MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Feb 12 2016, 8:28 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General


                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Cory Desarmo,                                            February 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1504-CR-228
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas H. Busch
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         79C01-1307-FA-8



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016     Page 1 of 13
                                          Case Summary
[1]   Cory Desarmo appeals his four convictions for Class A felony child molesting,

      two convictions for Class C felony child molesting, and Class A felony

      conspiracy to commit child molesting for molesting A.A. He also appeals two

      thirty-year sentences for Class C felony child molesting.

[2]   A forensic interviewer’s testimony about where and when A.A. disclosed abuse

      is not precluded by the Indiana Evidence Rule 704(b) prohibition against

      vouching. As the interviewer neither disclosed the contents of the interview nor

      commented on A.A.’s credibility, there was no error.

[3]   Further, the evidence was sufficient to convict even though A.A. wrongly

      identified a defense attorney as the perpetrator where A.A. identified Desarmo

      in a photograph taken of him near the time of the crimes as the person who

      molested her. Desarmo’s appearance had changed between the crimes and the

      trial, and A.A. had a sufficient independent basis to identify Desarmo in the

      photograph having lived with him for two-and-a-half years.

[4]   We do remand for the trial court to correct the thirty-year sentences on the

      Class C felony counts as the sentences are in excess of the eight-year maximum.



                            Facts and Procedural History
[5]   A.A. was born in 2006 to Elizabeth Carle in Arizona. In October 2010, Carle

      moved from Arizona into the home Cory Desarmo shared with his then-wife

      Susan Byatt in Lafayette, Indiana. A.A. followed Carle in December 2010.
      Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 2 of 13
      Desarmo, Carle, and A.A. lived in the same house from December 2010 until

      May 2013.

[6]   During that time, Desarmo and Carle molested A.A. on multiple occasions.

      Specifically, Desarmo forced A.A. to manually stimulate Desarmo until he

      ejaculated, and to fellate Desarmo. On one occasion, Desarmo pressed his

      penis so far into A.A.’s throat that she vomited. A.A. was forced to allow

      Desarmo to lick her vagina. Carle participated in the sexual abuse of her

      daughter by inserting her finger into A.A.’s anus while A.A. was being forced

      to manually stimulate or fellate Desarmo. Desarmo and Carle threatened to

      beat A.A. with a belt buckle if she refused their sexual demands. They also told

      A.A. that she would go to jail if she told anyone what Desarmo and Carle were

      doing to her.

[7]   A.A. disclosed the abuse while visiting her paternal grandmother in Arizona.

      On June 19, 2013, Sandy Corral conducted a child forensic interview with A.A.

      at the Southwest Family Advocacy Center in Goodyear, Arizona. The

      following day, Tippecanoe County Sheriff’s Department Lieutenant Thomas

      Lehman went to Desarmo’s house and spoke with both Desarmo and Carle.

      Corral conducted a second, follow-up interview with A.A. on June 27.

      Following the second interview, Detective Anne Baker of the Avondale,

      Arizona Police Department began her investigation. The results of Detective

      Baker’s investigation were turned over to the Tippecanoe County Sheriff’s

      Department. Following the investigation, the State charged Desarmo with nine

      counts: six counts Class A felony child molesting (Counts I-VI); two counts

      Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 3 of 13
       Class C felony child molesting (Counts VII-VIII); and Count IX Class A felony

       conspiracy to commit child molesting.

[8]    A jury trial was held eighteen months later, in February 2015. At trial, Corral

       testified to her qualifications and described the Southwest Family Advocacy

       Center. Corral provided a detailed description of the procedure she uses to

       interview children, including a description of each stage in a typical interview.

       Finally, she testified that she interviewed A.A. on two occasions, June 19 and

       June 27, 2013. Corral did not testify to the content of either interview, nor did

       she testify to the quality of the interviews.


[9]    A.A. also testified, describing the molestations in explicit detail. She testified

       that Desarmo and her mother were the people who molested her, but A.A.

       incorrectly identified one of the defense attorneys as Desarmo. However, A.A.

       was shown a picture of Desarmo taken around the time that she was living with

       him and A.A. identified Desarmo in the picture.

[10]   Byatt, now Desarmo’s ex-wife, identified him in the courtroom. Byatt also

       identified Desarmo in the same picture that A.A. testified was a picture of him.

       She testified that the picture reflected Desarmo’s appearance when A.A. lived

       with him. She further testified that Desarmo no longer looked the way he did

       when A.A. was living with him—that when A.A. was living with Desarmo, he

       had a full beard “and he had a bit of a belly.” Tr. p. 353.


[11]   Lieutenant Lehman also testified that the man in the picture A.A. identified as

       Desarmo was Desarmo. Lieutenant Lehman confirmed that the picture

       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 4 of 13
       showed what Desarmo looked like on June 20, 2013—the day that Lieutenant

       Lehman met him at his home.

[12]   Prior to instructing the jury, the trial court entered a directed verdict, without

       objection, on Counts V and VI because no evidence was presented to support

       either one.1 Included in the instructions to the jury was an instruction on

       conspiracy to commit child molesting. The instruction read in pertinent part:

               Before you may convict the Defendant Cory Desarmo of
               Conspiracy to Commit Child Molesting as a Class A felony, the
               State must have proved each of the following beyond a
               reasonable doubt:


               *****

               4. And one or more of the following overt acts were performed in
               furtherance of said agreement, to wit:

                        (a) On one or more occasions Desarmo, Carle, and/ or
                        AA. removed their clothing; and /or

                        (b) On one or more occasions Desarmo and / or Carle
                        were present in the room while the deviate sexual conduct
                        occurred; and / or

                        (c) On one or more occasions Desarmo had A.A. rub his
                        penis with her hand; and/or

                        (d) On one or more occasions Carle placed her finger
                        inside A.A.’s anus; and /or




       1
        Both Count V and Count VI alleged Class A felony child molesting for “an act involving the hand of Cory
       A. Desarmo and the vagina and/or anus of A.A.”

       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016       Page 5 of 13
                       (e) On one or more occasions Desarmo forced A.A. to put
                       her mouth on Desarmo’s penis; and / or

                       (f) On one or more occasions Desarmo picked up AA. and
                       placed her on his face so he could lick her vagina;

               *****

       Appellant’s App. p. 145.


[13]   The jury found Desarmo guilty of four counts of Class A felony child molesting

       (Counts I-IV); two counts of Class C felony child molesting (Counts VII-VIII);

       and one count of Class A felony conspiracy to commit child molesting (Count

       IX). Judgment of conviction was entered for the Class A felony and Class C

       felony child molesting counts. The conspiracy count was merged with Count I.

       The judge sentenced Desarmo as follows: Count I: fifty years Indiana

       Department of Correction (“DOC”); Count II: forty years DOC; Count III:

       thirty years DOC; Count IV: thirty years DOC; Count VII: thirty years DOC;

       Count VIII: thirty years DOC; all sentences to run concurrently.



                                  Discussion and Decision
[14]   Desarmo now appeals his conviction and sentence. He argues that Sandy

       Corral’s testimony was impermissible vouching; that there was insufficient

       evidence to establish his identity as the person who molested A.A.; that the

       final jury instruction for conspiracy to commit child molesting impermissibly

       included evidentiary matters in the portion of the instruction addressing proof

       of an overt act; and that the sentences for Counts VII and VIII exceed the


       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 6 of 13
       maximum permissible sentence for a Class C felony. We address each of his

       contentions in turn.


                                                I. Vouching
[15]   Desarmo argues that the trial court improperly admitted the testimony of

       forensic interviewer Sandy Corral. A trial court has broad discretion in ruling

       on the admissibility of evidence and we will disturb its rulings only if the court

       abused that discretion. Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind. 2012).

       An abuse of discretion occurs when the trial court’s decision is clearly against

       the logic and effect of the facts and circumstances before it. Id.


[16]   Vouching testimony is specifically prohibited under Indiana Evidence Rule

       704(b), which states: “[w]itnesses may not testify to opinions concerning intent,

       guilt, or innocence in a criminal case; the truth or falsity of allegations; whether

       a witness has testified truthfully; or legal conclusions.” Such testimony is

       considered an “invasion of the province of the jurors in determining what

       weight they should place upon a witness’s testimony.” Bean v. State, 15 N.E.3d

       12, 18 (Ind. Ct. App. 2014) (citation omitted), trans. denied.


[17]   The prohibition on vouching testimony extends to indirect vouching testimony.

       Hoglund, 962 N.E.2d at 1237. Indirect vouching occurs when one witness

       testifies that another witness is believable, or honest, or exhibits some marker of

       credibility. See id. In the context of child molestation cases, indirect vouching

       occurs when a witness testifies, for example, that the child is not “prone to

       exaggerate or fantasize about sexual matters[,]” id., or that the child does not

       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 7 of 13
       “exhibit any ‘signs or indicators’ of coaching[.]” Sampson v. State, 38 N.E.3d

       985, 991 (Ind. 2015) (emphasis omitted). Such testimony is permitted, if at all,

       only after the defendant has called the child’s credibility into question. Id.


[18]   Desarmo contends that Sandy Corral’s testimony was implicit vouching

       evidence. He argues that her testimony “taken as a whole, was totally

       irrelevant to the guilt or innocence of Des[A]rmo.” Appellant’s Br. p. 11.

       Desarmo acknowledges that Corral “did not make direct comments on the

       believability of A.A.” Id. at 13. His contention “is that the only conceivable

       relevance for the testimony, was the proposition that Corral was an expert and

       well-credentialed interviewer and that therefore, the results of her interview

       were a reliable and believable statement.” Id. Desarmo asserts that this is

       sufficient to constitute an “implicit and indirect comment on the believability of

       A.A.” Id.


[19]   Rule 704(b) restricts what subjects may be covered by testimony. However, it

       does not restrict who is allowed to testify. Here, Desarmo agrees that Corral

       did not offer any testimony on the truth of A.A.’s testimony or on any matter

       relating to A.A.’s credibility generally. Rather, her testimony merely explained

       where and when A.A. first disclosed the abuse. The background information

       provided by Corral does not violate of Rule 704(b).


                               II. Sufficiency of the Evidence
[20]   Desarmo next challenges the sufficiency of the evidence. Our standard of

       review for challenges to sufficiency of the evidence is well settled. When

       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 8 of 13
       reviewing the sufficiency of the evidence, we consider only the probative

       evidence and reasonable inferences supporting the verdict. Boggs v. State, 928

       N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We do not reweigh the

       evidence or assess witness credibility. Id. We consider conflicting evidence

       most favorably to the trial court's ruling. Id. We will affirm the conviction

       unless no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt. Id. It is not necessary that the evidence overcome

       every reasonable hypothesis of innocence. Id. The evidence is sufficient if an

       inference may reasonably be drawn from it to support the verdict. Id.


[21]   Desarmo first contends that, because A.A. was unable to identify Desarmo

       from among the people in the courtroom, the State failed to establish his

       identity as the person who molested her. Desarmo relies on Duke v. State, 298

       N.E.2d 453, 455 (Ind. 1973), for the proposition that the evidence is insufficient

       if the defendant is not the person identified during an in-court identification,

       and the in-court identification is the only evidence presented on the question of

       identity.

[22]   Desarmo is correct that A.A. identified the wrong person during the in-court

       identification—she identified counsel for Desarmo’s co-defendant. However,

       the State offered alternative identification evidence. A.A. was able to identify a

       picture of Desarmo taken closer to the time of the molestations. At the time the

       crimes against A.A. were committed, Desarmo had long hair, facial hair, and

       was larger than he was at trial. Two subsequent witnesses, Byatt and

       Lieutenant Lehman, testified that the picture A.A. identified as Desarmo was a

       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 9 of 13
       picture of him and that the picture accurately reflected his appearance at the

       time A.A. lived with him. Unlike Duke, the State presented substantial

       alternative evidence of identity in this case.2

[23]   Desarmo next argues that A.A.’s in-court identification was impermissibly

       suggestive because the only picture A.A. was shown was a picture of Desarmo.

       Therefore, Desarmo contends that the State was required to show an

       independent basis for A.A.’s identification of Desarmo in the picture. We

       begin by noting that the cases Desarmo cites address pre-trial identification

       processes that are impermissibly suggestive. The concern with an overly

       suggestive pre-trial identification is that the witness’s memory may be tainted by

       it. See Cooper v. State, 359 N.E.2d 532, 534 (Ind. 1977). Therefore, the witness

       is precluded from offering an in-court identification unless the State can provide

       evidence of an independent basis for the identification. Id. The independent

       basis test considers “the witness’ actual opportunity to observe the accused and

       such facts as would indicate whether or not the witness could have identified

       the suspect without the influence of the suggestive procedure.” Id.


[24]   The complained-of identification process here occurred in court, and not pre-

       trial. Nonetheless, applying the independent basis test, we find ample evidence

       that A.A. had an independent basis for her identification of Desarmo. A.A.




       2
         Desarmo further argues that A.A. never said the “Cory in the photograph was the individual who
       committed the acts of molestation.” This is unpersuasive. A.A. identified the photograph as “Cory” and
       then testified that “Cory” committed multiple acts of molestation.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016       Page 10 of 13
       lived with Desarmo from December 2010 until May 2013. A.A. was forced to

       perform various sex acts on or with Desarmo during the time she lived with

       him and she testified that she was facing him during many of these acts—giving

       her ample time to observe Desarmo. These facts establish sufficient

       independent basis for A.A.’s identification of Desarmo in the picture.

[25]   We conclude that the evidence was sufficient to establish Desarmo’s identity

       and that A.A. had an independent basis, apart from the single picture she was

       show at the trial, for her identification of the photograph.


                IV. Final Jury Instruction on Conspiracy Count
[26]   Desarmo argues that the trial court improperly instructed the jury when it

       included in Final Instruction Number 2.07 the overt acts contained in the

       charging information for Count IX, Class A felony conspiracy to commit child

       molesting. He claims that by presenting the charged elements, the court

       emphasized particular evidentiary facts.


[27]   Instructing the jury lies within the sole discretion of the trial court, and we will

       not reverse for an abuse of that discretion unless the instructions as a whole

       mislead the jury as to the law in the case. Hamilton v. State, 783 N.E.2d 1266,

       1268 (Ind. Ct. App. 2003), trans. denied.


[28]   Desarmo was charged with conspiracy to commit child molesting as a Class A

       felony under Indiana Code section 35-41-5-2. Section 35-41-5-2(b) requires the

       State to “allege and prove” that either the defendant or his alleged conspirator

       performed an overt act in furtherance of the conspiracy. The pattern jury
       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 11 of 13
       instruction used by the judge instructs the trial court to “set out the overt act(s)

       charged in the information[.]” Indiana Pattern Jury Instructions Criminal, No.

       2.07 (3d ed. rev. 2014).


[29]   Final Instruction 2.07, as given to the jury, contained most of the overt acts

       alleged in the charging information. However, the judge omitted some acts

       contained in the charging information after determining that those acts were not

       sufficient to constitute an overt act in furtherance of the conspiracy, or where

       the proof at trial was not sufficient to establish that the act occurred. See Tr. p.

       546-48. For example, the judge omitted acts involving Desarmo’s hand and

       A.A.’s vagina or anus because no proof was offered for those acts during the

       trial. The judge struck acts involving the hand of A.A. and the penis of

       Desarmo because those were charged as Class C felonies. The judge also struck

       “had A.A. go to their bedroom and/or the living room” because that is not an

       act, standing alone, that could constitute an overt act in furtherance of a

       conspiracy to commit child molesting.

[30]   The instruction did not add any acts that were not specifically alleged by the

       State in the charging information. The trial court, with some omissions, was

       reading the allegations against Desarmo as stated in the charging information,

       not highlighting evidence in Final Instruction 2.07. Therefore, the trial court

       did not abuse its discretion.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 12 of 13
                                             III. Sentencing
[31]   The trial court sentenced Desarmo to thirty years for Counts VII and VIII. Both

       parties agree these counts were charged as Class C felonies. Indiana Code

       section 35-50-2-6 provides that the maximum allowable sentence for a Class C

       felony is eight years. We therefore remand to the trial court with instructions to

       revise Desarmo’s sentence on Counts VII and VIII in accordance with Indiana

       Code section 35-50-2-6.

[32]   We affirm the trial court in all other respects.

       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-228 |February 12, 2016   Page 13 of 13
