MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any                            Aug 31 2016, 9:37 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jaquecke Hughes,                                         August 31, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1601-CR-10
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven Rubick,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G19-1506-CM-20715



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-10 | August 31, 2016          Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jaquecke Hughes (Hughes), appeals her conviction for

      disorderly conduct, a Class B misdemeanor, Ind. Code § 35-45-1-3(a)(1) (2014).


[2]   We reverse.


                                                     ISSUE

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

      State presented sufficient evidence to support her conviction for disorderly

      conduct.


                           FACTS AND PROCEDURAL HISTORY

[4]   On June 12, 2015, Officer Michael Roach (Officer Roach) of the Indianapolis

      Metropolitan Police Department was dispatched to 1853 North Holmes

      Avenue, Indianapolis, in Marion County, Indiana, in response to a disturbance

      among some family members. When he arrived, he discovered that two of the

      residents, Hughes and her mother, were having a disagreement about their

      living arrangement. Officer Roach discerned that Hughes was living in her

      mother’s home, and her mother wanted to evict her. Hughes explained to

      Officer Roach “that she was currently trying to find another place to live.” (Tr.

      p. 7). Officer Roach observed that “[e]verybody was angry,” and he attempted

      to diffuse the situation by suggesting that Hughes’ “mother let [Hughes] have

      some time to find a new place to live. And everybody agreed to that.” (Tr. p.

      7). Feeling that the situation had been resolved, Officer Roach left the scene.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-10 | August 31, 2016   Page 2 of 7
[5]   Approximately five minutes later, Officer Roach was dispatched to return to the

      residence. When he arrived, he observed “at least four people” outside, which

      included Hughes, Hughes’ mother, Hughes’ sister, and Hughes’ girlfriend. (Tr.

      p. 9). “It appeared by looking at the area that there had been some type of fight

      or altercation.” (Tr. p. 8). “Specifically there was a chair that was on the patio

      when we left. It was in the grass. There was a purse scattered about in the

      grass. And there were multiple people that were still very angry.” (Tr. p. 9).

      Hughes reported to Officer Roach that her mother had initially left the

      residence after the officer’s first visit, but she “came back and started an

      altercation.” (Tr. p. 9). Officer Roach could not recall whether Hughes stated

      that she had fought back when her mother began the altercation.


[6]   Officer Roach observed “a very small cut to the top of [Hughes’] lip” as well as

      injuries to Hughes’ neck. (Tr. p. 10). Officer Roach recalled that Hughes’

      mother “had a small abrasion above her eye,” and Hughes’ sister complained of

      some type of “pain.” (Tr. p. 29). Hughes’ girlfriend also had injuries to her

      face and neck. Officer Roach opined that, based on his training and experience,

      during the five minutes that he was gone from the scene, a fight occurred.

      Officer Roach noted “[t]he elevated emotional status of everybody on scene.

      The—observing the area where the people were, it was clear that something had

      happened where like I said the chair had—was way off the side of the—the

      front porch. There was a purse in the yard. It was clear to me that there was a

      fight there.” (Tr. p. 11). In addition, “[t]here were definitely verbal acts of

      aggression while we were on scene.” (Tr. p. 27). Based on the fact that he


      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-10 | August 31, 2016   Page 3 of 7
      received conflicting evidence about the incident, Officer Roach arrested

      Hughes, her mother, her sister, and her girlfriend.


[7]   On June 13, 2015, the State filed an Information, charging Hughes with one

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

      (2014). On December 14, 2015, the trial court conducted a bench trial.

      Following the State’s case-in-chief, Hughes moved for dismissal pursuant to

      Trial Rule 41(B). Hughes argued that the State had failed to present any

      evidence that she engaged in a fight. The trial court denied Hughes’ motion to

      dismiss. During the defense’s case-in-chief, Hughes testified that there had been

      a physical altercation, during which her mother had choked her and her sister

      had been hitting her. Hughes also testified that she was outmatched by her

      mother and her sister, who are both larger than her, so she was unable to even

      defend herself. She specifically stated, “I didn’t swing, I just tried not to fall.”

      (Tr. p. 38). Hughes further added that after a bystander helped remove her

      mother and sister, they turned their attention to Hughes’ girlfriend and

      “attacked” her. (Tr. p. 39). At the close of the evidence, the trial court found

      Hughes guilty and, immediately thereafter, sentenced her to serve fourteen days

      in the Marion County Jail.


[8]   Hughes now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[9]   Hughes claims that there is insufficient evidence to uphold her conviction for

      disorderly conduct as a Class B misdemeanor. When reviewing the sufficiency


      Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-10 | August 31, 2016   Page 4 of 7
       of the evidence necessary to uphold a criminal conviction, our court does not

       reweigh evidence or assess the credibility of witnesses. Bailey v. State, 907

       N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the

       judgment and any reasonable inferences that can be drawn from such

       evidence.” Id. So long as “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,” we will affirm the conviction. Id.


[10]   In order to convict Hughes of disorderly conduct, the State was obligated to

       prove that she “recklessly, knowingly, or intentionally . . . engage[d] in fighting

       or in tumultuous conduct.” I.C. § 35-45-1-3(a)(1) (2014). Here, the State relied

       on the fighting prong, rather than on the tumultuous conduct prong. On

       appeal, Hughes claims that the State presented no evidence that she “‘engaged

       in’ fighting as a willing participant.” (Appellant’s Br. p. 9). We agree with

       Hughes.


[11]   According to the dictionary definition, “engage” means, in relevant part, “to

       start fighting against (an opponent)”; “to enter into contest or battle with”; or

       “to do or take part in something.” MERRIAM-WEBSTER, http://www.merriam-

       webster.com/dictionary/engage (last visited Aug. 16, 2016). Thus, to have

       engaged in fighting for the purposes of disorderly conduct, there must be

       evidence that Hughes recklessly, knowingly, or intentionally participated in the

       fight. Here, State relied entirely on the testimony of Officer Roach and some

       photographs that were taken at the scene. This evidence establishes that Officer

       Roach did not witness any physical altercation. Rather, when he returned to

       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-10 | August 31, 2016   Page 5 of 7
       the scene, he noticed that there was a chair in the yard, which had been on the

       porch during his first call to the house, and there was a purse in the yard. There

       is no indication in the record as to how or why either of these items ended up in

       the yard.


[12]   The photographic evidence establishes that Hughes received slight injuries to

       her face and neck, as did her girlfriend. Officer Roach testified that Hughes’

       mother sustained “a small abrasion above her eye,” 1 and Hughes’ sister made a

       complaint of “pain.” (Tr. p. 29). However, there is no evidence to establish

       who, of the four people present, inflicted which injuries upon whom. It is

       entirely possible that Hughes’ mother and sister sustained their purported

       injuries by fighting with Hughes’ girlfriend or as simply the result of their own

       aggression against Hughes. On direct examination, Officer Roach testified that

       he could not recall whether Hughes had reported that she “fought back” against

       her mother and sister, and during her case-in-chief, Hughes claimed that she

       was overpowered by her mother and sister and never took any “swing[s].” (Tr.

       pp. 9, 38). Thus, there is no evidence before our court that establishes beyond a

       reasonable doubt that Hughes actively participated in the fighting match.


[13]   We do note that the trial court appears to have found that Hughes lacked

       credibility, as indicated by the trial court’s comment that “Hughes testified in a

       heart-felt manner when her own attorney was questioning her. On cross her




       1
           In our examination of the exhibits, we are unable to discern any such “abrasion.” (Tr. p. 29).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-10 | August 31, 2016                 Page 6 of 7
       tone changed rather dramatically. Court finds the State has met its burden.”

       (Tr. p. 45). We recognize that it is the role of the trial court, not our court, to

       assess the credibility of witnesses. Even assuming that the trial court entirely

       discredited Hughes’ testimony, we find that the remaining evidence—i.e.,

       Officer Roach’s testimony—fails to establish that Hughes engaged in the

       fighting.


                                               CONCLUSION

[14]   Based on the foregoing, we conclude that the State presented insufficient

       evidence to prove that Hughes engaged in fighting to support her conviction for

       disorderly conduct.


[15]   Reversed.


[16]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A05-1601-CR-10 | August 31, 2016   Page 7 of 7
