MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 13 2018, 11:04 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
Victoria L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ezekiel O. Olayinka, April 13, 2018
Appellant-Defendant, Court of Appeals Case No.
49A05-1705-CR-995
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Angela Dow Davis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G16-1603-F6-8973
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-995 | April 13, 2018 Page 1 of 5
Statement of the Case
[1] Ezekiel Olayinka (“Olayinka”) appeals his conviction by jury of: (1) Level 6
felony domestic battery;1 (2) Level 6 felony battery in the presence of a child;2
(3) Class A misdemeanor domestic battery;3 and (4) Class A misdemeanor
battery resulting in bodily injury.4 He argues that there is insufficient evidence
to support his conviction of Level 6 felony domestic battery. Concluding that
the evidence is sufficient, we affirm Olayinka’s conviction for Level 6 felony
domestic battery. 5
[2] We affirm in part, reverse in part, and remand with instructions.
Issue
Whether there is sufficient evidence to support Olayinka’s
conviction for Level 6 felony domestic battery.
1
IND. CODE § 35-42-2-1.3.
2
I.C. § 35-42-2-1.
3
I.C. § 35-42-2-1.3.
4
I.C. § 35-42-2-1.
5
Olayinka also argues, and the State concedes, that his four convictions violate the prohibition against
double jeopardy. This Court has previously held that where there is one beating, at one place, at one time,
inflicted upon one victim, there is but one crime committed. Thompson v. State, 82 N.E.3d 376, 383 (Ind. Ct.
App. 2017), trans. denied, (citing McGaughey v. State, 419 N.E.2d 184, 185 (Ind. Ct. App. 1981)). We therefore
remand this case to the trial court with instructions to vacate Olayinka’s convictions for Level 6 felony
battery in the presence of a child, Class A misdemeanor domestic battery, and Class A misdemeanor battery
resulting in bodily injury.
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Facts
[3] Olayinka and his wife, Oluwatoyin (“Wife”) were married in Nigeria in 2010.
At some point, Olayinka came to the United States, and Wife joined him in
2013. Olayinka and Wife have two children, a son (“Son”) who was born in
Nigeria and a daughter (“Daughter”) who was born in the United States.
[4] In January 2016, at approximately 10:30 a.m., Olayinka and Wife became
involved in an argument in an upstairs sitting room while six-month-old
Daughter was in an upstairs bedroom. Olayinka demanded that Wife sign
papers for Son’s school that had arrived in the mail. Wife refused to sign the
papers because Olayinka would not allow her to read them first. Wife’s refusal
angered Olayinka, who slapped Wife in the face. Olayinka then slapped Wife
several times and choked her. He also held her first by her hair and then by her
neck and slapped her several more times and threatened to kill her.
The slaps left marks on Wife’s face, and her neck was bleeding.
[5] Wife contacted a friend (“Wife’s friend”) who drove to Wife’s home to pick her
up and take her to the police station. When Wife’s friend arrived at Wife’s
house, Wife was standing outside with her daughter in her arms. Wife had
fresh blood on her neck, and her face was swollen. When Wife arrived at the
police station, a police officer noticed that Wife had bruises and abrasions on
her face. Wife was upset and crying.
[6] The State charged Olayinka with Level 6 felony domestic battery; (2) Level 6
felony battery in the presence of a child; (3) Class A misdemeanor domestic
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battery; and (4) Class A misdemeanor resulting in bodily injury. At trial,
Olayinka denied slapping his wife. The jury convicted Olayinka of all four
counts, and the trial court sentenced him to concurrent sentences. The total
sentence was 361 days with credit for time served and the remainder of the
sentence suspended to probation. Olayinka now appeals.
Decision
[7] Olayinka argues that there is insufficient evidence to support his conviction for
Level 6 felony domestic battery. Our standard of review for sufficiency of the
evidence claims is well settled. We consider only the probative evidence and
reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,
146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility.
Id. We will affirm the conviction unless no reasonable fact finder could find the
elements of the crime proven beyond a reasonable doubt. Id. The evidence is
sufficient if an inference may be reasonably drawn from it to support the
verdict. Id. at 147.
[8] To convict Olayinka of Level 6 felony domestic battery, the State was required
to prove beyond a reasonable doubt that he touched Wife in a rude, insolent, or
angry manner in the physical presence of the parties’ six-month-old daughter,
knowing that the daughter was present and might be able to see or hear the
offense. See IND. CODE § 35-42-2-1.3.
[9] Olayinka’s sole argument is that the “State did not present sufficient evidence to
prove, beyond a reasonable doubt, that [Daughter] might have been able to see
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or hear what was occurring between her parents.” (Olayinka’s Amended Br.
11). The gravamen of his argument is that Daughter was not present because
she was in a different room. In Manuel v. State, 971 N.E.2d 1262, 1270 (Ind. Ct.
App. 2012), we explained that the “critical question in determining whether a
child is ‘present’ for the purposes of the statute is whether a reasonable person
would conclude that the child might see or hear the offense; not whether the
child is in the same room as where the offense is taking place.”
[10] Here, our review of the evidence most favorable to the verdict reveals that
Olayinka and Wife were upstairs in a sitting room arguing about Wife’s refusal
to sign papers when Olayinka began to slap and choke her. Wife had bruises
and abrasions and was bleeding as a result of the battery. During this time,
Daughter was in an upstairs bedroom. This evidence, which is sufficient for a
reasonable jury to conclude that Daughter might have heard Olayinka battering
his wife, is sufficient to support Olayinka’s conviction of Level 6 felony
domestic battery.
[11] Affirmed in part, reversed in part, and remanded with instructions.
Kirsch, J., and Bailey, J., concur.
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