                                                                  FILED
                                                             May 11 2017, 6:24 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Gregory L. Fumarolo                                       Curtis T. Hill, Jr.
      Fort Wayne, Indiana                                       Attorney General of Indiana

                                                                Ian McLean
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Larry C. Perry, Jr.,                                      May 11, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A04-1608-CR-1890
              v.                                                Appeal from the Allen Superior
                                                                Court
      State of Indiana,                                         The Honorable Samuel Keirns,
      Appellee-Plaintiff                                        Magistrate
                                                                Trial Court Cause No.
                                                                02D06-1512-F5-347



      Crone, Judge.


                                              Case Summary
[1]   This case highlights the difficulties and frustrations encountered by members of

      the law enforcement community who investigate and prosecute domestic
      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                 Page 1 of 23
      violence cases in which the victim recants her accusations against the abuser, an

      unfortunate and all-too-common occurrence.1 This case also highlights the

      limits of circumstantial evidence in proving a criminal defendant’s guilt beyond

      a reasonable doubt.


[2]   Larry C. Perry, Jr.’s wife told police officers that Perry had beaten and strangled

      her over the course of several days and showed them bruises and other injuries

      to support her accusations, some of which were admitted as substantive

      evidence at trial and some of which were admitted solely to impeach her

      credibility. Perry was charged in Allen County with committing multiple

      crimes and with being a habitual offender. At trial, Perry’s wife denied that

      Perry had assaulted her and denied telling that to the police, and she attributed

      her injuries to other causes. Nonetheless, the jury found Perry guilty of two

      counts of battery, one count of strangulation, and two counts of domestic

      battery, and also found him to be a habitual offender. The trial court merged

      several convictions based on double jeopardy concerns and sentenced him to six

      years on one count of level 5 felony battery, with a six-year habitual offender

      enhancement, and to two and a half years on one count of level 6 felony

      domestic battery, for an aggregate sentence of fourteen and a half years

      executed.




      1
        See Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. LAW REVIEW 747, 768 (May 2005) (“Victims
      of domestic violence are more prone than other crime victims to recant or refuse to cooperate after initially
      providing information to police. Recent evidence suggests that 80 to 85 percent of battered women will
      recant at some point.”).

      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                            Page 2 of 23
[3]   On appeal, Perry raises four issues: (1) whether the State presented sufficient

      evidence to support his convictions; (2) whether the State presented sufficient

      evidence to prove venue on four charges, i.e., that the crimes were committed

      in Allen County; (3) whether the trial court abused its discretion in denying his

      motion for mistrial; and (4) whether his sentence is inappropriate in light of the

      nature of the offenses and his character. Based on our review of the record, we

      conclude as follows: (1) the State failed to present sufficient evidence for a jury

      to find that Perry committed any crime other than one count of level 6 felony

      domestic battery, which means that the habitual offender finding cannot stand;

      (2) the State also failed to present sufficient evidence to prove venue on four

      charges; (3) Perry has failed to establish that the trial court abused its discretion

      in denying his motion for mistrial; and (4) Perry has failed to persuade us that

      his sentence for level 6 felony domestic battery is inappropriate in light of the

      nature of the offense and his character. Therefore, we affirm his conviction and

      sentence on that count and reverse his remaining convictions and habitual

      offender finding.


                                  Facts and Procedural History2
[4]   The facts most favorable to Perry’s convictions are that he and his wife Lydia

      checked into the Coliseum Inn in Allen County on or about November 30,

      2015. On December 4, Perry and Lydia went to the triage desk at Parkview




      2
        We held oral argument on April 18, 2017, at Manchester University. We thank the faculty, staff, and
      students for their hospitality, and we thank counsel for their excellent advocacy.

      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                        Page 3 of 23
      Regional Medical Center.3 Lydia told the nurse that she had been in a “motor

      vehicle collision” two days earlier but had not sought medical attention. Tr.

      Vol. 1 at 144. She had multiple bruises on both sides of her face and

      complained of pain in that area, but she reported no other bruising or pain.

      Lydia “complained of significant dizziness” to the emergency room doctor and

      told him that “she had been knocked unconscious for about a minute or

      somewhere around there.” Id. at 149. A CT scan detected “significant

      swelling” on the left side of Lydia’s face, “but intercranially, or inside the brain,

      looked okay.” Id. The doctor diagnosed her “with a concussion and facial

      injuries” resulting from a motor vehicle accident. Id.4 According to the doctor,

      Lydia’s bruises “seemed consistent” with a two-day-old injury. Id. at 151.


[5]   Shortly after noon on December 6, someone called 911 to report that a man

      was “being belligerent” and throwing a crying woman against a wall in a room

      at the Coliseum Inn. State’s Ex. 1 (recording of 911 call). Fort Wayne Police

      Department Officers Michael DeLong and Joshua Roscoe responded to the

      call. They “heard a male yelling from inside the room” and “a female

      whimpering or crying possibly.” Tr. Vol. 1 at 159-60. Officer DeLong knocked




      3
        The only evidence regarding the location of the medical center was elicited via the following question from
      the prosecutor to Fort Wayne Police Department Detective Jeff Marsee: “Detective, you did subsequently,
      by way of medical release though, secure copies of medical records from Parkview Hospital that confirmed a
      visit to a local hospital by [Lydia] on December 4, did you not?” Tr. Vol. 1 at 196. The detective replied,
      “Yes.” Id.
      4
       The doctor did not say whether his diagnosis of the cause of Lydia’s injuries was based on her self-report
      and/or the injuries themselves.

      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                           Page 4 of 23
      on the door, and Perry opened it. According to the officer, Perry appeared

      “[a]ngry,” and Lydia was crying and appeared “[f]earful and frantic.” Id. at

      162. Lydia, who was standing behind Perry, waved Officer DeLong into the

      room, and the officer asked Perry to step outside. The officer saw that Lydia

      had a “bloody lip,” and she told him that Perry had done that “[j]ust now” by

      “hitting her in the face.” Id. at 164.5 The officer noticed bruising around

      Lydia’s neck and the “top of her chest,” and she told him “that there was an

      incident prior to that where she had some bruising to her thigh,” which she

      showed him. Id. at 165. Perry told Officer Roscoe that Lydia “had been in a

      car accident a few days prior and that’s how she had all of her injuries.” Id. at

      177. Perry denied touching Lydia.


[6]   The officers arrested Perry and brought him and Lydia to the police station,

      where they were interviewed by Detective Jeff Marsee. Lydia told the detective

      that Perry “had hit her in the mouth when officers were knocking on the door.”

      Id. at 183. She also said that she was dizzy and that “the bruising on her face

      and neck was from an incident that started on December 2, and went into the




      5
       At trial, Perry did not object to the officer’s testimony about Lydia’s statement on hearsay grounds,
      presumably because it could be considered an excited utterance. See Ind. Evidence Rule 801(c) (defining
      hearsay as “a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is
      offered in evidence to prove the truth of the matter asserted.”); Ind. Evidence Rule 802 (“Hearsay is not
      admissible unless these rules or other law provides otherwise.”); Ind. Evidence Rule 803(2) (providing that an
      excited utterance, i.e., “[a] statement relating to a startling event or condition, made while the declarant was
      under the stress of excitement that it caused[,]” is “not excluded by the rule against hearsay, regardless of
      whether the declarant is available as a witness”).

      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                               Page 5 of 23
      early mornings hours of December 3rd.” Id. at 184.6 Police took photographs of

      Lydia’s bloody lip, bruises on her face, throat, chest, and arms, and a bruise

      encircling a red mark on her thigh.


[7]   Perry told Detective Marsee that “he may have accidentally hit [Lydia] in the

      mouth when he was trying to push her away” earlier that day. Id. at 185. Perry

      also told the detective that “the bruising and stuff on her face and neck was

      from a car wreck a couple days before,” but Perry “did not believe that she was

      in a car wreck because she did not have a car[.]” Id. Perry claimed that he was

      with his father, not Lydia, on December 2 and 3.


[8]   On December 10, Perry was charged in Allen Superior Court with five counts:

      Count 1, level 5 felony battery (for a battery resulting in serious bodily injury

      committed between December 2 and 3);7 Count 2, level 6 felony battery (for a

      battery resulting in moderate bodily injury committed between December 2 and

      3);8 Count 3, level 6 felony strangulation (committed between December 2 and

      3);9 Count 4, level 6 felony domestic battery (for a battery of a spouse resulting



      6
        At trial, the detective did not elaborate on the details of this “incident.” The trial court admitted this
      testimony as a statement of Lydia’s then-existing physical condition under Indiana Evidence Rule 803(3).
      7
       Battery is the knowing or intentional touching of another person in a rude, insolent, or angry manner. Ind.
      Code § 35-42-2-1. Indiana Code Section 35-31.5-2-292 defines serious bodily injury in pertinent part as
      bodily injury that causes unconsciousness or extreme pain. “‘Bodily injury’ means any impairment of
      physical condition, including physical pain.” Ind. Code § 35-31.5-2-29.
      8
       “‘Moderate bodily injury’ means any impairment of physical condition that includes substantial pain.” Ind.
      Code § 35-31.5-2-204.5.
      9
       Indiana Code Section 35-42-2-9 defines strangulation in pertinent part as the knowing or intentional
      application of pressure to the throat or neck of another person in a rude, angry, or insolent manner that
      impedes the other person’s normal breathing or blood circulation.

      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                            Page 6 of 23
      in bodily injury committed between December 2 and 3, with a prior domestic

      battery conviction);10 and Count 5, level 6 felony domestic battery (for a battery

      of a spouse resulting in bodily injury committed on December 6, with a prior

      domestic battery conviction). The State later alleged in Count 6 that Perry was

      a habitual offender based on four prior unrelated felony convictions. The trial

      court issued a protective order prohibiting Perry from contacting Lydia, which

      he violated by calling her 176 times before his two-day jury trial in June 2016.


[9]   On the first day of trial, Lydia testified that as of December 6, she and Perry

      had been staying at the Coliseum Inn “[f]or about a week.” Id. at 103. She

      claimed that she had injured her lip by tripping and hitting her mouth on a table

      while she and Perry were fighting over his phone, which she thought he was

      using to contact another woman. She claimed that her other injuries had been

      caused during a fight with two women in an Ohio park on the night of

      December 2 and that she had lied about being in a car accident because she did

      not want police to investigate the fight. According to Lydia, she drove her

      uncle’s car to Ohio to visit her family on December 2, returned on December 3,

      and celebrated Perry’s birthday that day by going to a restaurant with him. She

      claimed that she told Perry that she “got into a fight with a girl,” and “[h]e said

      [she] shouldn’t have gone.” Id. at 107.




      10
        A domestic battery is the battery of a family or household member, which may include a current or former
      spouse. Ind. Code §§ 35-42-2-1.3, 35-31.5-2-128.

      Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                       Page 7 of 23
[10]   Lydia denied telling Officer DeLong and Detective Marsee that Perry hit her.

       In response to this testimony, the trial court allowed Officer DeLong to testify

       that Lydia told him that Perry had “[p]unched her” and “attempted to choke

       her” and stabbed her in the leg with a fork “a few days” before December 6 (as

       generally alleged in Counts 1 through 4) and that Perry had told her to tell the

       medical center staff that “she was involved in a car accident[.]” Id. at 171, 172.

       But the court instructed the jury that the testimony could be considered only for

       impeachment purposes and not “as direct evidence of the offenses[.]” Id. at

       170. The court did not admit the testimony as substantive evidence on the basis

       that Lydia’s statements did not qualify as excited utterances under Indiana

       Evidence Rule 803(2). See n.5, supra.


[11]   Lydia also said that she did not “want the charges against” Perry and claimed

       that she had not talked to him on the phone since December. Id. at 108, 137.

       She acknowledged writing a letter to Perry’s counsel and the prosecutor stating

       that she had “lied on [Perry] out of madness over personal matters,” i.e.,

       suspicions that he was cheating on her. Defendant’s Ex. A. She also wrote a

       letter to Perry in which she apologized for “lying” and stated that she “really

       didn’t know how serious it was going to get.” Defendant’s Ex. B.


[12]   To rebut this statement, the State called Detective Taya Strausborger, who

       testified that both Perry and Lydia were arrested after an incident on March 9,

       2015. Initially, the detective considered Lydia to be the suspect and Perry to be

       the victim, but that assessment changed. Lydia told the detective that Perry

       “had put his hands around her throat[,]” which was “painful” and caused her to

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017   Page 8 of 23
       have a “raspy” voice, and that she “pushed him away.” Tr. Vol. 1 at 202, 203.

       Ultimately, no charges were filed against either Perry or Lydia as a result of that

       incident.


[13]   On the evening of the first day of trial, Perry again violated the no-contact order

       by calling Lydia from jail. See State’s Ex. 15 (recording of call). The call was

       recorded, and the recording was played for the jury the next day. During the

       call, Perry mentioned the March 9 incident and suggested that Lydia not

       dispute his initial “victim” status if she were recalled to the stand. Id. Lydia

       told Perry that she was “traumatized” because the prosecutor “kept coming at

       [her] with those pictures of [her] face and sh*t and that sh*t was really

       bothering [her.]” Id. Perry assured Lydia that his attorney was not going to do

       the same thing that the prosecutor did, claimed that his attorney wanted her to

       “keep doing what [she was] doing,” and told her that he would be “out

       tomorrow” if he won. Id.


[14]   The State rested its case, and Perry moved for a directed verdict on Counts 1

       through 4 based on the State’s alleged failure to prove venue. The trial court

       denied the motion. Perry did not testify, and the defense rested without calling

       any witnesses.


[15]   The jury found Perry guilty on all counts. At the July 29 sentencing hearing,

       the trial court merged Counts 2 through 4 with Count 1 based on double

       jeopardy concerns. The court imposed a six-year sentence on Count 1, with a

       six-year habitual offender enhancement, and imposed a consecutive two-and-a-


       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017     Page 9 of 23
       half-year sentence on Count 5, for an aggregate sentence of fourteen and a half

       years executed. Under a different cause number, Perry had been charged with

       and pled guilty to four counts of level 6 felony invasion of privacy based on his

       multiple violations of the no-contact order, and he received an additional four-

       year executed sentence at the same hearing. The trial court issued a no-contact

       order as part of Perry’s sentence in both cases, which Perry refused to

       acknowledge with his signature. He also stated that he was not “worried”

       about violating the orders or losing “good time credit” or being held in

       contempt of court as a result. Sent. Tr. at 23.


[16]   Perry now appeals his convictions and sentence in the instant case. Additional

       facts will be provided as necessary.


                                       Discussion and Decision

        Section 1 – The State presented sufficient evidence for a jury
        to find that Perry committed the domestic battery alleged in
        Count 5, but it failed to present sufficient evidence regarding
                          the other charged offenses.
[17]   Perry argues that the State failed to present sufficient evidence to support his

       convictions. “The Due Process Clause of the Fourteenth Amendment protects

       a defendant against conviction except upon proof beyond a reasonable doubt of

       every element necessary to constitute the crime with which he is charged.”

       Cockrell v. State, 743 N.E.2d 799, 806 (Ind. Ct. App. 2001). “While we seldom

       reverse for insufficient evidence, in every case where that issue is raised on

       appeal we have an affirmative duty to make certain that the proof at trial was,

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017   Page 10 of 23
       in fact, sufficient to support the judgment beyond a reasonable doubt.” Bean v.

       State, 818 N.E.2d 148, 150 (Ind. Ct. App. 2004).


[18]   “We do not reweigh the evidence or assess the credibility of witnesses in

       reviewing a sufficiency of the evidence claim.” Bell v. State, 31 N.E.3d 495, 499

       (Ind. 2015). “The factfinder is obliged to determine not only whom to believe,

       but also what portions of conflicting testimony to believe, and is not required to

       believe a witness’[s] testimony even when it is uncontradicted.” Wood v. State,

       999 N.E.2d 1054, 1064 (Ind. Ct. App. 2013) (citation omitted), trans. denied

       (2014), cert. denied. On appeal, we consider conflicting evidence most favorably

       to the jury’s verdict. Schaaf v. State, 54 N.E.3d 1041, 1043 (Ind. Ct. App. 2016).

       We look to the evidence that supports the verdict and the reasonable inferences

       drawn therefrom and will affirm the convictions if there is probative evidence

       from a which a reasonable factfinder could have found the defendant guilty

       beyond a reasonable doubt. Bell, 31 N.E.3d at 499.


[19]   “The State need not present direct evidence to support each element of a crime,

       and it has long been held that circumstantial evidence will support a

       conviction.” Semenick v. State, 977 N.E.2d 7, 15 (Ind. Ct. App. 2012) (emphasis

       removed), trans. denied (2013). Direct evidence has been defined as “[e]vidence

       that is based on personal knowledge or observation and that, if true, proves a

       fact without inference or presumption.” BLACK’S LAW DICTIONARY (10th ed.

       2014). Circumstantial evidence has been defined as “[e]vidence based on

       inference and not on personal knowledge or observation” or as “[a]ll evidence

       that is not given by eyewitness testimony.” Id. “A conviction may rest on

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017   Page 11 of 23
       circumstantial evidence alone. Circumstantial evidence need not overcome

       every reasonable hypothesis of innocence. It is sufficient if an inference drawn

       from the circumstantial evidence reasonably tends to support the conviction.”

       Peters v. State, 959 N.E.2d 347, 355 (Ind. Ct. App. 2011) (citations omitted).


[20]   All that being said, our supreme court has emphasized that

               [a]ny consideration and determination of the jury is to be made
               on the evidence presented to them. Imagination or speculation is
               not a proper basis for presenting evidence nor for analyzing it or
               reaching conclusions based on it. In fact, the purpose of our
               rules of evidence and the procedures we follow in conducting a
               trial is to remove imagination and speculation from the process
               and to determine the best we humanly can that an individual is
               guilty or not guilty based on sound probative evidence.


       Hoskins v. State, 441 N.E.2d 419, 426 (Ind. 1982); see also Weisheit v. State, 26

       N.E.3d 3, 11 (Ind. 2015) (“[A] conviction cannot be sustained when ‘an

       essential element of an offense necessary in the proof of the offense and to

       sustain a verdict of guilty … is founded solely and wholly upon another

       inference.’ This is because ‘the probability of a given inference being accurate

       decreases with each inferential building block.’”) (quoting Landress v. State, 600

       N.E.2d 938, 942 (Ind. 1992)), cert. denied (2016); Mediate v. State, 498 N.E.2d

       391, 393 (Ind. 1986) (“A reasonable inference of guilt must be more than a

       mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla.”).


[21]   We first address Perry’s argument that the State failed to prove beyond a

       reasonable doubt that he committed level 6 felony domestic battery against


       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017    Page 12 of 23
       Lydia on December 6 as alleged in Count 5.11 The State presented evidence

       that on December 6, Officers DeLong and Roscoe responded to a report of a

       “belligerent” man throwing a crying woman against a hotel room wall. State’s

       Ex. 1. When they arrived, the officers found an “[a]ngry” Perry and his crying,

       “[f]earful[,] and frantic” wife Lydia, who waved Officer DeLong into the room.

       Tr. Vol. 1 at 162. The officer saw that Lydia had a “bloody lip” – a fresh injury

       – as well as numerous bruises on her face and body. Id. at 164. At trial, the

       court admitted as substantive evidence Lydia’s statement to the officer that

       Perry had bloodied her lip “[j]ust now” by “hitting her in the face.” Id. at 164.12

       The court also admitted as substantive evidence Lydia’s statement to Detective

       Marsee that Perry “had hit her in the mouth when officers were knocking on

       the door.” Id. at 183.


[22]   Based on both direct evidence (Lydia’s eyewitness statements to the officer and

       the detective) and circumstantial evidence (the 911 call, the officer’s testimony,

       Lydia’s bloody lip), a reasonable factfinder could find beyond a reasonable

       doubt that Perry knowingly or intentionally touched his wife in a rude, insolent,

       or angry manner by hitting her in the face, which resulted in physical pain.

       Perry’s only challenges to the sufficiency of the evidence regarding Count 5 are




       11
          Perry does not dispute that he had a prior domestic battery conviction, which elevated the offense from a
       class A misdemeanor to a level 6 felony.
       12
         Substantive evidence has been defined as “[e]vidence offered to help establish a fact in issue, as opposed to
       evidence directed to impeach or to support a witness’s credibility.” BLACK’S LAW DICTIONARY (10th ed.
       2014).

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                           Page 13 of 23
       that Lydia later denied telling the police that he battered her and/or recanted

       her accusations, and she also claimed that she injured her lip by accidentally

       tripping and hitting her mouth on a table. This argument is merely an

       invitation to reweigh conflicting evidence and assess witness credibility, which

       we may not do.


[23]   But Lydia’s denials and recantations are much more problematic with respect to

       the batteries and strangulation charged in Counts 1 through 4, which were

       alleged to have occurred on December 2 or 3. Her statements to police that

       Perry had committed those crimes were not admitted as substantive evidence.

       The jurors saw the photographs of Lydia’s injuries and heard conflicting stories

       about how and by whom they were caused. The jurors were entitled to

       disbelieve those stories, but they were not entitled to infer that Perry caused

       Lydia’s injuries based solely on the couple’s lack of credibility. This would

       amount to speculation, which is insufficient to sustain a conviction.13 Mediate,

       498 N.E.2d at 393; see also Willis v. State, 27 N.E.3d 1065, 1068 (Ind. 2015) (“An

       inference cannot be based upon evidence which is uncertain or speculative or




       13
          At oral argument, the State conceded that the jurors were not entitled to speculate that Perry battered and
       strangled Lydia on December 2 or 3 simply because he battered her on December 6. The State suggested that
       Lydia’s December 6 statement that Perry had hit her in the face “just now” could be interpreted as an
       indication that he had caused her other injuries on December 2 or 3, but this suggestion is itself mere
       speculation. Our supreme court has stated that “[a]ny testimony tending to show an accused’s attempt to
       conceal implicating evidence or to manufacture exculpatory evidence may be considered by the trier of fact as
       relevant since revealing a consciousness of guilt.” Grimes v. State, 450 N.E.2d 512, 521 (Ind. 1983). The
       jurors were entitled to believe that Perry attempted to conceal implicating evidence by lying about the cause
       of Lydia’s injuries and that he also attempted to manufacture exculpatory evidence by taking her to the
       hospital to be treated for injuries from an alleged motor vehicle accident, but lack of credibility is insufficient
       to prove beyond a reasonable doubt that he actually battered and strangled her.

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                             Page 14 of 23
       which raises merely a conjecture or possibility.”) (citation omitted).

       Consequently, we must reverse Perry’s convictions on Counts 1 through 4. We

       must also reverse his habitual offender finding because his conviction on Count

       5 was enhanced to a felony based on a prior unrelated conviction. See Ind.

       Code §§ 35-42-2-1.3 (domestic battery statute), 35-50-2-8(e) (“The state may not

       seek to have a person sentenced as a habitual offender for a felony offense

       under this section if the current offense is a misdemeanor that is enhanced to a

       felony in the same proceeding as the habitual offender proceeding solely

       because the person had a prior unrelated conviction.”).


        Section 2 – The State also failed to present sufficient evidence
                      of venue on Counts 1 through 4.
[24]   Notwithstanding our reversal of Perry’s convictions on Counts 1 through 4, we

       also address his argument that the State failed to present sufficient evidence of

       venue on those counts. Article 1, Section 13 of the Indiana Constitution states,

       “In all criminal prosecutions, the accused shall have the right to a public trial …

       in the county in which the offense shall have been committed ….” “Venue is

       not an element of the offense.” Smith v. State, 835 N.E.2d 1072, 1074 (Ind. Ct.

       App. 2005). Accordingly, the State is required to prove venue only by a

       preponderance of the evidence rather than beyond a reasonable doubt. Id. In

       other words, the State was required to prove that Perry more likely than not

       committed the crimes in Allen County. See Fry v. State, 990 N.E.2d 429, 448

       (Ind. 2013) (explaining preponderance standard). We treat a claim of

       insufficient evidence of venue in the same manner as other insufficient evidence

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017   Page 15 of 23
       claims. Smith, 835 N.E.2d at 1074. “We neither reweigh the evidence nor

       assess witness credibility and look only to the evidence and the reasonable

       inferences drawn therefrom which support the conclusion of requisite venue.”

       Id. Venue may be established by circumstantial evidence. Bryant v. State, 41

       N.E.3d 1031, 1037 (Ind. Ct. App. 2015). “[T]he State meets its burden of

       establishing venue if the facts and circumstances permit the trier of fact to infer

       that the crime occurred in the given county.” Eckstein v. State, 839 N.E.2d 232,

       233 (Ind. Ct. App. 2005).


[25]   The State presented virtually no probative evidence that Perry committed the

       offenses alleged in Counts 1 through 4, and it presented even less evidence

       regarding where those alleged offenses occurred.14 Thus, even under the less

       stringent preponderance standard, we would be compelled to reverse Perry’s

       convictions based on insufficient evidence of venue in any event.


            Section 3 – Perry has failed to establish that the trial court
             abused its discretion in denying his motion for mistrial.
[26]   During the State’s case-in-chief, Detective Marsee testified that Perry claimed to

       have been with his father on December 2 and 3, when some of Lydia’s injuries

       were inflicted. See Tr. Vol. 1 at 185 (“[Perry] just said that he was not with




       14
          The State posits that the offenses were committed in Allen County because Lydia sought treatment for her
       injuries at Parkview Regional Medical Center. As stated in footnote 3, supra, the only evidence elicited
       regarding the hospital’s location was that it is “local,” Tr. Vol. 1 at 196, and no evidence at all was elicited
       regarding where Lydia’s injuries occurred. Any inference that the offenses were committed in Allen County
       because Lydia sought treatment at a hospital in that county would be purely speculative.

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                            Page 16 of 23
Lydia that day, he was with his father.”). The following exchange occurred

between the prosecutor and the detective:


        Q [Perry] was with his father. Did you go through any steps to
        verify his story?

        A     Yes.

        Q      What did you do?

        A      I called his father.

        Q      Who did you speak with?

        A      Larry, Sr.

        Q And what did you tell Mr. Larry Sr. as far as the reason for
        you calling him?

        A      That I was investigating an incident with his son.

        Q      What else did you tell him?

        A I asked him if his son was with him on December 2 nd and 3rd
        and [he] said no.


Id. at 185-86. Defense counsel objected on hearsay grounds and asked “that the

witness be admonished and the jury instructed.” Id. at 186. He noted that

Perry’s father had not been subpoenaed and that Perry had not asserted an alibi

defense. Counsel then moved for a mistrial, stating, “I don’t know that you can

un-ring the bell[.]” Id. at 188. The trial court sustained the hearsay objection,

denied the motion for mistrial, and instructed the jury as follows: “Ladies and


Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017   Page 17 of 23
       gentlemen of the jury, the last question asked by the Prosecutor, and the answer

       given just before [defense counsel] objected, are not to be considered by you as

       evidence. You’re to treat them as if you never heard them.” Id. at 189.


[27]   Perry now contends that the trial court erred in denying his motion for mistrial.

       “A mistrial is an extreme remedy warranted only when no other curative

       measure will rectify the situation.” Pugh v. State, 52 N.E.3d 955, 971 (Ind. Ct.

       App. 2016), trans. denied. “To prevail on appeal from the denial of a motion for

       mistrial, the defendant must establish that he was placed in a position of grave

       peril to which he should not have been subjected.” Id. “The gravity of the peril

       is determined by considering the misconduct’s probable persuasive effect on the

       jury’s decision.” Id. “A trial court is in the best position to determine whether

       a mistrial is warranted because it evaluates first-hand all relevant facts and

       circumstances at issue and their impact on the jury.” Id. “We accordingly

       review the trial court’s denial of a motion for a mistrial for an abuse of

       discretion. However, the correct legal standard for a mistrial is a pure question

       of law, which we review de novo.” Weisheit, 26 N.E.3d at 15 (citation omitted).

       “Generally, a timely and accurate admonition is an adequate curative measure

       for any prejudice that results.” Orta v. State, 940 N.E.2d 370, 374 (Ind. Ct. App.

       2011), trans. denied. “When the jury is properly instructed, we will presume

       they followed such instructions.” Duncanson v. State, 509 N.E.2d 182, 186 (Ind.

       1987). “We seldom find reversible error when the trial court admonishes the

       jury to disregard the statement made during the proceedings.” Davidson v. State,

       580 N.E.2d 238, 241 (Ind. 1991).

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017      Page 18 of 23
[28]   Perry complains that the State “set up a strawman alibi defense which [he] did

       not file, pursue, or argue” and that “Detective Marsee blurted out a hearsay

       statement attributed to [Perry’s] father, even though there was no question

       before him on that issue.” Appellant’s Br. at 20. He asserts that “[t]his

       evidentiary harpoon ‘disproved’ the strawman alibi defense which was never

       raised by Perry” and that “[t]his ‘information’ was extremely prejudicial and

       inflammatory.” Id. But Perry makes no specific argument that Detective

       Marsee’s inadmissible statement probably had a persuasive effect on the jury’s

       decision or that the trial court’s admonition was inaccurate or an inadequate

       curative measure. Accordingly, we conclude that Perry has failed to establish

       that the trial court abused its discretion in denying his motion for mistrial.15


       Section 4 – Perry has failed to persuade us that his sentence for
        level 6 felony domestic battery is inappropriate in light of the
                    nature of the offense and his character.
[29]   Finally, Perry asks us to reduce the sentence on his only remaining conviction

       pursuant to Indiana Appellate Rule 7(B), which provides that this Court “may

       revise a sentence authorized by statute if, after due consideration of the trial

       court’s decision, the Court finds that the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.” Our supreme court




       15
          In his brief, Perry specifically requests a retrial on Counts 1 through 4, which relate to the offenses
       allegedly committed on December 2 and 3. We have reversed Perry’s convictions for those offenses. At oral
       argument, Perry asserted that he is also entitled to a retrial on Count 5 because Detective Marsee’s testimony
       impugned his credibility. Because Perry has failed to rebut the presumption that the trial court’s admonition
       cured any resulting prejudice, we reject that assertion.

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                          Page 19 of 23
       has explained that the principal role of appellate review should be to attempt to

       leaven the outliers, “not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently

       examine the nature of Perry’s offense and his character under Appellate Rule

       7(B) with substantial deference to the trial court’s sentence. Satterfield v. State,

       33 N.E.3d 344, 355 (Ind. 2015). “In conducting our review, we do not look to

       see whether the defendant’s sentence is appropriate or if another sentence might

       be more appropriate; rather, the test is whether the sentence is ‘inappropriate.’”

       Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied (2014).

       “In assessing whether a sentence is inappropriate, appellate courts may take

       into account whether a portion of the sentence is ordered suspended or is

       otherwise crafted using any of the variety of sentencing tools available to the

       trial judge.” McFall v. State, 71 N.E.3d 383, 390 (Ind. Ct. App. 2017). Perry

       bears the burden of persuading us that his sentence is inappropriate. Foutch v.

       State, 53 N.E.3d 577, 581 (Ind. Ct. App. 2016).


[30]   “As to the nature of the offense, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). The advisory

       sentence for Perry’s level 6 felony domestic battery conviction is one year, with

       a range of between six months and two and a half years. Ind. Code § 35-50-2-

       7(b). Perry received the maximum permissible sentence.


[31]   The nature of the offense is found in the details and circumstances of the

       commission of the offense and the defendant’s participation. Croy v. State, 953

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017     Page 20 of 23
       N.E.2d 660, 664 (Ind. Ct. App. 2011). Perry concedes that his “participation in

       this violence against his wife was senseless and reprehensible.” Appellant’s Br.

       at 24. He goes on to say, however, that “it is clear from the record that his wife

       forgives him and continues to stand by him. She is also apologetic for whatever

       her part may have been in exacerbating this violence.” Id. These

       considerations are irrelevant to the nature of the offense, and there is no

       evidence that Lydia “exacerbated” Perry’s battery.


[32]   “The character of the offender is found in what we learn of the offender’s life

       and conduct.” Croy, 953 N.E.2d at 664. Perry concedes that he “has a

       significant criminal history including juvenile adjudications as well as

       misdemeanor and felony convictions. What is also true is that most of these

       convictions involve batteries, domestic batteries, and invasion of privacy cases

       indicating that [he] must seek help concerning relationship and anger issues.”

       Appellant’s Br. at 24.16 This is a colossal understatement.


[33]   Perry was born in December 1985. In 2000, he was adjudicated a delinquent

       for leaving home three times (a status offense) and for disorderly conduct and

       criminal trespass, which would be misdemeanors if committed by an adult, as

       well as for attempted theft and receiving stolen auto parts, which would be class

       D felonies if committed by an adult. In August 2005, he received a one-year




       16
          Perry also argues that he “has a dependent child which should have been considered a mitigating
       circumstance but was given little, if any, weight by the trial court.” Appellant’s Br. at 24. We fail to see how
       Perry’s child is relevant to his character, and we note that the weight given to a particular mitigator is not
       subject to appellate review. Weedman v. State, 21 N.E.3d 873, 893 (Ind. Ct. App. 2014), trans. denied (2015).

       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                           Page 21 of 23
sentence suspended to unsupervised probation for misdemeanor invasion of

privacy and battery; in November 2005, he was ordered to serve all but ninety

days of his sentence. In September 2005, he was again convicted of

misdemeanor battery. In October 2005, he was convicted of class C felony

battery, class D felony criminal recklessness, and class A misdemeanor carrying

a handgun without a license and was sentenced to four years, with two years

suspended to probation, which was later revoked. In 2006, he was convicted of

class D felony failure to return to lawful detention. In 2009, he was convicted

of class D felony domestic battery. In 2010, he was convicted of class A

misdemeanor resisting law enforcement. In 2011, he was convicted of class D

felony criminal confinement, class D felony domestic battery with a prior

conviction, class D felony domestic battery committed in the presence of a child

less than sixteen years old, class D felony invasion of privacy/violation of a

protective order, and class A misdemeanor resisting law enforcement, and was

also was found to be a habitual offender;17 his probation was revoked, and he

was placed in a home detention program, from which he was discharged after

he was arrested on new charges, and he was given time served in April 2015. In

October 2012, he was convicted yet again of class D felony invasion of

privacy/violation of a protective order, and he was discharged from parole in

September 2014.




17
   The presentence investigation report lists the criminal confinement and domestic battery charges as level 6
felonies, but the numbered felony sentencing scheme was not enacted until 2014. Appellant’s App. Vol. 2 at
117.

Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017                          Page 22 of 23
[34]   Perry committed the instant offense against Lydia in December 2015. He

       violated a no-contact order by calling her over 170 times before and during his

       trial. He was ultimately charged with and pled guilty to four violations of that

       order. At the sentencing hearing, Perry claimed to be innocent of the battery

       and strangulation charges, which he had every right to do, but he also refused to

       sign and indicated a willingness to violate the new no-contact orders issued by

       the trial court. Perry contends that he is not the “worst of the worst” deserving

       of a maximum sentence, id. at 25, but his extensive criminal history (including

       multiple battery convictions), his failure to respond to more lenient treatment,

       and the troubling facts of this case overwhelmingly demonstrate otherwise. In

       sum, Perry has failed to carry his burden of persuading us that his two-and-a-

       half-year executed sentence for his level 6 felony domestic battery conviction is

       inappropriate in light of the nature of the offense and his character. Therefore,

       we affirm it.


[35]   Affirmed in part and reversed in part.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 02A04-1608-CR-1890 | May 11, 2017   Page 23 of 23
