Lewis Harris, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Lewis Harris appeals his conviction for Level 4 felony child molesting, arguing that the trial court erred in instructing the jury. We affirm.

Facts and Procedural History

[2] From around 2020 to 2025, Harris was in a relationship with a woman who lived with her five children. Harris didn't live with them but frequently visited, and he sometimes watched the children while their mother was at work or running errands. Over the course of the relationship, Harris made one of the children (“Victim”) “do inappropriate stuff that [she] did not like.” Tr. p. 66. Multiple times when Victim was 11 years old, Harris made her “get the lotion” and “[t]ouch his inappropriate stuff,” which Victim later identified on an anatomical diagram as his penis. Id. at 66, 67. When Victim was 12, Harris continued making her “touch him” and also touched her “[d]own on [her] area” in “[t]he front.” Id. at 69. Harris would pull down Victim's pants, “rub” her “front private part,” and make her “go up and down with [her] hands” on “his private part” with lotion. Id. at 70, 71.

[3] The molestation continued when Victim was 13. On multiple occasions, Harris had Victim lie on her mother's bed, took both of their pants off, and “put his area by [hers].” Id. at 73. He made Victim “touch his front private area with ․ lotion” and “tried to put his finger” in her “front private area.” Id. at 73, 74. One time, two of Victim's brothers walked in on Harris and Victim in their mother's room while their mother was at the store. Victim was lying on the bed with her pants down and underwear off, and Harris was standing in front of her. When the boys asked what they were doing, Harris told them not to tell their mother “or else he's going to kill [them].” Id. at 47. Harris would similarly threaten Victim that if she told her mother what was happening, “he and mommy was going to go to jail and he was going to kill [Victim].” Id. at 75.

[4] Harris and Victim's mother broke up in early 2025. That March, Victim, still 13, and her brothers told their mother that Harris had been molesting her. Their mother called the police and took Victim to the hospital to be examined. Victim also underwent a forensic interview a few days later.

[5] The State charged Harris with one count of Level 1 felony child molesting and one count of Level 6 felony intimidation. The charging information alleged that the offenses occurred “between January 1, 2020 and March 31, 2025.” Appellant's App. Vol. 2 p. 17.

[6] A jury trial was held in February 2026. Victim, who'd turned 14 two months earlier, testified as detailed above about Harris molesting her when she was 11, 12, and 13. At the attorneys-only conference on final jury instructions, Harris objected to Instruction 10, which stated, “The State is not required to prove that the crime charged was committed on the particular date alleged in the Information.” Id. at 108. Harris argued that “the date is going to become relevant if there is a conviction,” citing the Level 1 felony sentencing statute and the credit-restricted-felon statute. Tr. p. 181. The trial court overruled Harris's objection and gave Instruction 10. The court also instructed the jury that, to convict Harris of either Level 1 felony child molesting or Level 4 felony child molesting as a lesser-included offense, the State must prove beyond a reasonable doubt that Victim was under 14 at the time of the offense.

[7] The jury found Harris guilty of Level 4 felony child molesting and Level 6 felony intimidation, and the trial court sentenced him to an aggregate term of 10 years.

[8] Harris now appeals.

Discussion and Decision

[9] Harris argues that the trial court erred by giving Instruction 10, claiming that it “invited the jury to disregard whether [Victim] was, in fact, fourteen at the time of the offense.” Appellant's Br. p. 8. But as the State points out, Harris has waived review of this issue because he didn't object to the instruction on this ground at trial—he objected on sentencing grounds. See Murray v. State, 798 N.E.2d 895, 901 (Ind. Ct. App. 2003) (“It is well-settled that a defendant may not object to an instruction upon one ground at trial and present a different ground upon appeal.”). And Harris doesn't argue fundamental error on appeal, so he has arguably doubly waived this issue. See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding that where appellant “failed to raise the issue of fundamental error in his initial appellate brief,” such a claim was “entirely waived”).

[10] Regardless, Harris cannot establish fundamental error. “Our supreme court has concluded that in most circumstances, time is not of the essence in the crime of child molesting.” Keister v. State, 203 N.E.3d 548, 553 (Ind. Ct. App. 2023) (citing Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992), reh'g denied). “The exact date becomes important only in limited circumstances,” including where it is necessary to prove that “the age of the victim falls within the parameters of the statute at the time of the offense.” Id. Harris contends that because “there was no charging information [for the lesser-included offense] to guide the jury in its consideration of when the alleged contact occurred,” and Victim had turned 14 by the time of trial, “it was theoretically possible that the contact occurred after [Victim] turned fourteen.” Appellant's Br. p. 13. But Victim's age at the time of trial is of no consequence. She was clear in her testimony that Harris molested her when she was 11, 12, and 13. She disclosed the abuse in March 2025, when she was still 13. By that point, her mother and Harris had broken up, and Victim didn't allege that Harris molested her after the breakup or any additional time after her disclosure. Simply put, there was no basis for the jury to find that any abuse occurred when Victim was 14. Further, the trial court instructed the jury that, to convict Harris of either Level 1 felony child molesting or Level 4 felony child molesting, the State had to prove beyond a reasonable doubt that Victim was under 14 at the time of the offense.

[11] The trial court did not commit error, much less fundamental error, in giving Instruction 10.

[12] Affirmed.

Vaidik, Judge.

Tavitas, C.J., and May, J., concur.