Abdul Aziz Yamobi v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 17 2019, 8:51 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher J. Hammerle Curtis T. Hill, Jr.
Steven T. Henke Attorney General of Indiana
Hackman Hulett LLP
Josiah Swinney
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Abdul Aziz Yamobi, September 17, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-3064
v. Appeal from the Boone Superior
Court
State of Indiana, The Honorable Matthew C.
Appellee-Plaintiff. Kincaid, Judge
Trial Court Cause No.
06D01-1711-F6-2155
Robb, Judge.
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Case Summary and Issues
[1] Following a bench trial, Abdul Aziz Yamobi was convicted of intimidation and
domestic battery, both Class A misdemeanors. Yamobi raises several issues for
our review, which we consolidate and restate as: 1) whether the evidence was
sufficient to sustain his intimidation conviction, and 2) whether there was a
fatal variance between the charging information for domestic battery and the
evidence presented leading to insufficient evidence supporting the crime
charged. Concluding there is sufficient evidence for a finding of guilty on both
intimidation and domestic battery, and there was no fatal variance between the
charging information and evidence presented, we affirm.
Facts and Procedural History
[2] The facts viewed most favorably to the trial court’s judgment are as follows: In
early 2016, Yamobi and LaDonna Yamobi were married; they separated in
early 2017. After the separation, Yamobi moved to Arizona, and LaDonna
moved to Zionsville, Indiana, and leased an apartment in her name only. In
mid-2017, Yamobi moved back to Indiana from Arizona after he and LaDonna
mutually agreed to attempt to reconcile their marriage. Yamobi moved into
LaDonna’s apartment and received a key, but the lease remained solely in
LaDonna’s name.
[3] In the beginning of September 2017, LaDonna began asking Yamobi to leave
the apartment because they were not getting along. LaDonna described it as “a
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very, very frustrating time.” Transcript of Evidence, Volume 2 at 17. However,
Yamobi consistently refused to leave LaDonna’s apartment.
[4] In late October, LaDonna began staying with her parents because she refused to
stay in her apartment unless Yamobi left. While LaDonna was with her
parents, she notified Yamobi that she would call the police to remove him if he
did not leave; Yamobi, again, refused her request.
[5] On October 31, LaDonna reported to police that Yamobi would not leave her
apartment. Officers arrived at the apartment and, at their request, Yamobi left
the apartment and walked to a nearby business where he sat in the parking lot
for approximately four hours.
[6] When LaDonna returned to her apartment, she used a stick she had purchased
to barricade her door because she was concerned Yamobi might return;
LaDonna did not invite Yamobi back to the apartment. Moments later, while
LaDonna was bathing, Yamobi broke through the apartment door barricade.
LaDonna recalled that when Yamobi entered the bathroom, he began to shove
her underwater by pushing on her head, the back of her neck, and her arms, and
stated, “Can you swim, B*tch, can you swim[?] I’ll drown your mother f***ing
a**.” Id. at 22.1
1
Yamobi minimizes LaDonna’s testimony in his brief, stating, “At trial, LaDonna claimed that [Yamobi]
had asked her whether she could swim, touched her on the back of her head and arm, and sang a threat while
holding a pot of boiling potatoes.” Appellant’s Brief at 6.
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[7] LaDonna was able to get Yamobi off of her and told him to get out. Yamobi
retrieved a pot of boiling potatoes from the stove, walked toward LaDonna, and
threatened to burn her. Specifically, LaDonna testified that “he threatened to
douse me with those potatoes and dared me [to] challenge him on that because
I was a pretty b*tch but I’d be a scarred mother f***er[.]” Id. at 23.
[8] The State charged Yamobi with intimidation and domestic battery.2 After a
one-day bench trial, the court found Yamobi guilty of both crimes. He was
sentenced to concurrent one-year terms. Yamobi now appeals.
Discussion and Decision
I. Intimidation
A. Standard of Review
[9] When reviewing the sufficiency of the evidence to support a conviction, “we
neither reweigh the evidence nor judge the credibility of the witnesses[.]” Wright
v. State, 828 N.E.2d 904, 906 (Ind. 2005). We consider only the probative
evidence and reasonable inferences supporting the judgment. Oster v. State, 992
N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied. We consider conflicting
evidence in the light most favorable to the trial court’s ruling and will affirm the
2
Yamobi was also charged with criminal confinement and intimidation, both Level 6 felonies. These charges
were dismissed prior to trial. Appellant’s Appendix, Volume II at 42.
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conviction unless no reasonable fact-finder could find that the elements of the
crime were proven beyond a reasonable doubt. Id.
B. Sufficiency of Evidence
[10] Yamobi contends the State failed to present sufficient evidence to support his
conviction of intimidation. To obtain a conviction of intimidation, the State
was required to show Yamobi “communicate[d] a threat with the intent . . . that
[LaDonna] be placed in fear of retaliation for a prior lawful act[.]” Ind. Code §
35-45-2-1(a)(2).
[11] Yamobi challenges his conviction of intimidation solely on the ground that the
State failed to prove any threat he made was linked to a prior lawful act.
Although there is no direct evidence linking Yamobi’s threat to LaDonna’s
prior lawful act, “[c]ircumstantial evidence will be deemed sufficient [to sustain
a conviction] if inferences may reasonably be drawn that enable the trier of fact
to find the defendant guilty beyond a reasonable doubt.” Pierce v. State, 761
N.E.2d 821, 826 (Ind. 2002). Based on our review of the record, the
circumstantial evidence is sufficient to link Yamobi’s threat to a prior lawful
act, that is, LaDonna telling Yamobi to leave her apartment and calling the
police when he did not.
[12] This case is similar to Chastain v. State, 58 N.E.3d 235 (Ind. Ct. App. 2016),
trans. denied. In Chastain, a bystander noticed the defendant arguing with a
woman in a parking lot and decided to intervene after he saw the defendant
shove the woman. The defendant became upset as he and the bystander
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exchanged “argumentative words” and retrieved a handgun from his vehicle.
Id. at 237. He pointed it at the bystander and said, “I’ll . . . kill you” several
times. Id. The defendant was convicted of intimidation and challenged his
conviction on the basis that the State did not prove the bystander engaged in a
distinct prior lawful act. We held that the bystander’s attempt to end the
confrontation was a prior, completed lawful act, and there was a clear nexus
between that act and the defendant’s threat to kill the bystander. Id. at 240-41.
[13] Here, the factfinder could reasonably infer from the evidence that Yamobi’s
actions were prompted by LaDonna telling Yamobi to vacate the apartment
and then calling the police when he refused. After police requested that Yamobi
leave the apartment, he did leave for a period of time. But he returned to
LaDonna’s apartment uninvited several hours later, grabbed her, and
threatened to burn her. This was LaDonna’s apartment, as only her name was
on the lease. She had the legal right to exclude Yamobi from her apartment
and, therefore, the right to call the police when he did not comply with her
wishes. Although the time between the prior lawful act and the threat is much
longer in this case than in Chastain, there is no requirement that the retaliation
be immediate. LaDonna’s call to the police was a prior, completed lawful act,
and Yamobi’s return to her apartment hours later to threaten her had a clear
nexus to that act.
[14] Furthermore, Yamobi testified that prior to LaDonna leaving to stay with her
parents, no problems existed between the two. Yamobi’s own testimony
demonstrates a nexus between LaDonna’s call to police and his threat to injure
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her. Had Yamobi offered evidence showing there was some sort of intervening
event, independent of LaDonna telling him to leave and calling the police, then
the outcome might be different. However, Yamobi did not offer such evidence.
We therefore conclude the evidence shows a nexus between LaDonna telling
Yamobi to leave and calling the police and Yamobi’s subsequent threat.
Accordingly, the evidence is sufficient to support Yamobi’s intimidation
conviction.
II. Domestic Battery
[15] Yamobi contends his domestic battery conviction should be reversed due to a
variance between the charging information and the evidence presented at trial.
The charging information for domestic battery reads as follows:
[O]n or about November 1, 2017 in Boone County, State of
Indiana, Abdul Aziz Yamobi did knowingly or intentionally
touch Ladonna Yamobi, a family or household member in a rude
insolent or angry manner by grabb[ing] her by the hair and arm[.]
Appellant’s Appendix, Volume II at 9. Yamobi alleges that the State failed to
present evidence that he grabbed LaDonna by the hair as charged in the
information and that such failure is fatal to his conviction of domestic battery.
The State responds that even if there was a variance, it is immaterial. When a
defendant claims there is a variance between the charging information and the
evidence, we must determine whether the variance is material. McCullough v.
State, 672 N.E.2d 445, 448 (Ind. Ct. App. 1996), trans. denied. A variance
between the charging information and proof at trial is material only if it
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misleads the defendant in preparation of his defense or subjects him to the
likelihood of another prosecution for the same offense. Downs v. State, 656
N.E.2d 849, 852 (Ind. Ct. App. 1995).
[16] LaDonna testified Yamobi pushed her by the head and neck; hair grows on an
individual’s head. Yamobi did not offer evidence showing how this minor
discrepancy in the charging information prejudicially misled him or exposed
him to double jeopardy. See Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997).
Nor does this discrepancy mislead Yamobi in his defense to the charge of
domestic battery. Yamobi was aware of the allegations against him. Yamobi’s
defense was not based on the location of the touching as stated in the
information, namely LaDonna’s hair. Instead, his defense was mainly to deny
that he touched LaDonna in a rude or angry manner. Yamobi further does not
allege that the variance would expose him to double jeopardy. Certainly, if the
State indicated that it was planning to charge Yamobi with the same touching
twice, then the result might be different. However, that is not the case here.
Under these circumstances, we conclude that any variance was not material or
fatal.
[17] Further, the charging information in the current case alleges the essential
elements of the charged crime. Indiana Code section 35-42-2-1.3 provides:
(a) [A] person who knowingly or intentionally:
(1) touches a family or household member in a rude, insolent,
or angry manner . . .
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commits domestic battery, a Class A misdemeanor.
[18] As noted above, the State offered evidence to support the charge of domestic
battery. Although Yamobi testified that he grabbed LaDonna in a sexual way
and LaDonna began grabbing him back in a sexual manner, the evidence most
favorable to the judgment is that Yamobi pushed on her head, the back of her
neck, and her arms in a rude, angry manner, which satisfies the elements of
domestic battery as stated above. This is Yamobi’s attempt to implore this court
to reweigh the evidence and judge the credibility of the witnesses, which is not
the province of this court. See Wright, 828 N.E.2d at 906. Therefore, the
evidence is sufficient for a reasonable factfinder to find the elements of domestic
battery were proven.
Conclusion
[19] There is sufficient evidence to support Yamobi’s convictions for intimidation
and domestic battery, and there was no fatal variance between the domestic
battery charging information and the evidence presented. We therefore affirm
Yamobi’s convictions.
[20] Affirmed.
Mathias, J., and Pyle, J., concur.
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