Elmer Salazer-Hernandez, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Elmer Salazer-Hernandez (“Hernandez”) appeals his convictions for Class B felony child molesting and Class C felony child molesting.¹ Hernandez raises four issues for our review, which we consolidate and restate as the following three issues:

1. Whether the trial court erred when, after the close of the State's case-in-chief, it permitted the State to amend its Class A felony child molesting allegation to an inherently included Class B felony child molesting allegation.

2. Whether Hernandez's challenge to a police officer's testimony that, based on her professional experiences, delayed disclosures in child molestation cases were common, is cumulative of other, unchallenged evidence.

3. Whether the prosecutor committed prosecutorial misconduct in statements she made to the jury during her closing argument.

[2] We affirm.

Facts and Procedural History

[3] In October 2012, Hernandez moved into his brother Roni's trailer in Vanderburgh County. At the time, Roni lived with his girlfriend and her minor daughter, E.I.H., who was “around four or five” years old. Tr. Vol. 2, p. 223. Hernandez, who was born in October 1992, was between twenty and twenty-one years old at the time.

[4] E.I.H. used to wake up before anyone else. However, one morning, Hernandez was also awake and called her into the “playroom” area as she came out of her room. Id. at 225. He had E.I.H. “cuddle” with him on the couch and then proceeded to have intercourse with her. Id. Afterward, he told her to “go clean up.” Id. Hernandez did this “four or five times” in total before he ceased living with E.I.H. in the trailer a few months after he had moved in. Id. at 230.

[5] Several years later, when E.I.H. was in middle school, she attended a grade-level “sexual assault awareness” presentation. Id. at 231. The presentation caused E.I.H. to have “a realization of everything that happened[,] and it all came back” to her. Id. at 232. E.I.H. informed her mother of what had happened, and law enforcement officers became involved soon afterward.

[6] The State charged Hernandez with Class A felony child molesting and Class C felony child molesting. E.I.H. testified at the ensuing jury trial. The State also called Vanderburgh County Sheriff's Detective Jackie Juncker, who had investigated E.I.H.’s claims. The State asked Detective Juncker: “In your experience[,] do victims of molesting usually report right after it's happened?” Id. at 246. Hernandez objected to the question on the ground that Detective Juncker was not “an expert witness of any kind.” Id. The trial court overruled Hernandez's objection based on Detective Juncker's “experience of working with several children” in allegations of child molesting. Id. Detective Juncker then testified that, in her experience, she had “yet to come across a case of child molesting where the child immediately disclosed.” Id. Similarly, Laci Thornton, a nurse practitioner with special training as a sexual assault nurse examiner, testified that, in her experience and “more often than not,” victims of child molesting “reported after the fact whether that be days or years later.” Tr. Vol. 3, p. 10.

[7] The Class A felony charge required the State to show that Hernandez was at least twenty-one years old at the time of the offense. See Ind. Code § 35-42-4-3(a)(1) (2012). However, in her testimony, E.I.H. was not able to more specifically pin down the dates of the molestations than to the time Hernandez had lived in the trailer with her. Accordingly, after the State rested, Hernandez moved to dismiss the Class A felony allegation. In response, the State moved to amend the allegation to a Class B felony charge, which had all the same elements as the Class A felony charge except the requirement for the State to show Hernandez's age. See I.C. § 35-42-4-3(a) (2012). Over Hernandez's objection, the trial court permitted the State to amend the allegation.

[8] After Hernandez rested his case, the prosecutor presented her closing argument to the jury. In that argument, the prosecutor asserted that she had “brought you a very credible girl.” Tr. Vol. 3, p. 129. Hernandez objected to that statement as “vouching” for E.I.H.’s credibility. Id. Similarly, Hernandez objected to the prosecutor arguing that E.I.H. “had no motive to make any kind of claim against” Hernandez as well as the prosecutor asserting that, “[i]f you're a liar, ․ you're making up something off the hip.” Id. at 142, 146-47. After Hernandez's last objection, the prosecutor responded, “I am vouching for her.” Id. at 147. The court immediately struck the prosecutor's response. The court then overruled Hernandez's objections, stating that the prosecutor was “free to characterize the evidence.” Id.

[9] Also during her closing argument, the prosecutor referenced Indiana appellate case law for the proposition that “the testimony of a child alone with nothing otherwise is enough ․ to convict a person.” Id. at 127. Over Hernandez's objection, the trial court permitted the prosecutor “to characterize the law” but with an admonishment to the jury that “my instructions are your best source in determining what the law is.” Id.

[10] The jury found Hernandez guilty of Class B felony child molesting and Class C felony child molesting. Thereafter, the court entered its judgment of conviction and sentenced Hernandez. This appeal ensued.

1. The trial court did not err when it permitted the State to amend the Class A felony allegation to the inherently included Class B felony allegation.

[11] On appeal, Hernandez first argues that the trial court erred when it permitted the State, after it had closed its case-in-chief, to amend the Class A felony allegation to the inherently included Class B felony allegation.² We generally review the trial court's decision on whether to permit an amendment to a charging information for an abuse of discretion. Howard v. State, 122 N.E.3d 1007, 1013 (Ind. Ct. App. 2019), trans. denied. An abuse of discretion occurs when the trial court's judgment is clearly against the logic and effect of the facts and circumstances before it or is contrary to law. Id. However, whether an amendment to an information is a matter of substance or form is a question of law that we review de novo. Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014).

[12] According to Hernandez, the State's amendment of the charge was an impermissible amendment of substance. A charging information may be amended at various stages of a prosecution depending on whether the amendment is to the form or to the substance of the original information. Id. (quotation marks omitted). As our Supreme Court has held:

An amendment is one of form and not substance if a defense under the original information would be equally available after the amendment and the accused's evidence would apply equally to the information in either form. Further, an amendment is of substance only if it is essential to making a valid charge of the crime.

Fajardo v. State, 859 N.E.2d 1201, 1205 (Ind. 2007) (quoting McIntyre v. State, 717 N.E.2d 114, 125-26 (Ind. 1999)).

[13] We have expressly held that amendments from greater offenses to inherently included lesser offenses are amendments in form. Specifically, in State v. O'Grady, the State charged the defendant with Class A misdemeanor battery. 876 N.E.2d 763, 764 (Ind. Ct. App. 2007). However, at trial, the victim testified that she had not experienced any pain from the battery. Accordingly, after the State rested, the defendant moved to dismiss the State's charge, and the State responded with a request to amend the Class A misdemeanor charge down to an inherently included Class B misdemeanor charge, which was identical to the Class A misdemeanor charge as to all elements except for the victim's injury.

[14] The trial court denied the State's request and dismissed the State's case. On a reserved question of law, a unanimous panel of our Court held that the trial court erred by not permitting the amendment. As Judge Najam explained:

our Supreme Court has implied that amending a charge from a greater to a lesser-included offense is an amendment in form only. Specifically, in Miller v. State, 753 N.E.2d 1284, 1288 (Ind. 2001), the court commented as follows:

Occasionally, a prosecutor will seek permission to conform charges to the evidence presented during trial such that a jury is given the opportunity to convict on a lesser-included offense as opposed to those originally charged. See Ind. Code § 35-34-1-5(c) (allowing amendments that do not prejudice the substantial rights of the defendant).

Id. at 766. Judge Najam continued:

The State's proposed amendment to the information is not a matter of substance. The amendment simply deletes the reference to bodily injury resulting from the alleged battery, which requires the State to change the class of the alleged offense from a Class A misdemeanor to the lesser-included Class B misdemeanor. As such, the original information already encompasses charges of both Class A and Class B misdemeanor battery. The proposed amendment therefore is not essential to making a valid Class B misdemeanor battery charge, as required for an amendment to a matter of substance.

Nor is the amendment prejudicial to [the defendant's] substantial rights․

․ There is no dispute that [the defendant] has been given sufficient notice of the inherently-included lesser charge and that he has had an opportunity to be heard regarding that charge. And the amendment from a greater charge to an inherently-included lesser charge does not result in a change in the identity of the offense charged. Further, insofar as [the defendant's] defense strategy is negated by the amendment, that result arises only because [he] chose not to challenge any of the elements of Class B misdemeanor battery, not because he was denied notice or an opportunity to raise those defenses.

Id. at 767 (cleaned up). We further noted that, had the defendant not been granted the directed verdict and had the State proceeded on the Class A misdemeanor charge, “it would have been [the defendant's] right to request a jury instruction on the inherently-included lesser charge.” Id. at 768.

[15] Hernandez's initial brief to our Court omits any discussion of O'Grady. After the State relied on that precedent in its responsive brief, Hernandez argued in his reply that O'Grady was wrongly decided. We disagree. Our Court's decision in O'Grady is consistent with our Supreme Court's precedents, and we agree with both its reasoning and its outcome. Applying O'Grady here, the trial court did not err when it permitted the State to amend the Class A felony child molesting allegation down to the inherently included Class B felony allegation, and we affirm the trial court's decision.

2. Detective Juncker's testimony about delayed disclosure is cumulative of Nurse Thornton's testimony, and Hernandez does not challenge Nurse Thornton's testimony on appeal.

[16] We next address Hernandez's argument that the trial court abused its discretion when it permitted Detective Juncker to testify that, based on her professional experiences, delayed reporting of child molestation by victims was common. A trial court has broad discretion regarding the admission of evidence, and its decisions are reviewed only for abuse of that discretion. Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021).

[17] According to Hernandez, the trial court erred because Detective Juncker was not an expert qualified to discuss such “child sexual abuse syndrome.” Appellant's Br. at 28. In support of his argument, he relies on our Supreme Court's opinion in Steward v. State, 652 N.E.2d 490 (Ind. 1995). In Steward, our Supreme Court considered the admissibility of “syndrome evidence,” that is, “descriptions of ‘typical’ behavior profiles or patterns” of behavior by child-molestation victims. Id. at 493. The Court stated that, while such evidence is not “unreliable as a matter of law, the reliability of such evidence for the purpose of proving abuse is at present extremely doubtful and the subject of substantial and widespread repudiation by courts and scientists.” Id. at 499 (quotation marks and citations omitted). Thus, the Court held that, to be admissible, the child's credibility must first be “called into question” by the defense, after which syndrome evidence may be admissible under Indiana Evidence Rule 702(b), which requires expert scientific testimony to be based upon reliable scientific principles, as well as Evidence Rule 403 to assist the finder of fact.³ Id. at 498-99.

[18] However, the purported syndrome evidence here—that E.I.H.’s delayed disclosure was consistent with the behavior of child-molestation victims—was before the jury not just through Detective Juncker's testimony but also through Nurse Thornton's testimony. Hernandez's argument on appeal does not challenge the admissibility of Nurse Thornton's testimony. See Ind. Appellate Rule 46(A)(8)(a). Accordingly, any error in the admission of Detective Juncker's testimony is harmless as it is cumulative of the same evidence presented by Nurse Thornton. E.g., D.Z. v. State, 100 N.E.3d 246, 249 (Ind. 2018) (holding that, where challenged photographs were “cumulative of other substantial evidence, ․ any error in their admission was harmless”).

3. No reversible error occurred for any prosecutorial misconduct.

[19] Hernandez also contends that the prosecutor committed misconduct during her closing arguments. As our Supreme Court has held:

When reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine “(1) whether misconduct occurred, and if so, (2) ‘whether the misconduct, under all the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected’ otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). “Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct.” Id. (emphasis in original) (quoting Cooper, 854 N.E.2d at 835).

Konkle v. State, ___ N.E.3d ___, 2025 WL 782333, *5 (Ind. Mar. 12, 2025).

[20] Hernandez first asserts that the prosecutor improperly vouched for E.I.H.’s credibility during her closing argument. As we have summarized:

a prosecutor may not state his or her personal opinion regarding the credibility of a witness during trial. See Schlomer v. State, 580 N.E.2d 950, 957 (Ind. 1991) (“[i]t is improper for the prosecutor to make an argument which takes the form of personally vouching for the witness”); see also Gaby v. State, 949 N.E.2d 870, 880-81 (Ind. Ct. App. 2011) (concluding prosecutor's statements that “I cannot and would not bring charges that I believe were false” and “I can tell you that with a guilty verdict on this case I will be able to sleep fine tonight. Just fine. In fact, better than fine. You will be able to also” were improper vouching). However, a prosecutor may comment as to witness credibility if the assertions are based on reasons arising from the evidence presented in the trial. Gaby, 949 N.E.2d at 881.

Thomas v. State, 965 N.E.2d 70, 77 (Ind. Ct. App. 2012), trans. denied.

[21] Hernandez contends that three statements made by the prosecutor were impermissible vouching. First is the comment that the prosecutor had “brought [the jury] a very credible girl.” Tr. Vol. 3, p. 129. Second is the comment that E.I.H. “had no motive to make any kind of claim against” Hernandez. Id. at 142. And third is the comment that, “[i]f you're a liar, ․ you're making up something off the hip.” Id. at 146-47. Hernandez also emphasizes that the prosecutor admitted to the court, in response to his objections, “I am vouching for her,” even though the trial court promptly struck that comment. Id. at 147.

[22] We assume for the sake of argument that the prosecutor's comment that “we brought you a very credible girl” was impermissible vouching. Id. at 129. Indeed, finding that statement to be misconduct would be quite straightforward: the prosecutor subsequently admitted that, in fact, she was vouching for the credibility of the victim when she said during her rebuttal, “I was vouching for her.” Id. at 147. As such, the trial court should have struck the comment.

[23] However, we agree with the State that the second and third comments were comments on the evidence. The second comment is an assessment of E.I.H.’s motives. The third comment is an assessment of the circumstances of E.I.H.’s disclosure. Those are not personal opinions about E.I.H.’s credibility, and they were therefore admissible comments.

[24] Before considering the impact of the inappropriate vouching comment, we next consider Hernandez's argument that the prosecutor also committed misconduct when she referenced Indiana appellate case law for the proposition that “the testimony of a child alone with nothing otherwise is enough ․ to convict a person.” Id. at 127. As noted above, although the trial court permitted the prosecutor “to characterize the law” over Hernandez's objection, the court also admonished the jury that “my instructions are your best source in determining what the law is.” Id.

[25] We have expressly held that such a comment by a prosecutor in a closing argument is not misconduct. Specifically, in Weis v. State, the prosecutor “repeatedly informed the jury that it could convict [the defendant] solely on the basis of [an alleged victim's] testimony.” 825 N.E.2d 896, 904 (Ind. Ct. App. 2005). According to the defendant in Weis, because the trial court was prohibited from instructing the jury that a conviction may be based solely on the uncorroborated testimony of the alleged victim, the prosecutor likewise should have been prohibited from arguing as much to the jury at its closing. See id. (discussing Ludy v. State, 784 N.E.2d 459, 460-61 (Ind. 2003)).

[26] We succinctly rejected the defendant's argument, noting that “[t]he mere fact that a jury may not be instructed on a certain point of law does not lead to the conclusion that argument concerning that point of law is also improper.” Id. We then noted that, given the importance of the witnesses’ credibility at the defendant's trial, the prosecutor's argument to the jury was “an appropriate characterization of the evidence.” Id.

[27] Hernandez does not address, let alone attempt to challenge or distinguish, our opinion in Weis. Nor does he assert that the trial court's conclusion that the prosecutor had the right to argue “both law and fact” was erroneous. See id. We therefore are not persuaded by Hernandez's argument that the prosecutor committed misconduct on this point.

[28] Our analysis leaves us with a single point of prosecutorial error, namely, the prosecutor's comment to the jury that she had brought the jury a very credible witness in E.I.H. We thus consider whether that comment placed Hernandez in grave peril as measured by the probable persuasive effect of the misconduct on the jury's decision. See Konkle, ___ N.E.3d at ___, 2025 WL 782333, *5. And we readily conclude that this one sentence did not have a meaningful probable persuasive effect on the jury's decision. The jury was properly instructed that it was “the exclusive judge[ ] of the evidence,” including “witness testimony”; that the statements of counsel are not evidence; that the jury's verdict must be based on the evidence; and that the attorneys would use their closing arguments “to characterize the evidence[ and] discuss the law” to “attempt to persuade you to a particular verdict.” Appellant's App. Vol. 2, pp. 212, 214, 216-17. We have no reason to suppose the jury disregarded those instructions, and there is therefore no reversible error on this issue.

Conclusion

[29] For all of these reasons, we affirm Hernandez's convictions.

[30] Affirmed.

FOOTNOTES

1.   The trial court entered judgment of conviction on the jury's guilty finding for the Class C felony child molesting allegation but did not enter a sentence for that conviction. See Tr. Vol. 3, p. 179. Neither party argues error in those aspects of the court's judgment. See Ind. Appellate Rule 46(A)(8)(a).

2.   A lesser offense is inherently included in a greater offense where the lesser offense is established by proof of less than all the material elements defining the greater offense. See Tucker v. State, 725 N.E.2d 894, 897 (Ind. Ct. App. 2000), trans. denied; see also I.C. § 35-31.5-2-168(1) (2012).

3.   Judge Vaidik recently recognized for another panel of our Court that “our case law has strayed from [Steward’s] rigid requirements,” noting:In some cases, this Court found Steward didn't apply simply because the behavioral evidence wasn't offered as scientific testimony or referred to as a “syndrome” or “profile.” See, e.g., Lyons v. State, 976 N.E.2d 137, 142-43 (Ind. Ct. App. 2012); State v. Velasquez, 944 N.E.2d 34, 43 n.3 (Ind. Ct. App. 2011), trans. denied. In other cases, this Court found the defendant opened the door simply by generally attacking the victim's credibility rather than by emphasizing an unexpected behavior. See Ward[ v. State], 203 N.E.3d [524,] 531 [(Ind. Ct. App. 2023)]; Pierce v. State, 135 N.E.3d 993, 1005 (Ind. Ct. App. 2019), trans. denied. Contra Ward, 203 N.E.3d at 535 (Vaidik, J., concurring in part) (“Merely alleging the victim is not credible does not warrant admission of [testimony that nightmares and self-mutilation are typical of child sexual-abuse victims] under Steward, which requires a challenge to specific unexpected behavior exhibited by the victim.”); Alvarez-Madrigal[ v. State], 71 N.E.3d [887,] 897 [(Ind. Ct. App. 2017)] (Barnes, J., concurring in result) (“[T]he door must be opened by something more than simply questioning the witness and attempting to poke holes in his or her testimony, which is always the point of cross-examination.”)[, trans. denied]. Other panels of this Court have avoided a Steward analysis entirely, instead considering behavioral evidence in only a vouching context without inquiring into whether the defendant opened the door to the evidence. See, e.g., Alvarez-Madrigal, 71 N.E.3d at 892-93; Carter[ v. State], 31 N.E.3d [17,] 29-30 [(Ind. Ct. App. 2015), trans. denied]. Because of these inconsistent applications of our case law, we ask our Supreme Court to clarify whether Steward remains good law ․Henson v. State, 237 N.E.3d 1160, 1167-68 (Ind. Ct. App. 2024) (some alterations original to Henson), trans. denied. We join our colleagues’ recognition of our case law's inconsistent application of Steward.

Mathias, Judge.

Judges Foley and Felix concur. Foley, J., and Felix, J., concur.