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.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3064 | September 17, 2019              Page 1 of 9
                               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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3064 | September 17, 2019   Page 2 of 9
      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.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3064 | September 17, 2019             Page 3 of 9
[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.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3064 | September 17, 2019            Page 4 of 9
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3064 | September 17, 2019   Page 5 of 9
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3064 | September 17, 2019   Page 6 of 9
       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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3064 | September 17, 2019   Page 7 of 9
       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 . . .

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3064 | September 17, 2019   Page 8 of 9
               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.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3064 | September 17, 2019   Page 9 of 9
