Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                    Oct 17 2012, 8:48 am
court except for the purpose of
establishing the defense of res judicata,                           CLERK
                                                                  of the supreme court,

collateral estoppel, or the law of the case.                      court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

ELIZABETH A. HARDTKE                            GREGORY F. ZOELLER
South Bend, Indiana                             Attorney General of Indiana

                                                AARON J. SPOLARICH
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARK PHILLIPS,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 71A03-1201-CR-35
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable Richard L. McCormick, Judge
                             Cause No. 71D01-1107-CM-3967



                                     October 17, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Mark Phillips appeals his conviction for Disorderly Conduct,1

a class B misdemeanor, challenging the sufficiency of the evidence. Specifically, Phillips

argues that the State failed to prove that he made unreasonable noise and continued to do

so after having been asked to stop by a police officer. Phillips also contends that the

State failed to prove that Phillips’s words were fighting words or that his words caused a

public nuisance. Finding the evidence sufficient, we affirm the trial court’s judgment.

                                           FACTS

          On the morning of July 17, 2011, Doris Smith called 911 and told the dispatcher

that Phillips, her fiancée, was threatening her son with a knife. At approximately 11:00

a.m., the dispatcher contacted Officer James Sweeney of the South Bend Police

Department regarding the disturbance. Officer Sweeney and another patrolman went to

Phillips’s residence. When Officer Sweeney opened the door to his patrol car, the officer

could hear a man and a woman screaming in the house.

          Smith allowed one of the officers to enter her house. She had been crying and

appeared “visibly rattled.” Tr. p. 8. Although no one else was on the main floor of the

home, Officer Sweeney could hear Phillips cursing and screaming from the upper level.

Officer Sweeney ascended two stairs and ordered Phillips to the main floor. Phillips

walked down the stairs and “was very agitated, pacing back and forth, cursing.” Id. at 12.

Phillips was “sweating, screaming, yelling, [and] cursing.” Id.



1
    Ind. Code § 35-45-1-3.

                                              2
       Smith asked that Phillips be removed from the home. When Officer Sweeney

asked Phillips to follow him outside, Phillips responded that it was his “MF house, why

does [he] have to leave.” Id. at 13. Officer Sweeney and Phillips exited the back door of

the house into a common area of the duplex building. Id. Several people were outside at

the time in adjacent yards.

       Officer Sweeney explained the situation to Phillips and offered to drive him

elsewhere. Phillips continued to scream profanities, including that “this is my MF house,

I haven’t done—fill in your explicative [sic].”     Id. at 14. Officer Sweeney then told

Phillips to stop screaming because “there are people outside, they don’t want to hear this,

[Phillips is] upsetting [his] wife.” Id. at 16. Phillips “repeated back to [Officer Sweeney]

that this is my house, I’m not leaving, I can do what I want, I didn’t call you.” Id. at 16.

Officer Sweeney ordered Phillips to stop screaming at least three times.

       Phillips screamed profanities for approximately two minutes as the neighbors in

the adjacent yards watched. After “several loud bursts of cursing,” Officer Sweeney

handcuffed Phillips and placed him in his police vehicle.          Tr. p. 16, 31. Phillips

“continued to scream and yell, curse.” Id. at 16. Phillips began screaming about bail

money and did not stop the profane tirade until he was secured in the police vehicle.

       On July 18, 2011, the State charged Phillips with disorderly conduct, a Class B

misdemeanor. Following a bench trial on December 7, 2011, Phillips was found guilty as

charged. He was later sentenced to six days in the St. Joseph County Jail, with credit for

six days already served. Phillips now appeals.

                                             3
                                DISCUSSION AND DECISION

        In addressing Phillips’s challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor determine the credibility of witnesses. Mitchell v. State, 813

N.E.2d 422, 427 (Ind. Ct. App. 2004). Rather, we look solely to the evidence most

favorable to the judgment together with all reasonable inferences to be drawn therefrom.

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

find the evidence sufficient. Blackman v. State, 868 N.E.2d 579, 583 (Ind. Ct. App.

2007). We will affirm a defendant’s conviction unless no reasonable fact-finder could

find the elements of the crime proven beyond a reasonable doubt. Anderson v. State, 881

N.E.2d 86, 91 (Ind. Ct. App. 2008).

        To convict Phillips of disorderly conduct as charged, the State must prove that he

(1) recklessly, knowingly, or intentionally (2) made unreasonable noise (3) and continued

to do so after being asked to stop. I.C. § 35-45-1-3. As noted above, Phillips argues that

the State failed to prove that he made unreasonable noise, that his yelling of profanities

did not constitute a public nuisance, and that he did not engage in “fighting words.” 2

Appellant’s Br. p. 7-10.

        In accordance with the disorderly conduct statute, noise is “unreasonable” if it is

too loud for the circumstances. See Yowler v. State, 894 N.E.2d 1000, 1003 (Ind. Ct.

App. 2008) (finding that the yelling of loud profanities was sufficient to sustain a

conviction for disorderly conduct where the yelling drew the attention of neighbors).
2
 “Fighting words” are those “which by their very utterance inflict injury or tend to incite an immediate
breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
                                                   4
Moreover, we are not concerned with the content of the message itself. In other words,

the disorderly conduct statute prohibits “context-inappropriate volume.” Whittington v.

State, 669 N.E.2d 1363, 1367 (Ind. 1996) (emphasis in original). And as we observed in

Hooks v. State, 660 N.E.2d 1076, 1077 (Ind. Ct. App. 1996), “the prohibition against

unreasonable noise in Indiana’s disorderly conduct statute . . . is aimed at the

intrusiveness and loudness of expression, not whether the content of the language is

obscene or provocative.”

       Loud noise may be held to be unreasonable for various reasons, including “[loud]

outbursts [that] 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.” Whittington, 669 N.E.2d at 1367.

       As discussed above, when Phillips accompanied Officer Sweeney outside, there

were several people in adjacent yards, and Phillips was screaming and cursing. Tr. p. 6,

14. Officer Sweeney described Phillips’s volume as a seven or an eight out of ten, with

ten being the loudest that he had ever heard. Id. at 14. When Officer Sweeney ordered

Phillips to stop screaming because his yelling could upset Smith or his neighbors, Phillips

continued to yell and scream. Id. at 16. Phillips’s two minutes of cursing drew the

attention of the individuals in the other yards. Id. at 16, 30.

       Phillips’s profane tirade fits several of the examples of unreasonable noise that our

Supreme Court delineated in Whittington, including agitating Smith, and/or interfering

with police investigation. Whittington, 669 N.E.2d at 1367. Officer Sweeney expressly

                                               5
warned Phillips about the consequences of his yelling, and it is likewise apparent that the

noise Phillips made was unreasonable because it drew the attention of others. Anderson,

881 N.E.2d at 89, 91. And Phillips continued to create unreasonable noise after Officer

Sweeney ordered him to stop on multiple occasions.

       Although Phillips argues that his conviction cannot stand because his words did

not constitute “fighting words,” the disorderly conduct statute only requires noise “too

loud for the circumstances.” Yowler, 894 N.E.2d at 1003. There is no requirement in the

statute—nor have we ever read a requirement into the statute—that a defendant’s words

must amount to fighting words to sustain a conviction for disorderly conduct.

       In Cavazos v. State, 455 N.E.2d 618 (Ind. Ct. App. 1983), we addressed the

State’s contention as to whether fighting words inherently constituted unreasonable noise.

Id. at 619. Even after determining that Cavazos’s words did not amount to “fighting

words,” the panel then addressed whether the volume of Cavazos’s words constituted

unreasonable noise. Id. at 621. In short, Phillips’s screaming of profanities does not

have to constitute “fighting words” to sustain a conviction for disorderly conduct. See

Anderson, 881 N.E.2d at 91 (holding that the defendant’s yelling of profanities in a

tanning salon loudly enough to draw the attention of other customers was sufficient).

       Finally, we note that there is no requirement in the disorderly conduct statute that

Phillips’s conduct must constitute a public nuisance. In Whittington, our Supreme Court

declared that “significantly, our legislature deleted any reference to a requirement that a

person act purposely or recklessly toward annoying the public. Instead, the mental

                                            6
element of Indiana’s statute. . . . applies to the making of unreasonable noise, not to

producing effects with the noise.” Whittington, 669 N.E.2d at 1367. The defendant’s

proposed requirement of a public nuisance was specifically rejected, where it was stated

that “the application of the statute can extend to situations in addition to those

constituting public nuisance.” Id. In short, we find that the evidence was sufficient to

support Phillips’s conviction for disorderly conduct.

       The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.




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