Crone, J.
This 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. This case also highlights the limits of circumstantial evidence in proving a criminal defendant’s guilt beyond a reasonable doubt.
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.
On appeal, Perry raises four issues: (1) whether the State presented sufficient evidence to support his convictions; (2) presented sufficient evidence to prove venue on four charges; (3) 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.
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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. …
But Lydia’s denials and recantations are much more problematic with respect to the batteries and strangulation charged in Counts 1 through 4 … 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. … 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.
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. … …
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. 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.
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Perry now contends that the trial court erred in denying his motion for mistrial. …
… 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.
Finally, Perry asks us to reduce the sentence on his only remaining conviction pursuant to Indiana Appellate Rule 7(B)…
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… 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. 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.
Affirmed in part and reversed in part.
Barnes, J., and Altice, J., concur.