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

MEMORANDUM DECISION

Case Summary

[1] Michael Nathaniel Lewis was convicted of Level 1 felony child molesting for acts involving his then-four-year-old daughter N.B. Lewis contends that the trial court committed fundamental error by finding that N.B. was competent to testify at trial and that the evidence is insufficient to sustain his conviction. Because we disagree with both contentions, we affirm.

Facts and Procedural History

[2] Lewis and T.B. are the parents of N.B. and J.B. Although Lewis and T.B. were no longer involved in a romantic relationship, prior to June of 2023, they “were very cordial[,]” and T.B. would allow Lewis “to come over to” her apartment to “spend time with” then-four-year-old N.B. and then-ten-month-old J.B. Tr. Vol. II p. 20. Lewis often stayed with and cared for the children while T.B. was at work.

[3] On June 1, 2023, Lewis cared for N.B. while T.B. worked from 8:00 a.m. to 4:30 p.m. T.B. arrived home around 5:45 p.m. and found N.B. in bed. N.B., who was normally “[o]utgoing, bubbly, [and] clingy” was “very down, quiet, [and] to herself.” Tr. Vol. II p. 32. Although N.B. had not been feeling well earlier that day, it was unusual for her to be in bed at that hour, so T.B. asked her if anything was wrong. N.B. did not initially say that anything was bothering her but, “[w]ithin 10 minutes, maybe 15” minutes, N.B. told T.B. that Lewis had sexually abused her. Tr. Vol. II p. 21.

[4] Lewis was sitting on the couch next to T.B. when N.B. told T.B. what had happened. He acted “[o]blivious” and “nonchalant.” Tr. Vol. II p. 22. As N.B. described what had happened, T.B. “stopped her and looked at [Lewis] waiting for a response. He didn't give [T.B.] one. So [T.B.] kind of nudged him and ․ said you didn't hear her? And he continued to play [a] video game.” Tr. Vol. II p. 22. Lewis eventually claimed that N.B. had not been “feeling good [for] the majority of the day” so he had “started to kiss her feet and her legs.” Tr. Vol. II p. 24. He also claimed that N.B. had needed to be cleaned off because she had eaten Cheetos. This struck T.B. as an “odd” statement because she had noticed that the only bag of Cheetos that had been in the apartment “was still unopened.” Tr. Vol. II pp. 24, 25.

[5] T.B. told Lewis to leave, and although he was argumentative, he eventually left the apartment. Once outside of Lewis's presence, N.B. “disclosed more” to T.B. Tr. Vol. II p. 25. T.B. walked outside and asked Lewis for an explanation about what N.B. was telling her but Lewis “did not say too much of anything.” Tr. Vol. II p. 26. T.B. then called police.

[6] South Bend Police Officer Zachary Mullins was dispatched to T.B.’s apartment on a report of a sexual assault of a four-year-old girl. Upon arriving, Officer Mullins encountered T.B., N.B., and Lewis. T.B. was “[n]ervous, upset, shaky, very concerned[,] and worried.” Tr. Vol. II p. 12. Officer Mullins advised T.B. to take N.B. to the St. Joseph Regional Medical Center (the “Medical Center”), which she did.

[7] After N.B. arrived at the Medical Center, Nancy Grant, a sexual assault nurse examiner, performed an exam on N.B. N.B. confirmed to Nurse Grant that she understood that she was at the Medical Center for medical treatment and that she understood Nurse Grant's role. N.B. disclosed the sexual assault to Nurse Grant, indicating that “[h]er father” was the person who had sexually assaulted her. Tr. Vol. II p. 71. N.B. told Nurse Grant that she was there

to have her poopy checked. And [Nurse Grant] asked her why she needed to have her poopy checked. And she said something about she had lotion in there. And [Nurse Grant] asked her why she had lotion in her poopy. And she told [Nurse Grant] that her dad had his finger in the lotion and then put it inside of her poopy.

Tr. Vol. II p. 71. N.B. also told Nurse Grant she did not “like the licks on [her] legs” from Lewis or when he “rubbed [her] back.” Tr. Vol. II p. 72. Nurse Grant collected swabs from N.B.’s genital area and anus. The swabs were collected for DNA testing, as well as testing for sexually transmitted diseases.

[8] The next day, N.B.’s maternal grandmother took N.B. to the Casie Center, a child advocacy center. At the Casie Center, N.B. was interviewed by forensic interviewer Debra Verduin. During the interview, N.B. disclosed sexual abuse by Lewis.

[9] On June 23, 2023, the State charged Lewis with Level 1 felony child molesting. The case proceeded to trial, at which the State called N.B. as a witness. Prior to finding N.B. competent to testify, the trial court, outside of the presence of the jury, engaged N.B. in the following colloquy:

[The Court]: Hi, N.B. how are you?

[N.B.]: Good. How do you know my name?

[The Court]: Because [the deputy prosecutor] told me what your name is. All right. So here's what I'm going to have you do: I'm going to have you go around to that chair over there, and then we're going to talk about why you're here. So one thing we're going to do -- can you push the microphone down a little bit. Now it's right by you so we can hear your voice.․ -- do you know why you're here today?

[N.B.]: Yes.

[The Court]: Okay. So do you understand that when you're sitting there in that chair and [the deputy prosecutor] is asking you questions or when your dad's lawyer is asking you questions, that -- do you know what your job here today is to do?

[N.B.]: To tell the truth.

[The Court]: Right. Perfect. And do you know what it means to tell the truth?

[N.B.]: To tell the truth.

[The Court]: Right. So if I said that your shirt is blue, would that be the truth or not the truth?[1]

[N.B.]: No.

[The Court]: Okay. And if I said that what I'm wearing here, my robe, is black, would that be the truth?

[N.B.]: Yes.

[The Court]: Okay. And if someone doesn't tell the truth, if they tell something that's not true or they tell a lie, is that good or bad?

[N.B.]: Bad.

[The Court]: So when we're in here, we all want to tell the truth, right?

[N.B.]: Yes.

[The Court]: And do you understand that that's what your job is when you sit there today?

[N.B.]: Yes.

[The Court]: So when [the deputy prosecutor] asks you questions or when your dad's lawyer asks you questions, your job is to just tell the truth, right?

[N.B.]: Yes.

[The Court]: And can you promise to do that?

[N.B.]: Yes.

Tr. Vol. II pp. 120–22. After the jury was reseated, the trial court asked N.B. the following additional questions:

[The Court]: So, N.B., remember we just talked about what it means to tell the truth, right?

[N.B.]: Yes.

[The Court]: And what did you promise to do here today?

[N.B.]: To tell the truth.

[The Court]: And when [the deputy prosecutor] asks you questions and when your dad's lawyer asks you questions, what are you going to do?

[N.B.]: To [t]ell the truth.

[The Court]: And do you promise to do that?

[N.B.]: Yes.

[The Court]: Okay.

Tr. Vol. II p. 123. The trial court found that N.B. was competent to testify.

[10] N.B. testified that Lewis had “put his pee pee part to [her] poo part.” Tr. Vol. II p. 127. She specified that Lewis's “pee part” had gone into her “poo part[,]” that Lewis's “pee part” had looked like “[a] stick[,]” that it had hurt when he put his “pee part” into her “poo part[,]” and that he had put lotion on her “butt.” Tr. Vol. II p. 127. N.B. further testified that she had asked Lewis to stop and had reported his conduct to her mother when her mother got home from work. After being given two diagrams, one of which depicted a female body and the other a male body, N.B. indicated that the picture depicting a female looked more like her and the picture depicting a male looked more like Lewis. When asked to draw circles of the private parts of the picture depicting the female, N.B. drew a circle around the buttocks, referring to that as the “poop part[;]” the vagina, referring to that as the “[p]ee part[;] and the nipples, agreeing that the nipples were also an area “that no one should see or touch[.]” Tr. Vol. II p. 129. On the picture depicting the male, N.B. circled the nipples; the buttocks, referring to that as the “[p]oop part[;]” and the penis, referring to that as the “pee part.” Tr. Vol. II p. 130. N.B. indicated that Lewis had put his “pee part” on her “poo part[.]” Tr. Vol. II p. 131. N.B. reiterated on cross-examination that Lewis's penis had penetrated her, stating that “[i]t was inside me.” Tr. Vol. II p. 137. On re-direct, N.B. clearly stated that Lewis had put his “pee part ․ [i]n [her] butt” and that it had hurt. Tr. Vol. II p. 141. A member of the jury submitted a question asking if T.B. had instructed N.B. on “what to say here in court today[,]” to which N.B. answered “[n]o.” Tr. Vol. II p. 144. On redirect, the deputy prosecutor asked N.B. if she remembered what was her “job on the stand today[,]” and N.B. answered “[t]o tell the truth, and I am.” Tr. Vol. II p. 145.

[11] Nurse Grant testified that N.B. tested positive for a urinary tract infection, which, in a four-year-old child, can be caused by not wiping the correct way or by molestation. Nurse Grant noted that when she had examined N.B., she had not observed any signs of physical injury to N.B.’s inner thighs/female vulva or anus. She testified, however, that in acute cases, where a child victim is examined within three days or seventy-two hours after the incident, only twenty-one percent of the victims show actual physical injury, and it is very common for children not to have signs of physical injury. Nurse Grant also said that lack of physical injury does not mean that there had been no sexual abuse.

[12] Indiana State Police forensic scientist Rebecca Tobey performed DNA testing on the samples submitted from N.B.’s genital and anal swabs. Tobey also had a buccal swab collected from Lewis for comparison purposes. The anal swab showed a “mixture” of DNA, indicating the presence of “at least one” other contributor beyond N.B., but Tobey could not determine anything further about the contributor. Tr. Vol. II p. 95. The internal genital swab showed the presence of male DNA, but there was an insufficient quantity to identify the male. Tobey testified that DNA can be cleared by urination, defecation, and “any mechanical action ․ such as wiping.” Tr. Vol. II p. 92. The external genital swab of N.B. revealed the presence of DNA that was found to be 36,000 times more likely to have come from Lewis and N.B. than N.B. and some other contributor. Tobey testified that the “statistical analysis provide[d] strong support for the inclusion of” Lewis. Tr. Vol. II p. 96. A sample from N.B.’s underwear indicated “a mixture of two individuals[,]” and it was “38 times more likely” that the DNA profile had “originated from N.B. and [Lewis] than if it [had] originated from N.B. and an unknown unrelated individual.” Tr. Vol. II p. 98.

[13] On July 24, 2024, the jury found Lewis guilty of Level 1 felony child molesting. The trial court entered judgment of conviction and, on August 30, 2024, imposed a thirty-five-year sentence with five years suspended to probation. The trial court also found Lewis to be a sexually violent predator and a credit-restricted felon.

Discussion and Decision

[14] Lewis contends that the trial court committed fundamental error by finding N.B. to be a competent witness, capable of testifying against him at trial. Lewis also contends that the evidence is insufficient to sustain his conviction for Level 1 felony child molesting.

I. Witness Competency

[15] Indiana Evidence Rule 601 presumes that every person is a competent witness unless otherwise provided by statute or rule. “A child is only competent to testify if it can be established that the child (1) understands the difference between telling a lie and telling the truth, (2) knows she is under a compulsion to tell the truth, and (3) knows what a true statement actually is.” Saylor v. State, 55 N.E.3d 354, 361 (Ind. Ct. App. 2016) (internal citation and quotation omitted), trans. denied. “The trial court has discretion to determine whether a child witness is competent based on the court's observation of the child's demeanor and the child's responses to questions posed by counsel and the court.” Id.

[16] Lewis acknowledges that he did not challenge N.B.’s competency at trial. “A defendant's failure to object to a child's testimony acts as a waiver of any question of the competency of the child as a witness.” Haycraft v. State, 760 N.E.2d 203, 209 (Ind. Ct. App. 2001) (internal quotation omitted), trans. denied. Lewis, therefore, can only obtain relief if he proves that finding N.B. competent to testify constituted fundamental error. Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011).

The fundamental error doctrine provides a vehicle for the review of error not properly preserved for appeal. In order to be fundamental, the error must represent a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process. The error must be so prejudicial to the defendant's rights as to make a fair trial impossible. In considering whether a claimed error denied the defendant a fair trial, we determine whether the resulting harm or potential for harm is substantial. Harm is not shown by the fact that the defendant was ultimately convicted. Rather, harm is determined by whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled.

Id. at 1178–79 (internal citations omitted).

[17] As is outlined in detail in the recitation of the facts above, prior to finding N.B. to be competent to testify, the trial court questioned N.B. outside of the presence of the jury about the difference between telling the truth and telling a lie. N.B.’s statements demonstrated that she understood the difference between a truth and a falsity, that telling a lie or false statement is bad, and that her “job” was to tell the truth. Tr. Vol. II pp. 122, 145. In addition, N.B. provided consistent testimony, even on cross-examination. Her statements were consistent, she pointed out false statements and indicated that such statements were not true, and she reiterated at the end of her testimony that she had been telling the truth. The record supports the determination that N.B.: (1) understood “the difference between telling a lie and telling the truth,” (2) knew she was “under a compulsion to tell the truth,” and (3) knew “what a true statement actually is.” Saylor, 55 N.E.3d at 361. Lewis has failed to establish that the trial court committed fundamental error by finding N.B. competent to testify.²

II. Sufficiency of the Evidence

[18] When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (internal brackets, citations, emphasis, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).

[19] In order to prove that Lewis had committed Level 1 felony child molesting, the State was required to prove that Lewis, a person of at least twenty-one years of age, “with a child under fourteen (14) years of age, knowingly or intentionally perform[ed] ․ sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5.” Ind. Code § 35-42-4-3(a)(1). Indiana Code section 35-31.5-2-221.5 defines “[o]ther sexual conduct” as “an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.” In challenging the sufficiency of the evidence to sustain his conviction, Lewis argues that the State failed to prove that penetration had “actually occurred.” Appellant's Br. p. 14.

[20] Despite Lewis's claim to the contrary, the State presented sufficient evidence to support the jury's determination that he had penetrated N.B.’s anus with his penis. Lewis points to N.B.’s testimony that he had “put his pee pee part to [her] poo part” in support of his claim that the State failed to prove that penetration had occurred. Tr. Vol. II p. 127. N.B., however, went on to clarify that Lewis's “pee part” had gone into her “poo part[,]” his “pee part” had looked like “[a] stick[,]” and it had hurt when he put his “pee part” into her “poo part[.]” Tr. Vol. II p. 127. N.B. reiterated on cross-examination that Lewis's penis had penetrated her, stating that “[i]t was inside me.” Tr. Vol. II p. 137. On re-direct, N.B. clearly stated that Lewis had put his “pee part ․ [i]n [her] butt” and that it had hurt. Tr. Vol. II p. 141. While N.B. did not use the technical terms “anus” or “penis” in her testimony, her testimony was sufficient to prove that Lewis had committed an act involving his penis and her anus. See Wisneskey v. State, 736 N.E.2d 763, 765 (Ind. Ct. App. 2000) (providing that while the child victim had not used the term “anus” in the child's testimony, the child's testimony that the defendant had stuck his “private” in the child's “butt” was sufficient to support the reasonable inference that defendant had inserted his penis into the child's anus); Short v. State, 564 N.E.2d 553, 558–59 (Ind. Ct. App. 1991) (finding that child victim's testimony that the defendant had touched the child's “butt” with his “front butt” sufficient to support the inference that defendant had touched the child's anus with his penis). N.B.’s testimony is sufficient to prove that Lewis had penetrated her anus with his penis. See Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (“The testimony of a sole child witness is sufficient to sustain a conviction for molestation.”).

[21] Moreover, although N.B.’s anal and internal genital swab samples did not identify Lewis as a contributor, analysis of the samples did not exclude Lewis either. The anal swab showed a “mixture” of DNA, indicating the presence of “at least one” other contributor beyond N.B., but Tobey could not determine anything further about the contributor. Tr. Vol. II p. 95. The internal genital swab showed the presence of male DNA, but there was an insufficient quantity to identify the male. Tobey testified that DNA can be cleared by urination, defecation, and “any mechanical action ․ such as wiping.” Tr. Vol. II p. 92. Furthermore, an external genital swab of N.B. revealed the presence of DNA that was found to be 36,000 times more likely to have come from Lewis and N.B. than N.B. and some other contributor. Tobey testified that the “statistical analysis provide[d] strong support for the inclusion of” Lewis. Tr. Vol. II p. 96. A sample from N.B.’s underwear indicated “a mixture of two individuals[,]” and it was “38 times more likely” that the DNA profile had “originated from N.B. and [Lewis] than if it [had] originated from N.B. and an unknown unrelated individual.” Tr. Vol. II p. 98. Likewise, while Nurse Grant testified that she had found no injury to N.B.’s anus during her examination of N.B., she further testified that when a child victim is examined within seventy-two hours of the reported sexual contact, as N.B. was in this case, only approximately twenty-one percent of victims show signs of physical injury and that the lack of physical injury does not mean sexual abuse had not occurred.

[22] Tobey's and Nurse Grant's testimony does not discredit N.B.’s testimony, with both providing reasonable explanations for the lack of both (1) concrete DNA evidence establishing Lewis as a contributor to some of the samples tested and (2) evidence of physical injury to N.B. N.B.’s testimony was consistent and clear that Lewis had penetrated her anus with his penis. Lewis's challenge to the sufficiency of the evidence effectively amounts to an invitation to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958.

[23] The judgment of the trial court is affirmed.

FOOTNOTES

1.   The record reflects that N.B. was wearing a pink shirt.

2.   To the extent that Lewis claims that N.B.’s testimony that she had talked to the forensic interviewer about “[s]omething inappropriate” that Lewis had done “does not sound like an answer of a 5 year old, but rather, something that had been repeated to her over and over again[,]” Appellant's Br. p. 12, Lewis's claim relates to N.B.’s credibility and the weight of her testimony, not her competency, and the jury was free to disregard her testimony if it “felt [she] was not a credible witness.” See Harrington v. State, 755 N.E.2d 1176, 1181 (Ind. Ct. App. 2001) (providing that the jury is free to disregard the child witness's testimony if it does not find the child to be a credible witness).

Bradford, Judge.

Judges Pyle and Kenworthy concur. Pyle, J., and Kenworthy, J., concur.