                                                                             Apr 27 2015, 9:18 am




      ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
      Swaray E. Conteh                                            Gregory F. Zoeller
      The Law Office of Swaray Conteh, LLC                        Attorney General of Indiana
      Indianapolis, Indiana
                                                                  Brian Reitz
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                    IN THE
            COURT OF APPEALS OF INDIANA

      Adegoke Adetokunbo                                          April 27, 2015
      aka Robert Adesanoye,                                       Court of Appeals Cause No.
      and Grace Itaniyi,                                          49A02-1407-CR-511

      Appellants-Defendants,
                                                                  Appeal from the Marion Superior
              v.                                                  Court
                                                                  The Honorable Amy Jones, Judge
      State of Indiana,                                           Trial Court Case Nos.
                                                                  49F08-1311-CM-76490
      Appellee-Plaintiff,                                         49F08-1311-CM-76491




      Robb, Judge.



                                Case Summary and Issues
[1]   A bench trial was held for Adegoke Adetokunbo and Grace Itaniyi, who were

      tried as codefendants. Adetokunbo was found guilty of resisting law


      Court of Appeals of Indiana | Opinion 49A02-1407-CR-511 | April 27, 2015                      Page 1 of 12
      enforcement, a Class A misdemeanor, and battery, a Class B misdemeanor.

      Itaniyi was found guilty of resisting law enforcement, a Class A misdemeanor,

      battery, a Class B misdemeanor, and disorderly conduct, a Class B

      misdemeanor. Following their convictions and sentence, Adetokunbo and

      Itaniyi appealed jointly, challenging the sufficiency of evidence supporting their

      convictions. We conclude there was insufficient evidence to support Itaniyi’s

      conviction for battery, and we remand with instructions that that conviction be

      vacated. However, we conclude that Itaniyi and Adetokunbo’s remaining

      convictions are supported by sufficient evidence and must be affirmed.



                             Facts and Procedural History
[2]   The facts most favorable to the judgment are as follows. On November 27,

      2013, Adetokunbo received a phone call from the Indiana Department of Child

      Services (“DCS”) requesting that he come to the agency’s local office and bring

      his youngest child. Adetokunbo and Itaniyi, the child’s mother, took their child

      to the DCS office and met with a caseworker who informed them that DCS had

      received information about possible child abuse and that DCS needed to

      remove the child from their care.


[3]   When the parents were told that DCS was taking their child, Itaniyi became

      agitated and soon began screaming: “You’re not taking my child. You better

      kill me before you take my child away from me.” Transcript at 13. At that

      point, Luis Flores, a security guard working in the DCS office, called the

      Indianapolis Metropolitan Police Department and requested an officer’s

      Court of Appeals of Indiana | Opinion 49A02-1407-CR-511 | April 27, 2015   Page 2 of 12
      assistance. Flores prevented Adetokunbo and Itaniyi from leaving, and Officer

      Perry Renn arrived to assist with removal of the child.


[4]   Officer Renn approached Itaniyi and told her that she needed to hand her child

      over to DCS. Itaniyi, who was seated and calm when Officer Renn first

      approached, refused to give up her child, and she quickly became loud and

      agitated once again. Itaniyi told Officer Renn that if he wanted to take her

      child then he would have to arrest her. Officer Renn stepped forward to take

      the child from Itaniyi, but she pushed him away. Adetokunbo then stood up

      and started coming toward Officer Renn. Flores stepped between Adetokunbo

      and Officer Renn, and Adetokunbo punched Flores in the face, knocking off

      Flores’s glasses.


[5]   Officer Renn turned to help Flores. Officer Renn approached Adetokunbo and

      tried to handcuff him, but Adetokunbo pulled his arms away and backed away

      from Officer Renn. Adetokunbo refused to give Officer Renn his hands, and

      Officer Renn and Flores had to take Adetokunbo to the ground to subdue him.

      Once on the ground, Adetokunbo held his arms out in front and stiffened them,

      making it difficult for Officer Renn to pull Adetokunbo’s arms behind his back

      to handcuff them.


[6]   After finally handcuffing Adetokunbo, Officer Renn returned to Itaniyi, who

      was now screaming. At this time, several people had emerged from their offices

      to observe the commotion. Officer Renn asked Itaniyi to be quiet multiple

      times, but she did not comply and continued yelling. Officer Renn placed


      Court of Appeals of Indiana | Opinion 49A02-1407-CR-511 | April 27, 2015   Page 3 of 12
      Itaniyi in handcuffs and placed her on the floor. Once on the floor, Itaniyi

      continued to yell and attempted to kick Officer Renn. To stop Itaniyi from

      kicking Officer Renn and Flores, Officer Renn also had to put handcuffs on

      Itaniyi’s feet. Itaniyi did not cease yelling until she was taken outside and put

      into a police vehicle.


[7]   On November 28, 2013, the State charged Adetokunbo with resisting law

      enforcement, a Class A misdemeanor, and battery, a Class A misdemeanor.

      The same day, the State charged Itaniyi with resisting law enforcement, a Class

      A misdemeanor; battery, a Class B misdemeanor; and disorderly conduct, a

      Class B misdemeanor. A bench trial was held, at which Adetokunbo and

      Itaniyi were tried as codefendants. Adetokunbo was found guilty of resisting

      law enforcement as a Class A misdemeanor and battery as a Class B

      misdemeanor.1 Itaniyi was found guilty of all three counts as charged. Both

      Adetokunbo and Itaniyi were sentenced to aggregate terms of 365 days with

      361 days suspended to probation. This appeal followed.




      1
        The trial court granted Adetokunbo’s motion for judgment on the evidence as to the charge of battery as a
      Class A misdemeanor, concluding the State did not present sufficient evidence that Flores experienced pain
      as a result of the battery.

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                                  Discussion and Decision
                                       I. Standard of Review
[8]   When reviewing a defendant’s claim of insufficient evidence, we will neither

      reweigh the evidence nor judge the credibility of the witnesses. Bailey v. State,

      907 N.E.2d 1003, 1005 (Ind. 2009). We consider only the probative evidence

      and reasonable inferences supporting the trial court’s decision. Id. A

      conviction will be affirmed “if there is substantial evidence of probative value

      such that a reasonable trier of fact could have concluded the defendant was

      guilty beyond a reasonable doubt.” Id.


                                   II. Itaniyi’s Convictions
                                  A. Resisting Law Enforcement
[9]   First, Itaniyi argues that there was insufficient evidence that she committed the

      crime of resisting law enforcement. “A person who knowingly or

      intentionally . . . forcibly resists, obstructs, or interferes with a law enforcement

      officer . . . while the officer is lawfully engaged in the execution of the officer’s

      duties . . . commits resisting law enforcement . . . .” Ind. Code § 35-44.1-3-

      1(a)(1). The term “forcibly” is a distinct element of the offense that modifies all

      three verbs “resists, obstructs, or interferes.” See K.W. v. State, 984 N.E.2d 610,

      612 (Ind. 2013) (citing Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993)).

      Forcible resistance includes “at a minimum, some physical interaction with a

      law enforcement officer.” Macy v. State, 9 N.E.3d 249, 253 (Ind. Ct. App.

      2014). Forcible resistance may be said to occur when a “threatening gesture or

      Court of Appeals of Indiana | Opinion 49A02-1407-CR-511 | April 27, 2015     Page 5 of 12
       movement . . . presents an imminent danger of bodily injury [to an officer].”

       Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013) (holding there was sufficient

       evidence of forcible resistance where defendant aggressively advanced toward a

       police officer with his fists clenched after being ordered to lay on the ground).


[10]   The State contends that Itaniyi’s act of attempting to kick Officer Renn after she

       was handcuffed is sufficient to constitute an act of forcible resistance. Although

       Itaniyi never actually kicked Officer Renn, her conduct could nonetheless be

       construed as a threatening gesture that presented an imminent danger of injury

       to Officer Renn. See id. Considering the evidence most favorable to the trial

       court’s decision, we must conclude there was sufficient evidence to support

       Itaniyi’s conviction for resisting law enforcement.


                                                     B. Battery
[11]   Second, Itaniyi argues the evidence is insufficient to support her conviction for

       battery as a Class B misdemeanor. “[A] person who knowingly or intentionally

       . . . touches another person in a rude, insolent, or angry manner . . . commits

       battery, a Class B misdemeanor.” Ind. Code § 35-42-2-1(b)(1). “Evidence of

       touching, however slight, is sufficient to support a conviction for battery.” Ball

       v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011), trans. denied.


[12]   As to the battery count, the charging information stated in relevant part: “On

       or about 11/27/2013, in Marion County, State of Indiana, . . . Grace Itaniyi

       did knowingly touch Luis Flores . . . in a rude, insolent or angry manner.”

       Appellants’ Appendix at 10 (emphasis added). Itaniyi claims that there was no

       Court of Appeals of Indiana | Opinion 49A02-1407-CR-511 | April 27, 2015   Page 6 of 12
       evidence whatsoever that she touched Flores. Our own review of the record

       confirms that the State failed to present any evidence that Itaniyi made any

       contact with Flores.2


[13]   The State notes that although no evidence was presented to prove a battery

       against Flores, there was testimony that Itaniyi pushed Officer Renn. Thus, we

       are presented with an issue of variance. A “variance” is a difference between

       the pleading and proof at trial. Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999).

       Not all variances are material—or “fatal”—and thus not all variances require

       reversal. Id.


[14]   The State asserts—without citation to authority—that to convict a defendant of

       battery against a person other than the victim named in the charging

       information amounts to an immaterial variance. We cannot agree. “The

       names of third persons who are only incidentally or collaterally connected with

       the offense charged against an accused need not be stated in an affidavit or

       indictment.” Evans v. State, 181 Ind. App. 687, 690, 393 N.E.2d 246, 247

       (1979). But it has long been held in Indiana that “as a general rule the name of

       one injured in his person or property, by the act of the accused, or the name of

       one whose identity is essential to a proper description of the offense charged

       should be alleged if known . . . .” Robinson v. State, 232 Ind. 396, 398, 112




       2
         The only exception was testimony from Officer Renn that Flores told him Itaniyi had kicked him, but that
       statement was excluded on hearsay grounds. Tr. at 35. Flores testified that Itaniyi was kicking while on the
       ground but did not make contact with him. Tr. at 21.

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       N.E.2d 861, 862 (1953) (holding indictment for securities fraud was insufficient

       where it did not name the victim to whom securities were allegedly improperly

       sold); see also Padgett v. State, 167 Ind. 179, 78 N.E. 663, 665 (1906) (stating “the

       name of the injured party is an essential element in the description of a public

       offense, and the failure to disclose who such person was . . . is a fatal omission”

       and holding “there can be no sufficient charge of an assault and battery . . .

       without giving or stating, if known, the name of the injured person . . . .”);

       McFarland v. State, 154 Ind. 442, 56 N.E. 910, 911 (1900) (holding defendant’s

       rape conviction must be reversed for failure of proof where the charging

       information named “Laura Van Buskirk as the alleged victim” but the State

       offered proof of a rape victim named “Lillie”).


[15]   To be clear, not all variances involving a victim’s identity are fatal. For

       instance, in Kokenes v. State, the charging information named “Robert James” as

       the robbery victim, but the victim testified that his real name was “Richard C.

       James, but that he is some times known as Robert James.” 213 Ind. 476, 492,

       13 N.E.2d 524, 531 (1938). The court held that the variance was not fatal

       because it was not likely to mislead the defendant as to whom he allegedly

       robbed. Id. at 492-93. Obviously, this case is quite different from Kokenes,

       because the charging information here identified a different victim entirely, not

       the correct victim by way of a nickname. Moreover, we note that decisions

       such as Parahams v. State, 908 N.E.2d 689, 691-93 (Ind. Ct. App. 2009) and

       Jones v. State, 938 N.E.2d 1248, 1251-53 (Ind. Ct. App. 2010), which held that

       naming the wrong law enforcement officer in the charging information was an


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       immaterial variance, can be distinguished—if necessary—on the basis that both

       involved fleeing law enforcement, which is not a crime that implicates a victim

       “injured in his person,” see Robinson, 232 Ind. at 398, 112 N.E.2d at 862.3


[16]   In sum, the State presented insufficient evidence to prove Itaniyi committed a

       battery against Flores. We conclude that any variance resulting from evidence

       that Itaniyi committed a different battery against another victim is a material,

       fatal variance under Indiana Supreme Court precedent, and the State’s

       argument to the contrary is unconvincing. Therefore, Itaniyi’s conviction for

       battery as a Class B misdemeanor must be reversed and vacated.


                                           C. Disorderly Conduct
[17]   Third, Itaniyi challenges the evidence supporting her conviction for disorderly

       conduct as a Class B misdemeanor. To convict Itaniyi of that offense, the State

       was required to prove beyond a reasonable doubt that she “recklessly,

       knowingly, or intentionally . . . [made] unreasonable noise and continue[d] to

       do so after being asked to stop . . . .” Ind. Code § 35-45-1-3(a)(2).


[18]   Itaniyi argues that the trial court’s decision concerning disorderly conduct was

       based on “speculation.” Brief of Appellants at 13. But the evidence shows that

       Itaniyi was yelling and screaming throughout much of the ordeal, despite being




       3
         We also observe that neither Parahams nor Jones acknowledges a general rule that the State’s charging
       information must include the name of the victim or any person whose identity is essential to a proper
       description of the offense.

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       asked by Officer Renn to be quiet “five or ten times.” Tr. at 34. Itaniyi’s

       yelling was loud enough to be heard from another room and to draw other DCS

       workers out of their offices to investigate. She suggests that her noise level was

       not “unreasonable” under the circumstances, but that argument essentially

       amounts to a request that we reweigh the evidence, which we will not do. We

       conclude there was sufficient evidence for the trial court to find Itaniyi guilty of

       disorderly conduct.


                               III. Adetokunbo’s Convictions
                                   A. Resisting Law Enforcement
[19]   Adetokunbo claims the State presented insufficient evidence that he resisted law

       enforcement. We disagree.


[20]   Officer Renn testified that when he attempted to handcuff Adetokunbo, he

       pulled his arms away and backed away from Officer Renn. Because he would

       not cooperate, Officer Renn and Flores had to bring Adetokunbo to the ground.

       Once on the floor, Adetokunbo held his arms out stiff in front of him to prevent

       Officer Renn from handcuffing him.


[21]   Our supreme court has said that for the purposes of showing forcible resistance,

       “‘stiffening’ of one’s arms when an officer grabs hold to position them for

       cuffing would suffice . . . .” Graham v. State, 903 N.E.2d 963, 966 (Ind. 2009).

       According to Officer Renn’s trial testimony, that is precisely what Adetokunbo

       did. Therefore, we must find there was sufficient evidence to uphold his

       conviction for resisting law enforcement.

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                                                     B. Battery
[22]   Finally, Adetokunbo argues there was not sufficient evidence to find him guilty

       of battery as a Class B misdemeanor. In Adetokunbo’s words, “[o]ther than the

       claim that Adetokunbo took a swing at Flores and hit him on the face, no

       evidence was introduced that the touching was ‘rude, insolent or in an angry

       manner.’” Br. of Appellants at 21. But frankly, Adetokunbo’s act of punching

       Flores in the face and knocking off his glasses is a classic example of a rude

       touching that our battery statute is meant to penalize. See, e.g., Impson v. State,

       721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000) (holding that slapping glasses off

       the victim’s face was sufficient to support battery conviction); Greene v. State,

       670 N.E.2d 38, 39 (Ind. Ct. App. 1996) (holding that punching victim in jaw

       and neck was sufficient to support battery conviction), trans. denied. We

       therefore conclude the evidence is sufficient to support Adetokunbo’s battery

       conviction.



                                                Conclusion
[23]   We conclude that convicting a defendant of battering a person who was not the

       victim alleged in the charging information constitutes a material variance, and

       there was insufficient evidence to support Itaniyi’s conviction for battery against

       Flores as a Class B misdemeanor. Therefore, we reverse and remand with

       instructions that Itaniyi’s battery conviction be vacated. With respect to Itaniyi

       and Adetokunbo’s remaining convictions, we conclude the State presented

       sufficient evidence.

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Affirmed in part, reversed in part, and remanded.


Bailey, J., and Brown J., concur.




Court of Appeals of Indiana | Opinion 49A02-1407-CR-511 | April 27, 2015   Page 12 of 12
