MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Jul 16 2020, 10:24 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Nappanee, Indiana Attorney General of Indiana
Josiah Swinney Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Badre Faridi, July 16, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1697 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff. Judge The Honorable Eric S. Ditton, Magistrate Trial Court Cause No. 20D03-0610-FA-52
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 1 of 23 Case Summary [1] A jury found Badre Faridi guilty of one count of Class A felony child molesting
and two counts of Class C felony child molesting for acts committed upon his
stepdaughter, H.S. The trial court sentenced him to an aggregate term of fifty-
two years. He appeals and raises two issues:
I. Did the trial court abuse its discretion when it did not allow Faridi to present evidence regarding what he alleged was a prior false accusation made by H.S. and regarding a possible alternative perpetrator?
II. Is his sentence inappropriate in light of the nature of the offense and the character of the offender?
[2] We affirm.
Facts & Procedural History [3] H.S. was born in September 1997. When she was six or seven years old, her
mother (Mother) began an online dating relationship with Faridi, who at that
time was living in Morocco. Mother, H.S., and her sister, S.S., who is about
four years older than H.S., went to Morocco one summer and stayed for about
three weeks with Faridi’s family, after which Faridi came back and lived with
Mother, H.S., and S.S. in their trailer in Nappanee, Indiana. At some point,
Mother, daughters, and Faridi returned to Morocco for a second trip, again for
three weeks, and Mother and Faridi got married. They returned to Nappanee
and lived together in Mother’s trailer. Around this time, two male friends of
Faridi’s moved into the residence as well.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 2 of 23 [4] Shortly after their return to Nappanee and when H.S. was around eight years
old, “things started happening,” meaning Faridi started touching H.S. after
school, while Mother was at work. Transcript Vol. III at 131. In one incident,
Faridi confronted H.S. with a pornographic picture that he claimed he found in
her backpack and scolded H.S. about it. The picture did not belong to H.S.,
and she believed Faridi had placed it there. Faridi told H.S. to take her clothes
off or he would tell her mother about the picture. After she complied with his
demand, he kissed her, rubbed her breasts, and ejaculated on her chest.
[5] H.S. recalled that on a second occasion Faridi showed her a different
pornographic picture that he again claimed he found in her backpack. This
time he had her “masturbate him” with her hand on his penis. Id. at 136. On
another occasion, she and S.S. had been outside playing and H.S. got in trouble
so Faridi called her inside and into his room. He directed her to remove her
snow pants and sweatpants, and he spanked her. He then bent over her and
began to penetrate her anally. Because he was unable to fully penetrate H.S.’s
anus, he made her perform oral sex on him.
[6] In September 2006, H.S. told her elementary school counselor, Nicki Wiggins,
about the incidents with Faridi because H.S. “felt trapped” and “wanted it to
stop.” Id. at 153. Wiggins contacted a child abuse hotline and then drove H.S.
and S.S. to the Child and Family Advocacy Center (CFAC) for a forensic
interview, where Gayla Konanz spoke separately to H.S. and S.S. H.S.’s
interview with Konanz indicated that H.S. had been subjected to sexual abuse.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 3 of 23 [7] On September 21, 2006, H.S. saw Lynette Valentijn, M.D., a pediatrician who
received the case as a referral from CFAC. H.S. reported experiencing pain
while sitting, urinating, and defecating. Dr. Valentijn observed some redness in
H.S.’s labia majora area, but no lacerations, tears, or scarring to her vagina or
anus. In her report, Dr. Valentijn checked the box “nonspecific findings may or
may not indicate sexual abuse.” Exhibits Vol. at 8, 9. After H.S. made the
report to Wiggins and Konanz, she did not return to live with Mother and
Faridi in the family’s residence and never lived with Mother again.
[8] On October 13, 2006, the State charged Faridi with Count I, Class A felony
child molesting for causing H.S. to submit to anal intercourse, Count II, Class
C felony child molesting for causing H.S. to touch Faridi’s penis, and Count
III, Class C felony child molesting for caressing and kissing H.S. with the intent
to arouse or satisfy sexual desires of H.S. or himself. The trial court issued an
arrest warrant that day, but Faridi left the United States with Mother’s help. At
some point, Mother went to Morocco and lived with Faridi for a period of time.
In 2017 or 2018, Faridi was located living in Canada and was extradited to
Elkhart County to face the pending charges. On April 27, 2018, the 2006
warrant was formally served upon Faridi, and the initial hearing was held on
May 1, 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 4 of 23 [9] On May 20, 2019, Faridi, by counsel, filed a Notice to Introduce 412 Evidence
(Notice). 1 The Notice asked the court to allow Faridi to introduce at trial
evidence of two sorts: (1) evidence of an alleged prior false accusation by H.S.,
namely that H.S. had made a statement to Wiggins that Faridi’s “friends”, who
lived in the residence, would “hit [H.S. and S.S.] and touch S.S.’s breasts” and
that S.S. later denied in a statement to law enforcement that Rozz had ever
touched her breasts, and (2) evidence of possible “other cause of [] injury” to
H.S., namely evidence that Said, who also lived in the residence, raped and
touched S.S. and “could have been the true perpetrator” of the acts alleged by
H.S. Appellant’s Appendix at 99.
[10] On May 29, the court held an in camera hearing on the Notice. Faridi did not
present the testimony of witnesses but offered into evidence Wiggins’s notes of
her conversation with H.S. at school on September 15, 2006 (Exhibit A) and
Commander Mark Daggy’s notes of his June 14, 2018 interview with S.S., who
told Officer Daggy that Faridi raped her on multiple occasions in the home, as
did Said, but that Rozz never touched her or H.S. (Exhibit B). Faridi’s counsel
acknowledged that the exhibits were hearsay and not admissible at trial, but
argued, “they are admissible for the court to consider whether or not I can ask
questions of these witnesses [at trial] that are consistent with their prior
1 As discussed more fully later in this decision, Rule 412 refers to Indiana Evid. Rule 412, sometimes known as the Rape Shield Rule.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 5 of 23 statements.” Transcript Vol. II at 17. The court admitted the exhibits, over the
State’s objection, for purposes of the pretrial hearing only.
[11] Regarding evidence of a prior false accusation, Faridi’s counsel directed the
court to a sentence in Exhibit A where Wiggins wrote, “Next [H.S.] shared that
when her dad had two of his friends living with them, the friends would do
things like hit the girls and touch her sister’s, [S.S.’s], chest.” Exhibits Vol. at 22.
Because S.S. told Officer Daggy in June 2018 that Rozz had not touched either
her or H.S., Faridi argued that H.S.’s statement about “the friends” touching
S.S.’s breasts was “demonstrably false[.]” Transcript Vol. II at 20. That is, he
argued, H.S. had made prior false accusation of sexual misconduct. The court
noted that H.S.’s statement was not a false accusation that Faridi had molested
her in the past, which was provided for in case law, but was “extending it to
[H.S.] making an allegation against a different man for molesting a different
person.” Id. at 23. Faridi agreed this was “a new area that the case law doesn’t
touch,” but that H.S. making a false accusation against someone regardless of
the victim should be an area that the defense should be able to use for
impeachment. Id.
[12] The State responded that, first, Exhibit A does not state that Rozz touched
S.S.’s breasts; it says that Faridi’s “friends” who also lived at the residence
“would do things like” hit the girls, touch S.S.’s breasts, and laugh about it.
Second, the fact that S.S. told Officer Daggy that Rozz did not touch her chest,
was not proof that H.S. made a false accusation.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 6 of 23 [13] There was discussion as to whether Wiggins and S.S. would be testifying at
trial, and Faridi’s counsel stated, “I completely understand that the court might
want to take this [] under advisement until those witnesses actually can testify
in person about the contents of the statement.” Id. at 27. The trial court
deferred making a ruling until trial on the prior false allegation issue, with
Faridi’s counsel agreeing to approach the bench before getting into any
questioning on the matter.
[14] Regarding evidence that someone else may have been the person who caused
injury or pain to H.S., more specifically the pain to her anus, Faridi referred the
court to Exhibit B, where S.S. reported to Officer Daggy that Said raped her
“about three or four months after [Faridi] started.” Exhibits Vol. at 24. Faridi’s
counsel admitted that H.S. had not given any statement indicating that Said
had raped or touched her inappropriately, but urged that he “would like to at
least be able to cross-examine her as to the possibility of that being the case.”
Transcript Vol. II at 32. The court recognized a line of Indiana cases that discuss
the “partial corroboration doctrine,” which provides that when the State
presents other “virtually irrefutable” evidence such as medical evidence to show
actual injury, it bolsters the victim’s assertion that molestation occurred and
“opens the door for the defense to say I want to present evidence that somebody
else did it.” Id. at 36. However, the court observed, other Indiana case law
provides that the partial corroboration exception is inapplicable if there was no
such medical evidence and the victim was “resolute” that the defendant was the
person who molested him or her. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 7 of 23 [15] The State argued that, in this case, there was no medical evidence of actual
injury to H.S.’s anus – no doctor saying “I saw injury” – and the only evidence
of injury was H.S.’s statement to her doctor that she felt pain to her anus, that
is, no medical evidence to “partially corroborate” H.S.’s claims. Accordingly,
the State argued, the partial corroboration doctrine was inapplicable to allow
Faridi to present evidence that someone else caused injury to H.S., and because
H.S. was firm that Faridi molested her, evidence of a possible other perpetrator
was inadmissible. The trial court ultimately decided that the court’s ruling on
the admission of the requested evidence was dependent on what the State
presented in its case-in-chief and, therefore, took the matter under advisement.
The court cautioned Faridi’s counsel to advise the court before pursuing
questions regarding whether someone else committed the acts against H.S., so
that the court could first remove the jury from the courtroom, hear testimony,
and make a ruling.
[16] The case proceeded to jury trial on June 3-5, 2019. This was the first time H.S.,
now twenty-one years old, had seen Faridi since making her report to Wiggins
and Konanz. The State’s witnesses included: Wiggins, Konanz, Brook
German, Dr. Valentijn, and H.S. The defense did not call any witnesses.
[17] Wiggins, the school counselor, testified that she saw both H.S. and S.S., but
H.S. more often. She first saw H.S. as a referral from H.S.’s first or second
grade teacher, who had noticed that H.S. was experiencing emotional issues in
class, often seemed sad, would come to school upset, and cried for reasons that
most other children would not. At first, she met with H.S. approximately once
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 8 of 23 every other week, but sometimes more frequently at H.S.’s request. There came
a time that Wiggins learned from H.S. and S.S. that Mother was in an online
relationship and that she planned to bring that person into the home, which
“very much” concerned Wiggins. Transcript Vol. II at 118. Wiggins was aware
that Mother married the person and he came to live with the family. Wiggins
observed that H.S. developed a lot of irrational fears and seemed more stressed
than she had been, and she noted that this correlated in time with Mother’s new
husband coming to live with them. Over time, H.S. told her things that “raised
a few red flags.” Id. at 122. Based on some statements that H.S. made to her
on September 15, 2006, involving being scared to go home and her stepfather
locking the door and pornography, Wiggins contacted a child abuse hotline.
[18] Konanz testified that she interviewed H.S. at the CFAC for approximately forty
minutes. Konanz felt that H.S. used words and phrases for body parts and
actions that seemed “advanced” for an eight-year-old child. Id. at 228. For
instance, H.S. described one of the acts that was performed as a “short cut” and
showed Konanz a motion, holding her hand “in kind of a circle” and moving
her hand back and forth, and told Konanz that there was a sticky substance that
“was so sticky that the soap wouldn’t get it off of her hands[.]” Id. at 229.
Konanz testified that H.S. disclosed sexual abuse.
[19] Dr. Valentijn testified about her examination of H.S. on September 21, 2006,
and the written assessment and treatment form she completed. She described
that her job in this situation was to review H.S.’s disclosure to the CFAC and
then conduct an examination while trying not to make further inquiries of the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 9 of 23 patient regarding the allegations. Dr. Valentijn marked on the form that no
medical follow-up was required but, in terms of general healthcare, she
recommended counseling for H.S. She stated that in this case she did not reach
any conclusion as to whether sexual abuse had occurred or not occurred.
[20] Detective Brook German testified to interviewing H.S. in 2017, when H.S. was
nineteen, to inquire about H.S.’s recollection of events. In that interview, H.S.
did not indicate that any person other than Faridi had molested her. On cross-
examination, Faridi inquired about the initial investigation in 2006. At that
time Det. German was working in narcotics and did not handle the Faridi
investigation, but confirmed that during the initial investigation the Nappanee
Police Department did not take pictures of the trailer, check the family’s or
Faridi’s computer for pornographic searches, or speak to Said or Rozz. In
2017, Det. German attempted to contact Rozz, who lived in Nappanee, but was
not successful. Det. German had no information as to how to contact Said.
[21] H.S. testified to the circumstances of the three charged acts and stated that there
were other occasions where Faridi required her to perform sex acts with him.
When asked if it occurred every day when Mother was at work, she stated, “I
mean, there were days where he didn’t do anything . . . – like it was most of the
time when she was at work.” Transcript Vol. III at 133. When asked why she
told Wiggins about what was happening with Faridi, H.S. replied, “Because I
knew my mom wouldn’t believe me, and even when I tried telling her, she
didn’t believe me.” Id. at 153. H.S. stated that when she had tried to tell her
Mother about the incidents, Faridi yelled in her face and told her to “prove it,”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 10 of 23 and Mother called her “a liar.” Id. at 247. H.S. testified that she was not in
contact with Mother and did not know where Mother was living.
[22] At a point during H.S.’s testimony, the jury exited so that the parties could
discuss the Rule 412 issues and question H.S. out of the jury’s presence. As to
the alleged prior false allegation, Faridi asked H.S. whether she remembered
saying to Wiggins that “not only Said touched your sister’s chest but also Rozz
touched your sister’s chest,” and H.S. replied that she did not remember saying
that. Id. at 210. Faridi’s counsel then showed her Wiggins’s notes, in which
Wiggins stated that H.S. told her Faridi’s “friends” “would do things like” hit
the sisters and touch S.S.’s chest. Id. H.S. reaffirmed that she could not recall
ever saying that Rozz had touched S.S.’s chest. Faridi advised the trial court
that he intended to call Wiggins to ask her whether H.S. had said that Rozz
touched S.S.’s chest, which Faridi’s counsel argued would demonstrate was a
false accusation given S.S.’s June 2018 statement to Officer Daggy that Rozz
did not molest her.
[23] The trial court determined that the prior false accusation evidence was not
admissible:
COURT: Well, then I think that we can settle this “412” false allegation stuff right now. I’m not letting it in[.]
***
COURT: . . .“412” itself is a robe [of] exclusion and not inclusion. . . . in researching all these cases, . . . [if] . . . you had
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 11 of 23 evidence that H.S. made a false accusation against your client that turned out to be either demonstrably false or she recanted and admitted it was a lie, I think that that’s exactly what “412” would allow you – and the case law supports you. You are wanting to stretch that to allow evidence that the victim [indiscernible] claimed . . . someone else was molested by another man who’s not on trial. I do not believe the rape-shield statute will allow it. It is too – just too far removed, and I don’t think the case law will allow that either. So I’m not – I’m not letting this kind of stuff come in at all. I don’t know if that changes your mind on calling Ms. Wiggins. If you want to call Ms. Wiggins, it’s going to be outside of the presence of the . . . jury. . . .
Id. at 214-15. In reaching its decision, the court observed that, not only was the
evidence “too far removed,” but also H.S.’s allegation “may not have been
false.” Id. at 223. Faridi elected not to call Wiggins, and he made an offer of
proof that Wiggins would have said what she recorded in her notes, i.e., that
the friends hit the girls and touched S.S.’s chest, and that he would have then
offered S.S.’s statement to Officer Daggy (saying that Rozz never touched her
inappropriately) to impeach H.S.
[24] As to the other Rule 412 evidence, the possibility of a different perpetrator,
Faridi asked H.S. out of the jury’s presence whether she remembered telling
either Konanz or Wiggins that she saw Said touch S.S., and H.S. stated that she
did not remember telling them that and she did not remember ever seeing Said
touch S.S. H.S. did remember witnessing Said put his hands down the pants of
S.S.’s friend. The State asked H.S. who committed the three sexual acts upon
her that she had described to the jury, and she unequivocally stated it was
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 12 of 23 Faridi. The trial court then asked her if she had any confusion that it might
have been Said or Rozz, and H.S. said “[n]o” and confirmed that the only
person that sexually abused her was Faridi. Id. at 221.
[25] Faridi’s counsel argued that because Said had molested other children in the
household and there was evidence that H.S. suffered injuries during the same
period, he could admit evidence of another possible cause of the injury under
Rule 412. He further argued that Rule 412 did not apply because S.S’s friend
was not a victim or witness in the case. The State responded that for this
exception to apply, there needed to be significant medical testimony of an
injury, providing partial corroboration of the victim’s claims, and, here, Dr.
Valentijn had not observed any visible laceration, tear, or scarring, and only
observed redness to H.S.’s labia majora area. The State also argued that there
was no “nexus” between Said and the pain in H.S.’s anus because H.S. was
firm and consistent about the identity of who had touched her. Id. at 231.
[26] The trial court denied Faridi’s request to present evidence of another possible
perpetrator because (1) there was no medical evidence that H.S. had suffered an
injury, and (2) H.S. had consistently stated in 2006 and at trial that Faridi was
the only person who had molested her. The court further noted that even if
Rule 412 would not bar this evidence, the probative value of the evidence
would be outweighed by unfair prejudice and would confuse the jury.
[27] The jury found Faridi guilty of the three charged offenses. On June 27, 2019,
the trial court sentenced him to forty-four years on the Class A felony child
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 13 of 23 molesting conviction, and to four years on each of the two Class C felony child
molesting convictions, all to run consecutive to each other, for a total of fifty-
two years. Faridi now appeals. Additional facts will be provided as necessary.
Discussion & Decision
I. Rule 412 Evidence [28] Faridi argues that the trial court erred when it did not allow him to present
certain evidence. The decision to admit or exclude evidence is a matter within
the trial court’s sound discretion. Watson v. State, 134 N.E.3d 1038, 1042 (Ind.
Ct. App. 2019), trans. denied. An abuse of discretion occurs if a trial court’s
decision is clearly against the logic and effect of the facts and circumstances
before the court. Id. The decision to exclude evidence is given great deference
on appeal and will be reversed only when a manifest abuse of discretion denies
the defendant a fair trial. Id. There is a strong presumption that the trial court
acted properly. Id.
[29] Here, Faridi sought permission before and during trial to be able to present
evidence pursuant to exceptions to Rule 412, which, as previously noted, is
more commonly known as the Rape Shield Rule. Rule 412 incorporates the
principles of Ind. Code § 35-37-4-4, Indiana’s Rape Shield Act, and stands for
the principle that “[i]nquiry into a victim’s prior sexual activity is sufficiently
problematic that it should not be permitted to become a focus of the defense.”
State v. Walton, 715 N.E.2d 824, 826 (Ind. 1999).
[30] Rule 412 provides in pertinent part:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 14 of 23 (a) The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim or witness engaged in other sexual behavior.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s or witness’s sexual behavior, if offered to prove that someone other than the defendant was the source of . . . injury, or other physical evidence;
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
Evid. R. 412. Evidence of prior false accusations of rape made by a
complaining witness does not constitute prior sexual conduct for rape shield
purposes as such evidence is more properly understood as verbal conduct. Blair
v. State, 877 N.E.2d 1225, 1233 (Ind. Ct. App. 2007), trans. denied. Indiana
common law thus permits evidence of a prior false accusation of sexual
misconduct. Id. Evidence of prior false accusations may only be admitted if
the complaining witness admits that she had made a prior accusation of sexual
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 15 of 23 misconduct or the accusation is demonstrably false. Id. at 1234. “‘Prior
accusations are demonstrably false where the victim has admitted the falsity of
the charges or they have been disproved.’” Id. (quoting Fugett v. State, 812
N.E.2d 846, 849 (Ind. Ct. App. 2004)).
[31] On appeal, Faridi argues the trial court abused its discretion when it did not
allow him to (1) cross-examine Wiggins on her written statement
memorializing her 2006 interview with H.S. regarding what he maintains was a
prior false accusation by H.S., and (2) ask questions of H.S. and Wiggins
regarding a possible alternate perpetrator. We address each in turn.
a. Prior False Accusation Evidence
[32] Faridi argues that H.S.’s statement to Wiggins – that Faridi’s “friends” who
lived with them “would do things like hit the girls and touch her sister, [S.S]’s
chest” – was a prior false allegation given that S.S. said in 2018 to Officer
Daggy that Rozz never touched her. Exhibit Vol. at 22 (emphases added). We
disagree that H.S.’s statement was a prior false accusation about which Faridi
should have been able to question Wiggins as an exception to Rule 412. First,
this was not a claim that H.S. had falsely accused Faridi or anyone else of
touching her. Rather, it is an allegation that some other person, not Faridi,
touched a different minor child, not H.S. Faridi concedes that this is not
currently considered in existing case law and asks us to extend the exception.
We decline to do so, as we agree with the trial court that this was “too remote”
to fall within the intended exception to the Rape Shield Rule. Second, H.S. did
not say to Wiggins that Rozz touched S.S.’s chest, which is what S.S. denied. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 16 of 23 Third, as noted by the trial court, H.S.’s statement was not necessarily false
because the fact that S.S. denied that Rozz touched her does not conclusively
mean that it did not happen.
[33] Even assuming that, as Faridi claims, it was a prior false allegation and an
exception to Rule 412 or, alternatively, was not covered by Rule 412 at all, we
find that any error was harmless because it did not affect Faridi’s substantial
rights. In viewing the effect of an evidentiary ruling on a defendant’s
substantial rights, this Court looks to the probable impact on the fact finder. See
Johnson v. State, 6 N.E.3d 491, 499 (Ind. Ct. App. 2014) (citing Turner v. State,
953 N.E.2d 1039, 1058-59 (Ind. 2011)).
[34] Here, the reason that Faridi sought to cross-examine Wiggins about H.S.’s
statement was to impeach H.S.’s credibility, and we find that even if Faridi had
been allowed to do so, the probable impact of the evidence would likely have
been minimal in light of her trial testimony. H.S. described what Faridi did to
her and forced her to do to him. She was consistent and clear and affirmed
multiple times that it was Faridi and only him who molested her. H.S.
explained that she told her school counselor because Mother did not believe
her, and she disclosed sexual abuse to Konanz. After the State charged Faridi,
he left the country. At the time of trial, which was over a decade later, H.S.
was engaged with a one-month-old child, she did not know where Mother was
living and had no communication with her, nor had she seen Faridi since she
was eight years old. Under these facts, a jury reasonably could have inferred
that there was little incentive for H.S. to disrupt her life and come to trial and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 17 of 23 lie about Faridi molesting her. The error, if any, in the trial court’s decision to
not allow Faridi to question Wiggins regarding an alleged prior false accusation
was harmless.
b. Possible Other Perpetrator
[35] We next turn to Faridi’s claim that the trial court abused its discretion when it
did not allow him to question H.S. and Wiggins regarding a possible other
perpetrator. Evidence of another source of the injury is permitted if the jury is
presented with “partial corroboration” evidence of the victim’s physical or
psychological condition “to prove that sexual contact occurred and, by
implication, that the defendant was the perpetrator.” Redding v. State, 844
N.E.2d 1067, 1071 (Ind. Ct. App. 2006) (citation omitted). If such evidence is
admitted, it may be impeached through cross-examination of specific evidence
which supports a reasonable inference and tends to prove that the conduct of a
perpetrator other than the defendant is responsible for the victim’s condition
that the State placed at issue. Id. This exception is “narrow” and does not
allow “the defendant to posit hypothetical perpetrators.” Id. Our courts have
also held that, when the victim is resolute that the defendant is the person who
molested him or her, it was not an abuse of discretion to exclude evidence of a
possible other perpetrator. See Turner v. State, 720 N.E.2d 440, 446 (Ind. Ct.
App. 1999) (“exception allowing evidence that another might have committed
the molestations is inapplicable because there is no evidence that K. was
confusing her perpetrator, inasmuch as she consistently accused Turner of
molesting her and identified him in court as the perpetrator”); Kielblock v. State,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 18 of 23 627 N.E.2d 816, 820 (Ind. Ct. App. 1994) (no abuse of discretion to exclude
evidence of possible other perpetrator where there was no evidence that victim
was confusing her perpetrator, she was specific about acts committed, and any
probative value of the offered evidence was outweighed by prejudicial effect),
trans. denied.
[36] Here, we agree with the trial court that there was no objective medical evidence
of an injury; the only evidence of injury was H.S. testifying that Faridi had
penetrated her anus to some degree and her subjective complaints of pain to Dr.
Valentijn. Accordingly, we find that the partial corroboration doctrine is
inapplicable and did not provide Faridi an avenue to present evidence that Said
may have been the perpetrator. See Oatts v. State, 899 N.E.2d 714, 723 n.13
(Ind. Ct. App. 2009) (“Here, . . . there is no evidence other than [the victim]’s
testimony that sexual contact occurred. Thus, this is not a situation that
involves partial corroboration.”) Furthermore, H.S., an adult witness, was
firm, consistent, and resolute that Faridi molested her. She affirmed that she
was not at all confused that it might have been Rozz or Said who perpetrated
the acts that she described in her direct testimony. Under these circumstances,
the trial court did not abuse its discretion when it did not permit Faridi to
question H.S. or Wiggins to show that someone else, not Faridi, had committed
the charged acts.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 19 of 23 II. Sentencing
[37] Faridi contends that his sentence is inappropriate and asks us to reduce it. 2 We
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find the sentence inappropriate in light of the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B).
Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Id. at 1224. Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The
2 We note that although Faridi frames his issue as whether the sentence is inappropriate, he discusses various aggravators and mitigators. See e.g. Appellant’s Brief at 19 (acknowledging that there is “no denying” that his position of trust is an aggravator, but urging that it be balanced against mitigators, such as his lack of criminal history). It appears that he is arguing that the trial court erred by improperly identifying or weighing aggravators and mitigators, although he never asserts that the trial court abused its discretion in sentencing him. Our Supreme Court has made clear that inappropriate sentence and abuse of discretion claims are to be raised and analyzed separately. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007); see also Foutch v. State, 53 N.E.3d 577, 580 n.1 (Ind. Ct. App. 2016) (where defendant failed to present a separate, cogent argument with regard to abuse of discretion in sentencing and waived the issue for appellate review).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 20 of 23 burden is on the defendant to persuade us his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[38] When determining whether a sentence is inappropriate 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. Id. at 1081. For his Class
A felony conviction, Faridi faced a sentencing range from twenty to fifty years
with the advisory being thirty years. Ind. Code § 35-50-2-4. For each of the
two Class C felony convictions, Faridi faced a sentencing range from two to
eight years, with the advisory being four. I.C. § 35-50-2-6. Here, the trial court
sentenced Faridi to forty-four years on the Class A felony child molesting
conviction, and to four years on each of the two Class C felony child molesting
convictions, all to run consecutive to each other, for a total of fifty-two years.
Faridi’s request is that we reduce the sentence on the Class A felony to the
advisory of thirty years.
[39] As this court has recognized, “[t]he 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 N.E.2d 660, 664 (Ind. Ct. App. 2011). Here,
Faridi repeatedly molested his eight-year-old stepdaughter while Mother was at
work. H.S.’s testimony reflects his abuse was ongoing, not just three incidents,
and his acts were predatory. He initially abused her under the auspices of
discipline after claiming to find pornography in her backpack and threatening to
tell Mother unless H.S. complied with his demands. Another time he spanked
her and then penetrated her anally. H.S. clenched in an effort to prevent the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 21 of 23 act, so Faridi instead forced her to perform oral sex on him. Faridi
acknowledges that “[t]here is no denying that the offense is horrific” but urges
“that this is [] true for any Class A Felony.” Appellant’s Brief at 18. Faridi has
not persuaded us that the nature of the Class A felony offense warrants revision
of his sentence
[40] “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. Although Faridi did not have any
prior criminal history, he was only in the United States a few years during
which time he molested his stepdaughter H.S. When H.S. attempted to tell
Mother what was happening, Faridi yelled at her to “prove it.” Transcript Vol.
III at 247. He persuaded Mother that H.S. was lying. Feeling trapped and
wishing for the abuse to stop, H.S. made the report to Wiggins, after which
Faridi fled to Morocco and, later, Canada. We agree with the State that
“[d]odging justice for over a decade shows a disrespect for authority and his
victims” and “allow[ed] him to claim a law-abiding life until his extradition.”
Appellee’s Brief at 28 (citing Bennett v. State, 883 N.E.2d 888, 894 (Ind. Ct. App.
2008) (noting that fleeing the jurisdiction reduces the weight of a lack of prior
criminal history), trans. denied). We do not find anything about Faridi’s
character that makes his sentence inappropriate.
[41] We reiterate that our task on appeal is not to determine whether another
sentence might be more appropriate; rather, the inquiry is whether the imposed
sentence is inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 22 of 23 2013), trans. denied. Faridi has failed to carry his burden of establishing that his
sentence is inappropriate in light of the nature of the offense and his character.
[42] Judgment affirmed.
Bailey, J. and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1697 | July 16, 2020 Page 23 of 23