MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                Mar 15 2016, 8:35 am
this 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
Joel C. Wieneke                                          Gregory F. Zoeller
Wieneke Law Office, LLC                                  Attorney General of Indiana
Plainfield, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Day,                                             March 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         24A05-1506-CR-724
        v.                                               Appeal from the Franklin Circuit
                                                         Court
State of Indiana,                                        The Honorable Clay M.
Appellee-Plaintiff.                                      Kellerman, Judge
                                                         Trial Court Cause No.
                                                         24C02-1501-CM-70



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016         Page 1 of 16
                                  Case Summary and Issue
[1]   Following a bench trial, Michael Day was convicted of disorderly conduct as a

      Class B misdemeanor. Day appeals his conviction, raising the sole issue of

      whether the evidence is sufficient to support the conviction. Concluding the

      evidence is sufficient, we affirm.



                             Facts and Procedural History                                   1




[2]   In January 2015, Day resided with his wife, M.D., and their two minor

      children, C.D. and J.D., in a home in Brookville, Indiana. Because of problems

      in the marriage and frequent arguments, the couple decided a divorce was

      necessary. M.D. described the couple’s “fighting” as “name calling.”

      Transcript at 6. A majority of the couple’s recent frustrations existed because

      the couple agreed to sell the marital home, but Day wanted to list the house

      with a realtor and M.D. wanted to speak to an attorney before taking any

      action.


[3]   On January 17, M.D. and J.D. were returning home from the movies when

      M.D. received a phone call from Day. When M.D. answered, Day said, “You

      f***ing bitch. I ought to kill you.” Id. at 8. M.D. immediately hung up the

      phone and continued toward home. After arriving home, M.D. made a snack




      1
       We held oral argument in this case on February 19, 2016 at Brownstown Central High School. We
      commend counsel for their advocacy and thank the faculty, staff, and students at the high school for their
      hospitality and participation.

      Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016              Page 2 of 16
      for the children as they watched television in the living room; Day was not

      home. M.D. had to work the next morning, so she went to her bedroom and

      left the boys in the living room; the living room was located just outside the

      bedroom. Shortly thereafter, M.D. awoke to Day shouting out in the living

      room: “Where is your mother? Where is your mother?” Id. at 10. Day entered

      the bedroom and began “screaming at the top of his lungs . . . ‘You f***ing

      bitch. You will sign these papers for the house.’” Id. Day was extremely angry

      and approached M.D. as she remained in bed. M.D. could smell alcohol on

      Day’s breath.


[4]   M.D. begged Day not to yell in front of the children, who were still in the living

      room. Day did not stop, and at some point, Day spit in M.D.’s face and then

      left the room. Fearful for her safety, M.D. called 911. After M.D. got off the

      phone with the 911 operator,2 Day went upstairs and continued screaming. At

      this point, M.D. went to comfort her children who were “out on the couch

      crying, upset, scared . . . .” Id. at 16. Next, M.D. entered the kitchen where she

      was cornered by Day. Day said to M.D., “If you’d just sign the papers this

      would all be over with.” Id. Thinking it was taking too long for the police to

      arrive, M.D. called 911 again; Day “just continued to yell.” Id. at 17.




      2
       After originally dialing 911, M.D. immediately hung up the phone before speaking with an operator
      because Day had reentered the room and she feared Day would find out she called 911. The 911 operator
      called M.D. back and asked if she needed assistance. M.D. originally declined assistance, but after a few
      moments, the 911 operator heard Day screaming. It was then that M.D. said she needed assistance.

      Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016            Page 3 of 16
[5]   Franklin County Sheriff’s Deputy Michael Strait and Sergeant Greg Melhbauer

      were dispatched to Day’s residence. After exiting his vehicle, Deputy Strait

      looked through the home’s glass front door and observed Day cornering M.D.;

      Day had his finger in M.D.’s face. While outside, Deputy Strait could hear

      Day screaming. After gaining entry to the house, Deputy Strait and Sergeant

      Melhbauer separated Day and M.D., and Day was arrested.


[6]   On January 28, 2015, the State charged Day with disorderly conduct as a Class

      B misdemeanor, alleging Day engaged in fighting and/or tumultuous conduct

      under Indiana Code section 35-45-1-3. At trial, the State called M.D. and

      Deputy Strait as its only witnesses. The State also admitted the 911 audio

      recordings. At the conclusion of the State’s evidence, Day moved for an

      acquittal, arguing the State did not meet its burden in proving he committed

      disorderly conduct. The trial court denied Day’s motion, and Day subsequently

      testified in his own defense. Day admitted to screaming at M.D. and calling

      her a “f***ing bitch,” but denied ever getting in her face, spitting in her face, or

      physically attacking her in any other way. Id. at 49. At the conclusion of the

      evidence, the trial court found Day guilty, stating, “If somebody won’t sign . . .

      papers in a divorce, the answer isn’t to come home and to get in a verbal

      altercation or be hostile, which absolutely . . . can be fighting . . . .” Tr. at 67.

      This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 4 of 16
                                Discussion and Decision
[7]   Day contends the evidence is insufficient to support his conviction for

      disorderly conduct because the State failed to prove Day disrupted the public.

      Day claims the legislature, in enacting Indiana’s disorderly conduct statute,

      intended to require a component of disrupting the public before one can be

      convicted of disorderly conduct. We disagree.


                                  I. Statutory Interpretation
                                      A. Standard of Review
[8]   Statutory interpretation is a question of law and is reviewed de novo. Fight

      Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 806 (Ind.

      Ct. App. 2015).


              Our primary goal in interpreting statutes is to determine and give
              effect to the Legislature’s intent. The best evidence of that intent
              is a statute’s text. The first step is therefore to decide whether the
              Legislature has spoken clearly and unambiguously on the point
              in question. When a statute is clear and unambiguous, we must
              apply the plain and ordinary meaning of the language. There is
              no need to resort to any other rules of statutory construction. As
              a result, we need not delve into legislative history if no ambiguity
              exists.


              But a statute is ambiguous when it admits of more than one
              reasonable interpretation. In that case, we resort to the rules of
              statutory construction so as to give effect to the Legislature’s
              intent. For example, we read the statute as a whole, avoiding
              excessive reliance on a strict, literal meaning or the selective


      Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 5 of 16
               reading of individual words. In a criminal case, we construe an
               ambiguous statute in favor of the defendant.


       Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012) (citations omitted).


                             B. The Disorderly Conduct Statute
[9]    Day contends “the statutory placement of the disorderly conduct statute in the

       article and chapter dealing with ‘public’ offenses, when compared to the broad

       language of the statute itself” renders the definition of the crime ambiguous.

       Brief of the Appellant at 7. In support of his argument that the statute is

       ambiguous, Day cites to the fact the legislature does not define the term

       “fighting.” In addition, he cites to the statute’s location in Title 35, Article 45,

       Chapter 1. Article 45 is entitled “Offenses Against Public Health, Order, and

       Decency,” and Chapter 1 is entitled “Offenses Against Public Order.”


[10]   Indiana’s disorderly conduct statute provides, in relevant part,

               (a) 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.


       Ind. Code § 35-45-1-3(a). As Day points out, our legislature has not defined the

       term “fighting.” When the legislature has not defined a word, we give the term

       its common and ordinary meaning. Whaley v. State, 843 N.E.2d 1, 11 (Ind. Ct.

       App. 2006), trans. denied. “In order to determine the plain and ordinary


       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 6 of 16
       meaning of words, courts may properly consult English language dictionaries.”

       Id. Relevant here, we determined in J.S. v. State, 843 N.E.2d 1013, 1016 (Ind.

       Ct. App. 2006), trans. denied, the common and ordinary meaning of the term

       “fight” refers to “a ‘[h]ostile encounter; either physical or verbal in nature.’” Id.

       (alterations in original) (quoting Black’s Law Dictionary 565 (5th ed. 1979)).

       The fact the legislature opted not to define the term “fighting” does not make

       the statute ambiguous, see Adams, 960 N.E.2d at 798, and Day does not argue

       how our previous definition of “fight” contributes to the statute’s alleged

       ambiguity, see J.S., 843 N.E.2d at 1016.


[11]   Next, we acknowledge Day’s argument that the disorderly conduct statute is

       found in an article and chapter of the criminal code describing offenses against

       the public. However, Indiana Code section 1-1-1-5(f) specifically states,

               The headings of titles, articles, and chapters as they appear in the
               Indiana Code, as originally enacted or added by amendment, are
               not part of the law and may be altered by the lawful compilers, in
               any official publication, to more clearly indicate content. These
               descriptive headings are intended for organizational purposes
               only and are not intended to affect the meaning, application or
               construction of the statute they precede.


       Because the statute’s descriptive heading is not part of the law and is subject to

       alteration by lawful compilers, we give little, if any, weight to Day’s argument

       the statute is ambiguous because the statute’s headings suggest the legislature

       intended to criminalize only acts of disrupting the public.




       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 7 of 16
[12]   Finally, we note Indiana’s disorderly conduct statute was adapted from a

       similar provision of the Model Penal Code, which provided,


               (1) A person is guilty of disorderly conduct if, with purpose to
               cause public inconvenience, annoyance or alarm, or recklessly
               creating a risk thereof, he:
                      (a) engages in fighting or threatening, or in violent or
                      tumultuous behavior; or
                      (b) makes unreasonable noise or offensively coarse
                      utterance, gesture or display, or addresses abusive
                      language to any person present; or
                      (c) creates a hazardous or physically offensive condition
                      by any act which serves no legitimate purpose of the actor
               “Public” means affecting or likely to affect persons in a place to
               which the public or a substantial group has access; among the
               places included are highways, transport facilities, schools,
               prisons, apartment houses, places of business or amusement, or
               any neighborhood.


       Model Penal Code § 250.2(1)(a) (1980) (emphasis in original); see also

       Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996) (noting Indiana’s

       disorderly conduct statute is patterned on Section 250.2). Although similar to

       Section 250.2, the statute departs from the language of the Model Code in

       important respects; namely, the legislature specifically omitted any reference to

       disrupting the “public.” See Whittington, 669 N.E.2d at 1367.


[13]   In Whittington, Whittington arrived home intoxicated and subsequently got into

       a verbal and physical altercation with his sister and her boyfriend inside; the

       sister was injured. The police were called, and when the police arrived,

       Whittington continued to argue with the boyfriend. The police also observed


       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 8 of 16
       that the sister was injured, and an ambulance was requested. After being told

       by police to be quiet and calm down, Whittington continued to act in a

       belligerent manner, and as a result, Whittington was arrested. Relevant here,

       all of this occurred inside a private residence, and there was no evidence that

       the sounds were detectable beyond the walls of the apartment, but there were

       others in the apartment who did not live there. The State charged Whittington

       with disorderly conduct under Indiana Code section 35-45-1-3(a), alleging he

       made unreasonable noise and continued to do so after being asked to stop. In

       determining whether the disorderly conduct statute applied to circumstances

       such as this, our supreme court first looked at the difference between the Model

       Penal Code and Indiana’s disorderly conduct statute. The Court recognized the

       legislature specifically deleted any reference to the requirement a person disrupt

       the public and thereby held “the application of the statute can extend to

       situations in addition to those constituting public nuisance.” Id. at 1367.


[14]   We are not persuaded Indiana’s disorderly conduct statute is ambiguous

       because the term “fighting” is undefined, nor are we persuaded its location in

       an article and chapter of the criminal code describing offenses against the public

       creates any ambiguity. Because the statute is not ambiguous, we will apply the

       plain and ordinary meaning of the language in the statute to determine whether

       the evidence is sufficient to support Day’s conviction for disorderly conduct.

       See Adams, 960 N.E.2d at 798.




       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 9 of 16
                                     II. Disorderly Conduct
                                       A. Standard of Review
[15]   When reviewing the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh

       the evidence nor reassess the credibility of witnesses. Bailey v. State, 907 N.E.2d

       1003, 1005 (Ind. 2009). We will affirm a conviction unless “no reasonable fact-

       finder could find the elements of the crime proven beyond a reasonable doubt.”

       Drane, 867 N.E.2d at 146-47 (citation omitted).


                                 B. Sufficiency of the Evidence
[16]   To convict Day of disorderly conduct, the State was required to prove he

       “recklessly, knowingly, or intentionally . . . engage[d] in fighting or tumultuous

       conduct . . . .” Ind. Code § 35-45-1-3(a)(1). As noted above, we have

       previously defined the term “fighting” within the meaning of the disorderly

       conduct statute. See J.S., 843 N.E.2d at 1016. In J.S., a high school police

       officer was patrolling the hallway and witnessed J.S. grab a male student’s hair

       and smack him with an open hand three times across his face. Assuming it was

       a fight, the officer intervened and arrested J.S; J.S. claimed she was just flirting

       with the boy. The State charged J.S. with disorderly conduct, alleging J.S. was

       “fighting at school.” Id. After the delinquency hearing, the trial court entered a

       true finding of disorderly conduct, explaining the act of hitting the other student




       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 10 of 16
       two or three times constituted fighting within the meaning of the disorderly

       conduct statute.


[17]   On appeal, J.S. argued the evidence was insufficient to support her conviction

       for disorderly conduct because “the officer’s mistaken belief about [her]

       flirtatious behavior is not evidence of fighting to support an adjudication for

       disorderly conduct . . . .” Id. at 1015. Defining the term as a physically or

       verbally hostile encounter, we concluded the evidence was not sufficient to

       support J.S.’s conviction because the only evidence suggesting J.S. acted with

       hostility was the police officer’s testimony that he assumed the pair were

       fighting.


[18]   Unlike J.S., the evidence supporting Day’s conviction is more probative than a

       police officer’s mere assumption. Before arriving home, Day called M.D.,

       screaming “You f***cking bitch. I ought to kill you.” Tr. at 8. When he

       arrived home, Day began screaming at M.D. in front of their children. Day

       continued to call M.D. a “f***cking bitch” and demanded she sign the papers

       to sell the house; Day claimed he would not allow M.D to leave until she

       signed the papers. While M.D. pleaded with Day to stop screaming in front of

       the children, she became fearful for herself and her children, calling 911

       multiple times. Even when the children began crying, Day did not stop yelling,

       and at some point, Day approached M.D. and spit in her face. When Deputy

       Strait arrived at the residence, he witnessed Day cornering M.D. and pointing

       his finger in M.D.’s face. In addition, Deputy Strait could hear Day screaming

       from outside the house.

       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 11 of 16
[19]   Day’s conduct was hostile and we conclude Day engaged in “fighting” within

       the meaning of Indiana’s disorderly conduct statute.3 See J.S., 843 N.E.2d at

       1016. To the extent Day argues the evidence is insufficient because his conduct

       occurred in his private residence, we are not persuaded the disorderly conduct

       statute is ambiguous, see supra Part I.B., and given the plain and ordinary

       meaning of the statute, Day himself concedes, “[I]t seems that a verbal

       altercation or hostility between family members in the privacy of their own

       home could satisfy the crime of disorderly conduct by fighting.” Br. of

       Appellant at 6.


[20]   Finally, we take this opportunity to respectfully address the dissent. The dissent

       describes the encounter between Day and M.D. as a “verbal argument,”

       arguing the legislature did not intend for a “verbal argument” between members

       of a household, occurring within their own home, to be the sole basis of a

       criminal conviction for disorderly conduct. The dissent presents a good

       argument, and we agree the legislature did not intend to criminalize the act of

       engaging in a “verbal argument.” However, we reemphasize it is the legislature

       who enacts a statute defining a crime, and when we are tasked with interpreting

       the statute on appeal, our primary goal is to determine and give effect to the

       legislature’s intent. See Adams, 960 N.E.2d at 798. The best evidence of the

       legislature’s intent is the statute’s text, id., and given the disorderly conduct

       statute’s text and the definition of “fighting,” the legislature intended to



       3
           In fact, we note Day is fortunate not to have been charged with a more serious offense.


       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016          Page 12 of 16
       criminalize, without regard to the location, the act of engaging in a physically

       or verbally hostile encounter. Therefore, our decision does not suggest, contrary

       to the dissent’s assertion, an individual can be convicted of disorderly conduct

       for engaging in a physical encounter or a verbal encounter. Rather, to be

       convicted of “fighting” under the Indiana disorderly conduct statute, an

       individual must engage in either a physically hostile encounter or a verbally

       hostile encounter. In addition, we note the dissent attempts to minimize Day’s

       conduct by describing the encounter as a “verbal argument.” This was much

       more than a verbal argument. We conclude the evidence is sufficient to prove

       Day committed disorderly conduct.



                                               Conclusion
[21]   Indiana’s disorderly conduct statute is not ambiguous, and given the plain and

       ordinary meaning of the statute’s language, we conclude the evidence is

       sufficient to support Day’s conviction. Accordingly, we affirm.


[22]   Affirmed.


       Altice, J., concurs.


       Baker, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 13 of 16
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Michael Day,                                             Court of Appeals Case No.
                                                                24A05-1506-CR-724
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Baker, Judge, dissenting.


[23]   I respectfully dissent. I simply cannot believe that a verbal argument between

       members of a household, within their own home, can be the sole basis of a

       criminal conviction for disorderly conduct. Were this the case, spouses would

       have to fear arguing, parents would have to fear raising their voices at their

       children, and siblings would have to fear squabbling over toys. I cannot

       conclude that our legislature intended that two teenaged siblings arguing over

       what TV show to watch within their own home could be adjudicated

       delinquent. That cannot possibly be included in the definition of “fighting” or


       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 14 of 16
       “tumultuous conduct[.]” I.C. § 35-45-1-3(a). But under the majority opinion,

       which affirms a criminal conviction for a verbal argument between spouses

       within the confines of a residence, these basic human interactions would,

       indeed, be criminal.4


[24]   The majority emphasizes that a “verbally hostile encounter” is what the statute

       requires. Initially, I note that the phrase “verbally hostile encounter” cannot be

       found in the statute. Moreover, I have significant questions about the ability of

       anyone, including law enforcement, prosecutors, and citizens, to distinguish

       between a “verbal argument” and a “verbally hostile encounter.” Most people

       would readily admit that verbal arguments between spouses or between

       teenaged siblings are frequently laced with—or entirely comprised of—hostility.

       I do not believe that the addition of hostility is a meaningful statutory

       distinction; nor does it cause me to conclude that such behavior can or should

       form the basis of a criminal conviction.


[25]   Finally, the majority opines that the interaction in this case was “much more

       than a verbal argument.” Slip op. p. 13. I disagree. Aside from the incident in

       which Day spat on his wife—which I have already stated could form the basis

       of a separate criminal charge and conviction—it was entirely a verbal argument.

       Was it laced with hostility? Perhaps. But that does not change the fact that it




       4
         There is some evidence in the record that Day spat on his wife. This act constitutes a separate offense of
       class B misdemeanor battery by bodily waste. Ind. Code § 35-42-2-1(b). Had Day been charged and
       convicted of this offense rather than disorderly conduct, I would have no issue with the outcome.

       Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016              Page 15 of 16
was a verbal argument, and does not change my belief that these facts are

insufficient to support a criminal conviction for disorderly conduct by fighting

or tumultuous conduct. I disagree with this application of the disorderly

conduct statute, and believe we should reverse Day’s conviction.




Court of Appeals of Indiana | Memorandum Decision 24A05-1506-CR-724 | March 15, 2016   Page 16 of 16
