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Appeals court vacates multiple domestic violence convictions

May 11, 2017

Multiple domestic violence convictions against a man accused of repeatedly beating and choking his wife were vacated Thursday by the Indiana Court of Appeals, along with his adjudication as a habitual offender.

Larry C. Perry was convicted of five domestic violence-related counts by an Allen County jury, and several of the counts were merged due to double jeopardy concerns. Perry was sentenced to an aggregated 14½ years in prison.

But the appeals panel ruled only one of those convictions, for Level 6 felony domestic violence, was supported by the evidence.

Judge Terry Crone wrote for the court that the jury speculated that Perry had caused injuries his wife, Lydia, sustained several days before police found her with a bloody lip after a fight with Perry — the lone conviction the COA affirmed.
 
Perry was arrested after Lydia told police he hit and choked her in the Fort Wayne hotel where they were staying, as well as days earlier, but she later recanted. She changed her story and said her earlier injuries were the result of a car crash.

“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,” Crone wrote.

Likewise, the panel held the state lacked evidence to prove proper venue for four of the five counts against Perry. “Any inference that the offenses were committed in Allen County because Lydia sought treatment at a hospital in that county would be purely speculative,” the panel held in rejecting the charges against Perry based on the earlier incident in which his wife was injured and sought treatment at Parkview Hospital.

Perry failed to convince the COA that his 2-½-year sentence for the remaining conviction was inappropriate based on his character and the nature of the offense.

“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 ... 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,” Crone wrote.

He noted the case “highlights the difficulties and frustrations encountered by members of the law enforcement community who investigate and prosecute domestic violence cases in which the victim recants her accusations against the abuser, an unfortunate and all-too-common occurrence.”

The case is Larry C. Perry, Jr. v. State of Indiana, 02A04-1608-CR-1890.

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