MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                              Nov 22 2016, 8:31 am
regarded as precedent or cited before any
                                                                       CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. Burns                                        Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian Burns,                                            November 22, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1604-CR-894
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Annie Christ-
Appellee-Plaintiff.                                     Garcia, Judge
                                                        Trial Court Cause No.
                                                        49G24-1601-F6-3467



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016    Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Brian Burns (Burns), appeals his conviction for disorderly

      conduct, a Class B misdemeanor, Ind. Code § 35-45-1-3(a)(2).


[2]   We affirm.


                                                    ISSUE

[3]   Burns raises one issue on appeal, which we restate as: Whether the State

      established sufficient evidence to support his conviction beyond a reasonable

      doubt.


                           FACTS AND PROCEDURAL HISTORY

[4]   At approximately 4:00 a.m. on January 26, 2016, Indianapolis Metropolitan

      Police Officer Molly McAfee (Officer McAfee) responded to a report of a

      “troubled person” at the Speedway Gas Station at 1404 West Washington

      Street in Indianapolis, Indiana. (Transcript p. 16). When she and other

      responding officers arrived, Officer McAfee observed Burns walking from the

      west side of the gas station’s parking lot towards the officers. Burns was waving

      his hands in the air and yelling “at the top of his lungs.” (Tr. p. 18). He was

      walking “in an aggressive combative” manner, “with his chest puffed out and

      his hands out.” (Tr. p. 17). Burns was screaming, “[Y]ea I am the one you

      want . . . and I demand you to respect my authority you are not the authority I

      am the authority,” and was using profanity. (Tr. p. 17). The officers tried to




      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016   Page 2 of 7
      calm Burns and figure out what was going on. Burns “made no attempt to

      listen to” them. (Tr. p. 17).


[5]   While the officers repeatedly told Burns to quiet down, other people were

      pulling into the gas station. Some people would pull in, notice what was going

      on and then “pull away[,] they didn’t want to stop” while other people were

      “gawking” and laughing. (Tr. p. 18). Despite Officer McAfee asking “multiple

      times” to quiet down, Burns refused. Even after being arrested and transported

      to jail, Burns continued to yell.


[6]   On January 27, 2016, the State filed an Information, charging Burns with

      Count I, intimidation, a Level 6 felony; and Count II, disorderly conduct, a

      Class B misdemeanor. On March 26, 2016, the State filed a motion to dismiss

      Count I, which was granted by the trial court. On April 5, 2016, the trial court

      conducted a jury trial, at the close of which, the jury returned a guilty verdict.

      Immediately following the guilty verdict, the trial court sentenced Burns to 140

      days executed.


[7]   Burns now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION


[8]   Burns contends that the State failed to establish sufficient evidence to sustain his

      conviction for disorderly conduct beyond a reasonable doubt. Our standard of

      review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740

      N.E.2d 109, 111 (Ind. 2000). In reviewing the sufficiency of the evidence, we


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016   Page 3 of 7
      examine only “the probative evidence and reasonable inferences” that support

      the verdict. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State,

      867 N.E.2d 144, 146 (Ind. 2007)). We do not assess witness credibility, nor do

      we reweigh the evidence to determine if it was sufficient to support a

      conviction. Lock, 971 N.E.2d at 74. Under our appellate system, those roles

      are reserved for the finder of fact. Id. Instead, we consider only the evidence

      most favorable to the trial court’s ruling and affirm the conviction unless no

      reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt. Id. This evidence need not overcome every reasonable

      hypothesis of innocence; it is sufficient as long as “‘an inference may reasonably

      be drawn from it to support the verdict.’” Id (quoting Drane, 867 N.E.2d at

      147).


[9]   In order to establish disorderly conduct, the State was required to prove that

      Burns “recklessly, knowingly, or intentionally” made “unreasonable noise and

      continue[d] to do so after being asked to stop[.]” See I.C. § 35-45-6-3(a)(2). Not

      disputing the intent element, Burns solely focuses his challenge on the

      “unreasonable noise” requirement by alleging that he “did not produce context-

      inappropriate volume and was not too loud for the circumstances.” 1

      (Appellant’s Br. p. 9).




      1
        Burns does not allege that his speech could be characterized as protected political expression, directed
      towards criticizing an official acting under color of law and protected by Article I, Section 9 of the Indiana
      Constitution.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016              Page 4 of 7
[10]   In Price v. State, 622 N.E.2d 954, 966 (Ind. 1993), our supreme court explained

       that the criminalization of “unreasonable noise” was “aimed at preventing the

       harm which flows from the volume” of noise. As such, “[t]he State must prove

       that a defendant produced decibels of sound that were too loud for the

       circumstances.” Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996)

       (emphasis in original). “Whether the State thinks the sound conveys a good

       message, a bad message, or no message at all, the statute imposes the same

       standard: it prohibits context-inappropriate volume. Id. (emphasis in original).

       The Whittington court described different situations in which loud noise can be

       found unreasonable:


               It could threaten the safety of injured parties by aggravating their
               trauma or by distracting the medical personnel tending to them.
               Loud outbursts could agitate witnesses and disrupt police
               investigations. It could make coordination of investigations and
               medical treatment more difficult. Finally, loud noise can be quite
               annoying to others present at the scene.


       Id.


[11]   In the instant case, the officers investigated the report of a troubled person.

       When they arrived on the scene, Burns approached them in an aggressive

       manner, waving his hands, and yelling at the top of his lungs across the gas

       station’s parking lot. Despite the officers’ numerous warnings, as testified to by

       Officer McAfee, Burns did not quiet down. Officer McAfee clarified that

       officers were present at the gas station for “[a]pproximately thirty minutes” and

       during that time, they told Burns to calm down at “least fifteen to twenty

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016   Page 5 of 7
       times.” (Tr. p. 20). Officer McAfee testified that because of Burns’ noise and

       attitude, business at the gas station was disrupted, with some customers leaving

       without a purchase after observing Burns’ tirade.


[12]   Based on the evidence, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to support Burns’ conviction for disorderly conduct.

       Not only was Burns’ yelling disruptive of the officers’ investigation as he “made

       no attempt to listen to” the officers, it also had an adverse economic impact on

       the gas station’s business that early morning. (Tr. p. 17); see Whittington, 669

       N.E.2d at 1367. Despite numerous warnings, Burns did not cease screaming.

       See Humphries v. State, 568 N.E.2d 1033, 1037 (Ind. Ct. App. 1991) (evidence

       that the officer asked defendant to stop yelling otherwise he would be placed

       under arrest constituted substantial evidence defendant was speaking in an

       unreasonably loud voice). The record reflects that Burns was yelling at least

       from the time the officers arrived until they left approximately thirty minutes

       later. Even his arrest did not deter him from continuing to make unreasonable

       noise. Burns’ request to now find that his behavior did not rise to the level of

       unreasonable noise merely amounts to an invitation to reweigh the evidence,

       which we are not allowed to do. See Lock, 971 N.E.2d at 74.


                                              CONCLUSION

[13]   Based on the foregoing, we hold that the State presented sufficient evidence

       beyond a reasonable doubt to sustain Burns’ conviction for disorderly conduct.


[14]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016   Page 6 of 7
[15]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016   Page 7 of 7
