coltan A. Perryman, July 7, 2017
Appellant-Defendant, Court of Appeals Case No.
06A01-1605-CR-1049
v. Appeal from the Boone Superior
Court
State of Indiana, The Honorable Matthew C.
Appellee-Plaintiff. Kincaid, Judge
Trial Court Cause No.
06D01-1510-F3-146
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
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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.
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[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
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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.
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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,
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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
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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
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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
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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
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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 reliability, the trial court should consider
whether there was significant opportunity for coaching, the
nature of the questioning, whether there was a motive to
fabricate, use of age[-]appropriate terminology, and spontaneity
and repetition. Lengthy and stressful interviews or examinations
preceding the statement . . . may cast doubt on [its] reliability . . .
sufficient to preclude its admission. There are undoubtedly many
other factors in individual cases.
Id. (citations omitted).
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[25] The trial court reported its findings on reliability as follows:
A.G.’s videotaped interview . . . was conducted . . . within forty-
eight hours of the injuries he sustained . . . .
The [C.A.C.] interviewer . . . is a trained and certified forensic
interviewer. . . .
[The C.A.C. interviewer] built a rapport with A.G. by speaking
to him in a friendly fashion and asking general questions at the
start of the interview. . . .
A.G. demonstrated excellent memory of events of his school day
of September 30, 2015. In particular he remembered that he had
been to the school library that day and checked out a book whose
title he remembered. . . .
A.G. demonstrated excellent memory of events at home the
evening before the time he was injured. In particular, A.G.
remembered that he had eaten spaghetti for dinner; that [R.P.
and Barnes] had played outside; that his mother went to work
after he had come home from school; and that the Defendant he
names as Colt[a]n read the book [A.G] checked out to [A.G.] . . .
[The C.A.C. interviewer’s] questions were fair and not suggestive
of answers. [The interviewer] repeated the answers A.G. gave
back to him . . . to be sure that she had correctly understood what
he was saying. . . . A.G. [had] the opportunity to make
corrections and did make corrections as necessary. . . . The
questions asked of A.G. . . . were open-ended and not leading.
A.G. was not coached by the interviewer. There was only one
interviewer in the room and A.G. was not pressured by multiple
interrogators. The duration of the interview was not excessive.
After demonstrating solid recall of details of the ordinary events
of the day, A.G. stated at first that he could not remember how
he was injured. . . .
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After [receiving] reassurances [from the interviewer] which were
in no way suggestive of answers A.G. should give, A.G. reported
that [Perryman] had struck him in the face with a closed fist and
that it happened in [Perryman’s] room. . . .
After [an initial period of forgetfulness], A.G. returned to the
manner of recounting events which was quite detailed in the
degree of memory exhibited.
The timing of the interview left little opportunity for A.G. to be
manipulated. A.G. was not pressured into fabricating allegations.
If anything, it appears the opposite may have been true.
A.G.’s statements are reliable.
Appellant’s App. p. 43.
[26] Our review of the record reveals the trial court’s findings to be supported by the
facts and circumstances before it. A.G. had an otherwise clear memory of the
day of September 30, 2015, two days before his C.A.C. interview. After initial
non-responsiveness, A.G. was able to state with the same clarity what had
happened to him that evening: Perryman struck him with a closed fist twenty
minutes before dinner. To the trial court’s finding that there was little
opportunity for manipulation or fabrication, we add that we discern no possible
motive for manipulation or fabrication on the part of A.G., Schooler, Barnes, or
any other actor in the case. We note further that, at the February 24, 2016,
protected-person hearing, A.G. clearly demonstrated his ability to distinguish
truth from falsehood. The trial court evaluated these facts under the proper
standards set out by the statute and by case law. There was no abuse of
discretion.
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[27] Perryman’s only argument to the contrary purports to detect three or four
inconsistencies between A.G.’s C.A.C. interview, his testimony at the February
24, 2015, protected-person hearing, and other witness testimony at trial.
However, any such inconsistencies are relatively minor (e.g., whether A.G. ate
dinner with or without Barnes on September 30, 2015). Moreover,
inconsistencies between A.G.’s C.A.C. interview and other witnesses’ trial
testimony cannot make out an abuse of the trial court’s discretion because that
testimony was not among the facts and circumstances before the trial court
when it found A.G.’s C.A.C. interview reliable. Finally, it is “not surprising
that a young child in an adversary courtroom setting may demonstrate a degree
of confusion and inconsistency.” Hill v. State, 646 N.E.2d 374, 378 (Ind. Ct.
App. 1995) (review of sufficiency of evidence). Such inconsistency does not per
se defeat a determination of credibility, id., nor a determination of reliability,
M.T. v. State, 787 N.E.2d 509, 512 (Ind. Ct. App. 2003), particularly when
absent from the controlled, nonadversarial environment of the C.A.C.
interview. We reject Perryman’s contrary argument.
B. Constitutionality of Admitting A.G.’s C.A.C. Interview Through the Protected-
Person Statute Under the Sixth Amendment
[28] In the alternative, Perryman claims that admission of A.G.’s C.A.C. interview
through the protected-person statute deprived him of his confrontation rights
under the Sixth Amendment to the federal constitution.1 Perryman argues that
1
Perryman also cites our state constitution, which provides, “In all criminal prosecutions, the accused shall
have the right . . . to meet the witnesses face to face[.]” Ind. Const., Art. I, § 13. In support, he cites one case
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the protected-person statute is unconstitutional on its face by failing to require
opportunity for cross-examination at the time the protected-person’s statement
is made, and by requiring trial judges to determine the reliability of the
protected person’s hearsay statement. Perryman argues further that the
protected-person statute is unconstitutional as applied to him because it did not
afford him opportunity for full, adequate, and effective cross-examination. In
deciding challenges to the constitutionality of a statute, we begin from a
presumption of constitutionality. State v. Lombardo, 738 N.E.2d 653, 655 (Ind.
2000). It is the challenger’s burden to rebut this presumption. Id. All reasonable
doubts are resolved in favor of constitutionality. Id.
[29] The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him[.]”
U.S. Const., amend. VI. A witness is someone who “bear[s] testimony” against
an accused. Crawford v. Washington, 541 U.S. 36, 51 (2004) (quoting Webster’s
1828 dictionary). “Testimonial statements of witnesses absent from trial [are
admissible] only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.” Id. at 59. Thus, for
absent witnesses, the confrontation clause requires “unavailability and a prior
opportunity for cross-examination.” Id. at 68. By contrast, “when the declarant
of this court, incorrectly identified as a decision of our supreme court, discussing the Sixth Amendment.
Anderson v. State, 833 N.E.2d 119, 126 (Ind. Ct. App. 2005). By his failure to provide independent authority
and analysis, Perryman has waived his state constitutional claim. Holloway v. State, 69 N.E.3d 924, 931 (Ind.
Ct. App. 2017).
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appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.” Id. at 59 n.9.
[30] We assume without deciding that the statements at issue are testimonial. As
relevant here, the protected-person statute both supplies grounds for
unavailability, I.C. § 35-37-4-6(e)(2)(B)(i), and requires prior opportunity for
cross-examination at a hearing. Id. § (f)(1). Perryman does not challenge the
statutory mechanism for making a protected person unavailable. He challenges
only the timing of the opportunity for cross-examination under the statute. The
Sixth Amendment, Perryman argues, requires opportunity to cross-examine
testimonial statements at the time they were made. This is incorrect for two
reasons.
[31] First, the protected-person statute cannot be unconstitutional on these grounds
in cases of hearsay declarants who make testimonial statements before
prosecution is commenced. Sixth Amendment rights are the rights of “the
accused . . . .” Amend. VI. As such they do not attach prior to the formal
institution of criminal proceedings — that is, before there is an accused. See
Texas v. Cobb, 532 U.S. 162, 167–68 (“[The Sixth Amendment right to counsel]
does not attach until a prosecution is commenced, that is, at or after the
initiation of adversary judicial criminal proceedings — whether by way of
formal charge, preliminary hearing, indictment, information, or arraignment.”
(citation omitted)). Here, Perryman had no Sixth Amendment confrontation
right at the time of A.G.’s C.A.C. interview because no prosecution had
commenced, and Perryman was not an accused. Such will be the case for
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many, if not most, protected persons, as well as many, if not most, police
interrogations and other settings eliciting testimonial statements.
[32] Second, even if confrontation rights have attached at the time a testimonial
statement is made, still the Sixth Amendment does not require opportunity to
cross-examine at that time. Crawford requires “prior” opportunity for cross-
examination of unavailable absent witnesses, not contemporaneous
opportunity.2 541 U.S. at 68; Howard v. State, 853 N.E.2d 461, 470 (Ind. 2006)
(“Only where a defendant has never had the opportunity to . . . cross-examine a
witness does the admission of prior testimony at a subsequent proceeding
violate the constitutional right of confrontation.” (emphasis added)); accord State
v. Griffin, 202 S.W.3d 670, 677 (Mo. Ct. App. 2006), quoted in Appellee’s Br. at
21-22. It is uncontested that cross-examination at trial regarding a witness’s
hearsay statement satisfies the Sixth Amendment. Crawford, 541 U.S. at 59 n.9;
Mishler v. State, 894 N.E.2d 1095, 1102 (Ind. Ct. App. 2008), trans. denied;
Agilera v. State, 862 N.E.2d 298, 306 (Ind. Ct. App. 2007), trans. denied. We
cannot perceive a reason why cross-examination either at the time the statement
was given or at trial would satisfy the Sixth Amendment, but not cross-
examination at any time in between. See California v. Green, 399 U.S. 149, 159
(1970) (“We cannot share the California Supreme Court’s view that belated
2
The testimonial hearsay at issue in Crawford was a statement given by Crawford’s wife to police
interrogators. 541 U.S. at 38-39. In discussing Crawford’s lack of prior opportunity to cross-examine his wife,
absent and unavailable under Washington’s marital privilege, id. at 40, the Court never suggested that only
Crawford’s presence in the interrogation room would have satisfied the Sixth Amendment.
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cross-examination can never serve as a constitutionally adequate substitute for
cross-examination contemporaneous with the original statement.”).
[33] Perryman’s argument conflicts with the Supreme Court’s post-Crawford cases as
well, and most obviously, with its laboratory testing cases. Bullcoming v. New
Mexico, 564 U.S. 647 (2011), Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
Applying Perryman’s argument to those cases would require the accused’s
presence in the laboratory as the analyst prepared the testimonial report against
him. But that is not the result reached there. Bullcoming, 564 U.S. at 652 (“The
accused’s right is to be confronted [at trial] with [the same analyst who prepared
the report], unless that analyst is unavailable at trial, and the accused had an
opportunity, pretrial, to cross-examine that particular scientist.” (emphasis
added)); Melendez-Diaz, 557 U.S. at 311 (“Absent a showing that the analysts
were unavailable to testify at trial and that [the accused] had a prior opportunity
to cross-examine them, [the accused] was entitled to ‘be confronted with’ the
analysts at trial.” (original emphasis omitted, emphasis added)).
[34] The protected-person statute does not offend the Sixth Amendment by failing to
require opportunity for cross-examination at the time the protected person
made a testimonial statement.
[35] Perryman’s second challenge to the facial constitutionality of the protected-
person statute fails as well. Perryman argues the statute runs afoul of Crawford
by requiring trial judges to determine the reliability of the protected person’s
statement. Of course, Crawford did not fault reliability per se; it faulted
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reliability in place of confrontation: “Dispensing with confrontation because
testimony is obviously reliable is akin to dispensing with jury trial because a
defendant is obviously guilty.” 541 U.S. at 62 (emphasis added). Here, the
protected-person statute requires reliability in addition to confrontation; it does
not permit the former to take the place of the latter. The confrontation clause
does not require more.
[36] Finally, Perryman argues that the protected-person statute as applied to him
unconstitutionally permitted admission of A.G.’s C.A.C. interview because
A.G.’s alleged inability “to provide any coherent and meaningful testimony
about the cause of his injuries[,]” Appellant’s Br. at 22, at the February 24,
2016, protected-person hearing denied Perryman opportunity for full, adequate,
and effective cross-examination.3 See Anderson v. State, 833 N.E.2d 119, 126
(Ind. Ct. App. 2005); Purvis v. State, 829 N.E.2d 572, 581 (Ind. Ct. App. 2005).
We disagree.
[37] The opportunity for cross-examination, and thus the confrontation clause, are
“honored where the defense is given a full and fair opportunity to probe and
expose testimonial infirmities such as forgetfulness, confusion, or evasion
through cross-examination, thereby calling to the attention of the factfinder the
3
In his reply brief, Perryman recasts this argument as another facial challenge to the statute: that the
statutory basis for unavailability in this case, I.C. § 35-37-4-6(e)(2)(B)(i) (trial testimony would cause serious
emotional distress preventing reasonable communication), by itself, precludes opportunity for full, adequate,
and effective cross-examination. Because points raised for the first time in reply are waived, Curtis v. State,
948 N.E.2d 1143, 1148 (Ind. 2011), we confine our review on this point to Perryman’s opening brief.
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reasons for giving scant weight to the witness[’s] testimony.” Howard, 853
N.E.2d at 470 (original alterations and quotations omitted) (quoting Maryland v.
Craig, 497 U.S. 836, 847 (1990)). Whether the opportunity was full and fair is
an inquiry into whether the state or the trial court impermissibly limited a
defendant’s cross-examination of the witnesses against him, not an inquiry into
the mental faculties of those witnesses or the character of their testimony. See
Delaware v. Fensterer, 474 U.S. 15, 19 (1985) (“It does not follow [from the
requirement that a defendant be allowed the opportunity to impeach a witness
on cross-examination] that the right to cross-examine is denied by the State
whenever the witness[’s] lapse of memory impedes one method of discrediting
him.”).
[38] Green and Fensterer left as an open question “whether there are circumstances in
which a witness[’s] lapse of memory may so frustrate any opportunity for cross-
examination that admission of the witness[’s] direct testimony violates the
Confrontation Clause.” Fensterer, 474 U.S. at 20; Green, 399 U.S. at 168–69.
That question was answered in the negative by United States v. Owens, 484 U.S.
554 (1988), in an opinion by Justice Scalia, the author of the Crawford opinion:
The Confrontation Clause guarantees only an opportunity for
effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish. . . . It is sufficient that the defendant has the
opportunity to bring out such matters as [the witness’s bias,
impairment,] and even (what is often a prime objective of cross-
examination) the very fact that he has a bad memory. . . . The
weapons available to impugn the witness[’s] statement when
memory loss is asserted will of course not always achieve
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success, but successful cross-examination is not the constitutional
guarantee.
Id. at 559-60 (original alterations, citations, emphasis, and quotations omitted;
emphasis added). The conclusiveness of Owens on this point has been
recognized by our supreme court. Fowler v. State, 829 N.E.2d 459, 466 (Ind.
2005) (holding defendant cannot claim denial of opportunity for cross-
examination by recalcitrant trial witness’s refusal to answer until defendant
seeks to compel testimony).
[39] Two decisions of this court have found unconstitutional frustration of
opportunity for cross-examination in the context of the protected-person statute,
not in cases of lapsed memory or non-responsiveness, but where the trial court
found the protected person unavailable under the statute because the protected
person was “incapable of understanding the nature and obligation of an oath.”
I.C. § 35-37-4-6(e)(2)(B)(ii); Anderson v. State, 833 N.E.2d 119, 126 (Ind. Ct.
App. 2005); Purvis v. State, 829 N.E.2d 572, 581 (Ind. Ct. App. 2005). Those
cases are not in point because A.G. was not found incapable of understanding
the nature of his oath. Indeed, A.G. affirmatively demonstrated his capacity to
distinguish truth from falsehood and to appreciate the importance of that
distinction. Tr. pp. 45-47.
[40] Here, Perryman’s cross-examination of A.G. spans more than nine pages of the
hearing transcript. Tr. pp. 47–57. A.G. answered questions about the course of
events leading up to his battery, and about his hospital visit and C.A.C.
interview afterwards. Defense counsel was able to fully probe whether motive
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or opportunity for manipulation or fabrication existed. Any lapses in A.G.’s
memory went to A.G.’s credibility and were within the province of the jury to
evaluate. Perryman was not denied the opportunity for cross-examination
guaranteed to him by the Sixth Amendment.
II. Other Evidentiary Rulings
[41] We review Perryman’s remaining challenges to evidentiary rulings below for
prejudicial abuse of the trial court’s discretion. Williams v. State, 43 N.E.3d 578,
581 (Ind. 2015). A 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. In reviewing whether an abuse of discretion was
prejudicial, we assess the probable impact of the improperly admitted evidence
on the jury in light of the properly admitted evidence. Id. If the conviction is
supported by independent, properly admitted evidence of guilt such that there is
little likelihood the improperly admitted evidence contributed to the verdict, the
error is harmless. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).
A. Admission of the Nurse’s Testimony Was Harmless Error
[42] On the second day of trial, March 8, 2016, a nurse who treated A.G. at the
children’s hospital testified 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. Perryman challenges this
statement as hearsay within hearsay (A.G.’s statement to the social worker
within the social worker’s statement to the nurse) not within an exception. See
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Ind. Evidence Rules 802 (hearsay not admissible), 803-04 (exceptions), 805
(each part of hearsay-within-hearsay statement must be separately admissible).
[43] The trial court ruled, and the State argues on appeal, that the nurse’s testimony
was admissible under the exception for statements seeking medical diagnosis or
treatment. Evid. R. 803(4). Assuming without deciding this to be correct with
respect to A.G.’s statement to the social worker, it cannot be correct with
respect to the social worker’s statement to the nurse, insofar as the exception
requires that the statement be made “by a person seeking medical diagnosis or
treatment[.]” Id. 803(4)(A). The State does not and cannot allege that the social
worker sought diagnosis or treatment from the nurse, and does not advance
another hearsay exception under which the social worker’s statement to the
nurse might have been admissible.
[44] Though admission of the nurse’s testimony was error, such error was harmless,
in light of the independent, properly admitted direct and circumstantial
evidence supporting Perryman’s conviction, as discussed in Part III infra.
Specifically, the substance of A.G.’s statement to the social worker was simply
cumulative of his more detailed C.A.C. interview. Examined for its value in
corroborating the C.A.C. interview, the probable impact of A.G.’s statement to
the social worker was minimal. The C.A.C. interview was given within twenty-
four hours of A.G.’s statement to the social worker, and there was no evidence
suggesting that motive or opportunity for manipulation or fabrication arose
during that period.
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[45] The trial court’s error in admitting A.G.’s statement to the social worker was
harmless.
B. Admission of the Forensic Biologist’s Evidence, If Error, Was Harmless
[46] On the second day of trial, May 8, 2016, a forensic biologist of the Indiana
State Police Laboratory testified 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 Schooner saw Perryman holding to A.G.’s face when she arrived
home early the next morning. The trial court also admitted the biologist’s report
concluding that the clothes carried A.G.’s blood and Perryman’s DNA.
Perryman challenges the admission of this evidence on the ground that the State
failed to show the “stringent chain of custody [required] for serological evidence
. . . .” Culver v. State, 727 N.E.2d 1062, 1068 (Ind. 2000).
[47] Assuming without deciding that Perryman is correct, such error was harmless.
The forensic biologist’s evidence showed only that A.G. had been bleeding, that
some of A.G.’s blood had stained Perryman’s clothing, and that Perryman’s
skin cells were present on A.G.’s clothes in sufficient concentrations to present
a testable sample. It was obviously uncontested that A.G. had been bleeding. It
was similarly uncontested that Perryman had been with A.G. just after A.G.
was injured: Schooler testified to seeing Perryman holding a washcloth to
A.G.’s face when she came home from work very early in the morning of
October 1, 2015, and Perryman never tried to show otherwise. Finally, that
Perryman’s skin cells were sufficiently concentrated on A.G.’s clothing made
his identity as A.G.’s batterer neither more nor less likely in context; it was ust
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as likely a simple consequence of their living together. See Tr. p. 462 (cross-
examination of forensic biologist).
[48] At closing argument, the State did not have much to say about the serological
evidence: “[W]e learned from [it] that [A.G.]’s blood was on [Perryman]’s
clothing. And, yes, we would expect it to be there. He was in contact with the
boy that night. But it’s not on anybody else’s clothing . . . .” Tr. p. 498. It is true
that A.G.’s blood was not found on anybody else’s clothing, but there was no
reason to expect the contrary. For Perryman’s closing argument, defense
counsel argued, “I thought the DNA was just really kind of throw away. . . . [It]
proves nothing.” Tr. pp. 504-05. We agree.
[49] In itself and in light of the properly admitted, independent evidence of guilt, see
Part III infra, the probable impact of the serology evidence on the jury was
minimal, and its admission, if error, was harmless.
C. Admission of the Jailer’s Evidence Was Not Error
[50] During trial Perryman was seen taking notes with his left hand. On the second
day of trial, May 8, 2016, 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, both showing that Perryman was right-
handed. Perryman challenges the trial court’s admission of this late-disclosed
evidence.
[51] “[E]vidence revealed at the time it is sought to be introduced will be excluded if
there is evidence of bad faith [on the part of the proponent] or substantial
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prejudice [to the opponent].” Cook v. State, 675 N.E.2d 687, 691 (Ind. 1996).
Continuance, rather than exclusion, is usually the appropriate remedy. Id. at
690; Barber v. State, 911 N.E.2d 641, 646 (Ind. Ct. App. 2009) (discretion to
exclude “limited to instances” of bad faith or substantial prejudice). Five factors
guide the trial court’s choice of remedy: when the parties first knew of the
evidence; the importance of the evidence; the prejudice resulting to the
opposing party; the appropriateness of a less severe remedy such as
continuance; and whether the opposing party would be unduly surprised and
prejudiced by admission. Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007).
[52] There is no evidence of bad faith on the State’s part, and the prejudice to
Perryman due to lateness was not substantial. It is true that the State could have
earlier anticipated the desirability of proving Perryman to be right-handed,
given the configuration of A.G.’s injuries. However, while the State’s sense of
urgency after seeing Perryman take notes with his left hand on the first day of
trial may suggest less than perfect trial preparation, it does not suggest bad faith.
Indeed, the need to call the jailer to establish that Perryman is right-handed was
not to be expected until Perryman used the subterfuge of appearing to be left-
handed in the courtroom.
[53] Moreover, Perryman cannot have been unduly surprised by the late disclosure
of evidence elicited by his own considered attempt to mislead the jury. If that
was not what Perryman intended to do, in so far as the State had not yet
finished presenting its case in chief, continuance would have been entirely
appropriate to allow Perryman to call witnesses or offer other evidence showing
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his left-handedness. However, this is not what Perryman sought to do —
presumably because he is not actually left-handed. Neither below nor on appeal
has Perryman pointed to any benefit of cross-examination or rebuttal evidence
he would have enjoyed but for the State’s lateness.
[54] The trial court did not abuse its discretion by failing to exclude the State’s late-
disclosed evidence.
III. Sufficient Evidence Supported Perryman’s Convictions
[55] Perryman challenges the sufficiency of the evidence supporting his convictions
for both battery and neglect. The State was required to prove each element of
the offenses charged beyond a reasonable doubt. Powers v. State, 540 N.E.2d
1225, 1227 (Ind. 1989). When reviewing whether the State presented sufficient
evidence to meet this burden, we consider only the probative evidence and
reasonable inferences from it supporting the judgment. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). We neither weigh the evidence nor assess witness
credibility. Id. We affirm if a reasonable jury could have found the defendant
guilty beyond a reasonable doubt, id. at 147 n. 4, or, put differently, if an
inference may reasonably be drawn from the evidence to support the judgment.
Id. at 147.
A. Battery
[56] To prove Perryman guilty of battery as charged, the State was required to prove
that Perryman touched A.G. in a rude, angry, or offensive manner, causing
A.G. serious bodily injury, while Perryman was at least eighteen years of age
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and A.G. was younger than fourteen. I.C. § 35-42-2-1(j). None of these
elements were disputed save the identity of A.G.’s batterer. Though A.G. at
first said his injuries were self-inflicted, Perryman joined the State in rejecting
this theory at trial. Tr. pp. 245 (opening) (“[T]here is no one, no one, no one
that believes [it] to be the case [that A.G. hit himself].”), 501 (closing) (“No
one, no one, no one believes that [A.G.] did this to himself.”).
[57] The direct and circumstantial evidence against Perryman permitted a
reasonable jury to find him guilty beyond a reasonable doubt of battering A.G.
A.G.’s C.A.C. interview directly inculpated Perryman. If believed by the jury,
his statements there were in themselves sufficient to sustain the guilty verdict.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (uncorroborated testimony of
victim sufficient evidence). In addition to this direct evidence, the jury had
before it the following circumstantial evidence, from which inferences of guilt
could reasonably be drawn in context: Perryman’s exclusive access to A.G. on
the evening in question; Perryman’s concealment of A.G. upstairs from Barnes;
the bruise on A.G.’s right shoulder and the injuries to the left side of A.G.’s
face, suggesting a right-handed assailant of sufficient strength to hold A.G.
down by the shoulder with his left hand while striking “multiple blows” with
his right, Tr. p. 406; Perryman’s right-handedness; Perryman’s insistence on not
taking A.G. to the hospital; Perryman’s refusal to let A.G. out of his sight until
informed of DCS’s impending arrival at the children’s hospital; and Perryman’s
flight from the hospital once so informed.
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[58] The evidence was sufficient to permit a reasonable jury to find Perryman guilty
of battery as charged beyond a reasonable doubt.
B. Neglect
[59] To prove Perryman guilty of neglect as charged, the State was required to prove
that Perryman, having voluntarily assumed the care of A.G., knowingly or
intentionally put A.G. in a situation that endangered his life or health. I.C. § 35-
46-1-4(a)(1). The mens rea is the defendant’s “subjective[] aware[ness] of a high
probability that he placed the dependent in a dangerous situation.” Gross v.
State, 817 N.E.2d 306, 308 (Ind. Ct. App. 2004). The danger to the dependent
must be “actual and appreciable.” Id. at 309. Here, the State’s charge was that
Perryman endangered A.G. by “fail[ing] to obtain medical attention for his
injuries and/or attempt[ing] to prevent A.G. from obtaining medical attention
for his injuries.”4 Appellant’s App. p. 14.
[60] Perryman argues the State failed to present sufficient evidence to prove the mens
rea beyond a reasonable doubt, pointing us to Taylor v. State, 28 N.E.3d 304
(Ind. Ct. App. 2015), trans. denied. There, we reversed Taylor’s conviction for
neglect of her infant son for insufficient evidence. Id. at 305. While Taylor was
at work, her live-in boyfriend beat the infant repeatedly, causing fatal injuries.
Id. Taylor, ignorant of what her boyfriend had done, came home late in the
4
The neglect statute also criminalizes “depriv[ing] the dependent of necessary support[,]” I.C. § 35-46-1-
4(a)(3), which includes deprivation of “medical care.” I.C. § 35-46-1-1 (defining “support”). However, both
the State’s charging instrument and the trial court’s final jury instructions referred only to endangerment
under Subsection (a)(1). Appellant’s App. p. 14 (amended information), Tr. p. 510 (jury instruction).
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evening and went to bed after only glancing into her son’s bedroom to check on
him. Id. Around noon the next day, Taylor found the infant dead in his
bedroom. Id.
[61] The State obtained Taylor’s conviction on the theory that she knowingly
withheld medical care from her son. Id. at 308. We reversed:
[T]he jury simply was not provided evidence that Taylor inflicted
an injury, was present when injury was inflicted, heard the
infliction of injury, or saw manifestations of an injury
necessitating medical care. . . . The inference-stacking [required
to find the mens rea] without establishment of a predicate fact . . .
is not constitutionally adequate [proof beyond a reasonable
doubt].
Id. at 309.
[62] Taylor is of no help to Perryman. Unlike the evidence there, as discussed in Part
III.A supra, the evidence here permitted the jury to find that Perryman “inflicted
an injury, was present when injury was inflicted, [and] heard the infliction of
injury[.]” Id. at 308. Perryman argues that A.G.’s injuries were not really
“manifest[]” until the next day, id., and, relying on a doctor’s trial testimony,
that the two-centimeter cut on A.B.’s mouth did not “necessitat[e] medical
care” because such injuries cannot be sutured. Id. The first point is belied by
Schooler’s horrified reaction at the sight of her son on the evening in question,
and by Perryman’s own statements to the effect that A.G.’s injuries looked
worse than they were. The second point misses a very large forest for a very
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small tree, and is belied by Perryman’s feigned “treatment” of A.G. by holding
a washcloth to his face.
[63] As discussed in Part III.A supra, a reasonable jury could have found that
Perryman, a full-grown adult, held down an eight-year-old boy and struck him
repeatedly in the face with his closed fist. The child suffered “blunt force
trauma,” Tr. p. 406, and “significant” pain as a result. Tr. p. 415. Schooler was
horrified at A.G.’s appearance when she came home from work; Perryman
tried to convince her that things looked worse than they were. A reasonable
jury could have concluded that Perryman was lying; that Perryman, having
caused the child’s injuries, knew their nature and probable extent; that
Perryman was subjectively aware of the actual and appreciable danger posed to
A.G. should the trauma Perryman inflicted go untreated; and that Perryman
repeatedly, and for a time successfully, nevertheless tried to dissuade Schooler
from seeking treatment for A.G. No inference-stacking was necessary; the
conclusions followed directly from the established predicate fact.
[64] The evidence was sufficient to permit a reasonable jury to find Perryman guilty
of neglect as charged beyond a reasonable doubt.
IV. Denial of Motion for Mistrial Was Not Error
[65] On the second day of trial, March 8, 2016, the jury found Perryman guilty as
charged of battery and neglect. On the third day of trial, March 9, 2016, the jury
returned to try the habitual offender charge. Before the jury was seated,
Perryman unsuccessfully moved for a mistrial on the grounds that, earlier that
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morning, he had been put in sight of one to three jurors while standing
handcuffed in the breezeway of the courthouse. Perryman appeals the denial of
his motion.
[66] The denial of a mistrial lies within the sound discretion of the trial court and is
reviewed for abuse of that discretion. Davis v. State, 770 N.E.2d 319, 325 (Ind.
2002). Generally, the jury may not see the defendant shackled. Id. The general
rule is an ancient bulwark of the presumption of innocence. Stephenson v. State,
864 N.E.2d 1022, 1029 (Ind. 2007) (citing Deck v. Missouri, 544 U.S. 622, 626–
27, 630 (2005)). Unlike a defendant who was tried in shackles, where harm and
prejudice are presumed, id., a defendant who was merely seen shackled while
being transported must show actual harm to prevail on appeal from denial of a
mistrial. Davis, 770 N.E.2d at 325 (citing Jenkins v. State, 492 N.E.2d 666, 669
(Ind. 1986)).
[67] Perryman cannot show an abuse of discretion here because he did not show
actual harm. First, Perryman did not show that any juror actually saw him in
handcuffs; he established only that he was in the presence of one to three jurors
while handcuffed. See Warr v. State, 877 N.E.2d 817, 822 (Ind. Ct. App. 2007)
(no actual harm where appellant could not show jurors actually saw her
shackled), trans. denied. Second, no juror was found to have been prejudiced by
the sight of Perryman in handcuffs. After hearing Perryman’s motion for a
mistrial outside the presence of the jury, the trial court seated the jury and asked
“whether anything ha[d] happened since . . . yesterday . . . that cause[d]
anybody any concern about whether they can be fair and impartial in this case.”
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Tr. p. 533. No juror indicated this was the case. Id. Finally, our supreme court
has held that “reasonable jurors could expect defendants to be in police custody
[and restrained] while in the hallway of the courthouse.” Davis, 770 N.E.2d at
326 (original alterations omitted) (quoting Jenkins, 492 N.E.2d at 669). This
applies with particular force to defendants like Perryman, who have already
been found guilty as charged at the conclusion of the first phase of a bifurcated
trial. Reasonable jurors could expect defendants found guilty of battery and
neglect to be in police custody and restrained the next day, without prejudice to
future proceedings.
[68] Because Perryman did not show actual harm resulting from the possibility that
one to three jurors saw him handcuffed in the breezeway of the courthouse
before trying the habitual offender charge, the trial court did not abuse its
discretion by denying Perryman’s motion for a mistrial.
Conclusion
[69] The trial court did not err by admitting A.G.’s C.A.C. interview because it was
within the trial court’s discretion to find the interview reliable under the
protected-person statute and because the statute does not violate the Sixth
Amendment on its face or as applied to Perryman. Admission of the nurse’s
hearsay testimony was harmless error. Assuming admission of the forensic
biologist’s evidence was error, although that error was harmless as well.
Admission of the jailer’s evidence was not error. Sufficient evidence supported
Perryman’s convictions for battery and neglect. The trial court did not abuse its
discretion in ruling that the possibility that one to three jurors saw Perryman in
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handcuffs before the start of habitual offender proceedings did not entitle
Perryman to a mistrial. The judgment against Perryman is therefore affirmed.
[70] Affirmed.
Kirsch, J., and Altice, J., concur.
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