Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Aug 28 2014, 9:14 am
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:
BARBARA J. SIMMONS GREGORY F. ZOELLER
Oldenberg, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MITCHELL MULNIX, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1402-CR-71
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patrick Murphy, Commissioner
Cause No. 49F07-1311-CM-73556
August 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
Mitchell Mulnix appeals his conviction for Class B misdemeanor disorderly
conduct. Mulnix contends that the evidence is insufficient to support his conviction.
Finding the evidence sufficient, we affirm.
Facts and Procedural History
On November 12, 2013, Mulnix, who had been drinking, came home and began
arguing with his wife, Leah Davis. Leah told him to leave the house; however, he
refused and went to lie down in a bedroom. From the bedroom, Mulnix began screaming
at Leah, calling her a “b****.” Tr. p. 20. Another resident living in the house, Johnny
Combs, asked Mulnix to leave, but he refused. Johnny called the police.
When two Indianapolis Metropolitan Police Department Officers arrived at the
house, they found an “extremely intoxicated” Mulnix, who had bloodshot eyes and
slurred speech, and the officers observed “beer cans on the floor and around the bed.” Id.
at 28. The officers tried to convince Mulnix to leave the house. Mulnix calmed down for
a time, and the officers thought they had resolved the situation. But when they stepped
outside the house, Mulnix went “above and beyond” what he was doing earlier,
screaming at Leah and calling her a “f****** b****.” Id. at 29. Mulnix also began
yelling for Johnny “to come back into the back bedroom for a confrontation.” Id. at 30.
When the officers asked Mulnix to try to find another place to stay for the night, he
replied, “f*** you.” Id.
Because Mulnix was “belligerent,” “confrontational,” and “so intoxicated,” the
officers did not believe that it was safe for Leah and Mulnix’s children, who also lived in
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the house, to be near their father. Id. Again, they asked Mulnix to make arrangements to
sleep elsewhere that night. When he repeatedly refused, the officers asked him to stand
up and put his hands behind his back. Id. at 31. Mulnix stood up and “kind of flexed his
muscles,” leading one officer to think “we were going to be in for a fight,” but then
complied and put his hands behind his back. Id. As Johnny described it, Mulnix “started
to . . . kind of fight[] them and they ended up putting him on the floor and handcuffing
him and taking him out.” Id. at 20. Mulnix continued to yell and curse at his wife until
he was transported to jail. Id. at 32.
The State charged Mulnix with Class A misdemeanor trespass and Class B
misdemeanor disorderly conduct. After a bench trial, the trial court found Mulnix guilty
of Class B misdemeanor disorderly conduct. Mulnix was sentenced to 180 days in the
Marion County Jail, with 68 days suspended.
Mulnix now appeals.
Discussion and Decision
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh the evidence nor judge the credibility of witnesses.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider only the “the evidence
supporting the judgment and any reasonable inferences that can be drawn from such
evidence.” Id. (quotation omitted). A conviction will be affirmed if there is substantial
evidence of probative value supporting each element of the offense such that a reasonable
trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. A
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judgment of guilt may be based upon an inference reasonably drawn from the evidence.
See Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).
Mulnix contends that the evidence is insufficient to support his Class B
misdemeanor disorderly conduct conviction. To convict Mulnix as charged in this case,
the State was required to prove that he knowingly or intentionally engaged in fighting or
tumultuous conduct. Ind. Code § 35-45-1-3(a)(1)1; see also Appellant’s App. p. 14
(charging information). Tumultuous conduct is defined as conduct that results in, or is
likely to result in, serious bodily injury to a person or substantial damage to property.
Ind. Code § 35-45-1-1; Bailey, 907 N.E.2d at 1006.
In Bailey, our Supreme Court found sufficient evidence of tumultuous conduct
where a high-school student threw down his drink and coat, angrily stepped toward a
dean with his fists clenched at his sides, and yelled obscenities in the dean’s face. The
student only retreated when he saw a school police officer nearby. The Court found that
the trier of fact could have reasonably inferred that serious bodily injury would have
occurred if the officer had not arrived. The Court explained that tumultuous conduct may
occur “when the aggressor appears well on his way to inflicting serious bodily injury but
relents in the face of superior force or creative resistance.” 907 N.E.2d at 1007. The
Court concluded that the evidence was sufficient to establish tumultuous conduct for
Bailey’s disorderly conduct conviction.
We likewise find sufficient evidence to establish tumultuous conduct to sustain
Mulnix’s disorderly conduct conviction. Mulnix, who was extremely intoxicated, was
1
This section was amended effective July 1, 2014, as part of the recent criminal-code revision.
The revision did not alter the statutory language referenced above.
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yelling obscenities at his wife and encouraging another resident, Johnny, to fight him.
Mulnix refused to leave the house and cursed at police officers who asked him to do so
several times. The officers were worried about the safety of Mulnix’s children if Mulnix
remained in the house. When officers instructed Mulnix to stand and put his hands
behind his back, he “kind of flexed his muscles,” leading one officer to think “we were
going to be in for a fight,” though he ultimately complied with their instructions. As
Johnny described it, Mulnix “started to . . . kind of fight[] them and they ended up putting
him on the floor and handcuffing him and taking him out.” Mulnix continued to scream
and curse while handcuffed; ultimately, the situation was only diffused when the officers
transported him to jail. From this evidence, the trial court could have reasonably
concluded that serious bodily injury or substantial property damage was likely to occur—
but for the presence of the officers willing to use whatever force was necessary to keep
the situation under control—and we will not second-guess the court’s determination in
this respect. The evidence is sufficient to sustain Mulnix’s conviction for disorderly
conduct.
Affirmed.
FRIEDLANDER, J., and MAY, J., concur.
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