MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jul 25 2019, 10:30 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Tiffany A. McCoy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dennis Gibson,                                            July 25, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-436
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Clayton Graham,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Steven J. Rubick,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G07-1810-CM-33904



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019                    Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Dennis Gibson (Gibson), appeals his conviction for

      disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a)(1).


[2]   We affirm.


                                                    ISSUE
[3]   Gibson presents this court with one issue on appeal, which we restate as:

      Whether the State presented sufficient evidence beyond a reasonable doubt to

      sustain his conviction for disorderly conduct.


                      FACTS AND PROCEDURAL HISTORY
[4]   On the evening of September 9, 2018, Gibson was waiting to enter Club Blu

      nightclub in downtown Indianapolis, Indiana. Indianapolis Police Officer

      Sergio De Leon (Officer De Leon) was off duty that night but was working

      security at the nightclub. He was sitting in his patrol car, parked outside the

      nightclub’s entrance, while watching “a pretty large crowd of people in front of

      the bar, with many people going in and out.” (Transcript pp. 6, 9).


[5]   Officer De Leon noticed two men, later identified as Douglas Currie (Currie)

      and Gibson, near the rear wheel well of his patrol car. While the officer was

      observing them, he saw Gibson throw a “punch” at Currie. (Tr. p. 10). He

      “observed Gibson wind back and . . . strike Currie in the face with his right

      hand.” (Tr. p. 6). Watching the entire time, Officer De Leon did not see Currie

      attempt to hit Gibson before or after Gibson punched Currie. Exiting his patrol

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019   Page 2 of 7
      car, Officer De Leon positioned himself in between Currie and Gibson and

      ordered Gibson to stop. However, Gibson “continued to walk towards Currie

      with his fist closed as if he was going to keep hitting” Currie. (Tr. p. 7). As

      Gibson was “charging” at Currie, Officer De Leon “tried to grab him, and . . .

      ended up falling to the ground.” (Tr. p. 7). Officer De Leon handcuffed

      Gibson.


[6]   On October 3, 2018, the State filed an Information, charging Gibson with

      Count I, battery, as a Class B misdemeanor, and Count II, disorderly conduct,

      as a Class B misdemeanor. On January 24, 2019, the trial court conducted a

      bench trial and, at the conclusion of the evidence, found Gibson not guilty of

      battery, but guilty of disorderly conduct. In its ruling from the bench, the trial

      court found as follows:


              It’s not in dispute that [Gibson] touched Currie because [Gibson]
              admitted touching [Currie]. [] [Currie] did not care enough to
              show up today to testify. I can’t fully consider the evidence
              regarding battery. [] There are a lot of explanations for why
              people hit each other. And again, [Currie] is not here. Based on
              that I find the State has failed to carry its burden as to Count I.
              But the officer did testify, very clearly and plainly, that he gave
              orders to [Gibson] which were not followed, and he engaged in a
              tumultuous course of conduct as he failed to comply with the
              officer’s orders. The State has met its burden as to Count II.


      (Tr. p. 21). That same day, Gibson was sentenced to four days in the Marion

      County Jail.


[7]   Gibson now appeals. Additional facts will be provided if necessary.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019   Page 3 of 7
                               DISCUSSION AND DECISION
[8]    Gibson contends that the State did not present sufficient evidence beyond a

       reasonable doubt to sustain his conviction. When reviewing the sufficiency of

       the evidence to support a conviction, we consider only the probative evidence

       and reasonable inferences supporting the judgment. Jackson v. State, 50 N.E.3d

       767, 770 (Ind. 2016). We neither assess witness credibility nor weigh the

       evidence, and we will affirm the conviction unless no reasonable fact-finder

       could find the elements of the crime proved beyond a reasonable doubt. Id.


[9]    To convict Gibson for disorderly conduct as a Class B misdemeanor, the State

       was required to establish that Gibson “recklessly, knowingly, or intentionally:

       (1) engage[d] in fighting or in tumultuous conduct.” See I.C. § 35-45-1-3(a)(1).

       In Day v. State, 57 N.E.3d 809, 813 (Ind. 2016), our supreme court interpreted

       “fighting” narrowly, as to “cover[] only physical altercations.” “Tumultuous

       conduct,” on the other hand, is defined as “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. “The term ‘likely,’ as used to define tumultuous conduct,

       includes a temporal element of immediacy.” Davis v. State, 672 N.E.2d 1365,

       1367 (Ind. Ct. App. 1996). The trial court found Gibson guilty under the

       tumultuous conduct prong of the charge.


[10]   On appeal, Gibson’s argument focuses on the fact that Currie did not incur

       serious bodily injury, and he denies that any inference existed that serious

       bodily injury was likely to result. Relying on case law interpreting serious


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019   Page 4 of 7
       bodily injury for a battery conviction, Gibson asserts that the State did not

       establish that Currie had suffered “extreme pain” when Gibson struck him.

       (Appellant’s Br. p. 13). We find Gibson’s argument to be meritless.


[11]   Interpreting the serious bodily injury element of the charge, our supreme court

       has noted that tumultuous conduct can be established “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). In Bailey, after throwing down his drink and his coat, Bailey

       stepped towards the victim in an angry manner, with clinched up fists at his

       sides and let out a series of obscenities all within inches of the victim’s face. Id.

       at 1007. Bailey only backed away from the victim upon noticing an officer

       present. Id. Our supreme court noted that it “was reasonable for the trier of

       fact to conclude that, but for the officer’s arrival, Bailey’s conduct would have

       escalated” as there was sufficient evidence to conclude that serious bodily injury

       was likely to result. Id.


[12]   Likewise here, Officer De Leon testified that Gibson had thrown the first punch

       at Currie before he could interfere. He “observed Gibson wind back and . . .

       strike Currie in the face with his right hand.” (Tr. p. 6). Gibson refused to

       follow Officer De Leon’s order to stop and instead “continued to walk towards

       Currie with his fist closed as if he was going to keep hitting” Currie. (Tr. p. 7).

       Gibson charged at Currie, while Officer De Leon “tried to grab him, and . . .

       ended up falling to the ground.” (Tr. p. 7). Accordingly, but for Officer De

       Leon’s interference, Gibson would have continued his escalating conduct and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019   Page 5 of 7
       the trier of fact could reasonably conclude that serious bodily injury was likely

       to result and thus that Gibson had engaged in tumultuous conduct.


[13]   Nevertheless, focusing on the trial court’s concluding remarks, Gibson asserts

       that the trial court’s statement that “[t]here are a lot of explanations for why

       people hit each other” must necessarily preclude a guilty verdict. (Appellant’s

       Br. p. 15). In support of his argument, Gibson refers this court to Kribs v. State,

       917 N.E.2d 1249 (Ind. Ct. App. 2009), where Kribs was charged with

       knowingly or intentionally entering an area of an airport to which access is

       controlled by the inspection of persons and property while he carried a

       handgun. See I.C. § 35-47-6-1.3. In its findings, the trial court stated that it

       believed that Kribs “didn’t remember” that he had the handgun in his

       possession when he entered the airport and that there was no “malicious intent”

       involved. Id. at 1251. We reversed Kribs’s conviction, noting that “[t]he trial

       court observed the witnesses, weighed the evidence, and concluded that Kribs

       was unaware that he had the handgun in his possession when he entered the

       airport and placed it on the x-ray conveyor belt.” Id. We cautioned that “[h]ad

       the trial court remained silent, we would likely have affirmed Kribs’s

       conviction. In such a situation, we could have inferred that the trial court did

       not believe Kribs’s version of events or that it gave more weight to the evidence

       highlighted by the State that Kribs always carried the handgun in his jacket

       pocket.” Id. Relying on the Kribs court’s rationale, Gibson maintains that

       “[t]he court’s words reveal its conclusion that the State not only failed to prove




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019   Page 6 of 7
       Gibson committed battery, but also failed to prove Gibson engaged in

       disorderly conduct by fighting.” (Appellant’s Br. pp. 15-16).


[14]   We cannot say that the trial court’s statement contradicts or otherwise affects

       Gibson’s conviction. While the trial court’s statement that “there are a lot of

       explanations for why people hit each other” reflects upon the underlying

       motives of the actors, this general assertion does not indicate that all or parts of

       the disorderly conduct charge have not been met. Rather, immediately prior to

       the statement, the trial court considered Gibson’s admission that he had hit

       Currie. Accordingly, in light of the complete statement, the trial court’s

       statement did not negate Gibson’s guilty judgment.


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

       beyond a reasonable doubt to sustain Gibson’s conviction for disorderly

       conduct.


[16]   Affirmed.


[17]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019   Page 7 of 7
