MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                             Jun 23 2015, 9:09 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing 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

Fritz Bernier,1                                               June 23, 2015

Appellant-Defendant,                                          Court of Appeals Case No.
                                                              49A02-1410-CR-718
         v.                                                   Appeal from the
                                                              Marion Superior Court
State of Indiana,                                             The Honorable Rebekah F. Pierson-
                                                              Treacy, Judge
Appellee-Plaintiff.                                           The Honorable Shatrese M. Flowers,
                                                              Master Commissioner
                                                              Cause No. 49G19-1406-FD-33675




1
  We note that, due to a clerical error, the Appellant’s name was incorrectly entered in the trial court’s record
as Bernier Fritz rather than his correct name of Fritz Bernier. Although an oral motion was made prior to
the jury trial to amend the charging information to reflect the correct name and was granted by the trial court,
see tr. at 52-53, it does not appear that the amendment was ever made. Because the CCS in this case
continued to list the Appellant as Bernier Fritz, that name reference was used in the appeal. In order to
correct this incorrect name entry, we remand this case to the trial court so that the trial record can be
amended to reflect the Appellant’s correct name as Fritz Bernier.

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-718 | June 23, 2015                  Page 1 of 7
      Kirsch, Judge.

[1]   Fritz Bernier was convicted after a jury trial of disorderly conduct 2 as a Class B

      misdemeanor and was sentenced to 180 days executed. He appeals, raising the

      following issue for our review: whether the State presented sufficient evidence

      to support his conviction for disorderly conduct.


[2]   We affirm and remand.


                                      Facts and Procedural History
[3]   At around 5:00 p.m. on June 28, 2014, Indiana State Capitol Police Officers

      Michael Hollandsworth and James Rice were driving north on Meridian Street

      past Veteran’s Park in Indianapolis, Indiana. The officers noticed that two park

      benches were overturned. People were sitting on another nearby park bench,

      and fifteen to twenty yards away from these people a man later identified as

      Bernier was walking in the park waving a knife over his head. Officer

      Hollandsworth pulled the patrol car onto the sidewalk and activated the

      emergency lights.


[4]   When the officers got out of their car, Bernier was about ten to fifteen feet away

      from the people on the bench. He held the knife above his head and was

      shouting, “I’ll kill you” and other vulgarities. Tr. at 83, 108. When Bernier

      saw the officers, he turned his body away from them and put the knife in his




      2
          See Ind. Code § 35-45-1-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-718 | June 23, 2015   Page 2 of 7
      pocket. Officer Hollandsworth told Bernier to show his hands, and Bernier

      removed the knife from his pocket and dropped in on the ground. Officer Rice

      then placed Bernier in handcuffs.


[5]   Bernier smelled like alcohol, his eyes were red and bloodshot, his dexterity was

      slow, and his balance was poor. He continued to yell after he had been

      handcuffed, accusing the officers of racism, calling them names, and screaming

      other obscenities. He asked one of the officers to remove the handcuffs so they

      “could go at it.” Id. at 137. Bernier also continued to yell at the people on the

      bench, saying he was going to “kill them.” Id. at 135-37. Additionally, he

      began to spit at the officers, and when an officer arrived to take Bernier to jail,

      the officer put a spit mask on Bernier.


[6]   The State charged Bernier with Class B misdemeanor disorderly conduct and

      Class D felony criminal recklessness. The State dismissed the criminal

      recklessness charge prior to the trial. At the conclusion of the jury trial, Bernier

      was found guilty of disorderly conduct, and the trial court sentenced him to 180

      days executed. Bernier now appeals.


                                     Discussion and Decision
[7]   The deferential standard of review for sufficiency claims is well settled. This

      court will neither reweigh the evidence nor assess the credibility of witnesses.

      Tooley v. State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009), trans. denied; Elisea v.

      State, 777 N.E.2d 46, 48 (Ind. Ct. App. 2002). Rather, we will consider only

      the evidence and reasonable inferences most favorable to the trial court’s ruling.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-718 | June 23, 2015   Page 3 of 7
      Elisea, 777 N.E.2d at 48. We will affirm unless no reasonable fact-finder could

      find the elements of the crime proven beyond a reasonable doubt. Tooley, 911

      N.E.2d at 724-25. Thus, if there is sufficient evidence of probative value to

      support the conclusion of the trier of fact, then the verdict will not be disturbed.

      Trimble v. State, 848 N.E.2d 278, 279 (Ind. 2006).


[8]   Bernier argues that the State failed to present sufficient evidence to support his

      conviction for disorderly conduct. He claims that the State did not prove that

      he engaged in fighting or tumultuous conduct because nothing in the record

      indicated that any serious injury or substantial damage to property was likely to

      result from his conduct. Bernier asserts that, although his conduct could be

      characterized as annoying, it never posed any threat of serious bodily injury and

      was, therefore, not tumultuous conduct.


[9]   In order to convict Bernier of disorderly conduct as a Class B misdemeanor, the

      State was required to prove beyond a reasonable doubt that he recklessly,

      knowingly, or intentionally engaged in fighting or in tumultuous conduct. Ind.

      Code § 35-45-1-3(a)(1). Tumultuous conduct is “conduct that results in, or is

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

      property.” Ind. Code § 35-45-1-1. Disorderly conduct may occur “when the

      aggressor appears well on his way to inflicting serious bodily injury but relents

      in the face of superior force or creative resistance.” Bailey v. State, 907 N.E.2d

      1003, 1007 (Ind. 2009).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-718 | June 23, 2015   Page 4 of 7
[10]   The evidence presented at trial showed that, as Officers Hollandsworth and

       Rice arrived at the scene, Bernier was about fifteen to twenty yards away from

       the people on the bench, waving a knife above his head. By the time the

       officers had gotten out of their car, Bernier was within ten or fifteen feet of the

       people on the bench and was yelling at the people that he was going to kill

       them. This evidence established that Bernier was “well on his way to inflicting

       serious bodily injury” before he relented “in the face of superior force” of the

       police. See id.


[11]   Bernier’s conduct prior to his arrest is similar to the conduct found sufficient to

       constitute disorderly conduct in B.R. v. State, 823 N.E.2d 301 (Ind. Ct. App.

       2005). There, B.R. initiated an argument with a fellow student at his high

       school, and while the two were standing face to face, B.R. pulled out a knife

       and pointed it at the other student, at which time, the other student hit B.R. and

       fled. Id. at 302. This court concluded that B.R.’s conduct “created an

       immediate danger of serious bodily injury, which was defused only when the

       threatened person struck B.R. and left.” Id. at 307. In the present case, Bernier

       created an immediate danger of serious bodily injury when he threatened the

       people on the bench while waving the knife over his head, and that danger was

       defused only when the officers placed Bernier in handcuffs and removed the

       knife.


[12]   In Bailey, our Supreme Court affirmed a conviction for disorderly conduct,

       where the defendant student threw down his coat and drink, stepped toward his

       dean of students, “began to unleash a series of obscenities while standing with

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-718 | June 23, 2015   Page 5 of 7
       his fist clinched at his sides,” and only backed away when he saw a school

       police officer. 893 N.E.2d at 1004, 1007. The Supreme Court held that a trier

       of fact could reasonably conclude that the defendant’s conduct would have

       escalated if not for the arrival of the officer. Id. at 1007. Even though the

       defendant did not wield a weapon, the Court determined that his clenched fists

       and the testimony of the dean that he felt the defendant was ready to hit him

       constituted sufficient evidence that serious bodily injury was likely to result

       from the defendant’s conduct. Id.


[13]   Here, Bernier’s tumultuous conduct continued even after he was handcuffed.

       He yelled at the officers, accused them of racism, called them derogatory

       names, and screamed other obscenities. He also told one of the officers to

       remove the handcuffs so that he could fight the officer. One of the officers

       described Bernier’s yelling and screaming as “fighting words.” Tr. at 154.

       Additionally, Bernier was spitting at the officers, and the jail transport officer

       had to put a spit mask on him. This post-arrest conduct was likely to result in

       serious bodily injury to Bernier or one of the police officers.


[14]   We conclude that the evidence presented at the jury trial was sufficient to prove

       that Bernier recklessly, knowingly, or intentionally engaged in fighting or in

       tumultuous conduct. Sufficient evidence was, therefore, presented to support

       his conviction for disorderly conduct. We affirm Bernier’s conviction, but

       remand with instructions that the trial court amend the trial record to correctly

       reflect the appellant’s name as “Fritz Bernier.”



       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-718 | June 23, 2015   Page 6 of 7
[15]   Affirmed and remanded.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-718 | June 23, 2015   Page 7 of 7
