Cory Desarmo v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 12, 2016
• Docket: 79A02-1504-CR-228
• Status: Published

Opinion

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

[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