Eric Ndungutse, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] In November of 2023, twenty-five-year-old Eric Ndungutse and fifteen-year-old M.D. met at M.D.’s home in Indianapolis after communicating online. Ndungutse drove to Indianapolis from his home in Kentucky to pick up M.D., took her to Walmart, and then drove past M.D.’s house to a different street, where he parked the vehicle for several hours. Ndungutse attempted to kiss and touch M.D. and closed the car door when she attempted to leave. After a neighbor called the police to report the vehicle, Ndungutse was arrested and charged with Level 5 felony sexual misconduct with a minor, Level 5 felony criminal confinement, and Level 6 felony sexual battery. The trial court found Ndungutse guilty of Level 5 felony criminal confinement and Level 6 felony sexual battery and sentenced him to two years of incarceration. Ndungutse contends that the evidence was insufficient to support his convictions on the basis that M.D.’s testimony was incredibly dubious. Because we disagree, we affirm.

Facts and Procedural History

[2] In October of 2023, fifteen-year-old M.D. was a member of a group chat involving the Bible and Christianity in the messaging app, WhatsApp. At some point, twenty-five-year-old Ndungutse, who was also a member of the group, messaged M.D. separately. M.D. and Ndungutse began to communicate “one-on-one” via texting, WhatsApp, the messenger app, phone calls, and video calls. Tr. Vol. II p. 48. The communication was “pretty consistent.” Tr. Vol. II p. 49. M.D. communicated her age to Ndungutse, and Ndungutse told M.D. that he was twenty-three years old. At some point, Ndungutse “started saying that he wanted to help [M.D.] grow up.” Tr. Vol. II p. 36.

[3] On November 22, 2023, M.D. and Ndungutse engaged in a phone call around 2:00 a.m., in which Ndungutse informed M.D. that he was coming to see her in Indianapolis from his home in Kentucky. Ndungutse did not state the purpose of the visit but told M.D. “to make sure [she] showered.” Tr. Vol. II p. 38. At around 7:00 p.m. on November 22, 2023, Ndungutse arrived at M.D.’s house and “said that he would take [her] to Walmart because he wanted to get [her] something.” Tr. Vol. II p. 40. M.D.’s parents were not home.

[4] Ndungutse drove M.D. to Walmart and purchased shea butter for her. After they left the store and returned to Ndungutse's car, Ndungutse drove toward M.D.’s house but then drove onto a “different street from [her] house, but still in the same area.” Tr. Vol. II p. 41. After Ndungutse stopped the car, he began touching M.D.’s breasts. Ndungutse instructed M.D. to move to the back seat of the vehicle, and she did. M.D. was “really kind of worried, but then [she] decided to dismiss it because [she] didn't think [he] would actually do that.” Tr. Vol. II p. 42. In the back seat, Ndungutse took M.D.’s phone and “threw it in the front” of the vehicle. Tr. Vol. II p. 42. He then “started forcing himself on [her]” and “was trying to touch” M.D.’s vagina with his hands. Tr. Vol. II p. 42. Ndungutse's hands were “under [M.D.’s] underwear” trying to “take [her] clothes off.” Tr. Vol. II p. 43. Ndungutse also tried to kiss M.D. M.D. attempted to leave the car and opened the door, but Ndungutse “reached across” to close the door; this happened “a few times[.]” Tr. Vol. II p. 52.

[5] At some point, a resident of the area saw Ndungutse's vehicle parked in front of a vacant house on her street and called 911, reporting that there were two persons in the back seat of the vehicle and that the engine had been running since around 7:45 p.m. The neighbor later called 911 again, reporting that the car was still parked on the street and had been there for three hours.

[6] Indianapolis Metropolitan Police Officer Percy Johnson arrived at around 10:47 p.m. Officer Johnson observed that the windows of the vehicle were “[f]oggy” with “[a] female [․] behind the driver's side front seat and a male behind the passenger side.” Tr. Vol. II p. 24. M.D. told Officer Johnson that Ndungutse had been trying to rape her, and she “seemed scared” and “[n]ot calm.” Tr. Vol. II p. 29. On November 27, 2023, the State charged Ndungutse with Level 5 felony sexual misconduct with a minor, Level 5 felony criminal confinement, and Level 6 felony sexual battery.

[7] A bench trial commenced on January 31, 2025, and continued on March 14, 2025. At trial, M.D. testified Ndungutse was “like a leader in that Christian group” on WhatsApp that she had been a part of. Tr. Vol. II p. 38. M.D. testified that when Ndungutse told her to “make sure [she] showered[,]” she “didn't think about” what that meant, explaining, “I thought -- I thought about it, but then I dismissed it because I didn't think like he would like do that since he was like a leader in that Christian group.” Tr. Vol. II p. 38. M.D. described the encounter with Ndungutse inside of the car and testified that while she was in the backseat with Ndungutse, she was “scared” because she “thought that he would, like, eventually, like, rape [her].” Tr. Vol. II p. 44. M.D. testified that when Ndungutse was “forcing himself on [her,]” she had “told him that this was a sin.” Tr. Vol. II p. 44. M.D. testified that when she attempted to open the car door, Ndungutse did not let her go, and she did not feel like she could get out of the car if she wanted to. M.D. testified that Ndungutse had told her that “if he wanted to, he would, like, do it. That I'm not stronger than him.” Tr. Vol. II p. 44. M.D. understood this to mean that Ndungutse would “sleep with [her]” and that he was threatening her. Tr. Vol. II p. 44.

[8] M.D. testified that Ndungutse had attempted to remove her skirt and underwear, and that he had been “in the process of taking [his penis] out” of his pants but had been unable to do so because M.D. had “kept on resisting.” Tr. Vol. II pp. 45, 46. M.D. testified that once she was out of the car, she “told them that [Ndungutse] was trying to rape [her.]” Tr. Vol. II p. 46.

[9] M.D. testified that she had deleted her text messages with Ndungutse and had not shown them to the police. She testified that she had deleted the messages because “I didn't want to, like, associate myself with him. I was really scared of him.” Tr. Vol. II p. 54. M.D. also testified about the length of time she had been in the back seat with Ndungutse:

Q: You told the officers you were just in the back seat for 20 minutes, is that right?

A: I think so.

Q: And later you talk to a detective.

A: Yes.

Q: You also -- you don't tell the detective that you were in the backseat for three hours, do you?

A: Yes.

Q: I have to clarify your -- your -- your answer. Are you saying you did or you did not tell him how long it was?

A: I told him how long it was.

Q: You told the detective it was three hours?

A: Yes.

Tr. Vol. II pp. 53–54.

[10] Detective Stephen Guynn testified that he did not remember how long M.D. had told him that she had been in the car with Ndungutse. When asked, “[w]ould it refresh your recollection to hear her tell you that it was 30 minutes in the recording?”, Detective Guynn responded, “If that's what the recording says and that's what she said, I would go with that.” Tr. Vol. II p. 67. No recording was used to refresh Detective Guynn's recollection.

[11] Ndungutse moved for a directed verdict after the State rested its case-in-chief. He argued that “[c]onfinement and battery have not been proven beyond a reasonable doubt. All the evidence taken together makes it more likely this was a consensual encounter. [․] For Count I consent is not a defense. However, it is a defense that [Ndungutse] reasonably believed [M.D.] was 16.” Tr. Vol. II p. 74. The trial court denied the motion.

[12] Ndungutse testified and admitted that he spoke to M.D. “within the group” of the Bible group chat. Tr. Vol. II p. 79. Ndungutse testified that M.D. had told him that she was sixteen years old “on the phone when [he] was talking to her.” Tr. Vol. II p. 80. Ndungutse agreed that he had travelled to Indianapolis to visit M.D. Ndungutse testified that M.D. had invited him to visit her, given him her address, and “picked the date” for the visit. Tr. Vol. II p. 81. Ndungutse also testified that he and M.D. had spent “maybe, like, three hours” in the car. Tr. Vol. II p. 82. Ndungutse testified that after they had left Walmart, he “dropped her to her house[,]” and he “drove a little bit up front [and] parked there. She came back. She found me sitting in the back of my car. Then she entered there too.” Tr. Vol. II p. 82. Ndungutse testified that he was in the backseat “because we are talking about the Bible, discussing Christian things. So I knew when she comes back, we're gonna sit together and we discuss.” Tr. Vol. II p. 82. Ndungutse denied trying to kiss or touch M.D. and testified that they were in the backseat of the car for so long “[b]ecause we are discussing about God.” Tr. Vol. II p. 83. Ndungutse also testified that he had told the detective that M.D. was sixteen. The trial court found Ndungutse guilty of Level 5 felony criminal confinement and Level 6 felony sexual battery and sentenced him to two years of incarceration.

Discussion and Decision

[13] Ndungutse contends that the evidence was insufficient to support his convictions.

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 factfinder 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, 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).

[14] In challenging the sufficiency of the evidence, Ndungutse asserts only that M.D.’s testimony was incredibly dubious.

Under the incredible dubiosity rule, this court may impinge upon the [fact-finder]’s responsibility to judge the credibility of witnesses when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony. If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. Application of this rule is rare, though, and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. This incredible dubiosity rule applies only when a witness contradicts himself or herself in a single statement or while testifying, and does not apply to conflicts between multiple statements.

Livers v. State, 994 N.E.2d 1251, 1256 (Ind. Ct. App. 2013) (internal citations and quotations omitted). Furthermore, it is well-established that “a conviction may be based on the sole uncorroborated testimony of the victim, even if that victim is a minor.” Smith v. State, 432 N.E.2d 1363, 1372 (Ind. 1982).

[15] Ndungutse contends that M.D.’s testimony “suffered from serious contradictions that directly affect the credibility of her account[,]” including that she “gave two entirely different timelines for how long she and Ndungutse were in the car.” Appellant's Br. p. 11. At trial, M.D. testified that she had spoken to a police officer about how long she had been in the car, acknowledging that she had told him that she had been in the car for twenty minutes. M.D. also testified, however, that she had not been “really sure how long it had been[.]” Tr. Vol. II p. 47. M.D. also testified that she had been in the car with Ndungutse for three hours. Furthermore, Detective Guynn agreed that “[i]f” the recording indicated that M.D. had told him they had been in the car for thirty minutes, he “would go with that[,]” Tr. Vol. II p. 67. This testimony does not render M.D.’s testimony regarding the length of time spent in the car incredibly dubious. M.D. testified at trial that she and Ndungutse had been in the vehicle for three hours, which testimony was corroborated by Ndungutse himself and by a neighbor, who had called 911 twice that evening, reporting that Ndungutse's car was parked on the street and had been there for three hours.

[16] We cannot say that M.D.’s initial statement regarding the length of time that she had been in the vehicle with Ndunguste rendered her testimony so incredibly dubious or inherently improbable that no reasonable person could believe it. We also cannot conclude that M.D.’s testimony was incredibly dubious because she deleted the communications between herself and Ndungutse, considering the fact that she testified that she had deleted the messages because “I didn't want to, like, associate myself with him. I was really scared of him.” Tr. Vol. II p. 54. This explanation was not so incredibly dubious or inherently improbable that no reasonable person could believe it. See Livers, 994 N.E.2d at 1256.

[17] Furthermore, despite Ndungutse's claim that Officer Johnson had found M.D. and Ndungutse “with no visible signs of a struggle or distress[,]” Appellant's Br. p. 11, we note that Officer Johnson testified that M.D. had “seemed scared” and “[n]ot calm” when he approached. Tr. Vol. II p. 29. Nonetheless, any discrepancies between M.D.’s testimony and another witness's testimony would not render M.D.’s testimony incredibly dubious. See Berry v. State, 703 N.E.2d 154, 160 (Ind. 1998) (providing that the incredible-dubiosity rule is applicable only to cases where a sole witness provides inherently contradictory testimony, and not to cases where there are conflicts between the testimony of numerous witnesses).

[18] Given that M.D.’s testimony was not inherently contradictory or equivocal, we conclude that M.D.’s testimony was not incredibly dubious. Furthermore, the evidence, together with the reasonable inferences that can be derived therefrom, was sufficient to support the Ndungutse's convictions. Ndungutse's argument to the contrary amounts to nothing more than a request to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958.

[19] We affirm the judgment of the trial court.

Bradford, Judge.

Weissmann, J., and DeBoer, J., concur.