Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                        Jun 11 2014, 10:02 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

RUTH JOHNSON                                        GREGORY F. ZOELLER
Marion County Public Defender                       Attorney General of Indiana
Indianapolis, Indiana
                                                    J.T. WHITEHEAD
HILARY BOWE RICKS                                   Deputy Attorney General
Indianapolis, Indiana                               Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

AJAYI FOLAJUWONI,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A02-1306-CR-556
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                        APPEAL FROM MARION SUPERIOR COURT
                           The Honorable Kurt M. Eisgruber, Judge
                              Cause No. 49G01-1201-FC-6284



                                          June 11, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       A jury convicted Ajayi Folajuwoni of Class A misdemeanor voyeurism,1 Class B

misdemeanor battery,2 and Class B felony attempted deviate conduct.3 He appeals, raising

two issues that we restate as:

       I.        Whether the State presented sufficient evidence to support his
                 conviction for attempted criminal deviate conduct; and

       II.       Whether the prosecutor’s comments during closing argument
                 constituted fundamental error.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       In August 2011, Folajuwoni was employed at Wishard Hospital (“Wishard”) in

Indianapolis, Indiana, in a nursing or care technician capacity. His job title was a “[S]itter,”

whose duties were to sit with a patient who is suicidal, combative, confused, or a fall risk,

in order to make sure the patient does not harm himself or herself, or keep the person from

hurting others. Tr. at 132. The Sitter may also take vitals, provide fluids, or handle bathing

and hygiene if needed; those types of activities are to be reported into an electronic

document system. On August 23, 2011, Folajuwoni was assigned to the room in which a

patient named A.B. was staying.

       Approximately five months later, on January 20, 2012, Officer Nathaniel Wion, an

Indiana Department of Correction officer, was stationed in a secured area of Wishard, and



       1
           See Ind. Code § 35-45-4-5.
       2
           See Ind. Code § 35-42-2-1.
       3
           See Ind. Code §§ 35-41-5-1, 35-42-4-2.


                                                    2
he found a cell phone on a table in an empty patient room. Guessing that the phone

probably belonged to one of the correctional officers who had been on duty before him,

Officer Wion contacted those officers but learned the phone did not belong to them. In an

attempt to determine the owner of the phone, Officer Wion searched the contacts and

photographs on the phone and, while doing so, discovered a video that included an image

of a person wearing an identification badge, later determined to belong to Folajuwoni. As

the video continued, Officer Wion saw an unidentified woman lying on a hospital bed, who

appeared to be a patient. Someone wearing blue hospital gloves removed the woman’s

diaper and touched her vagina. Her breasts were also exposed in the video.

       Believing that this video footage contained criminal content, Officer Wion notified

Starr Millick, a nursing supervisor, whose job at Wishard included security issues. Millick

asked Officer Wion to meet her in the security room. Meanwhile, Millick contacted the

Marion County Sheriff’s Department, who sent Sergeant Jan Kistler to Wishard to

investigate.   As Officer Wion made his way to the security room, he encountered

Folajuwoni, who asked Officer Wion if he had Folajuwoni’s cell phone. Officer Wion

advised Folajuwoni that he had the phone and asked Folajuwoni to follow him to Wishard’s

security room, which Folajuwoni did. Officer Wion showed what he had found on the

phone and, in so doing, discovered a second video of the same unidentified patient. Millick

saw a portion of the video and stated it did not reflect Wishard’s normal patient care.

Folajuwoni, after receiving and waiving his Miranda rights, spoke with Sergeant Kistler.

The interview was recorded. Folajuwoni admitted the cell phone was his, but did not

provide any explanation of why or how the videos, taken approximately five months prior,

                                            3
were saved on his phone. Folajuwoni signed a consent to search his phone, and a

subsequent analysis by the Indiana State Police confirmed the existence of two videos of

A.B., both taken on August 23, 2011, one at 9:17 p.m. and the other at 9:30 p.m.

       Further investigation revealed that the unconscious patient depicted in the videos

was A.B. Millick confirmed that Folajuwoni was on duty the night of August 23, 2011 and

that he was assigned to A.B.’s patient room. She also confirmed that A.B. was sedated at

the time. Subsequently, in January 2013, Sherriff’s Department Investigator Sergeant

Wayne Sharp and another officer, along with a victim’s advocate, met with A.B. They did

not show the videos to A.B. but told her what they had discovered. She was distraught,

upset, and physically ill by this information. She confirmed that she was in the hospital on

August 23, 2011, and that she did not know Folajuwoni and had not given him permission

to touch or film her.

       By amended information, the State charged Folajuwoni in February 2012 with Class

B felony criminal deviate conduct, Class A misdemeanor voyeurism, Class B misdemeanor

battery, and Class B felony attempted criminal deviate conduct. Folajuwoni filed a motion

to suppress the evidence from the cell phone, but the trial court denied the motion. At trial,

A.B. testified that she had been a patient at Wishard for a period of days that included

August 23, 2011, and that she was unconscious for a portion of her hospital stay. She

confirmed that the body parts in the videos were her own. Millick testified that the conduct

in the videos did not reflect normal Wishard patient care.          Her testimony included

statements that a Sitter does not assess skin, and private areas on a patient’s body are never

filmed. Tr. at 145, 150. She stated that a patient’s breasts normally should not be exposed

                                              4
and should have been under a sheet. She explained that any hygiene tasks, such as changing

a diaper, are required to be recorded by the caretaker in Wishard’s electronic records

system. Id. at 132-33. A.B.’s chart did not reflect a diaper change had occurred on the

time and date in question. Id. at 154. Wishard’s sexual assault nurse examiner, Barbra

Bachmeier, also testified, identifying the female anatomical parts reflected in the videos

and stating that both the labia majora and labia minora were being touched in the videos.

She stated genitalia examinations are not filmed.

       Following a jury trial, Folajuwoni was convicted of voyeurism, battery, and

attempted criminal deviate conduct, as charged. Folajuwoni now appeals. Additional facts

will be supplied as necessary.

                            DISCUSSION AND DECISION

                             I.     Sufficiency of Evidence

       Folajuwoni challenges the sufficiency of the evidence for his conviction for

attempted criminal deviate conduct.      Our standard of review when considering the

sufficiency of evidence is well settled. We will not reweigh the evidence or assess the

credibility of witnesses. Morrison v. State, 824 N.E.2d 734, 742 (Ind. Ct. App. 2005).

Rather, we will only consider the evidence most favorable to the judgment, together with

all reasonable inferences that can be drawn therefrom. Id. We will uphold a conviction if

there is substantial evidence of probative value from which a reasonable trier of fact could

have found the defendant guilty beyond a reasonable doubt. Id.

       To prove that a defendant attempted to commit an offense, the State is required to

prove that he or she acted with the culpability required for the commission of the crime

                                             5
and that he engaged in conduct constituting a substantial step towards the commission of

that crime. Ind. Code § 35-41-5-1. In this case, Folajuwoni was charged with attempting

to commit criminal deviate misconduct in violation of Indiana Code section 35-42-4-2, by

knowingly causing A.B. to perform or submit to deviate sexual conduct when A.B. was

unaware the conduct was occurring. The State alleged that Folajuwoni did so by removing

A.B.’s clothing and/or positioning her body so that her sexual organ was accessible to be

penetrated by the finger of Folajuwoni while A.B. was unaware the conduct was occurring.

Appellant’s App. at 150. The element of intent may be proven by circumstantial evidence

alone, and it is well established that knowledge and intent may be inferred from the facts

and circumstances of each case. Lykins v. State, 726 N.E.2d 1265, 1270-71 (Ind. Ct. App.

2000). The State is not required to prove intent by direct and positive evidence. Id.

       Folajuwoni’s assertion on appeal is that there was insufficient evidence that his

intent was sexual in nature or that he intended to penetrate A.B.’s vagina, maintaining that

he “was convicted on speculation regarding his intent when he touched her genitals.”

Appellant’s Br. at 13. He asserts that there was “NO evidence” supporting sexual intent;

rather, he claims, the only evidence presented was that he “legitimately touched A.B. . . .

as part of his duties to check her diaper and change it if he finds moisture.” Id. at 15. We

disagree and find that the State sufficiently proved the elements of the charged offense.

       At trial, A.B. identified the body parts in the videos as her own. In the videos,

Folajuwoni removed A.B.’s diaper and manipulated her vagina with the fingers of one

hand, while holding his phone and filming her with his phone in the other hand. He touched

her labia majora, a sexual organ. A.B. was sedated and unaware of the conduct. She had

                                             6
never given Folajuwoni permission to touch her. Hospital personnel testified that what

was depicted in the videos was not normal Wishard procedure, as Sitters do not handle or

assess skin, do not film genitalia, and patient breasts are not exposed. Any diaper changes

are documented, and Millick did not recall any documentation of a diaper change as having

occurred during Folajuwoni’s care of A.B. The videos were kept on Folajuwoni’s phone

for over five months, having been taken in August 2011 and discovered in January 2012.

The evidence presented supports a rational inference that the video filming did not occur

accidentally, or for any legitimate purpose, and, instead, was intentionally made and saved

by Folajuwoni. Although Folajuwoni claims that he was performing a diaper check and

touched her to determine whether there was wetness present, this is merely a request to

reweigh the evidence, which we cannot do. Morrison, 824 N.E.2d at 742. The State

presented sufficient evidence that Folajuwoni committed attempted criminal deviate

conduct.

                            II.    Prosecutorial Misconduct

       Folajuwoni claims that the State committed prosecutorial misconduct during closing

argument. When reviewing a claim of prosecutorial misconduct, we must first consider

whether the prosecutor engaged in misconduct. Williams v. State, 724 N.E.2d 1070, 1080

(Ind. 2000). We then consider whether the alleged misconduct placed the defendant in a

position of grave peril to which he should not have been subjected. Id. In judging the

propriety of the prosecutor’s remarks, we consider the statement in the context of the

argument as whole. Hand v. State, 863 N.E.2d 386, 394 (Ind. Ct. App. 2007). A prosecutor

is entitled to respond to allegations and inferences raised by the defense even if the

                                            7
prosecutor’s response would otherwise be objectionable. Id. “Whether a prosecutor’s

argument constitutes misconduct is measured by reference to case law and the Rules of

Professional Conduct.” Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). “The gravity

of peril is measured by the probable persuasive effect of the misconduct on the jury’s

decision rather than the degree of impropriety of the conduct.” Id.

       When an improper argument is alleged to have been made, the correct procedure is

to request the trial court to admonish the jury. Hand, 863 N.E.2d at 394 (citing Dumas v.

State, 803 N.E.2d 1113, 1117 (Ind. 2004)).          If the party is not satisfied with the

admonishment, then he or she should move for mistrial. Id. Failure to request an

admonishment or to move for mistrial results in waiver. Id. Where a claim of prosecutorial

misconduct has not been properly preserved, our standard of review is different from that

of a properly preserved claim. Id. More specifically, the defendant must establish not only

the grounds for the misconduct but also the additional grounds for fundamental error. Id.

(citing Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002)). Fundamental error is an

extremely narrow exception that allows a defendant to avoid waiver of an issue. Id. “It is

error that makes ‘a fair trial impossible or constitute[s] clearly blatant violations of basic

and elementary principles of due process . . . present[ing] an undeniable and substantial

potential for harm.’” Id. (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)).

       Here, during the State’s closing argument, defense counsel objected once, asserting

that the prosecutor mischaracterized the evidence regarding the exact genitalia depicted in

the video. Tr. at 208. Later, during the State’s rebuttal argument, defense counsel objected

about the use of the word “penetrate.”        Id. at 222.    Folajuwoni did not move for

                                              8
admonishment or ask the trial court to declare a mistrial with regard to either of those two

remarks. On appeal, Folajuwoni does not challenge those two remarks; instead, he

challenges a number of others that the prosecutor made during closing argument, but to

which he did not object at trial. Under these circumstances, Folajuwoni is deemed to have

waived his claimed instances of prosecutorial misconduct, and he must show that the

alleged misconduct resulted in fundamental error in order to succeed on appeal. Hand, 863

N.E.2d at 394.

       In his brief, Folajuwoni refers to seven different statements made by the prosecutor.

The gist of his argument is that the cumulative effect of the statements was so egregious

and prejudicial that he was denied his federal and state constitutional right to a fair trial.

We will examine the questioned statements in turn.

       First, Folajuwoni challenges the prosecutor’s line of argument in which he asserted

that because the evidence, in particular the video, established that Folajuwoni had

committed voyeurism, battery, and had taken a substantial step toward penetration thereby

committing attempted criminal deviate conduct, the only thing left for the defense attorney

to do was argue “the no penetration defense.” Tr. at 209-10. That is, given that at least

two, if not three, of the charged offenses had been proven, all Folajuwoni could do was

“get the best lawyer he can and argue this wasn’t really penetration.” Id. at 209. On appeal,

Folajuwoni contends this latter statement disparaged Folajuwoni’s right to counsel. We




                                              9
disagree, and do not find that the prosecutor’s statement disparaged the defense attorney

nor constituted prosecutorial misconduct.4

         Next, Folajuwoni takes issue with the prosecutor’s statements regarding the thirteen

minutes that elapsed between the two videos. The prosecutor stated, “[W]e don’t know

what happened in the 13 minutes between the time he was recording her breasts and then

when he turned the camera on again and started doing this,” referring to him touching

A.B.’s vagina. Id. at 210. Folajuwoni asserts on appeal that the prosecutor’s statement

improperly asks the jury to speculate beyond the evidence admitted at trial, suggesting that

the prosecutor may not argue facts not in evidence. Appellant’s Br. at 17. Again, we

disagree with Folajuwoni’s characterization. The evidence at trial established thirteen

minutes elapsed from the end of one video to the start of the next one. Indeed, a juror asked

a question of a detective about the time gap. The State was thus not arguing about facts

not in evidence. It is a true and accurate statement that no one knows what happened in

that time. We do not find that this amounted to prosecutorial misconduct nor fundamental

error.

         Folajuwoni next asserts that the prosecutor committed two “major violations” when

he made the following two statements: “You need to stand up for A.B. because she can’t

stand up for herself[,]” and when he stated, “Don’t let the defense attorney bamboozle you

into thinking this is just a misdemeanor.” Tr. at 211. Folajuwoni takes issues with the

former statement, arguing that it was an appeal for sympathy and presented A.B. as a crime


         4
           Although the prosecutor’s comments did not rise to the level of misconduct, we do not condone
such statements under the guise of zealous advocacy. Counsel is advised to avoid statements of a similar
ilk in the future.

                                                  10
victim. As the State argues in its brief, the trial court instructed the jury to disregard

sympathy when reaching its verdict. We find that, even if any impropriety occurred by

virtue of the statement, it was cured by jury instructions. With regard to the “bamboozle”

statement, Folajuwoni does not explain in what way it constituted misconduct other than

citing to one case5 and stating that the comment disparaged defense counsel. Folajuwoni’s

failure to elaborate or provide cogent argument results in waiver. Ind. Appellate Rule

46(A)(8)(a); Casady v. State, 934 N.E.2d 1181, 1191 (Ind. Ct. App. 2010), trans. denied.

Furthermore, as the State notes, defense counsel in his own closing argument stated that

the prosecutor “used my word that I was gonna use – bamboozle,” and thereby insinuated

that he had intended to similarly argue that the State was bamboozling the jury. Tr. at 213.

Regardless, we do not find that the State’s “bamboozle” statement was egregious or in any

way denied Folajuwoni a fair trial.

        Folajuwoni next mentions two “less egregious” statements made by the prosecutor.

The first concerns when the prosecutor remarked that Folajuwoni’s statement of “you know

that wasn’t me” to his supervisor “didn’t work very well” once law enforcement reviewed

the videos. Id. at 209. In his appeal, Folajuwoni appears to claim that the prosecutor

misrepresented his statement, and what Folajuwoni meant when he made that statement to

his supervisor was, “I am not that kind of person[.]” Appellant’s Br. at 18. This, however,




        5
          As support for his “bamboozle” argument, Folajuwoni cites to Scherer v. State, 563 N.E.2d 584
(Ind. 1990), where, he claims, the court held it was improper for the prosecutor to tell the jury that the
defense attorney “is trying to snow you[.]” Appellant’s Br. at 17. Our review of Scherer reveals that,
contrary to Folajuwoni’s assertion, the Scherer court held that the prosecutor’s “simple statements”
referring to “a snow job” did not amount to fundamental error. Scherer, 564 N.E.2d at 586-87.

                                                   11
is not what Folajuwoni stated.         We do not agree that the prosecutor’s remark

mischaracterized evidence, and we reject Folajuwoni’s argument to the contrary.

       The other “less egregious” statement with which Folajuwoni takes issue concerns a

line of argument by the prosecutor that referenced a movie that had appeared some years

ago in theaters. The prosecutor told the jury that Folajuwoni’s conduct made him think of

a movie, which he identified by name, in which a female character was in a coma and

during that time the “med tech” sold her for sex; the female woke up during the abuse and

killed the man, and the prosecutor said A.B. would have been justified to do the same if

she had awoken.      Id. at 211.    In his appeal, Folajuwoni claims that this argument

characterized what Folajuwoni did as “equivalent to the patient abuse portrayed in [the]

violent Hollywood movie.” Appellant’s Br. at 18. While his position is not without merit,

Folajuwoni has not persuaded us that the alleged misconduct prevented him from receiving

a fair trial or otherwise rose to the level of fundamental error.

       Lastly, Folajuwoni raises a misconduct argument concerning remarks the prosecutor

made in reference to a barely-audible voice that was speaking at the end of one of the

videos. Specifically, the prosecutor’s comment in closing argument suggested that the

voice was that of some other person who frightened Folajuwoni into not completing his

intended act, and on appeal, Folajuwoni maintains this comment by the prosecutor

“prejudiced [him] more than the others combined[.]” Id. He claims the prosecutor

misrepresented the evidence, because “the voice was clearly Folajuwoni’s commenting on

A.B.’s lack of urination as he checked her diaper.” Id. We disagree with the suggestion

that the voice “clearly” was Folajuwoni’s. The jury saw the video and heard the voice, and

                                              12
the attorneys were entitled to comment in closing argument on that evidence. We find no

error occurred.

       Fundamental error is a narrow exception intended to place a heavy burden on the

defendant. Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012). It requires the defendant to

establish that the misconduct made a fair trial impossible or constituted clearly blatant

violations of basic and elementary principles of due process or that the misconduct

presented an undeniable and substantial potential for harm. Id. (quotations omitted). We

find that Folajuwoni failed to meet that burden.

       Affirmed.

MAY, J., and BAILEY, J., concur.




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