Douglas E. Jimenez Bernal, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] During forensic interviews, Victims 1 and 2 disclosed that their stepfather, Douglas Jimenez Bernal, had inappropriately touched them on multiple occasions. After the interviews, Bernal was charged with one count of Level 1 felony child molesting and two counts of Level 2 felony child molesting. At his trial, the Victims’ testimonies were inconsistent with their forensic interview disclosures. After the Victims testified, Bernal moved for a continuance, or in the alternative, a mistrial based on these inconsistencies and an alleged Brady violation.¹ The trial court denied the motion. Bernal now appeals, arguing the trial court abused its discretion in denying this motion. We affirm.

Facts and Procedural History

[2] In 2009, shortly after immigrating to the United States from El Salvador, Blanca Medrano (Mother) married James Young. Together, they had two children: Victim 1 was born in 2009 and Victim 2 in 2011. Young was “basically absent” from the girls’ lives from 2011 to 2020, and Mother and Young divorced in 2017. Transcript Vol. 3 at 205. When the girls were very young, Mother began a relationship with Bernal, who helped raise the girls and “act[ed] as their father[.]” Id. at 202.

[3] In October 2017, the girls each sat for recorded forensic interviews with the Elkhart Child and Family Advocacy Center (CFAC) due to a report that Bernal was behaving inappropriately with them. At the time, Victim 1 was eight years old, and Victim 2 was six. During those interviews, neither child disclosed that any sexual abuse had occurred. Victim 1 later testified at trial that her mother told her not to disclose the sexual abuse in 2017.

[4] In September 2021, a school counselor noticed Victim 1 was “[t]earful, sniff[ling],” and “visibly upset” when she got to school. Tr. Vol. 2 at 74. When the counselor spoke with Victim 1 in her office, she was “emotionally on edge” and disclosed that Bernal had been sexually abusing her. Id. at 75. The counselor reported the disclosure to the Department of Child Services, which led to each girl sitting for another forensic interview.

[5] Victim 1 was twelve when she interviewed with CFAC the second time. She indicated that she knew what the truth was and promised to tell the truth. When asked if she knew why she was being interviewed, Victim 1 became emotional and responded, “My stepdad touched me.” Exhibit B, V1 Interview at 13:58. Victim 1 said that Bernal had touched her “more than one time” and first touched her when she was “pretty young.” Id. at 14:13, 14:38. She reported having been touched on her chest and genitals but could not remember how many times that had happened. She said her family members had not witnessed the molestations. Victim 1 recounted five specific instances of molestation:

1. When she was four or five years old, Bernal came into Victim 1's room, closed the door, and said, “Let's play a game.” Id. at 49:34. Bernal touched her chest and also touched her genitals under her clothes on the “outside” of her body. Id. at 54:46. After the touching ended, Bernal told Victim 1, “Don't tell anyone about the game.” Id. at 55:02.

2. When Victim 1 was eight or nine years old, the family was driving home from Chicago at night. Bernal was driving and Victim 1 was sitting in the seat behind the driver's seat. Everyone else in the car was sleeping. Bernal reached behind him and touched Victim 1's genitals under her clothes but “outside” of her body. Id. at 46:53.

3. On New Year's Eve 2019, extended family members came over to Victim 1's home to celebrate. Victim 1 had fallen asleep on the bed next to her older cousin and awoke to Bernal touching her genitals under her clothes. He touched “inside” her body and “moved his hand back and forth.” Id. at 39:25, 37:57. He left when Mother yelled his name.2

4. On the morning of the first day of school, Bernal came into Victim 1's room while she was packing her backpack. He held her tightly from behind with an arm around her chest. He untucked her shirt from her jeans, placed his hand under her underwear, and touched the “inside” of her body. Id. at 30:35. His hand was “moving ․ back and forth” while he touched her. Id. at 29:47-29:59. Bernal told her, “Don't tell anyone. Don't tell your mom, or then she'll kick me out.” Id. at 31:15-31:19. He left when Victim 2 walked in.

5. The week before the forensic interview, Bernal came into her room while she was alone. She knew why he came into her room because he “always d[id] when everyone was outside.” Id. at 23:43. He touched her chest under her clothes. She told him to “stop, but he still did it.” Id. at 16:00. At some point, Bernal “just left.” Id. at 23:09.

[6] Victim 2 was ten years old when she sat for her second CFAC interview. She stated that “when [she] was little [Bernal] used to touch [her] in different places.” Ex. B, V2 Interview at 14:22. At the time, she “didn't really know what was going on,” but when she later learned about “sexual abuse and stuff like that” in school, she realized the way he had touched her was inappropriate. Id. at 14:40-15:02, 16:04. Victim 2 believed that Bernal first touched her inappropriately when she was six or seven years old. She said that he would touch her back under her bra, her stomach, and her thighs, and she circled areas consistent with these body parts on a body diagram provided to her. She also labeled a smaller area under her stomach as her “private parts.” Id. at 19:48.

[7] Victim 2 said that Bernal initially touched her back and thighs but began touching her stomach and “close to” her genitals as she grew up. Id. at 23:50. She recalled two separate incidents. Once, she was on her bed in the morning when Bernal came in and rubbed her thighs on top of her pants and her back underneath her shirt and bra. On more than one occasion, he told her to “never tell [her] mom.” Id. at 25:21. About a month later, Vitim 2 was sitting on Bernal's lap in the living room watching a movie while Mother was in the kitchen. He touched her side closer to her breasts and her thighs closer to her buttocks. He rubbed the skin on her stomach and touched below her waistline on top of her underwear. Looking back, Victim 2 believed he “tried making it like a joke to not make [her] understand.” Id. at 29:44.

[8] After the interviews, the State charged Bernal with three counts of child molesting: a Level 1 felony and a Level 4 felony for molesting Victim 1,³ and a Level 4 felony for molesting Victim 2.⁴ A four-day jury trial was held in March 2024.

[9] The Victims testified on the second day of trial, and they testified to information they had not shared in their 2021 CFAC interviews. Twelve-year-old Victim 2 testified about the living room incident and stated that she told Mother later that night that Bernal “was touching [her].” Tr. Vol. 3 at 76. Her report to Mother led to a big argument and the children leaving the home for some time. When Victim 2 went through her CFAC interview, she did not disclose anything about the confrontation that followed this abuse. She also testified that his hand had been “[i]nside” her underwear—a departure from her earlier statements. Id. at 77. When asked about these inconsistencies on cross-examination, Victim 2 repeatedly testified that she did not remember her earlier statements. She admitted that she had lied about “[s]ome stuff” in the interview because her mother told her to do so. Id. at 100.

[10] Fourteen-year-old Victim 1 testified next. She testified that she first disclosed Bernal's sexual abuse to a friend who convinced her to speak with the school counselor. In total, Bernal had touched her inappropriately “more than ten times[.]” Id. at 121. When asked about specific instances, Victim 1 recalled being in the laundry room with Bernal and refusing to let him touch her. Despite her resistance, he said that “if he could do it one last time that would be ․ his last time[,]” and he touched her genitals anyway. Id. at 120. Victim 1 recalled another instance when she was lying on Bernal's and her mother's bed and he “took [ ] off” her pants and put his fingers “down there” inside her body. Id. at 122.

[11] At that point, Bernal's attorney objected. At the sidebar conference, Bernal's attorney requested Victim 1's recent testimony be stricken because she was describing “completely new information.” Id. at 123. In response, the prosecutor said she had not “heard this story either[,]” and there was no way to know exactly what a child witness would say. Id. at 124. The prosecutor noted that the CFAC interviews made it clear that there had been many separate incidents of sexual abuse. Bernal's attorney did not accuse the prosecutor of intentionally failing to disclose the new information but indicated an inadvertent non-disclosure may have occurred. The trial court denied Bernal's motion to strike Victim 1's testimony.

[12] Victim 1 proceeded to testify that Bernal touched inside of her body “a lot[,]” she tried wearing a full-body “shapewear” suit to “make it harder for him to touch [her,]” he would occasionally touch her in the family's swimming pool, and she did not remember each separate incident or which incidents she disclosed in her CFAC interview. Id. at 127, 131, 132. Bernal extensively cross-examined Victim 1 about her CFAC interview and the newly disclosed occurrences. See id. at 137-52. On re-direct, Victim 1 testified that she had not described every instance of sexual abuse to the CFAC interviewer “[b]ecause there's a lot of different times that he's done it, and it's hard for me to ․ remember every time.” Id. at 153. She stated that she did not describe every instance in her trial testimony for the same reason.

[13] When trial resumed the next day, Bernal moved for a thirty-day continuance or, alternatively, a mistrial. His motion was premised on the fact that the Victims’ trial testimonies were different from the information contained in their CFAC interviews and any information the defense received before trial. Defense counsel mentioned that she had lined up witnesses based upon what Victim 1 had told the forensic interviewers, but at trial, Victim 1's testimony differed and “she now didn't mention and [ ] substituted another time that it happened[.]” Id. at 167. The fundamental problem, defense counsel stated, was that there was “no way for the defense to prepare for that sort of change.” Id. at 168. She argued the State's late disclosure of impeachable evidence constituted a Brady violation.

[14] In response, the prosecutor noted the molestations occurred “repeatedly[,]” or at least “multiple, multiple times[,]” and that “[s]ometimes when [child-victim witnesses] get on the stand we don't know what they're going to talk about” or what will “pop into their heads” as they relive traumatizing events. Tr. Vol. 3 at 174-75, 176. The prosecutor argued that Bernal had already availed himself of the appropriate remedy by cross-examining these witnesses the day before. The trial court adjourned the proceedings for the day to consider Bernal's motion.

[15] The next day, the trial court denied Bernal's motion for a continuance or, alternatively, a mistrial. See id. at 191-97; Appellant's Appendix Vol. 2 at 96-100. It found that there was no manifest necessity for a mistrial because the appropriate remedy was cross-examination, which Bernal had already “zealously and aggressively” conducted. Tr. Vol. 3 at 195. The court also determined that a thirty-day continuance was not “feasible” because there was a juror who was eight-months pregnant, only one alternate juror remaining, and there was a “good chance” there would not be a full jury available in thirty days. Id. at 194. The court rejected Bernal's Brady claim

because the evidence at issue was not favorable to the accused. The [S]tate neither inadvertently nor intentionally suppressed evidence as the details testified to were not known to the [S]tate prior. Also, the more detailed testimony was not contrary but within the more general timeframe alleged in the charge. The specificity of the testimony was subject to cross-examination.

Id. at 196.

[16] After receiving the ruling, the State rested. The defense called Mother, Bernal, and recalled the lead detective, each of whom provided testimony highlighting inconsistencies in the Victims’ statements or refuting specific occurrences of sexual abuse altogether. During closing argument, Bernal attacked the girls’ credibility based on the inconsistencies between the statements they made during their CFAC interviews and their trial testimony. The jury subsequently found Bernal guilty of all three counts. The trial court entered judgment of conviction on all three counts and sentenced him to an aggregate term of incarceration of fifty-six years.

Discussion and Decision

[17] Bernal contends that the trial court erred in denying his motion for a continuance or mistrial based upon a Brady violation. We review decisions on motions for a continuance and motions for a mistrial for an abuse of discretion. In re K.W., 12 N.E.3d 241, 243-44 (Ind. 2014) (continuance); Hambel v. State, 119 N.E.3d 1142, 1148 (Ind. Ct. App. 2019) (mistrial), trans. denied. A trial court abuses its discretion if its ruling is “clearly against the logic and effect of the facts and circumstances before [it].” Cook v. State, 220 N.E.3d 72, 74 (Ind. Ct. App. 2023).

[18] “There is a strong presumption that the trial court properly exercised its discretion” in denying a motion for a continuance. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (citing Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002)). Late requests for continuances to allow for more time to prepare are disfavored, and the movant must show good cause and that continuing the trial is “in the furtherance of justice.” Stafford v. State, 890 N.E.2d 744, 750 (Ind. Ct. App. 2008). Moreover, “[s]uch motions require a specific showing as to how the additional time would have aided counsel.” Zanussi v. State, 2 N.E.3d 731, 734 (Ind. Ct. App. 2013) (quoting Robinson v. State, 724 N.E.2d 628, 634 (Ind. Ct. App. 2000), trans. denied). “We will not conclude that the trial court abused its discretion unless the defendant can demonstrate prejudice as a result of the trial court's denial of the motion for continuance.” Stafford, 890 N.E.2d at 750.

[19] Here, because we conclude that Bernal cannot show he was prejudiced by the trial court's denial of his motion to continue, he has failed to demonstrate that the court abused its discretion by declining to grant a continuance. As such, we need not address his mistrial argument requiring him to make a heightened showing. See Turner v. State, 216 N.E.3d 1179, 1184 (Ind. Ct. App. 2023) (“A mistrial is an extreme remedy that should be granted only where other remedies cannot satisfactorily rectify the error.”); see also Agilera v. State, 862 N.E.2d 298, 307 (Ind. Ct. App. 2007) (“To prevail on appeal from the denial of a motion for mistrial, the appellant must demonstrate the statement or conduct in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected.”), trans. denied.

[20] “Brady and its progeny apply to the State's failure to disclose favorable evidence that is material to the accused's guilt or punishment.” Davis-Martin v. State, 116 N.E.3d 1178, 1189 (Ind. Ct. App. 2019), trans. denied. A Brady challenge contains three parts: “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice (materiality inquiry).” Id. (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Evidence is material when there is a reasonable probability that the result of the trial would have been different had the evidence been disclosed. Cone v. Bell, 556 U.S. 449, 469-70 (2009).

[21] However, “Brady only applies to the discovery, after trial, of information that was known to the prosecution but unknown to the defense.” Davis-Martin, 116 N.E.3d at 1189 (emphasis in original) (citing Hubbell v. State, 754 N.E.2d 884, 893 (Ind. 2001) (“Brady applies to the discovery of favorable evidence ‘after trial.’ ”). The prosecution generally satisfies its constitutional obligations to the defendant by disclosing evidence at trial. Bates v. State, 77 N.E.3d 1223, 1226 (Ind. Ct. App. 2017).

[22] When a disclosure occurs for the first time at trial, “[t]he burden rests with the defendant to establish that ‘the lateness of the disclosure so prejudiced [his] preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.’ ” Id. (quoting 6 Wayne R. LaFave et al., Criminal Procedure § 24.3(b) (4th ed. 2015); accord Davis-Martin, 116 N.E.3d at 1189. The defendant's failure to request a continuance when the disclosure is first made at trial may negate a claim of actual prejudice. Bates, 77 N.E.3d at 1226 (citing 6 LaFave § 24.3(b)) (emphasis added); see also Braswell v. State, 550 N.E.2d 1280, 1283 (Ind. 1990) (stating “a continuance is usually the proper remedy” when discovery non-compliance is identified during trial).

[23] Bernal explains that his motion for a continuance was intended “to allow him to investigate and prepare for a defense to the[ ] new allegations” against him. Appellant's Brief at 9-10. However, we find that his motion, premised on a Brady violation, fails for two reasons.⁵ First, the motion was not timely made. After Victim 2 testified, Bernal thoroughly cross-examined her about the inconsistencies between her CFAC interview and her testimony at trial. It was not until midway through Victim 1's testimony that he objected and motioned to strike her testimony based on inconsistencies between her trial testimony and earlier CFAC interview statements. This motion was denied, and Bernal conducted a similarly vigorous cross-examination of Victim 1. He did not request a continuance or mistrial until the start of the next day of trial. The fact that Bernal went forward with both cross-examinations before seeking a continuance negates his claim of prejudice under Davis-Martin. 116 N.E.3d at 1190 (concluding Davis-Martin's Brady challenge failed because he was able to “make [his] point” about the allegedly suppressed exculpatory or impeaching evidence during cross-examination and did not request a continuance).

[24] Second, Bernal has failed to show that any late disclosure “so prejudiced his preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.”⁶ Id. As noted, on cross-examination, Bernal pointed out inconsistencies between the Victims’ CFAC interview statements and their trial testimony. He also called witnesses whose testimonies were intended, in large part, to impugn the Victims’ credibility. Bernal testified that he was working out of state during one of the occurrences of molestation alleged by Victim 1, and the lead detective testified he had reviewed fuel receipts potentially indicating this. See Tr. Vol. 4 at 20-23, 69. Mother denied telling the Victims what to say in their CFAC interviews and discussed “friction” between herself and the Victims’ biological father, who obtained custody shortly after the Victims’ 2021 disclosures. Tr. Vol. 3 at 208. The lead detective confirmed multiple inconsistencies between the Victims’ CFAC interview statements and their trial testimony. See id. at 246-47; Tr. Vol. 4 at 2-28. Bernal denied he ever touched the Victims inappropriately, and he testified that he and Victim 1 had a “blow up” argument just days before their 2021 disclosures. Tr. Vol. 4 at 63. Both Mother and Bernal discussed Victim 1's “completely transformed” behaviors after the Victims stayed with their biological father instead of attending a family vacation shortly before their 2021 disclosures. Tr. Vol. 3 at 210; see Tr. Vol. 4 at 63. Then, in his closing argument, Bernal underscored these facts and themes, painting the girls as the victims of many “traumatic events” in their family lives, but not the victims of child molestation. Tr. Vol. 4 at 162. Nevertheless, the jury found him guilty of all three counts of child molestation, and it is the jury's exclusive province to judge the credibility of witnesses and weigh conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

[25] It is also unclear how an investigation into further grounds for impeachment would have aided Bernal's defense. While he notes that he could have petitioned the trial court for leave to depose the child victims, we cannot say that the trial court abused its discretion in finding that Bernal was afforded the appropriate remedy when confronted with inconsistencies between the Victims’ CFAC interviews and testimony at trial—cross-examination, which he “zealously and aggressively” accomplished. Tr. Vol. 3 at 195; see also Ind. Code § 35-40-5-11.5(d) (proscribing circumstances when a defendant may depose a child victim). For these reasons, Bernal has failed to show the trial court abused its discretion in denying his motion for a continuance.

Conclusion

[26] We conclude that the trial court did not abuse its discretion by denying Bernal's motion for a continuance or mistrial.

[27] Affirmed.

FOOTNOTES

1.   When referring to a Brady violation, claim, or challenge, we are referencing Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. In Brady, the United States Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87.

2.   Victim 1 stated that her cousin was present and was similarly touched during the first and third incidents. She said that she and her cousin first talked about being inappropriately touched by Bernal about a year before her 2021 interview. See Exhibit B, V1 Interview at 38:40-39:10, 51:10-54:30, 56:38-57:30. When the lead detective was recalled by the defense at trial, he testified that this cousin made no disclosure during her forensic interview. See Tr. Vol. 4 at 37-38.

3.   Ind. Code § 35-42-4-3(a)(1), (b).

4.   I.C. § 35-42-4-3(b).

5.   There is a dispute whether the State was aware of any changes in the Victims’ allegations between their CFAC interviews and trial. The trial court found the State “neither inadvertently nor intentionally suppressed evidence as the details testified to were not known to the [S]tate prior.” Tr. Vol. 3 at 196. We are not inclined to disturb this factual finding because the trial court heard Bernal's argument about why he thought the State had prior knowledge of changes in the Victims’ testimony yet specifically found to the contrary. However, even if there is a disclosure issue, Bernal cannot show that the late disclosure so prejudiced his defense as to deprive him of his constitutionally guaranteed right to a fair trial. See Davis-Martin, 116 N.E.3d at 1190.

6.   While the trial court only noted that a thirty-day continuance was not “feasible” due to the “good chance” a full jury would not be available thirty days later, the trial court's commentary about the lack of necessity for a mistrial speaks to the propriety of its decision on the motion for a continuance and resultant prejudice. Tr. Vol. 3 at 194.

DeBoer, Judge.

Chief Judge Altice and Judge Pyle concur. Altice, C.J., and Pyle, J., concur.