MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Dec 21 2016, 9:03 am

regarded as precedent or cited before any                             CLERK
                                                                  Indiana Supreme Court
court except for the purpose of establishing                         Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                      Gregory F. Zoeller
Oldenburg, Indiana                                      Attorney General of Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon Cunningham,                                     December 21, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1604-CR-892
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Allan Reid, Judge
Appellee-Plaintiff.                                     Pro Tempore
                                                        Trial Court Cause No.
                                                        49G10-1409-CM-45342



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-892 | December 21, 2016   Page 1 of 5
                                          Case Summary
[1]   Brandon Cunningham (“Cunningham”) was convicted after a bench trial of

      Disorderly Conduct, as a Class B misdemeanor.1 He now appeals, challenging

      the sufficiency of the evidence to sustain his conviction.


[2]   We affirm.



                                Facts and Procedural History
[3]   On September 26, 2014, Cunningham and several other individuals were at the

      Mosaic Lounge in Indianapolis. Members of the Indianapolis Metropolitan

      Police Department (“IMPD”) had been dispatched to the bar after a report of a

      fight in progress.


[4]   IMPD Lieutenant Laurence Wheeler (“Lieutenant Wheeler”) was among the

      officers who responded to the call. When Lieutenant Wheeler and other

      officers arrived at the bar, they yelled for people to stop fighting; everyone

      present other than Cunningham responded to police instructions.

      Cunningham, however, continued to attempt to fight with the bar employees

      who had ejected him along with other patrons. Police told Cunningham to stop

      fighting several more times, but he did not do so, and instead continued to




      1
          Ind. Code § 35-45-1-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-892 | December 21, 2016   Page 2 of 5
      attempt to run up to bouncers at the bar and scream at people. Cunningham

      was then arrested.


[5]   On September 26, 2014, Cunningham was charged with Disorderly Conduct, as

      a Class B misdemeanor. A bench trial was conducted on March 21, 2016, at

      the conclusion of which the court took the case under advisement.


[6]   On April 4, 2016, the court found Cunningham guilty as charged and entered a

      judgment of conviction against him. A sentencing hearing was conducted the

      same day, during which the trial court sentenced Cunningham to 180 days

      imprisonment, with two days executed and the remainder suspended to

      probation pending completion of thirty-two hours of community service.


[7]   This appeal ensued.



                                Discussion and Decision
[8]   Cunningham’s appeal challenges the sufficiency of the evidence underlying his

      conviction. Our standard of review in such cases is well-settled.

              This court will not reweigh the evidence or assess the credibility
              of witnesses. Cox v. State, 774 N.E.2d 1025, 1028 (Ind. Ct. App.
              2002). Only the evidence most favorable to the judgment,
              together with all reasonable inferences that can be drawn
              therefrom will be considered. Id. If a reasonable trier of fact
              could have found the defendant guilty based on the probative
              evidence and reasonable inferences drawn therefrom, then a
              conviction will be affirmed. Id. at 1028-29.


      Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007).
      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-892 | December 21, 2016   Page 3 of 5
[9]    Cunningham was convicted of Disorderly Conduct, as a Class B misdemeanor.

       To convict Cunningham of the offense as charged, the State was required to

       prove beyond a reasonable doubt that he recklessly, knowingly, or intentionally

       engaged in fighting or tumultuous conduct. I.C. § 35-45-1-3(a)(1); App’x at 14.

       Cunningham’s challenge centers on whether there was sufficient evidence that

       he engaged in fighting or tumultuous conduct; proof of either one is sufficient,

       because the statute is written in the disjunctive. See Davis v. State, 819 N.E.2d

       91, 100 (Ind. Ct. App. 2004) (observing that a statute written in the disjunctive

       as to a specific element of an offense required proof of only one type of

       conduct), trans. denied. Tumultuous conduct is “conduct that results in, or is

       likely to result in, serious bodily injury to a person or substantial damage to

       property.” I.C. § 35-45-1-1.


[10]   The Indiana Supreme Court addressed the question of sufficiency of the

       evidence of tumultuous conduct in Bailey v. State, 907 N.E.2d 1003 (Ind. 2009).

       In Bailey, the court affirmed a student’s conviction for Disorderly Conduct

       where Bailey “threw down his drink and coat … ‘throwing down the gauntlet,’”

       stepped toward a school dean, “clinched up his fists at his sides and let out a

       series of obscenities all within inches of Dean Knight’s face.” Id. at 1003

       (quoting the trial court’s findings of fact). Bailey backed away from the school’s

       dean only upon seeing a police officer. Id. The Bailey court thus concluded that

       it was reasonable for the finder of fact to conclude that had police not

       intervened, “Bailey’s conduct would have escalated” and “serious bodily injury

       was likely to result.” Id. (emphasis in original).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-892 | December 21, 2016   Page 4 of 5
[11]   Here, Lieutenant Wheeler testified that Cunningham was part of a crowd of

       people involved in a fight after being ejected from a bar. Lieutenant Wheeler

       further testified that when police arrived, everyone ceased aggressive conduct

       except for Cunningham, who persisted in attempting to fight the bar’s bouncers

       and cursing and yelling threats even after police instructed him to stop several

       times. As in Bailey, it was reasonable for the trial court to infer that

       Cunningham’s conduct would, if unchecked, likely have led to serious injury.


[12]   Cunningham suggests that his actions were intended to break up a fight and

       places emphasis on his testimony at trial rather than that of Lieutenant

       Wheeler. In other words, he would have us reweigh the evidence at trial. This

       we cannot do. See Sargent, 875 N.E.2d at 767. We accordingly affirm

       Cunningham’s conviction.


[13]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-892 | December 21, 2016   Page 5 of 5
