FILED Mar 27 2025, 9:15 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Marcos Alan Salinas, IV, Appellant-Defendant
v.
State of Indiana, Appellee-Plaintiff
March 27, 2025 Court of Appeals Case No. 24A-CR-1966 Appeal from the Carroll Circuit Court The Honorable William C. Menges, Jr., Senior Judge Trial Court Cause No. 08C01-2209-F1-1
Opinion by Judge Tavitas Chief Judge Altice and Judge Brown concur.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 1 of 26 Tavitas, Judge.
Case Summary [1] Following a jury trial, Marcos Salinas appeals his convictions for child
molesting, a Level 1 felony; child molesting, a Level 4 felony; and intimidation,
a Class A misdemeanor. Salinas argues that the trial court abused its discretion
by: (1) denying his request to depose the child victim; (2) admitting certain
evidence; (3) permitting the child victim to testify while holding a stuffed
animal; (4) refusing to permit him to refresh a witness’s memory using a
recording of the child’s forensic interview; and (5) refusing one of Salinas’
proposed jury instructions.
[2] We conclude the following: (1) the trial court did not abuse its discretion by
denying Salinas’ request to depose the child victim; (2) the trial court abused its
discretion by admitting certain items of evidence, but the error was harmless,
and the trial court did not abuse its discretion by admitting other challenged
evidence; (3) the trial court did not abuse its discretion by permitting the child
victim to testify while holding a stuffed animal; (4) the trial court erred by
refusing to permit Salinas to refresh a witness’s memory using the recording of
the child’s forensic interview, but the error was harmless; and (5) the trial court
did not abuse its discretion by refusing Salinas’ proposed jury instruction. We,
accordingly, affirm.
Issues [3] Salinas raises five issues, which we restate as:
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 2 of 26 I. Whether the trial court abused its discretion by denying Salinas’ request to depose the child victim.
II. Whether the trial court abused its discretion by admitting certain evidence.
III. Whether the trial court abused its discretion by permitting the child victim to testify while holding a stuffed animal.
IV. Whether the trial court erred by refusing to permit Salinas to refresh a witness’s memory using the recording of the child’s forensic interview.
V. Whether the trial court abused its discretion by refusing Salinas’ proposed jury instruction.
Facts [4] L.R. was born in 2009 to her biological father and R.O. (“Mother”). After the
death of L.R.’s biological father, Mother dated Salinas and, in August 2019,
when L.R. was nine years old, Salinas began residing with Mother in Frankfort.
L.R. lived primarily with her paternal grandparents for two years and attended
school in Zionsville. In 2021, L.R. moved back in with Mother and continued
to stay with her paternal grandparents every other weekend. Salinas would
watch L.R. and her sisters during the day while Mother worked. In July 2021,
when L.R. was eleven years old, Mother and Salinas moved to a house in
Rockville, and L.R. began seeing her paternal grandparents less frequently.
[5] A couple of weeks after the move, Salinas was sitting next to L.R. on the couch
while Mother was at work. Salinas rubbed L.R.’s breast on the outside of her
clothing and then put his hand “up [her] shirt” and continued rubbing her
breast. Tr. Vol. IV p. 119. After several minutes, Salinas put his hand inside of
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 3 of 26 L.R.’s shorts and “rubbed the outside of [L.R.’s] vagina” for several minutes.
Id. at 120. L.R. told Salinas to stop, but he ignored her.
[6] Salinas would touch L.R. in this manner “[a]t least two times a week” when
Mother was not home. Id. at 121. L.R. did not report the touching because
Salinas “threatened” that he would “harm [her] mom and [her] grandpa” if she
did so. Id. Around this time, L.R.’s paternal grandfather (“Grandfather”)
noticed that L.R.’s demeanor was different when she would visit.
[7] At some point after the touching began, Salinas asked L.R. to “give him head.”
Id. at 122. L.R. did not know what that meant, and Salinas told her, “[I]t’s
where you suck his penis.” Id. at 123. L.R. was “shocked” and left to go
upstairs. Id. Then, in September 2021, while L.R.’s sisters were upstairs,
Salinas was again sitting with L.R. on the couch and touching her over and
under her clothes when he “grabbed” L.R.’s wrist and “pulled [her] into the
kitchen.” Id. at 124. Salinas “forced [L.R.] down on [her] knees” by pressing
on her shoulder. Id. L.R. tried to stand up, but Salinas “slapped” her in the
face. Id. Salinas “pushed” L.R.’s head down to his penis and “st[u]ck” his
penis in L.R.’s mouth. Id. Salinas ejaculated onto the carpet and cleaned it up
with a towel. Salinas told L.R., “You promise not to tell anyone, right? . . .
You know what will happen.” Id. at 125.
[8] After this occasion, Salinas would force L.R. to perform oral sex on him
approximately twice per week. The most recent occasion was the “worst time”
for L.R. and occurred when she was twelve years old. Id. Salinas came into
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 4 of 26 L.R.’s room and “dragged” her by the wrist into his bedroom, where he forced
her onto her knees and “forced [her] head onto his penis.” Id. at 126-27.
[9] Mother did not directly observe any inappropriate touching by Salinas, but she
testified that, in February 2022, she came downstairs in the morning and saw
Salinas and L.R. “very close on the couch together.” Id. at 72. Upon seeing
Mother, L.R. “jumped away from [Salinas] and looked very scared,” and
Salinas began “acting very differently.” Id. Mother asked what Salinas and
L.R. were doing, and Salinas accused Mother of suggesting he had done
something inappropriate. Salinas then “[y]elled” at L.R. to come into his
bedroom and “intimidate[d]” L.R. “about how [Mother] was saying that
inappropriate things were happening.” Id. at 74.
[10] On May 5, 2022, Grandfather received an anonymous call from a woman who
turned out to be Salinas’ mother. Salinas’ mother provided information that led
Grandfather to believe that Salinas was sexually abusing L.R. Grandfather
filed a report with the Department of Child Services (“DCS”), and a DCS
caseworker interviewed L.R. at her school. The caseworker asked L.R. about
sexual abuse in the home, but L.R. “lied and said that it wasn’t happening.” Id.
at 132. L.R. lied because she “didn’t want [her] family to get hurt.” Id.
[11] DCS also interviewed Mother that day at the home. Although Mother asked
Salinas to leave, he returned in the middle of the interview. DCS informed
Mother that they unsubstantiated the report because L.R. did not report
anything at school. When L.R. came home later that day, Salinas said that he
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 5 of 26 was “proud” of L.R. and that she showed “loyalty,” which stood out to Mother
because “it made it seem like he was proud that she was lying.” Id. at 78.
[12] Several weeks later, on May 22 or 23, 2022, Salinas’ mother contacted
Grandfather again and provided screenshots of text messages between L.R. and
Salinas’ daughter from a different relationship, A.S., who was friends with L.R.
Grandfather found the text messages “concerning” and decided he would speak
with L.R. regarding abuse by Salinas. Id. at 98.
[13] L.R. visited Grandfather several days later on May 30, 2022. Grandfather
asked L.R. “if all the bad things were true,” and L.R. began to cry. Id. at 99.
Grandfather was concerned about L.R.’s safety and asked her to write a letter to
Mother explaining “why she didn’t want to come home.” Id. at 101. L.R.
wrote to Mother: “[Salinas] has made me touch him inopropriet [sic] places and
he has touched me in inopropriet [sic] places. He has made me put my mouth
on his private part.” Ex. Vol. p. 6. Grandfather read the letter and filed
another report with DCS. The next day, L.R. participated in a forensic
interview at the Heartford House.1 L.R. has remained living with her paternal
grandparents since writing the letter.
[14] On September 23, 2022, the State charged Salinas with: Count I, child
molesting, a Level 1 felony; Count II, child molesting, a Level 4 felony; and
Count III, intimidation, a Class A misdemeanor. On February 21, 2023,
1 Heartford House is a child advocacy center located in Lafayette.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 6 of 26 Salinas filed a motion requesting permission to depose L.R. Salinas argued that
“exigent circumstances” and the “interest of justice” justified the deposition
because the first DCS report was unsubstantiated and L.R. had “a motive to
fabricate the allegations due to her vocal desire to reside with her paternal
grandparents.” Appellant’s App. Vol. II p. 27. After a hearing, the trial court
entered an order denying Salinas’ motion.
[15] On November 1, 2023, Salinas filed a motion in limine, in which he sought to
preclude the admission of evidence regarding, among other things, DCS
investigating whether Salinas “provid[ed]” marijuana to L.R. Id. at 36.
Without holding a hearing, the trial court granted the motion in limine that
same day. 2
[16] The jury trial commenced in June 2024 when L.R. was fourteen years old. 3
Salinas did not testify. Early in the trial, the trial court indicated that it was
reconsidering portions of Salinas’ previously granted motion in limine. The
trial court ruled that evidence that Salinas provided L.R. with marijuana might
be admissible “depend[ing] upon the nature of the evidence.” Tr. Vol. IV pp.
32, 35. Mother testified that the first DCS report alleged that Salinas “was
sexually abusing [L.R.], and was smoking weed with her.” Id. at 76. The
testimony was admitted over Salinas’ objection.
2 A different judge presided over the jury trial. 3 Before the trial commenced, Salinas renewed his motion to depose L.R., which the trial court again denied.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 7 of 26 [17] Grandfather testified regarding the phone calls and meetings with Salinas’
mother and the letter written by L.R. The State called Carroll County Sheriff
Tony Liggett, the lead detective on the case, to testify regarding L.R.’s forensic
interview. Sheriff Liggett testified that, during the forensic interview, L.R.
reported only one incident of oral sex.
[18] L.R. testified and recounted that Salinas touched her over and under her
clothing, forced her to perform oral sex on several occasions, and threatened to
hurt Mother and Grandfather. She further testified that Salinas would “get
physical” when disciplining L.R. and her siblings. Id. at 161. L.R.’s letter and
her text messages with A.S. were admitted into evidence over Salinas’
objection. On cross examination, Salinas questioned L.R. regarding her trial
testimony that Salinas forced her to perform oral sex on several occasions,
whereas she reported to the forensic interviewer that oral sex occurred only
once. L.R. answered that she did not recall the forensic interview but would be
“surprised” if she reported that oral sex occurred only once. Id. at 148.
[19] L.R. gave her testimony while holding a stuffed animal, which the trial court
later described as a stuffed dinosaur “approximately two feet in length, and
approximately six inches in diameter.” Id. at 162. During a sidebar after L.R.’s
testimony, Salinas referenced an “off the record” objection he previously made
regarding L.R. testifying with the stuffed animal, which Salinas sought to
“preserve[.]” Id. Salinas argued that the stuffed animal “only served to color
the Jury’s mind and prejudice them as to the age of the child and vulnerability.”
Id. The trial court indicated that it had previously overruled the objection.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 8 of 26 [20] Jennifer Bushore-Berry, who conducted L.R.’s forensic interview, testified that,
based on research in the field, “less than 10% of children lie about sexual
abuse.” Id. at 174. The trial court admitted the testimony over Salinas’
objection. On cross-examination, Salinas’ counsel sought to question Bushore-
Berry about L.R.’s statements during the forensic interview, but Bushore-Berry
testified that she did not recall the forensic interview. Salinas’ counsel then
asked whether watching a recording of the forensic interview would refresh
Bushore-Berry’s memory. The trial court, however, gave Salinas the option of
either entering the recording into evidence or “mov[ing] on,” and Salinas
indicated he did not wish to admit the recording into evidence. Id. at 179.
Salinas then questioned Bushore-Berry regarding L.R.’s statements during the
interview, which Bushore-Berry was unable to recall.
[21] During the final jury instructions conference, Salinas proffered a pattern
instruction directing the jury that it could consider a witness’s prior inconsistent
statements in deciding the value of the testimony of the witness. The trial court
refused the instruction. The jury found Salinas guilty as charged. The trial
court sentenced Salinas to a total of fifty-seven years in the Department of
Correction. Salinas now appeals.
Discussion and Decision I. Child Deposition Statute
[22] Salinas first argues that the trial court abused its discretion by denying his
motion to depose L.R. Depositions of child victims of sex offenses are
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 9 of 26 governed by the Child Deposition Statute, Indiana Code Section 35-40-5-11.5.
Discussing this statute in Church v. State, 189 N.E.3d 580, 585 (Ind. 2022), our
Supreme Court noted that:
[b]ecause trial courts have broad discretion over discovery matters, our review over these matters is typically limited to determining whether the trial court abused its discretion. However, when a trial court’s ruling involves a pure question of law, such as the interpretation or constitutionality of a statute, our standard of review is de novo.
(quotations omitted). We, thus, interpret the Child Deposition Statute’s terms
de novo, and we review the trial court’s ruling denying Salinas’ motion for an
abuse of the trial court’s discretion.
[23] The Child Deposition Statute provides, in relevant part:
(a) This section applies only to a criminal case involving a child less than sixteen (16) years of age who is the victim or alleged victim of a sex offense.
*****
(c) A defendant may depose a child victim only in accordance with this section.
(d) A defendant may not take the deposition of a child victim unless the defendant contacts the prosecuting attorney before contacting the child, and one (1) or more of the following apply:
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 10 of 26 (3) The court authorizes the deposition after finding, following a hearing under subsection (g), that the deposition is necessary:
(A) due to the existence of extraordinary circumstances; and
(B) in the interest of justice.
(g) The court may not authorize the deposition of a child victim under subsection (d)(3) unless the defendant establishes by a preponderance of the evidence that the deposition is necessary:
(1) due to the existence of extraordinary circumstances; and
(2) in the interest of justice.
I.C. § 35-40-5-11.5 (emphasis added). Here, Salinas argues that the trial court
abused its discretion by denying his motion to depose L.R. because, pursuant to
subsection (d)(3), the deposition was “necessary . . . due to the existence of
extraordinary circumstances” and “in the interest of justice.”
[24] We have held that the Child Deposition Statute “prohibits the ability of
criminal defendants to depose the victim of a sex offense if the victim is less
than sixteen years old, unless certain conditions are met.” Rosenbaum v. State,
193 N.E.3d 417, 426 (Ind. Ct. App. 2022), trans. denied. And our Supreme
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 11 of 26 Court has held that the statute is a substantive, rather than a procedural, statute
because it creates a “substantive right” for child victims of sex offenses to avoid
deposition and places “a limitation on the substantive rights of defendants” to
take such depositions. Church, 189 N.E.3d at 591.
[25] No published case, however, has interpreted the meaning of “extraordinary
circumstances” or “the interest of justice” under the statute. In interpreting a
statute,
[W]e begin with the statutory language itself. We read the words in their plain and ordinary meaning, taking into account the structure of the statute as a whole. We presume the General Assembly intended for the statutory language to be applied in a logical manner consistent with the statute’s underlying policy and goals.
Spells v. State, 225 N.E.3d 767, 772 (Ind. 2024) (citations and internal quotations
omitted).
[26] The plain meaning of “extraordinary” is “[b]eyond what is usual, customary,
regular, or common[.]” Extraordinary, BLACK’S LAW DICTIONARY (12th ed.
2024); see also State v. Collier, 61 N.E.3d 265, 268-69 (Ind. 2016) (finding
“extraordinary or exceptional circumstances” supported granting Trial Rule
60(B)(8) motion for relief from judgment to permit defendant to seek post-
conviction relief where trial court failed to refer prior petition to State Public
Defender as required by Post-Conviction Rules and defendant “suffered from
cognitive or mental deficiencies”); In re Adoption of O.R., 16 N.E.3d 965, 971-72
(Ind. 2014) (finding that, where biological father failed to file a timely appeal, Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 12 of 26 “extraordinarily compelling reasons” supported “restor[ing]” the right to appeal
due, principally, to the appeal concerning protected Fourteenth Amendment
rights).
[27] Based on the plain meaning of the word “extraordinary,” we are not persuaded
that extraordinary circumstances existed such that the trial court abused its
discretion by denying Salinas’ motion to depose L.R. Salinas argues that
extraordinary circumstances existed because: (1) L.R. did not report
inappropriate touching during DCS’s first investigation; (2) “unfounded
allegations were made against Salinas regarding another child” 4; (3) L.R. had a
motive to fabricate the allegations in order to remain with her paternal
grandparents; and (4) Salinas faced a lengthy sentence if convicted. Appellant’s
Br. p. 24.
[28] As this Court is all too familiar, however, these sorts of circumstances are
unfortunately common in child molestation cases. Child victims often recant
allegations, fail to remember all the facts and circumstances, or fail to report
allegations altogether. We, thus, conclude that Salinas did not prove by a
preponderance of the evidence that extraordinary circumstances existed such
4 Salinas’ biological daughter, A.S., appears to have reported and later recanted allegations of inappropriate touching by Salinas.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 13 of 26 that deposition of L.R. was required, and the trial court, therefore, did not
abuse its discretion by denying Salinas’ motion to depose her. 5
II. Admission of Evidence
[29] Salinas argues that the trial court abused its discretion by admitting several
pieces of evidence at trial. We review challenges to the admission of evidence
for an abuse of the trial court’s discretion. Combs v. State, 168 N.E.3d 985, 990
(Ind. 2021). We will reverse only where the decision is clearly against the logic
and effect of the facts and circumstances and the error affects a party’s
substantial rights. Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). “The
effect of an error on a party’s substantial rights turns on the probable impact of
the impermissible evidence upon the jury in light of all the other evidence at
trial.” Gonzales v. State, 929 N.E.2d 699, 702 (Ind. 2010); see Ind. Trial Rule 61;
Ind. Appellate Rule 66(A). The erroneous admission of evidence is harmless
when we are persuaded that the jury’s verdict was not “substantially swayed”
by the erroneously-admitted evidence. Lafayette v. State, 917 N.E.2d 660, 666
(Ind. 2009). Erroneously-admitted evidence that is “cumulative of other
evidence properly before the jury” constitutes harmless error. Hoglund. v. State,
962 N.E.2d 1230, 1240 (Ind. 2012).
5 Because we determine that Salinas did not demonstrate that “extraordinary circumstances” supported deposition of L.R., we do not address whether deposition was “in the interest of justice.”
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 14 of 26 A. Evidence Rule 404(b)—DCS report alleging Salinas provided L.R. with marijuana
[30] First, Salinas argues that the trial court abused its discretion by admitting
Mother’s testimony that DCS investigated a report that he provided L.R. with
marijuana. Salinas argues that this evidence was inadmissible under Evidence
Rule 404(b).
[31] The testimony constitutes inadmissible “bad act” evidence under Evidence Rule
404(b). The error in admitting this evidence, however, was harmless based on
the totality of the evidence presented at trial. L.R. testified in detail regarding
Salinas’ sex offenses and threats against her; L.R.’s letter reporting the
allegations was admitted; Mother testified regarding circumstantial evidence
that Salinas encouraged L.R. to lie to DCS; and Grandfather testified regarding
changes in L.R.’s demeanor around the time the touching began. Moreover,
DCS never substantiated the report that Salinas provided marijuana to L.R.
We are not persuaded that the brief testimony regarding the marijuana
“substantially swayed” the jury’s verdict. Lafayette, 917 N.E.2d at 666.
B. Hearsay—L.R.’s text messages with A.S.
[32] Salinas next argues that the trial court abused its discretion by admitting the
text messages exchanged between L.R. and A.S. because the text messages
constitute inadmissible hearsay. In the text messages, L.R. wrote to A.S.:
“[Salinas] said I shouldn’t communicate with u cause u could show it as
evidence and he would get in trouble[.]” Ex. Vol. p. 9. L.R. asked A.S.
whether anyone had reported a “very bad situation” involving her and Salinas
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 15 of 26 because L.R. did not want Salinas to get mad at her. Id. at 10. A.S. texted that
she “told about [A.S.’s own] situations but that’s it.” Id. L.R. then asked again
if someone reported “[t]he very bad situation,” and A.S. replied, “like I have
many with you[.]” Id. at 11. A.S. also texted, “no one right now is
communicating with [Salinas]”; “my mom is taking him to court over me”; and
that A.S. was “scared to be hit or something[.]” Id. at 12-13.
[33] The text messages constitute inadmissible hearsay. See Evid. R. 801(c); 802.
The error in the admission of the text messages, however, is harmless because
the text messages are vague and cumulative of other evidence. L.R.’s
challenged statements in the text messages—that Salinas would get mad if L.R.
told A.S. about L.R.’s situation with Salinas—were merely cumulative of L.R.’s
testimony that Salinas threatened L.R.
[34] Salinas contends that the messages suggested that he “molested” A.S., was
“physically abusive” to her, and that his family did not speak with him.
Appellant’s Br. p. 29. But we are not convinced that A.S.’s vague reference to a
“situation” would necessarily suggest to the jury that Salinas inappropriately
touched A.S. And other evidence properly admitted at trial demonstrated that
Salinas physically disciplined L.R. and her siblings and that Salinas’ own
mother met with Grandfather twice to encourage him to file a DCS report.
A.S.’s text messages, thus, were cumulative of other evidence, and the
admission of the text messages constitutes harmless error. Hoglund, 962 N.E.2d
at 1240.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 16 of 26 C. Impermissible Vouching—Testimony that less than ten percent of children lie about sexual abuse
[35] Lastly, Salinas argues that the trial court abused its discretion by admitting
Bushore-Berry’s testimony that, based on research in the field, “less than 10% of
children lie about sexual abuse.” Tr. Vol. IV p. 174. Salinas argues that this
testimony constitutes improper vouching.
[36] Evidence Rule 704(b) provides: “Witnesses 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.”
(emphasis added). This rule prohibits “[v]ouching” for another witness because
“[s]uch testimony invades the province of the jury in determining what weight
to give a witness’s testimony.” Henson v. State, 237 N.E.3d 1160, 1165 (Ind. Ct.
App. 2024) (citing Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App.
2012)), trans. denied.
[37] We recently noted in Henson, 237 N.E.3d at 1166, that “[t]his Court has
repeatedly found no Rule 704(b) violation where a witness testified about how
child sexual-abuse victims behave in general without making a statement about
the specific victim.” (collecting cases); cf. Sampson v. State, 38 N.E.3d 985, 991-
92 (Ind. 2015) (holding testimony that a specific child victim was coached or
showed signs of coaching constitutes impermissible vouching). Thus, the
Henson court held that a detective’s testimony regarding the reasons for delayed
disclosure by child victims in general was admissible.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 17 of 26 [38] A similar case, Alvarez-Madrigal v. State, 71 N.E.3d 887 (Ind. Ct. App. 2017),
trans. denied, is particularly instructive here. In Alvarez-Madrigal, a pediatrician
who worked on the hospital’s child abuse protection team testified that “some
statistics will quote that less than two to three children out of a thousand are
making up [sexual abuse] claims.” Id. at 891. The majority held that this
testimony did not constitute improper vouching because the testimony was not
“an opinion about, or related to” the victim’s credibility, the truth of the
allegations, whether the victim was coached, or whether the victim was a
truthful person in general. Id. at 893. Rather, the testimony was a “general
statistical statement [that] properly left the determination of [the victim’s]
credibility to the province of the jury.” Id.
[39] We are persuaded that Alvarez-Madrigal represents the correct view that general
statistics regarding child abuse victims’ behaviors do not constitute improper
vouching under Evidence Rule 704(b). Indeed, this view is supported by the
plain language of the rule, which is limited to “opinions.” Evid. R. 704(b).
General statistics are not opinions, so Evidence Rule 704(b) simply does not
apply to them. 6
[40] Salinas relies on Judge Barnes’ concurring opinion in Alvarez-Madrigal, in which
Judge Barnes disagreed with the majority’s conclusion that the testimony did
6 The admissibility of such statistics will of course depend on whether they pass the tests of relevancy and probative value under Evidence Rules 401 and 403. But Salinas does not contend that the statistics here are inadmissible under those rules, and we, thus, do not address such determinations in this case.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 18 of 26 not constitute improper vouching. 7 Judge Barnes concluded: “Even if [the]
testimony was not directly tied to [the victim], what other conclusion could a
jury draw from this testimony other than, ‘there’s a very small chance this child
is making these things up’?” Id. at 897 (Barnes, J., concurring); see also Henson,
237 N.E.3d at 1167 (finding “merit” in Judge Barnes’ concerns). But because
statistical evidence does not constitute “opinion[]” testimony, it cannot
constitute impermissible vouching under Evidence Rule 702(b). Because the
testimony here concerned general statistics rather than an opinion, much less an
opinion about L.R. specifically, the trial court did not abuse its discretion by
admitting this evidence.
III. Stuffed Animal
[41] Salinas argues that the trial court abused its discretion by permitting L.R. to
testify while holding a stuffed animal. Salinas argues that “[p]ermitting a
fourteen year-old who is the sole direct evidence of the crime to hold an item
commonly associated with young children while testifying about child
molesting unfairly prejudiced the jury and deprived Salinas of his right to a fair
trial.” Appellant’s Br. p. 34.
[42] Our Supreme Court recognizes the “broad discretion” entrusted to our trial
courts in “controlling trial proceedings.” Hancz-Barron v. State, 235 N.E.3d
7 Judge Barnes, however, agreed with the majority that the defendant failed to establish fundamental error and, thus, agreed to affirm the trial court’s judgment. Alvarez-Madrigal, 71 N.E.3d at 896 (Barnes, J., concurring).
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 19 of 26 1237, 1245 (Ind. 2024) (citation omitted). “A trial court abuses its discretion
when its decision is clearly against the logic and effect of the facts and
circumstances before the court or if the court has misinterpreted the law.”
Abbott v. State, 183 N.E.3d 1074, 1083 (Ind. 2022) (quotation omitted).
[43] A child victim’s right to testify with a “comfort item” is governed by Indiana
Code Section 35-40-5-13, which provides:
When a child less than sixteen (16) years of age is summoned as a witness to any hearing in any criminal matter, including a preliminary hearing, a comfort item or comfort animal shall be allowed to remain in the courtroom with the child during the child’s testimony unless the court finds that the defendant’s constitutional right to a fair trial will be unduly prejudiced.
(Emphasis added).
[44] Only one appellate case has considered this statute, Izaguirre v. State, 194
N.E.3d 1224 (Ind. Ct. App. 2022), trans. denied. In Izaguirre, the defendant was
charged with sex offenses against a child, and the child victim testified with a
support dog sitting near her, to which the defendant objected. On appeal, we
held that the defendant’s challenge to the support dog was waived because the
defendant failed to present a cogent argument. We further held that, waiver
notwithstanding, the presence of the support dog did not unduly prejudice the
defendant.
[45] Here, L.R. was fourteen years old at the time of the trial. The statute permits a
child of L.R.’s age to testify with a comfort item, and the stuffed animal here
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 20 of 26 was neither inordinately large nor of an inappropriate character. Nothing in the
statute limits its application to cases where the child is not the sole direct
witness, and we are not persuaded that the stuffed animal here unfairly
prejudiced Salinas. The trial court did not abuse its discretion by permitting
L.R. to testify with the stuffed animal.
IV. Refreshing Witness Memory—Forensic Interview
[46] Salinas argues that the trial court abused its discretion by failing to permit him
to attempt to refresh Bushore-Berry’s memory by showing her portions of the
recorded forensic interview. When a witness is unable to recall information,
Evidence Rule 612 authorizes a party to attempt to “refresh” the witness’s
memory using a “writing or object[.]” Evid. R. 612(a); see also Thompson v.
State, 728 N.E.2d 155, 160 (Ind. 2000). The fact that a writing or object is used
to refresh a witness’s memory does not necessarily render the writing or object
admissible; the evidence must be admissible in its own right under the Rules of
Evidence. See e.g., Vialpando v. Johanns, 619 F. Supp.2d 1107, 1123 (D. Colo.
2008) (“Using the guise of refreshing recollection to admit the contents of a
document as substantive evidence . . . is improper, as it implicates the concerns
underlying the hearsay rule.”) (cleaned up).
[47] The trial court erred by refusing to permit Salinas to attempt to refresh Bushore-
Berry’s memory without moving to admit the recording of the interview. The
trial court’s error, however, was harmless. Salinas’s purpose in questioning
Bushore-Berry regarding the forensic interview was to point out that L.R.
reported only one incident of oral sex during the forensic interview, yet L.R. Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 21 of 26 testified regarding several incidents of oral sex at trial. This evidence, however,
would have been cumulative of Sheriff Liggett’s testimony that, during the
forensic interview, L.R. reported only one incident of oral sex. 8 See In re A.L.,
223 N.E.3d 1126, 1135 (Ind. Ct. App. 2023) (holding that trial court’s error in
failing to permit party to attempt to refresh witness’s memory was not reversible
error because testimony would have been cumulative of other evidence), trans.
denied. L.R. testified that she did not recall the forensic interview but would be
“surprised” if she reported that oral sex occurred only once. Tr. Vol. IV p. 148.
[48] Salinas directs us to other statements from L.R. during the forensic interview
that he claims are “not cumulative of other evidence.” Appellee’s Br. p. 38.
Having reviewed the forensic interview ourselves, it is clear that, in these
statements, L.R. merely describes the single incident of oral sex mentioned in
the interview. 9 Appellee’s Br. p. 38. These statements, thus, have nothing to do
with L.R.’s trial testimony regarding other incidents of oral sex and do not
impeach her testimony.
8 We note that Salinas was only charged with one count of child molesting as a Level 1 felony based on the oral sex. See Ind. Code § 35-31.5-2-221.5(1) (defining “other sexual conduct,” which was the basis for Salinas’ Level 1 felony child molesting conviction, as “an act involving . . . a sex organ of one (1) person and the mouth or anus of another person”). 9 Salinas cites L.R.’s statements from the interview that, during the incident of oral sex: (1) L.R. and Salinas “were sitting on a bed and silent” before the oral sex; (2) L.R.’s “clothes were on as normal”; (3) the incident “stopped when LR popped her head up and said stop”; (4) “LR never discussed Salinas ejaculating”; (5) L.R. was “able to get up and leave the room”; and (6) “LR never discussed Salinas striking her” during the incident. Appellant’s Br. pp. 38-39.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 22 of 26 [49] In sum, we are not persuaded that the jury’s verdict would have been any
different even if Bushore-Berry’s memory had been refreshed and she testified
regarding L.R.’s statements from the forensic interview. The trial court’s error
was harmless.
V. Jury Instruction
[50] Lastly, Salinas argues that the trial court erred by refusing his tendered jury
instruction.
“The purpose of a jury instruction ‘is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.’” Ramirez v. State, 174 N.E.3d 181, 199 (Ind. 2021) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). We review a trial court’s jury instructions for an abuse of discretion. Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015). “An abuse of discretion arises when the instruction is erroneous and the instructions taken as a whole misstate the law or otherwise mislead the jury.” Id. at 484-85. In reviewing a trial court’s decision to give or refuse a tendered jury instruction, we consider: “(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.” Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002). “Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case.” Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (quoting Whitney v. State, 750 N.E.2d 342, 344 (Ind. 2001)).
Albert v. State, 193 N.E.3d 1040, 1042 (Ind. Ct. App. 2022), trans. denied.
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 23 of 26 [51] Here, Salinas tendered Indiana Pattern Criminal Jury Instruction 12.1300,
which provides:
The credibility of a witness may be attacked by introducing evidence that on some former occasion the witness [made a statement] [made a written statement] [in former testimony testified] [acted in a manner] inconsistent with his testimony in this case. Evidence of this kind may be considered by you in deciding the value of the testimony of the witness.
Appellant’s App. Vol. II p. 98. Salinas argued that the instruction was proper
because the record included impeachment evidence, notably because Sheriff
Liggett testified that L.R. reported only one incident of oral sex, whereas L.R.
testified at trial regarding several such incidents. The trial court, however,
refused the instruction.
[52] We find instructive Chambers v. State, 734 N.E.2d 578 (Ind. 2000). In that case,
the trial court refused an instruction that the jury could disregard testimony if
the jury determined that the witness “willfully and intentionally testified falsely
to any material fact in the case.” Id. at 581. Our Supreme Court held that,
although the instruction correctly stated the law and was supported by the
evidence, the substance of the instruction was sufficiently covered by the trial
court’s other instructions. The other instructions sufficiently informed the jury
that “it was the exclusive judge of witness credibility, and could disregard the
testimony of a witness if it had reason to do so,” and that the jury could use its
“knowledge, experience, and common sense” in determining the weight of
testimony. Id. The Court noted that “[c]ommon experience, shared by us all,
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 24 of 26 includes listening to a stranger and concluding that nothing he or she has to say
is believable.” Id.
[53] Here, as in Chambers, Salinas’ proposed instruction is a correct statement of law
and is supported by the evidence; however, the substance of the instruction was
already covered by the trial court’s other instructions. Specifically, Final
Instruction No. 12 instructed the jurors that they were the “exclusive judges of
the evidence,” including “witness testimony”; that the jury could “determin[e]
the value to give a witness’s testimony”; and, that in doing so, the jury could
consider the “reasonableness of the testimony considering the other evidence”
and the jury’s “knowledge, common sense, and life experiences.” Appellant’s
App. Vol. II p. 114.
[54] Much like the instruction in Chambers, this instruction sufficiently informed the
jury that it was free to determine the weight to give each item of testimony and
that the jury could use its knowledge, common sense, and life experiences in
doing so. This was sufficient to inform the jury that it could consider L.R.’s
prior inconsistent statements in determining her credibility. The trial court,
thus, did not abuse its discretion by denying Salinas’ proposed instruction.
Conclusion [55] We conclude the following: (1) the trial court did not abuse its discretion by
denying Salinas’ request to depose L.R.; (2) the trial court abused its discretion
by admitting evidence that DCS investigated a report that Salinas provided L.R.
with marijuana and by admitting the text messages, but these errors were
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 25 of 26 harmless, and the trial court did not abuse its discretion by admitting Bushore-
Berry’s testimony regarding the percentage of children that lie about abuse; (3)
the trial court did not abuse its discretion by permitting L.R. to testify while
holding a stuffed animal; (4) the trial court erred by failing to permit Salinas to
attempt to refresh Bushore-Berry’s memory using the recorded forensic
interview, but this error was harmless; and (5) the trial court did not abuse its
discretion by refusing Salinas’ proposed jury instruction. We affirm the
judgment of the trial court.
[56] Affirmed.
Altice, C.J., and Brown, J., concur.
ATTORNEY FOR APPELLANT Aaron J. Spolarich Bennett Boehning & Clary, LLP Lafayette, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana
Kelly A. Loy Assistant Section Chief Criminal Appeals Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-1966 | March 27, 2025 Page 26 of 26