                                                                             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
      Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017                    Page 1 of 33
      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.


      Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 2 of 33
[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

      Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 3 of 33
      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.

      Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017       Page 4 of 33
       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,


       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 5 of 33
       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




       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 6 of 33
       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


       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 7 of 33
       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



       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017    Page 8 of 33
       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


       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017        Page 9 of 33
       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).

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017       Page 10 of 33
[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. . . .



       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017      Page 11 of 33
               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.

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017     Page 12 of 33
[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

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017                                Page 13 of 33
       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).

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017                         Page 14 of 33
       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

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 15 of 33
       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.

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017                          Page 16 of 33
       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


       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017       Page 17 of 33
       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.

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017                              Page 18 of 33
       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
       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017    Page 19 of 33
               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
       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 20 of 33
       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


       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 21 of 33
       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.



       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 22 of 33
[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

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017        Page 23 of 33
       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

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017     Page 24 of 33
       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

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 25 of 33
       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

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017    Page 26 of 33
       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.




       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017    Page 27 of 33
[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).

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017                         Page 28 of 33
       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



       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017    Page 29 of 33
       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


       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017    Page 30 of 33
       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.”

       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 31 of 33
       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
       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 32 of 33
       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.




       Court of Appeals of Indiana | Opinion 06A01-1605-CR-1049 | July 7, 2017   Page 33 of 33
