IN THE
Court of Appeals of Indiana FILED Gbenga Afolabi, Apr 15 2026, 8:39 am
Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court
v.
State of Indiana, Appellee-Plaintiff
April 15, 2026 Court of Appeals Case No. 24A-CR-3081 Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge Trial Court Cause No. 49D27-2111-F5-35434
Opinion by Judge Weissmann Judges Bradford and DeBoer concur.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 1 of 31 Weissmann, Judge.
[1] Gbenga Afolabi was working as a prison guard at the Indiana Women’s Prison
when he was accused of forcing multiple inmates to engage in sexual conduct
with him. After a jury trial, Afolabi was convicted of two counts of rape, one
count of attempted rape, five counts of sexual misconduct, three counts of
official misconduct, and two counts of intimidation. Afolabi appeals these
convictions, arguing that the trial court abused its discretion in making certain
procedural and evidentiary decisions. He also challenges the sufficiency of the
evidence to support one of his rape convictions and claims some of his other
convictions violate the prohibition against substantive double jeopardy.
[2] One of these arguments prevails but only in part. Applying the three-step
substantive double jeopardy analysis that our Supreme Court enunciated in
Wadle v. State, 151 N.E.3d 227 (Ind. 2020), we find Afolabi’s dual convictions
for the rape and intimidation of one of his victims gives rise to a presumption of
double jeopardy that the State fails to rebut. We therefore remand for the trial
court to vacate Afolabi’s intimidation conviction as to that victim and its
corresponding current sentence. We otherwise affirm.
Facts [3] In 2021, Afolabi was employed as a correctional officer with the Indiana
Department of Correction, working night shifts at the Indiana Women’s Prison
(IWP). During the spring and summer of 2021, three IWP inmates—identified
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 2 of 31 as J.M., M.A., and L.B.—alleged that Afolabi forced them to engage in sexual
conduct with him while he was acting in his official capacity as a correctional
officer.1
[4] The first inmate, M.A., arrived at IWP in March 2021. M.A. was housed on a
unit where Afolabi worked, and Afolabi soon began making “flirty to sexual
comments” to M.A. about her hair, buttocks, and breasts. Tr. Vol. III, p. 160.
Not long thereafter, Afolabi started asking to see various parts of M.A.’s body,
including her genitals. M.A. initially “laughed it off and didn’t think [Afolabi]
was serious.” Id. at 162. But Afolabi began issuing M.A. disciplinary reports
that she believed could impact her release date. M.A. therefore began
complying with his requests to see parts of her body.
[5] In early May 2021, Afolabi requested that M.A. perform oral sex on him. M.A.
refused, after which Afolabi issued her a disciplinary report for trafficking
bubblegum. When he informed M.A. of the report, Afolabi said to her, “I
thought you [would] do anything to go home. I’m giving you a choice now.” Id.
at 167. Afolabi then left M.A.’s cell. More than 90 minutes later, Afolabi
returned and directed M.A. to stand up, turn around, drop her pants, and bend
over. After M.A. complied, Afolabi unzipped his pants and attempted to insert
his penis into M.A.’s vagina but was unable to do so. Afolabi then “shoved
1 A fourth inmate also alleged similar sexual misconduct, but all criminal charges related to her were dismissed due to her failure to appear for depositions and at trial.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 3 of 31 [M.A.] to the ground” and directed her to “suck his d**k.” Id. at 169. M.A.
again complied, and Afolabi ejaculated in her mouth.
[6] A few weeks later, Afolabi returned to M.A.’s cell and again directed M.A. to
stand up, turn around, drop her pants, and bend over. After M.A. complied,
Afolabi unzipped his pants and attempted to have sexual intercourse with her.
But once again, he was unable to insert his penis into M.A.’s vagina. When
M.A. laughed at Afolabi’s failure, he retaliated by pinching M.A.’s clitoris,
causing her great pain. Afolabi then shoved M.A. to the ground and told her to
“suck his d**k” again. Id. at 171. M.A. complied, and Afolabi ejaculated in her
mouth.
[7] This time, M.A. secretly spit Afolabi’s ejaculate into a plastic bag. She hid the
bag inside a sock and eventually turned it over to investigators. A DNA analyst
(Analyst 1) later tested a sample extracted from M.A.’s plastic bag and
identified the presence of Afolabi’s DNA therein. Investigators also reviewed
footage from IWP’s surveillance cameras, which showed Afolabi lingering
outside M.A.’s cell on multiple occasions and sometimes stepping briefly out of
view. No video footage captured Afolabi’s sexual activity with M.A., however.
[8] The second inmate, L.B., entered IWP in 2014. L.B. worked on a night
cleaning crew, and Afolabi sometimes made comments to her that she found
uncomfortable. After midnight one night, while L.B. was working, Afolabi
“cornered” her in a mop closet that was outside the view of the prison’s
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 4 of 31 surveillance cameras. Id. at 120. Inside the closet, Afolabi grabbed the back of
L.B.’s head and “made [her] kiss him.” Tr. Vol. III, p. 124. Afolabi then
instructed L.B. to remain in the closet while he briefly left. L.B. “didn’t know
what to do at that point” and “really didn’t think [she] had any choice in
anything.” Id. at 121, 124.
[9] When Afolabi returned to the closet a few minutes later, he directed L.B. to
“suck his d**k.” Id. at 121. A “scared” L.B. squatted down, and Afolabi
grabbed her by the neck and pushed her head toward his penis. Id. at 127. L.B.
put her mouth on Afolabi’s penis but not for very long because he soon told
L.B. to stand up, turn around, and pull down her pants. L.B. complied, after
which Afolabi inserted his penis into her vagina and ejaculated. L.B. never
verbally consented to the sexual acts and felt unable to leave the situation. After
these encounters, L.B. was placed on suicide watch. She also cut off her hair to
avoid male attention.
[10] The third inmate, J.M., arrived at IWP in May 2021. On J.M.’s first night in
the prison, Afolabi appeared at her cell and rubbed his hand down the front part
of her body. Afolabi then put his hand down J.M.’s pants and “basically said
that he was the officer and [she] was the inmate and [she] needed to listen to
what he says.” Id. at 145. A month later, Afolabi entered J.M.’s cell and put his
hand down her pants again before removing it, placing it in his mouth, and
telling J.M. that she “taste[d] good.” Id. at 248. Afolabi then told J.M. to come
with him to the staff bathroom. When J.M. refused, Afolabi mentioned her
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 5 of 31 family and his authority as a corrections officer. He then pulled on J.M.’s arm,
indicating it was time to go. A scared J.M. complied.
[11] Afolabi followed J.M. into the staff bathroom, pushed her against the wall, and
told her to kneel. He then grabbed the back of J.M.’s neck and placed his penis
in her mouth. Moments later, Afolabi made J.M. stand up and turn around. He
inserted his penis into J.M.’s vagina but eventually pulled it out and ejaculated
on the bathroom sink. Next, Afolabi directed J.M. to wipe herself, after which
he disposed of the wipe in the toilet.
[12] A similar incident occurred in the staff bathroom the following week, but this
time, Afolabi ejaculated inside J.M.’s vagina. Immediately after this incident,
J.M. called her mother. Her mother then contacted prison officials, who began
to investigate Afolabi. J.M. underwent a sexual assault examination and
reported that Afolabi had raped her in the staff bathroom that morning. The
nurse observed signs of bruising in J.M.’s mouth and on her arm and also
documented J.M.’s genital pain. Analyst 1 later performed DNA testing on the
evidence collected during J.M.’s examination. The results of this testing
revealed the presence of Afolabi’s DNA on swabs of J.M.’s anus and on J.M.’s
underwear.
[13] During the investigation into J.M.’s allegations, prison officials learned that
Afolabi had also forced M.A. and L.B. to engage in sexual conduct with him.
The State eventually charged Afolabi with three counts of rape, one count of
attempted rape, five counts of sexual misconduct by a service provider, three
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 6 of 31 counts of official misconduct, and three counts of intimidation. Although
Afolabi was charged in November 2021, substantial delays in the prosecution
pushed his trial date to late October 2024.
[14] In late February 2024, the defense indicated a desire to depose Analyst 1. The
defense proposed a date of March 6th, and the State attempted to arrange the
deposition. But the State soon learned that Analyst 1 was on medical leave
through April 2024. After the State advised the defense of this information, the
defense never again contacted the State to arrange Analyst 1’s deposition.
Instead, when trial was set for July 8, 2024, the defense moved to exclude
Analyst 1 as a witness on the grounds that it had not deposed her. The trial
court set the motion for hearing at the final pretrial hearing.
[15] The July 2024 trial date was continued to September 3, 2024, due to a medical
emergency involving defense counsel. At the final pretrial hearing on August
26, 2024, the trial court denied the defense’s motion to exclude Analyst 1 as a
witness after the State agreed to make her available for deposition. But a few
days later, the State learned that Analyst 1 had died. The parties therefore
jointly sought a continuance of the September 3rd trial date, which the trial court
granted.
[16] On August 30, 2024, the trial court rescheduled trial for October 29, 2024, and
ordered “NO MORE CONTINUANCES.” App. Vol. II, p.178 (emphasis in
original). In the two months that followed, the court also repeatedly informed
the parties that there would be no further continuances. The court emphasized
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 7 of 31 that the case was three years old and that the deadline for cases originally filed
as Level 5 felony prosecutions was three months.2
[17] The State thereafter ordered M.A.’s plastic bag and J.M.’s anal swabs and
underwear to be retested for DNA. A new analyst (Analyst 2) performed the
retest and, on October 18, 2024, provided the State with her report on the
results. The State emailed Analyst 2’s report to the defense that same day. But
at the final pretrial hearing held five days later, the defense revealed it had not
yet reviewed the report. The defense further advised that it would not be
prepared for trial on October 29th because it had not deposed Analyst 2. The
prosecutor indicated her willingness to join in any defense motion for a
continuance, in part, because Analyst 2’s report had only been available since
October 18th, which was 11 days before the trial date.
[18] The prosecutor also noted that the results from Analyst 2’s DNA testing were
somewhat different from Analyst 1’s test results because the sample from
M.A.’s plastic bag had been depleted during Analyst 1’s testing. Thus, Analyst
2 could not perform a second round of testing on that sample. The prosecutor
added, however, that the results of Analyst 2’s testing on J.M.’s anal swabs and
underwear were not more probative than Analyst 1’s test results. The trial court
denied a continuance but invited the defense to “go talk to [Analyst 2,] and if
2 When this case opened, the highest level felony charged was a Level 5 felony. The State later amended the information to include several Level 3 felonies.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 8 of 31 you can depose [her] between now and Tuesday[,] that’s fine by me.” Tr. Vol.
II, p. 11.
[19] On the night of the first day of trial—October 29, 2024—the State provided the
defense with a revised report from Analyst 2. In this report, Analyst 2 opined
that Afolabi’s DNA was found in sperm on J.M.’s underwear. The next day,
Afolabi moved to exclude Analyst 2’s revised report based on its late
submission and because it differed from the report provided to the defense on
October 18th. The State responded by explaining:
There’s not a change. This is a little complicated so, if I could have a chance to walk everyone through it. Nothing has changed in regard to the lab work of what the analyst did, the report was released on the 18th and before this trial started, I had multiple conversations including [defense counsel] on whether he wanted the lab notes. He indicated to me that he did not want the lab notes. He didn’t need them; he didn’t need to see them. I say that I didn’t have them. I said if you want, I can get them for you. [Defense counsel] said, no I don’t want those. So, I said okay and I let him know that the analyst when (sic) I met with her on Monday. I asked her, can you look at what the actual numbers are in this case and tell me if you can see if the result is indicative of sperm and she said, yes and she went to her notes and she said it is. It’s not something that is required to be on the report but she update[d] the report just so it would be reflected on there for future of (sic) notice, but it is something she would have testified to regardless. If they don’t want the new report with today’s date on it, that’s fine but it is information that they were given ahead of time, and it is not a change.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 9 of 31 Tr. Vol. III, pp. 19-20. The court advised the prosecutor that she could only
present the jury with Analyst 2’s original, unrevised report but could question
Analyst 2 about the presence of sperm in the samples she tested.
[20] Analyst 2 later testified without a contemporaneous objection from Afolabi.
During her testimony, the State offered her original, unrevised report as well as
other exhibits associated with it. Afolabi’s counsel indicated he had “no
objection” to any of these exhibits. Id. at 211. Analyst 2 went on to testify that
the DNA profile she found on J.M.’s underwear had two contributors and that
it was “at least one trillion times more likely” that J.M. and Afolabi were the
contributors than if J.M. and an unknown person were the contributors. Id. at
224. According to Analyst 2, this statistic provided “very strong support” that
Afolabi’s DNA was found on J.M.’s underwear. Id. Analyst 2 also testified that
the ratio of male DNA to female DNA in the profile “indicate[d] the possible
presence of sperm in the samples.” Id. at 227.
[21] Other witnesses at Afolabi’s trial were his three accusers, DOC investigators,
and medical personnel. The jury acquitted Afolabi of the rape and intimidation
of J.M. but convicted him of the remaining charges, which consisted of the
following:
• As to M.A. – one count of Level 3 felony forcible rape, one count of Level 3 felony attempted forcible rape, one count of Level 5 felony sexual misconduct by a service provider, one count of Level 6 felony official misconduct, and one count of Class A misdemeanor intimidation.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 10 of 31 • As to L.B. – one count of Level 3 felony forcible rape, two counts of Level 5 felony sexual misconduct by a service provider, one count of Level 6 felony official misconduct, and one count of Class A misdemeanor intimidation.
• As to J.M. – two counts of Level 5 felony sexual misconduct by a service provider and one count of Level 6 felony official misconduct.
The trial court sentenced Afolabi to a total of 50 years in prison, which included
one-year concurrent terms for each of his intimidation convictions. Afolabi
appeals.
Discussion and Decision [22] Afolabi raises several issues on appeal, two of which we consolidate because
they are related. First, he claims the trial court erred by denying his request for a
continuance to depose Analyst 2 and by allowing Analyst 2 to testify that
Afolabi’s DNA was found in sperm on J.M.’s underwear. Second, Afolabi
challenges the sufficiency of the evidence to support his conviction for the rape
of L.B. And finally, he argues that his dual convictions for the intimidation and
rape of both L.B. and of M.A. violated the prohibition against double jeopardy.
[23] We find no reversible error in the trial court’s procedural and evidentiary
decisions involving Analyst 2. We also find sufficient evidence to support
Afolabi’s conviction for the rape of L.B. Additionally, we find that Afolabi’s
dual convictions for the rape and intimidation of M.A. did not constitute
substantive double jeopardy but that his dual convictions for the rape and
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 11 of 31 intimidation of L.B. did. We therefore reverse his conviction for the
intimidation of L.B. but otherwise affirm.
I. The Trial Court Did Not Commit Reversible Error in Its Procedural and Evidentiary Decisions [24] Afolabi contends the trial court did not engage in the proper analysis when
denying him a continuance to depose Analyst 2.3 He also argues that the
decision was unfair because the court had earlier granted the State a
continuance for similar reasons. Alternatively, Afolabi asserts that the court
erred by admitting Analyst 2’s testimony about the presence of sperm on J.M.’s
A. Denial of Continuance [25] A trial court generally has discretion to deny a motion for a continuance and
that decision will be reversed only for an abuse of that discretion. Wells v. State,
848 N.E.2d 1133, 1143 (Ind. Ct. App. 2006), corrected on reh’g, 853 N.E.2d 143
(August 24, 2006), trans. denied. “An abuse of discretion occurs only if a
decision is clearly against the logic and effect of the facts and circumstances
before the court.” Id. A showing of error prejudicial to the defendant’s
substantial rights is required before reversal is warranted. Id.
3 In the trial court, Afolabi alleged a due process violation arising from the trial court’s denial of a continuance. Although he mentions his right to due process in passing on appeal, he frames the alleged error as an abuse of discretion, not a violation of due process.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 12 of 31 [26] Requests for a continuance are not generally favored and are granted only in
the furtherance of justice on a showing of good cause. Hamilton v. State, 864
N.E.2d 1104, 1108-09 (Ind. Ct. App. 2007). When a continuance is not
required by statute, Indiana’s appellate courts use a two-part test to evaluate the
denial of a continuance. Ramirez v. State, 186 N.E.3d 89, 96 (Ind. Ct. App.
2022). As articulated by this Court in Ramirez, “[w]e first determine whether the
trial court properly evaluated and compared the parties’ diverse interests that
would be impacted by altering the schedule.” Id. (internal quotation marks
omitted). If not, we then determine “whether the court’s denial resulted in
prejudice.” Id.
[27] Afolabi argues that the trial court did not evaluate and compare the impact that
altering the schedule would have on the parties’ diverse interests. Noting that
the prosecutor expressed a willingness to join Afolabi’s motion for a
continuance, he contends no diverse interests existed and that the court was
therefore required to grant a continuance. But neither Ramirez nor the authority
upon which it rests goes so far as to say that a trial court must grant a
continuance when both parties seek it. See id. (discussing Vaughn v. State, 590
N.E.2d 134, 135-36 (Ind. 1992)).
[28] Moreover, the trial court’s actions reflect that it considered the interests of both
parties. Although the court did not specifically articulate the evaluation or
comparison required by Ramirez, it conducted a hearing on Afolabi’s motion for
continuance at the final pretrial hearing and only denied a continuance after
hearing arguments from both sides. The defense argued that a continuance was
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 13 of 31 necessary because it had not received the results from Analyst 2’s DNA testing.
But the State advised that it had emailed Analyst 2’s report to the defense on
October 18, 2024—the same day Analyst 2 provided the report to the State.
[29] Although Afolabi paints his counsel’s failure to review Analyst 2’s report before
the final pretrial hearing as a “misunderstanding,” emails between the State and
Afolabi’s counsel on October 18th show otherwise. Appellant’s Br., p. 7. The
prosecutor emailed Afolabi’s counsel on that date and said:
Attached are the new labs released today. Please let me know if there is a time next week that would work to speak with [Analyst 2]. Based on the labs being completed, I think it is likely that we will go to trial.
App. Vol. II, p. 184.
[30] Afolabi’s counsel immediately replied to the State via email and indicated he
could not see Analyst 2’s report. The prosecutor quickly responded that “[t]he
lab result for the sexual assault kit is in the second PDF attached.” Id. at 185.
The prosecutor also summarized the test results, noting that “Mr. Afolabi[’s
DNA] is found on the anal swabs and 2 cutting[s] from [J.M.’s] underwear.” Id.
Yet, Afolabi’s counsel apparently never viewed Analyst 2’s report prior to the
final pretrial hearing five days later. The record also does not reveal any effort
by Afolabi’s counsel to schedule a deposition of Analyst 2, although the State
stood ready to make her available for a deposition during the week before the
scheduled trial.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 14 of 31 [31] Although the prosecutor expressed a willingness to join Afolabi’s motion for a
continuance of trial, she also told the trial court that the results of Analyst 2’s
DNA testing were largely consistent with those of Analyst 1’s test results.4 And
though the court ultimately denied a continuance, it specifically authorized
Afolabi to speak to or depose Analyst 2 before trial. Thus, the court effectively
balanced Afolabi’s need to prepare his defense with the State’s view that the
results of Analyst 2’s DNA testing were largely consistent with Analyst 1’s.
[32] We also fail to see any unfairness in the trial court granting the State’s motion
for a continuance but later denying Afolabi’s. The State sought a continuance to
allow for Analyst 2’s testing after Analyst 1’s death. The need for Analyst 2’s
testing was not due to some failure by the State. In contrast, the record does not
support Afolabi’s contention that, “due to no fault of his own, [he] never had
the opportunity to depose any DNA analyst about the first or second set of
DNA reports.” Appellant’s Br., pp. 22-23. When Afolabi sought a continuance,
the results of Analyst 1’s testing had been known to Afolabi for nearly three
years, as they were listed in the probable cause affidavit filed at the beginning of
his prosecution. Thus, Afolabi could have avoided his alleged need for a
continuance by simply speaking to or deposing Analyst 1 when she was
available or by deposing Analyst 2 prior to trial.
4 At the final pretrial hearing, neither side knew of Analyst 2’s opinion that Afolabi’s DNA was in sperm on J.M.’s underwear. This conclusion was only reflected in Analyst 2’s notes, which Afolabi was offered and rejected.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 15 of 31 [33] Although Afolabi’s initial attempt to depose Analyst 1 in March 2024 failed
because Analyst 1 was on medical leave, the record contains no evidence that
he ever tried to depose Analyst 1 again before seeking to exclude her testimony
in August 2024. Immediately after that, the State discovered Analyst 1 had
died. That was when the State obtained a continuance so that M.A.’s plastic
bag and J.M.’s anal swabs and underwear could be retested for DNA. The State
provided Afolabi with Analyst 2’s report from this second round of testing on
the same day that the State received it—October 18, 2024—which was 11 days
before trial.
[34] Though trial was looming and the trial court had made clear that no further
continuances would be granted, the record contains no evidence that Afolabi
ever responded to the State’s offer to set a date for Analyst 2’s deposition during
the five days between when the State emailed Analyst 2’s report to the defense
and the date of the final pretrial hearing. Nor does the record reflect any other
effort by Afolabi to speak to or depose Analyst 2 during the six days between
the final pretrial hearing and trial, although the trial court specifically invited
him to do so.
[35] Afolabi also fails to demonstrate any prejudice to his trial defense resulting from
the denial of a continuance. Again, the results of Analyst 2’s testing essentially
tracked Analyst 1’s test results, which had been known to the parties for nearly
three years. And Afolabi had six days to speak with or depose Analyst 2 after
his motion for a continuance was denied. The record also shows that Afolabi
effectively cross-examined Analyst 2 at trial despite not having deposed her.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 16 of 31 Moreover, Afolabi points to no gaps in his defense that could have been filled
through Analyst 2’s deposition.
[36] For all these reasons, the trial court did not abuse its discretion by denying
Afolabi’s motion for a continuance.
B. Admission of DNA Evidence [37] Afolabi alternatively asserts that the trial court erred by admitting Analyst 2’s
testimony that Afolabi’s DNA was found in sperm on J.M.’s underwear. He
suggests that the State’s belated disclosure of this opinion evidence in Analyst
2’s revised report constituted a discovery violation for which the appropriate
remedy was exclusion.
[38] Although Afolabi successfully sought to exclude Analyst 2’s revised report on
the second day of trial, he did not seek to exclude Analyst 2 from testifying
about her revised opinion. Afolabi also did not contemporaneously object when
Analyst 2 offered the opinion testimony that Afolabi now challenges on appeal.
Afolabi argues that he nonetheless preserved this issue for appeal because, on
the second day of trial, before Analyst 2 testified, he sought to exclude her
testimony about the presence of sperm on J.M.’s underwear. Alternatively,
Afolabi claims the trial court committed fundamental error by allowing Analyst
2’s testimony.
[39] “A trial court has discretion regarding the admission of evidence[,] and its
decisions are reviewed only for abuse of discretion.” Hall v. State, 177 N.E.3d
1183, 1193 (Ind. 2021). This discretion is “broad” when “dealing with Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 17 of 31 discovery violations by the State in the alleged late disclosure of evidence to the
defense.” Alcantar v. State, 70 N.E.3d 353, 356 (Ind. Ct. App. 2016). “We may
reverse the manner in which the trial court deals with such an alleged violation
only for an abuse of that discretion involving clear error and resulting
[40] The fundamental error doctrine, often relied on to save unpreserved claims, is
extremely narrow. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). It applies only
when the error constitutes a blatant denial of basic due process principles that
makes it impossible to receive a fair trial. Id. at 667-68; Halliburton v. State, 1
N.E.3d 670, 678 (Ind. 2013). Thus, under either of Afolabi’s alternative claims,
he must establish prejudice to obtain reversal. He has failed to do so.
[41] Analyst 2’s original, unrevised DNA report—admitted without objection—
already showed the presence of Afolabi’s DNA on J.M.’s anal swabs and
underwear. Given Afolabi’s defense that he had no intimate contact with J.M.,
Analyst 2’s testimony suggesting that Afolabi’s DNA was found in sperm on
J.M.’s underwear is only marginally more probative than the presence of his
DNA in such intimate locations alone. And though Afolabi suggested that J.M.
had picked up his DNA through other sources and transferred it to her anus and
underwear, he offered little evidence to advance that theory.
[42] Moreover, J.M. testified that Afolabi ejaculated inside her vagina the second
time he had sexual intercourse with her in the staff bathroom. Footage from a
hallway security camera corroborated J.M.’s account that Afolabi followed her
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 18 of 31 into the bathroom before the sexual intercourse occurred. And evidence from
J.M.’s sexual assault examination later that day revealed that J.M. had injuries
consistent with her description of the sexual encounter. Thus, Analyst 2’s
testimony about the presence of sperm on J.M.’s underwear was not the only
evidence corroborating J.M.’s testimony that Afolabi had sexual intercourse
with her.
[43] Afolabi has failed to show the requisite prejudice arising from the alleged error
in the trial court’s admission of Analyst 2’s testimony. We therefore find no
reversible error.
II. Sufficient Evidence Supports Afolabi’s Conviction for the Rape of L.B. [44] Afolabi next challenges the sufficiency of the evidence to support his conviction
for the rape of L.B. “When reviewing the sufficiency of the evidence, we
consider only the evidence most favorable to the verdict and all reasonable
inferences drawn therefrom without reweighing evidence or reassessing witness
credibility.” Farral v. State, 263 N.E.3d 794, 797 (Ind. Ct. App. 2025). “We will
affirm the conviction ‘unless no reasonable [factfinder] could find the elements
of the crime proven beyond a reasonable doubt.’” Id. (quoting Drane v. State,
867 N.E.2d 144, 146 (Ind. 2007)). “The evidence need not ‘overcome every
reasonable hypothesis of innocence.’” Id. (quoting Drane, 867 N.E.2d at 147).
[45] To prove Afolabi guilty of the rape, as charged, the State was required to prove
beyond a reasonable doubt that he knowingly or intentionally: (1) had sexual
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 19 of 31 intercourse with L.B. or caused her to perform or submit to other sexual
conduct, namely oral sex; (2) when L.B. was “compelled by force or imminent
threat of force.” Ind. Code § 35-42-4-1(a)(1); see generally Ind. Code § 35-31.5-2-
221.5 (defining “other sexual conduct” to include “an act involving . . . a sex
organ of one (1) person and the mouth . . . of another person”).
[46] Afolabi does not dispute that he had sexual intercourse with L.B. or that she
performed oral sex on him. But he claims the State presented insufficient
evidence to prove he forcefully compelled L.B.’s participation in that sexual
conduct. Forceful compulsion “need not be physical or violent” and “may be
implied from the circumstances.” Scott-Gordon v. State, 579 N.E.2d 602, 604
(Ind. 1991). Additionally, “it is the victim’s perspective, not the assailant’s,
from which the presence or absence of forceful compulsion is to be
determined.” Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996).
[47] According to Afolabi, “the power dynamic of correctional officer/inmate”
provided the only evidence of forceful compulsion in this case. Appellant’s Br.,
p. 34. Afolabi contends “[t]here must be something more”; “[o]therwise, almost
every sexual misconduct committed by a prison guard would also be rape.” Id.
Contrary to Afolabi’s claim, however, L.B.’s testimony and the reasonable
inferences arising therefrom support the jury’s determination that Afolabi
forcefully compelled L.B. to submit to sexual intercourse and perform oral sex.
[48] L.B. testified that Afolabi “cornered” her in a mop closet, grabbed the back of
her head, and “made [her] kiss him.” Tr. Vol. III, pp. 120, 124. Afolabi then
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 20 of 31 instructed L.B. to remain in the closet while he briefly left. L.B. “didn’t know
what to do at that point” and “really didn’t think [she] had any choice in
anything.” Id. at 121, 124. When Afolabi returned, he directed L.B. to “suck his
d**k.” Id. L.B. was “scared” and could not get out of the closet, so she
complied. Id. at 127. After L.B. squatted down, Afolabi grabbed her by the neck
and pushed her head toward his penis. After L.B. briefly performed oral sex on
Afolabi, he told L.B. to stand up, turn around, and pull down her pants. Afolabi
then inserted his penis into her vagina and ejaculated.
[49] This evidence proves far more than just the power dynamic between a
correctional officer and an inmate. It shows Afolabi’s actions and statements,
the circumstances under which they occurred, and L.B.’s real-time perception
of them. From this evidence the jury could reasonably conclude that Afolabi
compelled L.B. to perform oral sex and submit to sexual intercourse by force or
imminent threat of force. We therefore find the evidence sufficient to support
Afolabi’s conviction for rape as to L.B.
III. Only One of Afolabi’s Intimidation Convictions Places Him in Double Jeopardy [50] Afolabi’s final claim is that his dual convictions for intimidation and rape as to
both L.B. and M.A. violate Indiana’s prohibition against substantive double
jeopardy under Wadle v. State, 151 N.E.3d 227 (Ind. 2020). Wadle established
three progressive steps for evaluating substantive double jeopardy claims that
arise “when multiple convictions for a single act or transaction implicate two or
more statutes.” Id. at 253. Cf. Moyers v. State, No. 26S-CR-86 at 7-8 (Ind. March
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 21 of 31 20, 2026) (clarifying that Wadle applies when multiple convictions implicate
two or more “base offenses” regardless of the number of statutes involved). The
Wadle steps generally require courts to consider whether: (1) the charging
statutes permit multiple punishments; (2) either offense is included in the other;
and (3) the defendant’s acts constitute a single transaction. Wadle, 151 N.E.3d
at 253. Whether convictions violate double jeopardy under Wadle is a question
of law that we review de novo. Id. at 237.
A. Step 1 – Multiple Punishments [51] At Step 1 of the Wadle analysis, we consider the language of the charging
statutes to determine whether one “clearly permits multiple punishment, either
expressly or by unmistakable implication.” Id. at 248. If so, the convictions do
not constitute substantive double jeopardy, and our inquiry ends. Id. If not, we
proceed to Step 2. Id.
[52] Here, Afolabi’s dual convictions for intimidation and rape as to both L.B. and
M.A. do not constitute double jeopardy at Step 1 of the Wadle analysis because
neither of the statutes under which Afolabi was charged clearly permits multiple
punishments. See Ind. Code § 35-45-2-1 (intimidation); Ind. Code § 35-42-4-1
(rape). We therefore proceed to Step 2 of the Wadle analysis.
B. Step 2 – Included Offenses [53] At Step 2, we consider the subject offenses to determine whether one is either
“inherently” or “factually” included in the other. A.W. v. State, 229 N.E.3d
1060, 1067 (Ind. 2024) (clarifying Wadle Step 2). If not, the convictions do not
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 22 of 31 constitute substantive double jeopardy, and our inquiry ends. Id. If so, we
proceed to Step 3 of the Wadle analysis. Id.
i. Inherent Inclusion [54] To determine if an offense is inherently included in another, we apply our
included offense statute, Indiana Code § 35-31.5-2-168. Wadle, 151 N.E.3d at
253. That statute defines an “included offense” as one that:
(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.
Ind. Code § 35-31.5-2-168.
[55] Here, the State charged Afolabi with rape as to both L.B. and M.A. under
Indiana Code § 35-42-4-1(a)(1). That statute provides:
[A] person who knowingly or intentionally has sexual intercourse with another person or knowingly or intentionally causes another person to perform or submit to other sexual conduct (as defined in IC 35-31.5-2-221.5) when . . . the other person is compelled by force or imminent threat of force . . . commits rape, a Level 3 felony.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 23 of 31 Ind. Code § 35-42-4-1(a)(1) (emphasis added).
[56] The State charged Afolabi with intimidation as to both L.B. and M.A. under
Indiana Code § 35-45-2-1(a)(1). That statute provides: “A person who
communicates a threat with the intent . . . that another person engage in
conduct against the other person’s will . . . commits intimidation, a Class A
misdemeanor.” Ind. Code § 35-45-2-1(a)(1) (emphasis added).
[57] Our included-offense statute is not implicated by Afolabi’s dual convictions for
intimidation and rape as to both L.B. and M.A. As emphasized in bold above,
rape can require proof of an element not required by intimidation (forceful
compulsion), and intimidation can require proof of an element not required by
rape (a threat). See Ind. Code § 35-31.5-2-168(1). Neither offense was charged as
an attempt crime. See id. § 168(2). And they differ in respects other than degree
of harm or culpability. See id. § 168(3). Accordingly, intimidation and rape are
not inherently included offenses. This conclusion, however, does not end our
Step 2 inquiry. We must also consider whether the offenses are factually
included.
ii. Factual Inclusion [58] To determine if an offense is factually included in another, we “examine only
the facts as presented on the face of the charging instrument.” A.W., 229
N.E.3d at 1067 (emphasis omitted). “This includes examining the ‘means used
to commit the crime charged,’ which must ‘include all of the elements of the
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 24 of 31 alleged lesser included offense.’” Id. (quoting Wadle, 151 N.E.3d at 251).
“[W]here ambiguities exist in a charging instrument about whether one offense
is factually included in another, courts must construe those ambiguities in the
defendant’s favor, and thus find a presumptive double jeopardy violation at
Step 2.” Id. at 1069 (internal citation omitted). “In this event, the State can later
rebut this presumption at Step 3.” 5 Id.
[59] Here, the charging instrument is ambiguous as to whether Afolabi’s convictions
for intimidation as to both L.B. and M.A. are factually included in his
convictions for rape as to those victims. Ambiguity as to one charged crime’s
factual inclusion in another exists when it is “conceivable,” but not certain,
from the facts presented on the face of the charging instrument that the means
used to commit the alleged greater offense includes all the elements of the
5 We note that a presumption of double jeopardy also arises at Step 2 of the Wadle analysis when one offense is factually included in another, unambiguously. It was the State’s opportunity to rebut this presumption at Step 3 that required counterbalancing in A.W., at least as Wadle was originally “understood.” A.W., 229 N.E.3d at 1069. As the A.W. Court explained:
When determining whether one offense is factually included in another at Step 2, Wadle construct[ed] an asymmetrical framework benefiting the State in introducing actual evidence. If the prosecutor [did] not include facts in the charging instrument establishing one offense is included in another, then there [was] an irrebuttable presumption that one offense [was] not factually included in another regardless of how clearly the evidence and arguments at trial reveal that it [was] included. But if the prosecutor [did] include facts indicating one offense [was] factually included in another, then there [was] only a rebuttable presumption of a double jeopardy violation. Thus, the reviewing court then proceeds to Step 3, where the State can rebut the presumption with tools the defendant could not employ at Step 2—that is, actual evidence.
Id. at 1069 n.10 (emphasis in original). The A.W. Court “eliminate[d] this asymmetrical benefit to the State” by recognizing that, “where ambiguities exist in a charging instrument about whether one offense is factually included in another,” a rebuttable presumption of double jeopardy arises at Step 2. Id. at 1069. The Court did not eliminate the presumption that arises under Wadle when factual inclusion is unambiguous.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 25 of 31 alleged lesser offense. A.W., 229 N.E.3d at 1069; accord Vanbibber v. State, 268
N.E.3d 315, 321 (Ind. Ct. App. 2025); Bradshaw v. State, 239 N.E.3d 864, 871
(Ind. Ct. App. 2024) (Felix, J., dissenting).
[60] The intimidation charges as to both L.B. and M.A. alleged that “[Afolabi] did
communicate a threat to [the victim] . . . with the intent that [the victim]
engage in conduct against her will by engaging in sexual conduct with
[Afolabi].” App. Vol. II, p. 157. As used in this context, the word “threat”
means “an expression, by words or action, of an intention to,” among other
things, “unlawfully injure [a] person,” “unlawfully subject a person to physical
confinement or restraint,” or “commit a crime.” Ind. Code § 35-45-2-1(c).
[61] The rape charge as to L.B. alleged that “[Afolabi] did knowingly or
intentionally have sexual intercourse with [L.B.] and/or cause [L.B.] to perform
or submit to other sexual conduct . . . when such person was compelled by force
or imminent threat of force.” App. Vol. II, p. 158. Similarly, the rape charge as
to M.A. alleged that “[Afolabi] did knowingly or intentionally cause [M.A.] to
perform or submit to other sexual conduct . . . when such person was
compelled by force or imminent threat of force.” Id.
[62] Because rape by imminent threat of force is effectively successful intimidation,
it is conceivable that the means used to commit the rapes of both L.B. and M.A.
factually included all the elements of the intimidation charges. But the charging
instrument, by simply tracking the language of the statutes, did not disclose the
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 26 of 31 means allegedly used to commit the charged crimes. Thus, we cannot discern
from it whether Afolabi used the same threat to both rape and intimidate each
victim. It is also possible that the rapes were actually committed by force, not
imminent threat of force. These ambiguities give rise to a presumption of
double jeopardy at Step 2 of the Wadle analysis. A.W., 229 N.E.3d at 1067. And
the State has the burden of rebutting this presumption at Step 3. Id.
C. Step 3 – Single Transaction [63] At Step 3 of the Wadle analysis, we consider the facts underlying the challenged
convictions, “as presented in the charging instrument and as adduced at trial,”
to determine whether the defendant’s actions were “so compressed in terms of
time, place, singleness of purpose, and continuity of action as to constitute a
single transaction.” Wadle, 151 N.E.3d at 249 (citation omitted). If so, the
convictions constitute substantive double jeopardy. Id. If not, double jeopardy
does not arise. Id. Either way, our analysis ends.
[64] To accomplish Step 3, however, we must first identify which of the defendant’s
actions to analyze. This is not a call for post hoc explanations of how the
evidence could have been allocated between the offenses to avoid substantive
double jeopardy. Rather, “[t]he State must demonstrate that it made clear to the
[factfinder] at trial that the apparently included charge was supported by
independent evidence such that the State made a ‘distinction between what
would otherwise be two of the same offenses.’” Ratliff v. State, 242 N.E.3d 1070,
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 27 of 31 1078-79 (Ind. Ct. App. 2024) (quoting A.W., 229 N.E.3d at 1071), trans. denied.6
To require less would render Step 2’s presumption of double jeopardy largely
without meaning.
i. Double Jeopardy as to L.B. [65] The State attempts to rebut the double jeopardy presumption as to L.B. by
claiming the intimidation “occurred when [Afolabi] first encountered L.B. in
the mop closet, grabbed her by the back of the head, forced L.B. to kiss him,
and instructed her to wait in the closet.” Appellee’s Br. p. 33. In contrast, the
State contends the forceful compulsion for the rape “occurred several minutes
later when [Afolabi] returned to the mop closet, grabbed L.B. by the neck and
pushed her head onto his penis, and then grabbed her and penetrated her vagina
with his penis.” Id. According to the State, these two sequences were “not so
compressed in terms of time, place, singleness of purpose, and continuity of
action as to constitute a single transaction.” Id.
[66] But the State did not make this evidentiary distinction at trial. Instead, during
closing arguments, the prosecutor described the intimidation as follows: “[L.B.]
was told what to do, pushed up against the wall. She felt scared. She felt
intimidated.” Tr. Vol. IV, p. 53. The prosecutor then described the rape as
follows: “[L.B.] was forced against the wall and in those brief moments she was
6 Accord Eversole v. State, 251 N.E.3d 604, 608-09 (Ind. Ct. App. 2025), trans. denied; Bolcerek v. State, 255 N.E.3d 1206, 1219 (Ind. Ct. App. 2025), trans. denied; Denny v. State, 272 N.E.3d 210, 216 (Ind. Ct. App. 2025); Brothers. v. State, 271 N.E.3d 589, 596 (Ind. Ct. App. 2025).
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 28 of 31 forced to perform oral sex on [Afolabi] with imminent threat of force.” Id. at 58.
As the record contains no direct evidence that Afolabi pushed L.B. against a
wall, we understand the prosecutor’s descriptions as referring to Afolabi’s
general act of cornering L.B. in the mop closet, grabbing and instructing her to
remain there. Thus, as argued by the prosecutor, the same actions by Afolabi
proved both the threat underlying the intimidation charge and the force or
threat of force underlying the rape charge.
[67] Our review of the record further reveals that the evidence adduced at trial did
not otherwise make clear to the factfinder that the intimidation and rape of L.B.
were based on distinct actions by Afolabi, as the State claims on appeal. When
the prosecutor asked L.B., “What w[ere] some of the things that Officer Afolabi
was doing that made you feel forced?,” L.B. testified, “He would grab me by
the back of my head, made me kiss him.” Tr. Vol. III, p. 124. L.B. also
answered “Yes” when the prosecutor confoundingly asked her: “Okay, so it
was the verbal (sic) that ultimately led up to that kissing, the touching, the
grabbing, forcing and the rape?” Id. at 128.
[68] The State has failed to rebut the presumption of double jeopardy as to Afolabi’s
dual convictions for the intimidation and rape of L.B. As his conviction for the
intimidation of L.B. is contrary to law, we remand for the trial court to vacate
that conviction and its corresponding one-year concurrent sentence.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 29 of 31 ii. No Double Jeopardy as to M.A. [69] We reach a different conclusion as to Afolabi’s conviction for the intimidation
of M.A. During closing statements, the prosecutor argued that the intimidation
occurred when, after M.A. initially refused to perform oral sex on Afolabi, he
issued M.A. a disciplinary report for trafficking bubblegum and stated, “I
thought you [would] do anything to go home.” Tr. Vol. IV, p. 55. In contrast,
the prosecutor argued that the rape occurred when Afolabi returned to M.A.’s
cell a few weeks later and, after attempting to have sexual intercourse with
M.A., “pinched” her clitoris, “pushed” her down, and forced her to perform
oral sex on him. Id. at 56.
[70] As argued by the prosecutor, distinct actions by Afolabi proved the threat
underlying the intimidation charge and the force underlying the rape charge.
And the evidence adduced at trial further made clear to the factfinder that each
of Afolabi’s offenses was based on independent facts. See, e.g., Tr. Vol. III, pp.
170-73 (prosecutor questioning M.A. about “another sexual assault” by Afolabi
and the “first,” “second,” and “next time” Afolabi sexually assaulted her).
Moreover, M.A.’s own testimony reveals that the rape occurred “a couple of
weeks” after the intimidation. Id. at 170. Thus, the two offenses did not
constitute a “single transaction.” Wadle, 151 N.E.3d at 249
[71] The State has successfully rebutted the presumption of double jeopardy as to
Afolabi’s dual convictions for rape and intimidation as to M.A. Accordingly,
those convictions are not contrary to law.
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 30 of 31 Conclusion [72] We conclude that trial court did not abuse its discretion by denying Afolabi’s
request for a continuance to depose Analyst 2 and did not commit reversible
error by allowing Analyst 2 to testify regarding the presence of sperm on J.M.’s
underwear. We also find sufficient evidence to support Afolabi’s conviction for
the rape of L.B. Additionally, we find his dual convictions for the intimidation
and rape of M.A. did not constitute substantive double jeopardy. However, we
find double jeopardy in Afolabi’s dual convictions for the intimidation and rape
of L.B. We therefore remand for the trial court to vacate that intimidation
conviction and the corresponding one-year concurrent sentence. We otherwise
affirm.
[73] Affirmed in part and remanded in part.
Bradford, J., and DeBoer, J., concur.
ATTORNEY FOR APPELLANT Stacy R. Uliana Bargersville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-3081 | April 15, 2026 Page 31 of 31