Jamarris Lewis, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Jamarris Lewis appeals his convictions for two counts of child molesting as level 1 felonies and one count of child molesting as a level 4 felony and argues the trial court abused its discretion by admitting certain evidence. We affirm.

Facts and Procedural History

[2] When K.M., who was born in 2005, was around the ages of eleven to fourteen years old, her mother dated Lewis, who was born in 1981. At some point, Lewis moved in with K.M. and her family in Muncie, Indiana. While K.M.’s mother worked, Lewis babysat K.M. and her siblings. When K.M. was thirteen years old, Lewis touched her on her chest, breast, buttocks, and vagina.

[3] The first time that Lewis touched K.M., he grabbed her buttocks, and she did not know what to do, left, and went to her room. The second time, Lewis entered K.M.’s room, grabbed her, touched her buttocks, “used one of his hands to cup one of [her] breasts,” and left. Transcript Volume II at 65. After the second incident, K.M. went to live with her grandmother for about four or five months. K.M. then returned to her mother's residence, and Lewis grabbed her “boobs,” “butt,” and vagina. Id. at 39. During one incident, Lewis pulled down K.M.’s pants and placed her on her stomach, and K.M. felt “something like inside of” her.¹ Id. K.M. asked Lewis “what was going on” and “what was he doing,” but Lewis told her to “shut up.” Id. at 41. This occurred “a couple times in a week. Sometimes like three or four times a week.” Id. Lewis also entered K.M.’s vagina with his penis and fingers. Lewis always placed her in the same position where he would be behind her and she would not face him. He also called her things like “bitch, or ․ a slut or a whore ․ almost every time.” Id. at 44. He “would use like vegetable oil or something like that. Like olive oil or ․ stuff that he had in his room.” Id. Lewis touched K.M. for approximately “a year and a half.” Id. at 42. K.M.’s “butt and vagina area” were “always sore.” Id. at 53.

[4] In the fall of 2018, K.M. tried to tell her mother what was occurring, but Lewis denied the allegation, and K.M.’s mother did not believe her. In April 2019, K.M., her family, and Lewis moved to Tennessee, and Lewis continued to touch K.M.

[5] In the summer of 2020, K.M. returned to Indiana to visit her aunt in Bloomington and disclosed to her aunt that Lewis had touched her. K.M.’s aunt called K.M.’s grandmother who contacted the Department of Child Services. On June 17, 2020, Lindsey Moorman, a registered nurse and sexual assault nurse examiner, examined K.M.

[6] On June 23, 2021, the State charged Lewis with: Count I, child molesting as a level 1 felony; Count II, child molesting as a level 1 felony; Count III, child molesting as a level 4 felony; and Count IV, performing sexual conduct in the presence of a minor as a level 6 felony.² That same day, the State filed an affidavit of probable cause in which Gala-Kay Laughner, an investigator with the Delaware County Prosecutor's Office, stated that Investigator Kristofer Swanson conducted a forensic interview of K.M. on June 17, 2020, and that Moorman conducted a forensic medical examination of K.M. on that same date at I.U. Health Ball Memorial Hospital. Also on June 23, 2021, the State filed a Witness List which listed Moorman.³

[7] On September 14, 2023, the State filed a Notice of Intent to Introduce 404(b) Evidence indicating that certain evidence might be introduced including that: Lewis performed identical acts with K.M.’s mother in the bedroom including sexual positions, the names Lewis called her, the location of the sexual acts, and the statement of K.M.’s mother that there was a change in the sex life of her and Lewis once Lewis began molesting K.M.

[8] On August 13, 14, and 15, 2024, the court held a jury trial. During opening statement, the prosecutor stated that K.M. “was raped anally and vaginally by [Lewis] for two years” and that “[t]here will be uncomfortable pictures shown to you and details of the abuse that [K.M.] endured for two years.” Transcript Volume II at 14. Defense counsel objected and stated, “I know this is only opening statement but [the prosecutor] has twice referred to actions that take place over a lengthy period of time and the charging information only charges a two-month period. This is inappropriate and it is objectionable.” Id. The court stated, “You are admonished that the date period that has been chosen, you should ․ limit your comments.” Id.

[9] During his opening statement, defense counsel stated, “When you hear [K.M.] testify, I don't know what version she's going to tell you from the witness stand. What I do know is that it can't possibly be consistent with all of the different versions she's told on multiple different occasions.” Id. at 17. He also stated:

You will hear evidence that when [K.M.] first started telling these stories, that she was not believed. Her own mother didn't believe her. And, in fact, her mother will testify that she told individuals that [K.M.] reported to her that she had made it up. Well, why would you do that? [K.M.] wanted her mom's attention.

* * * * *

[K.M.] told this story. And she told it again and told it again and each time it's a little bit different. One time, it involves vaginal intercourse. The next time, only anal intercourse. The story just simply doesn't stay the same over time and I don't have any idea what story she's gonna [sic] tell when she gets up here on the witness stand. What I do know is, that there are some very serious questions about her credibility, her ability to keep a story straight and there is no physical evidence to back up any of these stories.

Id. at 17-18.

[10] After opening statements, the court indicated that it would not begin hearing evidence until the following morning. Outside the presence of the jury, defense counsel asserted that he believed from the State's opening statement that it intended “to offer 404b evidence,” “[t]here's not [been] a disclosure of any 404 evidence in this case but [the prosecutor], twice, referred to these acts occurring over an alleged two-year period of time.” Id. at 20. The prosecutor stated in part:

[T]he Notice of Intent of the 404b should have included not only, the statements made or the, the testimony by the victim's mother about the habit and routine practice of how the defendant had engaged in sex with her but also that he had continued to engage in sex acts with the victim in this particular case which is why it's relevant because when she was examined by the S.A.N.E. Nurse, the S.A.N.E. Nurse observed, photographed and can explain the injuries that were present and that were photographed.

Id. at 22.

[11] Defense counsel asserted that the defense had not been placed “on notice that would give rise to allow us to file a pretrial motion asking for exclusion of this evidence.” Id. He also argued that “the 403 balancing test makes those allegations of what occurred in a different jurisdiction, inadmissible in this case against Mr. Lewis in Delaware County, Indiana.” Id. at 23. The prosecutor asserted, “It's all the same, it's all the same basic set of circumstances and the same act that was repeated as a habit or routine.” Id. at 24. The court stated, “I don't know what, the victim is going to be your first witness ․ what she's going to testify to but I would tend to allow her testimony concerning continuation of the allegations of sexual abuse occurring after they left Indiana, in this case.” Id.

[12] At the beginning of the next day, defense counsel asked the court for clarification of its ruling. The court stated that what occurred in Tennessee could be evidence of “a continuing criminal episode, which would be admissible in evidence.” Id. at 26. The court stated there was an issue involving “a pattern of conduct involving potentially a witness in the case” and “the difficulty the Court has with that is that it, and we may want to have a hearing outside the presence of the jury if that, if those types of questions are asked. I believe this would be the witness, maybe the mother's testimony?” Id. The prosecutor answered affirmatively. The court stated, “That, depending upon the evidence in this case, that almost [borders] on vouching. That's my concern. So, although it may be admissible in rebuttal as far as the case in chief, I would say it's an evidentiary question that needs to be answered, based upon what the testimony is.” Id. at 26.

[13] During K.M.’s testimony, the prosecutor asked if she knew “roughly how long it was from when this started to when it finally stopped?” Id. at 41. Defense counsel stated, “Judge, I'm going to object on the basis of the argument made outside the hearing of the jury.” Id. The court overruled the objection. Defense counsel asked that the court “show a continuing objection to the following questions at this point.” Id. at 42. The court stated, “There will be a continuing objection noted.” Id.

[14] On cross-examination, defense counsel asked K.M. how often she “[got] in trouble for lying,” and she answered, “Um, a lot.” Id. at 57. She indicated that she lied about “[w]ho ate the snacks in the kitchen or who drunk [sic] her [mother's] juice. Things like that.” Id. She also indicated that she “got in trouble for lying more” after Lewis moved in. Id. at 61. Defense counsel asked K.M., “you told the nurse that the most recent time was two weeks before that day or two weeks before you left Tennessee?” Id. at 84. K.M. answered, “No, it was that the like, the last time it happened was before I left to go to Bloomington.” Id. On recross-examination, K.M. acknowledged that she “got in trouble for lying a lot” and that “it was a pretty common thing for [her] to do.” Id. at 94. The court asked a juror's question regarding if any intercourse or penetration occurred in Indiana or only in Tennessee, and K.M. answered, “Um, it happened in Indiana and Tennessee.” Id. at 95.

[15] K.M.’s mother testified that K.M. told her at one point that Lewis was touching her and asked her not to say anything to him but she confronted Lewis who denied the allegation. She also testified that, when she told K.M. that Lewis denied it, K.M. said she was “just mad.” Id. at 115. K.M.’s mother indicated that she “would have sex each time” with Lewis “[f]rom behind.” Id. at 121. When asked if there was anything in particular that Lewis would say while they were having sex, she answered “just name calling ․ [l]ike, slut or bitch or things like that.” Id.

[16] During Moorman's testimony, she identified State's Exhibits 2, 3, and 5 through 13 as photographs of K.M. and her examination findings. Defense counsel objected to State's Exhibits 6, 9, and 11 “as being repetitive of other Exhibits.” Id. at 197. The court overruled the objection and asked, “You're not objecting to the rest, correct?” Id. Defense counsel stated, “Correct.” Id. Moorman testified that State's Exhibit 6 was a “zoomed in photo of some excoriation on the edge of the labia and the groin.” Id. at 199. She indicated that K.M. made a statement indicating that the marks were from shaving, but the marks did not appear to be typical shaving cuts. She observed excoriation or irritation on the posterior fourchette in the vaginal area. When asked if there was “typically a type of injury that causes such redness of that area,” she answered, “[T]ypically any kind of, like, force into the vagina, potentially could cause that. Like, of an object.” Id. at 203. She also stated, “That's the most common spot to have a tear in the vagina with typically, nonconsensual intercourse or insertion into the vagina with any object.” Id. She indicated that she considered the injury a tear. She testified that K.M.’s external rectal area appeared red and stated “if the skins [sic] irritated, it can be red.” Id. at 204. She also observed a healed or healing tear in K.M.’s rectal area. When asked if the injuries were consistent with sexual assault, she answered: “The vaginal, the posterior fourchette tear, typically are, yes. And then, even a rectal tear, an anal tear, could potentially be consistent. So, with more than one area of tearing is usually more consistent with nonconsensual intercourse.” Id. at 210. She testified that K.M. appeared to have a skin yeast infection and that an oil-based lubricant “could potentially lack air to get to the area which could suppress bacteria growth and allow yeast to overgrow.” Id. at 209.

[17] At the close of the State's evidence, defense counsel moved for judgment on the evidence on Count IV. The prosecutor stated that she had no objection, and the court granted the motion.

[18] Lewis testified that K.M. “lied a lot” and lied about “[e]verything.” Transcript Volume III at 11. He stated that he tried to be more of a father figure to K.M. after they moved to Tennessee. He testified that when he became aware of the allegations while they were living in Tennessee, K.M.’s mother “was upset but [he] could tell she knew that [K.M.] was lying.” Id. at 15. He denied having sex with K.M. or touching her breasts or buttocks.

[19] During closing argument, the prosecutor mentioned the forensic examination conducted by Moorman but also stated:

Now, the pictures that you saw admittedly were from 2020, from the summer of 2020. We're not saying that the pictures that you saw were from the, that the injuries that you saw in those pictures, the tearing of the vagina, the tearing of the anal cavity, that those were the pictures that were caused by the acts that are alleged here, in Indiana in March and April of 2019. But, what those pictures do show is that what [K.M.] said, actually kept happening. She said that it started here, in Muncie, Indiana, in March, April of 2019, that's when they moved down to Tennessee and that this kept happening. It kept happening all the way through and that when she finally told her aunt, when they came back up here for a summer vacation, that this was happening to her. She was taken to get these, the examination, those pictures were done and it showed the vaginal and anal tearing. But, what it does, is it shows that there was a pattern of what, of what had happened and what had continued to happen and which was evident, back in June of 2020 with those pictures. If that makes sense. And, we can't let, the State of Indiana cannot charge anything that happens, not outside of our, of this jurisdiction.

Id. at 64-65.

[20] During closing argument, defense counsel stated:

Let's start off by looking at the testimony of Lindsey Moorman. She is the nurse from I.U. Ball Memorial. She conducted her examination of [K.M.] in June of 2020. More than a year after the charges are, making their allegations. So, Counts 1, 2 and 3 all allege the same time period between the middle of March and the end of April 2019. Any of those injuries or excoriations, I think was the term that nurse Moorman used, they're not from anything that did or didn't happen in 2019.

Id. at 69. He also stated that “[w]e know that [K.M.] lies” and “[w]hether you believe someone who's been in trouble for lying multiple, multiple, multiple times or someone who turned himself in and testified to you about exactly what happened.” Id. at 77.

[21] The jury found Lewis guilty of Counts I, II, and III. The court sentenced Lewis to thirty years for Count I, thirty years for Count II, and six years for Count III. It ordered that the sentence for Count III be served concurrently to the sentences for Counts I and II for an aggregate sentence of sixty years.

Discussion

[22] Lewis argues that the State's notice to introduce 404(b) evidence did not list any subsequent bad acts allegedly committed by him that may have occurred outside the dates of the charging information while he and K.M. were living in Tennessee. He asserts that the State failed to provide the required notice in contradiction of Ind. Evidence Rule 404(b)(2). He contends that, notwithstanding the notice requirement, the trial court committed reversible error when it admitted 404(b) evidence over his objection. He asserts that, if we do not find that he preserved his objection “with respect to the subsequent witnesses,” he would ask us to review the issue as one of fundamental error. Appellant's Brief at 15.

[23] The State argues that the record does not reveal that Lewis “made any request for notice, much less one that was understandable or clear.” Appellee's Brief at 13. It contends that, “even if notice was required, [Lewis] was sufficiently apprised of the evidence.” Id. It argues that Lewis waived his claim with respect to the forensic examination because he did not maintain his objection. It contends that, even if Lewis had not waived his objection, the evidence concerning the abuse in Tennessee and the forensic examination was properly admitted. It argues that it was entitled to rebut Lewis's attacks on K.M.’s credibility.

[24] Generally, the trial court has broad discretion to rule on the admissibility of evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court's ruling on the admission of evidence is generally accorded a great deal of deference on appeal. Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh'g denied. We do not reweigh the evidence; rather, we consider only evidence that is either favorable to the ruling or unrefuted and favorable to the defendant. Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016). We may affirm a trial court's decision regarding the admission of evidence if it is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh'g denied.

[25] To the extent Lewis mentions fundamental error, failure to timely object to the erroneous admission of evidence at trial will procedurally foreclose the raising of such error on appeal unless the admission constitutes fundamental error. Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015). The fundamental error exception to the contemporaneous objection requirement is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)), reh'g denied. To be considered fundamental, the claimed error must make a fair trial impossible. Id. (citing Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh'g denied). Thus, this exception is available only in “egregious circumstances.” Id. (citing Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)).

[26] Ind. Evidence Rule 404(b) provides:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.

[27] “Indiana Evidence Rule 404(b) serves to safeguard the presumption of innocence in favor of criminal defendants.” Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019), cert. denied, 140 S. Ct. 198 (2019). The restriction in Rule 404(b)(1) “prevents the jury from indulging in the ‘forbidden inference’ that a criminal defendant's ‘prior wrongful conduct suggests present guilt.’ ” Id. (quoting Byers v. State, 709 N.E.2d 1024, 1026-1027 (Ind. 1999)). “But Rule 404(b) does not totally proscribe other-bad-acts evidence—only its use as character evidence.” Id. “The list of ‘other purposes’ in the Rule is not exhaustive; extrinsic act evidence may be admitted for any purpose not specified in Rule 404(b) unless precluded by the first sentence of Rule 404(b) or any other Rule.” Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000) (quoting Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997)), reh'g denied.

[28] “[W]hen the State claims that other-bad-acts evidence is admissible for a proper purpose, the trial court is tasked with deciding whether that evidence ‘is relevant to a matter at issue other than the defendant's propensity to commit the charged act.’ ” Fairbanks, 119 N.E.3d at 568 (quoting Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997)). “If the evidence passes that relevance test, it has to clear a second hurdle: Indiana Evidence Rule 403’s balancing test.” Id. “In applying Rule 403, the trial court must conclude that the evidence's probative value is not ‘substantially outweighed’ by the danger of unfair prejudice, Evid. R. 403— otherwise, the evidence is not admissible.”⁴ Id. The trial court has wide latitude, however, in weighing the probative value of the evidence against the possible prejudice of its admission. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000). If evidence has some purpose besides behavior in conformity with a character trait and the balancing test is favorable, the trial court can elect to admit the evidence. Boone v. State, 728 N.E.2d 135, 138 (Ind. 2000), reh'g denied.

[29] With respect to the notice provision in Ind. Evidence Rule 404(b), the purpose “is to reduce surprise and to promote the early resolution of questions of admissibility.” Abdul-Musawwir v. State, 674 N.E.2d 972, 975 (Ind. Ct. App. 1996), trans. denied.⁵ “The defendant has the burden to make a ‘reasonably understandable and sufficiently clear’ request for such notice from the State.” Hatcher v. State, 735 N.E.2d 1155, 1158 (Ind. 2000) (quoting Abdul-Musawwir, 674 N.E.2d at 975). “If the defendant fails to adequately request pre-trial notification, the evidence is admissible absent the notification.” Abdul-Musawwir, 674 N.E.2d at 975. “[A] defendant who is not given notice after making a proper request must object to the State's 404(b) evidence at trial to preserve any error for appeal.” Hatcher, 735 N.E.2d 1158. “However, ‘[i]f notice of the intent to use 404(b) evidence were so crucial to a fair trial as to implicate due process considerations and constitute fundamental error, waiver would not result from such procedural defects.’ ” Id. at 1158 n.1 (quoting Abdul-Musawwir, 674 N.E.2d at 976).

[30] As for notice, we note that the affidavit of probable cause, which mentioned that Moorman conducted a forensic medical examination of K.M. on June 17, 2020, and the Witness List listed Moorman, were filed more than three years before the jury trial began in August 2024. Despite the State's clear indication that Moorman would be called as a witness, Lewis does not point to the record to indicate that he requested notice of the prosecutor's intent to offer 404(b) evidence. Thus, we cannot say that notice was required pursuant to Ind. Evidence Rule 404(b). See Ind. Evidence Rule 404(b) (“On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.”) (emphasis added).

[31] We observe that, while Lewis's counsel asked for a continuing objection during K.M.’s testimony with respect to “to the following questions at this point.” Transcript Volume II at 42, and the court noted the continuing objection, Lewis's counsel did not object during the beginning of Moorman's testimony and later did not object to admission of the photographs identified as State's Exhibits 2, 3, 5, 7, 8, 10, 12, and 13 during Moorman's testimony and confirmed that he was not objecting to those exhibits. Specifically, the court asked, “You're not objecting to the rest, correct?” Transcript Volume II at 197. Defense counsel stated, “Correct.” Id. Thus, Lewis waived his objection to certain evidence related to the forensic examination. See Halliburton v. State, 1 N.E.3d 670, 679 (Ind. 2013) (holding the appellant could not state at trial that he had no objection to the admission of evidence and claim on appeal that such admission was erroneous; and holding the doctrine of fundamental error was inapplicable because the doctrine presupposes a trial judge erred in performing some duty that the law had charged the judge with performing sua sponte and “upon an express declaration of ‘no objection’ a trial judge has no duty to determine which exhibits a party decides, for whatever strategic reasons, to allow into evidence”).

[32] During his opening statement, defense counsel asserted that the version of events to which K.M. would testify “can't possibly be consistent with all of the different versions she's told on multiple different occasions.” Transcript Volume II at 17. He also asserted that K.M.’s own mother did not believe her, that K.M. told a “story,” each time the story was “a little bit different,” “there are some very serious questions about her credibility,” and “there is no physical evidence to back up any of these stories.” Id. at 18. In light of the record, we conclude that the challenged evidence was admissible to rebut defense counsel's attack on K.M.’s credibility. See Marshall v. State, 893 N.E.2d 1170, 1176 (Ind. Ct. App. 2008) (observing the defendant argued that the trial court erred when it allowed into evidence testimony that he was charged in Tennessee with aggravated kidnapping stemming from a domestic dispute involving one of the victims of child molesting because it was essentially improper character evidence that resulted in an unfair trial; noting the trial court determined that the defendant opened the door to such evidence when, during opening statement, defense counsel referred to the victim's report to authorities in Tennessee that defendant had molested her years prior and she later recanted her statement; and concluding the trial court did not err in its ruling); see also Atwell v. State, 738 N.E.2d 332, 336 (Ind. Ct. App. 2000) (rejecting defendant's argument under Ind. Evidence Rule 404(b) and holding that the State offered the testimony to rebut defendant's misleading inference and the victim's testimony was probative of the lack of provocation and the victim's credibility as a witness), trans. denied, cert. denied, 534 U.S. 876, 122 S. Ct. 175 (2001); Thornton v. State, 653 N.E.2d 493, 499-501 (Ind. Ct. App. 1995) (rejecting defendant's arguments under Ind. Evidence Rule 404(b) and holding that the State was entitled to rebut defendant's claim that his erection problems made it impossible for him to have had sex and his claim that he never touched any of his daughter's friends in a sexual manner).

[33] As to whether the evidence's probative value is not substantially outweighed by the danger of unfair prejudice, we reiterate that the trial court has wide latitude in weighing the probative value of the evidence against the possible prejudice of its admission. See Crain, 736 N.E.2d at 1235. The evidence was highly probative. Further, the prosecutor clarified to the jury during closing argument that the State could charge Lewis only for his conduct in Indiana. The jury instructions also detailed the alleged conduct that occurred in Indiana. Under these circumstances, we cannot say that the trial court abused its discretion in finding that the evidence's probative value was not substantially outweighed by the danger of unfair prejudice.

[34] For the foregoing reasons, we affirm Lewis's convictions.

[35] Affirmed.

FOOTNOTES

1.   When asked “what part of [her] he was inside,” K.M. answered, “[I]t felt like my butt, I want to say, I'm still not sure which one it was but it felt like my butt because after I got up, I, I couldn't really like, sit down.” Transcript Volume II at 40.

2.   Counts I and II alleged that, between March 15, 2019, and April 30, 2019, in Delaware County, Indiana, Lewis, “a person of at least twenty-one (21) years of age, did perform or submit to sexual intercourse or other sexual conduct as defined in Indiana Code Section 35-31.5-2-221.5 with Victim 1, a child under the age of fourteen years (14), to-wit: 13, contrary to the form of the statutes in such cases made and provided by I.C. 35-42-4-3(a) and I.C. 35-42-4-3(a)(1) ․” Appellant's Appendix Volume II at 10-11. Count III alleged that, between March 15, 2019, and April 30, 2019, in Delaware County, Indiana, Lewis “did perform or submit to fondling or touching with Victim 1, a child under the age of fourteen years, to-wit: 13, with the intent to arouse or satisfy the sexual desires of the child or defendant contrary to the form of the statutes in such cases made and provided by I.C. 35-42-4-3(b) ․” Id. at 12.

3.   On March 7, 2024, the State filed a Witness List which included “Lindsey Morman” [sic]. Appellant's Appendix Volume II at 66. On August 2, 2024, the State filed another Witness List that also listed “Lindsey Morman” [sic]. Id. at 84.

4.   Ind. Evidence Rule 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

5.   The Court in Abdul-Musawwir interpreted a prior version of Ind. Evidence Rule 404(b) which provided:Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.674 N.E.2d at 975 (emphasis omitted).

Brown, Judge.

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