MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                        FILED
regarded as precedent or cited before any                                        Apr 19 2016, 6:39 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Suzy St. John                                            Attorney General of Indiana
Marion County Public Defender Agency
Appellate Division                                       Larry D. Allen
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Busic,                                            April 19, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1508-CR-1020
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Steven J. Rubick, Magistrate
                                                         Trial Court Cause No.
                                                         49G19-1504-CM-13012



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1020 | April 19, 2016             Page 1 of 8
[1]   Following a bench trial, Justin Busic (“Busic”) was convicted of disorderly

      conduct1 as a Class B misdemeanor. Busic appeals that conviction, raising the

      following restated issue: whether his conviction was supported by sufficient

      evidence.


[2]   We affirm.


                                       Facts and Procedural History
[3]   Busic was arrested and charged with one count of Class A misdemeanor battery

      resulting in bodily injury and one count of Class B misdemeanor disorderly

      conduct for having “recklessly, knowingly, or intentionally engage[d] in

      fighting or tumultuous conduct.” Appellant’s App. at 12. Two witnesses testified

      at Busic’s bench trial; Indianapolis Metropolitan Police Officer Chris Maher

      (“Officer Maher”) testified on behalf of the State, and Joshua Thompson

      (“Thompson”), Busic’s brother, testified on Busic’s behalf.


[4]   Officer Maher testified that, around 3:00 a.m. on April 15, 2015, he was

      dispatched to the intersection of Fletcher Avenue and Kingbridge Street in

      Marion County to investigate a reported disturbance. As Officer Maher

      approached the scene, he saw a truck stopped in the middle of the intersection

      and three males standing outside the truck. The males, who were later

      identified as Busic, Thompson, and Michael Smith (“Smith”),2 were on their



      1
          See Ind. Code § 35-45-1-3.
      2
          Smith was identified as Thompson’s father.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1020 | April 19, 2016   Page 2 of 8
      way home from a bar where Busic and Thompson had been involved in a fight.

      Officer Maher noted that Busic, who was not wearing a shirt, was “yelling and

      screaming” at Thompson and Smith from about ten feet away. Tr. at 6. As

      Officer Maher approached the men, he saw Busic start to walk away from the

      truck. Busic then suddenly turned back toward Thompson and Smith and

      “angrily shouted” something at them. Id. at 9. With his fists clenched, Busic

      lunged toward Thompson and “punched him[,] knocking him to the ground.”

      Id. Busic then walked toward Smith with his fists still clenched. Officer Maher

      yelled for Busic to stop and warned him that he would be tased if he did not do

      so. Busic did not stop, but continued toward Smith, prompting Officer Maher

      to tase Busic. At that time, Officer Maher saw several cuts and injuries on

      Busic’s body and noticed that Busic had slurred speech and smelled of alcohol.

      Officer Maher took several pictures of Thompson’s injuries and arrested Busic.


[5]   Thompson testified that Busic neither punched him nor threatened him or

      Smith that night. Id. at 20. Rather, Thompson explained that, as the men were

      heading home from the bar, Busic got out of the back of the truck and stood

      near a stop sign. Thompson testified that Busic was dizzy and a little confused,

      probably because he was “still a little intoxicated,” but he was not screaming

      and yelling, and he was not violent. Id. at 18. Thompson testified that two or

      three officers arrived at the scene and told Busic, Thompson, and Smith to sit

      down. Id. at 16, 19. The officers threatened to deploy their tasers if the men

      did not comply. Thompson and Smith complied. Thompson testified that he

      believed Busic stumbled, and that is when Officer Maher used his taser on


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1020 | April 19, 2016   Page 3 of 8
      Busic. Thompson reiterated that Busic did not touch or lunge at anyone and

      that no one was yelling. Id. at 20-21. On cross-examination, Thompson

      conceded that he and Busic had been in a fight at the bar earlier in the evening,

      but that other officers had responded to that scuffle and assured the men that

      everything was fine. Id. at 23. Thompson testified that Officer Maher

      mistakenly thought he and Busic were fighting at the scene because Thompson

      had blood on his face from the earlier bar fight. Id. at 16.


[6]   In closing argument, defense counsel conceded that Busic was inebriated on the

      night in question and that Busic and Thompson had been in a fight at the bar

      earlier in the evening. Id. at 33. Defense counsel clarified, however, that the

      earlier tussle was not part of the charging information. Id. at 36. Instead, the

      focus of the disorderly conduct charge was Busic’s behavior on the street. Id.

      Counsel reminded the jury of Thompson’s testimony that Busic “wasn’t

      running around yelling and screaming and causing any type of tumultuous

      conduct.” Id. Accordingly, Busic maintained that “[t]here [was] insufficient

      evidence . . . to find that the defendant committed battery or engaged in

      disorderly conduct.” Id.


[7]   Following the bench trial, the trial court found Busic not guilty of battery, but

      guilty of Class B misdemeanor disorderly conduct. In making its ruling, the

      trial court, in pertinent part stated,


              Mr. Thompson did not testify on behalf of the State. And when
              he did testify on behalf of the—of his brother, he very clearly
              stated that he did not get hit that night. The timing of this

      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1020 | April 19, 2016   Page 4 of 8
              incident is relevant. Late at night after everything is closed
              down. . . . [O]ne line of Sting’s audio poetry states that at night
              the candle is brighter than the sun. The officer indicated that Mr.
              Busic was yelling and screaming and at four in the morning[,]
              sounds that might seem reasonable for Mr. Thompson and Mr.
              Busic[,] to others might seem overly loud and disruptive. . . . But
              I have no reason to discount the officer’s testimony that Mr. Busic was
              engaged in disorderly conduct in the intersection that night.


      Id. at 38-40 (emphasis added). Recognizing that Busic suffered a tase on the

      night he was arrested and had spent two days in the Marion County Jail, the

      trial court concluded that Busic had “more than adequately suffered sanctions

      appropriate to his misdeed,” and imposed a time-served sentence. Id. at 40.

      Busic now appeals his conviction for disorderly conduct.


                                     Discussion and Decision
[8]   Busic contends that the evidence was insufficient to support his conviction for

      disorderly conduct. When reviewing a challenge to the sufficiency of the

      evidence, we will neither reweigh the evidence nor judge the credibility of the

      witnesses. Adetokunbo v. State, 29 N.E.3d 1277, 1280 (Ind. Ct. App. 2015). We

      consider only the probative evidence and reasonable inferences supporting the

      trial court’s decision. Id. “A conviction will be affirmed ‘if there is substantial

      evidence of probative value such that a reasonable trier of fact could have

      concluded the defendant was guilty beyond a reasonable doubt.’” Id. at 1280-

      81 (quoting Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009)). A mere

      reasonable inference from the evidence supporting a verdict is enough for us to



      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1020 | April 19, 2016   Page 5 of 8
       find evidence to be sufficient. Blackman v. State, 868 N.E.2d 579, 583 (Ind. Ct.

       App. 2007), trans. denied.


[9]    Indiana Code section 35-45-1-3(a) provides: “A person who recklessly,

       knowingly, or intentionally: (1) engages in fighting or in tumultuous conduct;

       (2) makes unreasonable noise and continues to do so after being asked to stop;

       or (3) disrupts a lawful assembly of persons; commits disorderly conduct, a

       Class B misdemeanor. The charging information alleged: “On or about April

       15, 2015, Justin Busic did recklessly, knowingly or intentionally engage in

       fighting or in tumultuous conduct.” Appellant’s App. at 12. “Tumultuous

       conduct is defined as conduct that results in, or is likely to result in, serious

       bodily injury to a person or substantial damage to property.” Bailey, 907

       N.E.2d at 1006 (citing Ind. Code § 35-45-1-1 (2008)). Busic asserts that the

       State failed to prove that he engaged in fighting or tumultuous conduct, as

       charged. We disagree.


[10]   Officer Maher testified that he was dispatched to the intersection of Fletcher

       Avenue and Kingbridge Street around 3:00 a.m. to investigate a reported

       disturbance. At the scene, Officer Maher saw Busic, Thompson, and Smith

       standing outside their truck, which was parked in the middle of an intersection.

       Officer Maher noted that Busic was not wearing a shirt and was “yelling and

       screaming” at Thompson and Smith from about ten feet away. Tr. at 6. Seeing

       Officer Maher, Busic began walking away, but suddenly turned, headed toward

       Thompson and Smith, and “angrily shouted” at them. Id. at 9. With his fists

       clenched, Busic lunged toward Thompson and “punched him[,] knocking him

       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1020 | April 19, 2016   Page 6 of 8
       to the ground.” Id. Busic then walked toward Smith with his fists still

       clenched. Officer Maher yelled for Busic to stop and warned him that he would

       be tased if he did not do so. Busic did not stop; instead, he continued toward

       Smith. Officer Maher tased Busic “to prevent him from striking [Smith].” Id.

       This evidence was sufficient to prove that Busic committed disorderly conduct

       by engaging in fighting and in tumultuous conduct.3


[11]   We recognize that Busic also suggests that the trial court committed

       fundamental error because it convicted him of disorderly conduct for having

       made unreasonable noise, when the charging information and the testimony at

       trial focused on evidence of disorderly conduct arising out of fighting and of

       tumultuous conduct. That is, Busic contends that he was improperly convicted

       of an offense that included an element not alleged in the charging information.

       As support for his claim of improper conviction, Busic cites to statements made

       by the trial court at the close of trial—that Busic was “yelling and screaming . . .

       at four in the morning.” Id. at 39. Although the trial court made those and

       other comments about unreasonable noise, the trial court also stated, “But I

       have no reason to discount the officer’s testimony that Mr. Busic was engaged




       3
         Thompson, testifying on Busic’s behalf, stated that Busic had not hit him. Based on this testimony, the trial
       court found Busic not guilty of battery. The absence of a battery does not, however, undermine Busic’s
       conviction for disorderly conduct. In Bailey v. State, 907 N.E.2d 1003, 1007 (Ind. 2009), our Supreme Court
       found sufficient evidence that the defendant engaged in tumultuous conduct where the “trier of fact could
       reasonably infer that serious bodily injury would result had Officer Hunter not arrived, given Bailey’s anger
       in approaching Dean Knight, throwing his coat and drink, his verbal tirade, and his cl[e]nched fists.” Here,
       Busic was drunk and angry, and lunged with clenched fists at both Thompson and Smith until he was
       stopped by Officer Maher’s act of deploying his taser.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1020 | April 19, 2016               Page 7 of 8
       in disorderly conduct at the intersection that night.” Id. at 39-40. The trial

       court was aware of the charges against Busic, believed the testimony given by

       Officer Maher, and convicted Busic of Class B misdemeanor disorderly

       conduct. We cannot say that Busic’s conviction was improper.


[12]   Affirmed.


[13]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1020 | April 19, 2016   Page 8 of 8
