MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Mar 15 2016, 8:35 am
this Memorandum Decision shall not be
regarded as precedent or cited before 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
Joel C. Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Day, March 15, 2016
Appellant-Defendant, Court of Appeals Case No.
24A05-1506-CR-724
v. Appeal from the Franklin Circuit
Court
State of Indiana, The Honorable Clay M.
Appellee-Plaintiff. Kellerman, Judge
Trial Court Cause No.
24C02-1501-CM-70
Robb, Judge.
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Case Summary and Issue
[1] Following a bench trial, Michael Day was convicted of disorderly conduct as a
Class B misdemeanor. Day appeals his conviction, raising the sole issue of
whether the evidence is sufficient to support the conviction. Concluding the
evidence is sufficient, we affirm.
Facts and Procedural History 1
[2] In January 2015, Day resided with his wife, M.D., and their two minor
children, C.D. and J.D., in a home in Brookville, Indiana. Because of problems
in the marriage and frequent arguments, the couple decided a divorce was
necessary. M.D. described the couple’s “fighting” as “name calling.”
Transcript at 6. A majority of the couple’s recent frustrations existed because
the couple agreed to sell the marital home, but Day wanted to list the house
with a realtor and M.D. wanted to speak to an attorney before taking any
action.
[3] On January 17, M.D. and J.D. were returning home from the movies when
M.D. received a phone call from Day. When M.D. answered, Day said, “You
f***ing bitch. I ought to kill you.” Id. at 8. M.D. immediately hung up the
phone and continued toward home. After arriving home, M.D. made a snack
1
We held oral argument in this case on February 19, 2016 at Brownstown Central High School. We
commend counsel for their advocacy and thank the faculty, staff, and students at the high school for their
hospitality and participation.
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for the children as they watched television in the living room; Day was not
home. M.D. had to work the next morning, so she went to her bedroom and
left the boys in the living room; the living room was located just outside the
bedroom. Shortly thereafter, M.D. awoke to Day shouting out in the living
room: “Where is your mother? Where is your mother?” Id. at 10. Day entered
the bedroom and began “screaming at the top of his lungs . . . ‘You f***ing
bitch. You will sign these papers for the house.’” Id. Day was extremely angry
and approached M.D. as she remained in bed. M.D. could smell alcohol on
Day’s breath.
[4] M.D. begged Day not to yell in front of the children, who were still in the living
room. Day did not stop, and at some point, Day spit in M.D.’s face and then
left the room. Fearful for her safety, M.D. called 911. After M.D. got off the
phone with the 911 operator,2 Day went upstairs and continued screaming. At
this point, M.D. went to comfort her children who were “out on the couch
crying, upset, scared . . . .” Id. at 16. Next, M.D. entered the kitchen where she
was cornered by Day. Day said to M.D., “If you’d just sign the papers this
would all be over with.” Id. Thinking it was taking too long for the police to
arrive, M.D. called 911 again; Day “just continued to yell.” Id. at 17.
2
After originally dialing 911, M.D. immediately hung up the phone before speaking with an operator
because Day had reentered the room and she feared Day would find out she called 911. The 911 operator
called M.D. back and asked if she needed assistance. M.D. originally declined assistance, but after a few
moments, the 911 operator heard Day screaming. It was then that M.D. said she needed assistance.
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[5] Franklin County Sheriff’s Deputy Michael Strait and Sergeant Greg Melhbauer
were dispatched to Day’s residence. After exiting his vehicle, Deputy Strait
looked through the home’s glass front door and observed Day cornering M.D.;
Day had his finger in M.D.’s face. While outside, Deputy Strait could hear
Day screaming. After gaining entry to the house, Deputy Strait and Sergeant
Melhbauer separated Day and M.D., and Day was arrested.
[6] On January 28, 2015, the State charged Day with disorderly conduct as a Class
B misdemeanor, alleging Day engaged in fighting and/or tumultuous conduct
under Indiana Code section 35-45-1-3. At trial, the State called M.D. and
Deputy Strait as its only witnesses. The State also admitted the 911 audio
recordings. At the conclusion of the State’s evidence, Day moved for an
acquittal, arguing the State did not meet its burden in proving he committed
disorderly conduct. The trial court denied Day’s motion, and Day subsequently
testified in his own defense. Day admitted to screaming at M.D. and calling
her a “f***ing bitch,” but denied ever getting in her face, spitting in her face, or
physically attacking her in any other way. Id. at 49. At the conclusion of the
evidence, the trial court found Day guilty, stating, “If somebody won’t sign . . .
papers in a divorce, the answer isn’t to come home and to get in a verbal
altercation or be hostile, which absolutely . . . can be fighting . . . .” Tr. at 67.
This appeal ensued.
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Discussion and Decision
[7] Day contends the evidence is insufficient to support his conviction for
disorderly conduct because the State failed to prove Day disrupted the public.
Day claims the legislature, in enacting Indiana’s disorderly conduct statute,
intended to require a component of disrupting the public before one can be
convicted of disorderly conduct. We disagree.
I. Statutory Interpretation
A. Standard of Review
[8] Statutory interpretation is a question of law and is reviewed de novo. Fight
Against Brownsburg Annexation v. Town of Brownsburg, 32 N.E.3d 798, 806 (Ind.
Ct. App. 2015).
Our primary goal in interpreting statutes is to determine and give
effect to the Legislature’s intent. The best evidence of that intent
is a statute’s text. The first step is therefore to decide whether the
Legislature has spoken clearly and unambiguously on the point
in question. When a statute is clear and unambiguous, we must
apply the plain and ordinary meaning of the language. There is
no need to resort to any other rules of statutory construction. As
a result, we need not delve into legislative history if no ambiguity
exists.
But a statute is ambiguous when it admits of more than one
reasonable interpretation. In that case, we resort to the rules of
statutory construction so as to give effect to the Legislature’s
intent. For example, we read the statute as a whole, avoiding
excessive reliance on a strict, literal meaning or the selective
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reading of individual words. In a criminal case, we construe an
ambiguous statute in favor of the defendant.
Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012) (citations omitted).
B. The Disorderly Conduct Statute
[9] Day contends “the statutory placement of the disorderly conduct statute in the
article and chapter dealing with ‘public’ offenses, when compared to the broad
language of the statute itself” renders the definition of the crime ambiguous.
Brief of the Appellant at 7. In support of his argument that the statute is
ambiguous, Day cites to the fact the legislature does not define the term
“fighting.” In addition, he cites to the statute’s location in Title 35, Article 45,
Chapter 1. Article 45 is entitled “Offenses Against Public Health, Order, and
Decency,” and Chapter 1 is entitled “Offenses Against Public Order.”
[10] Indiana’s disorderly conduct statute provides, in relevant part,
(a) A person who recklessly, knowingly, or intentionally:
(1) engages in fighting or in tumultuous conduct;
(2) makes unreasonable noise and continues to do so after
being asked to stop; or
(3) disrupts a lawful assembly of persons;
commits disorderly conduct, a Class B misdemeanor.
Ind. Code § 35-45-1-3(a). As Day points out, our legislature has not defined the
term “fighting.” When the legislature has not defined a word, we give the term
its common and ordinary meaning. Whaley v. State, 843 N.E.2d 1, 11 (Ind. Ct.
App. 2006), trans. denied. “In order to determine the plain and ordinary
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meaning of words, courts may properly consult English language dictionaries.”
Id. Relevant here, we determined in J.S. v. State, 843 N.E.2d 1013, 1016 (Ind.
Ct. App. 2006), trans. denied, the common and ordinary meaning of the term
“fight” refers to “a ‘[h]ostile encounter; either physical or verbal in nature.’” Id.
(alterations in original) (quoting Black’s Law Dictionary 565 (5th ed. 1979)).
The fact the legislature opted not to define the term “fighting” does not make
the statute ambiguous, see Adams, 960 N.E.2d at 798, and Day does not argue
how our previous definition of “fight” contributes to the statute’s alleged
ambiguity, see J.S., 843 N.E.2d at 1016.
[11] Next, we acknowledge Day’s argument that the disorderly conduct statute is
found in an article and chapter of the criminal code describing offenses against
the public. However, Indiana Code section 1-1-1-5(f) specifically states,
The headings of titles, articles, and chapters as they appear in the
Indiana Code, as originally enacted or added by amendment, are
not part of the law and may be altered by the lawful compilers, in
any official publication, to more clearly indicate content. These
descriptive headings are intended for organizational purposes
only and are not intended to affect the meaning, application or
construction of the statute they precede.
Because the statute’s descriptive heading is not part of the law and is subject to
alteration by lawful compilers, we give little, if any, weight to Day’s argument
the statute is ambiguous because the statute’s headings suggest the legislature
intended to criminalize only acts of disrupting the public.
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[12] Finally, we note Indiana’s disorderly conduct statute was adapted from a
similar provision of the Model Penal Code, which provided,
(1) A person is guilty of disorderly conduct if, with purpose to
cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he:
(a) engages in fighting or threatening, or in violent or
tumultuous behavior; or
(b) makes unreasonable noise or offensively coarse
utterance, gesture or display, or addresses abusive
language to any person present; or
(c) creates a hazardous or physically offensive condition
by any act which serves no legitimate purpose of the actor
“Public” means affecting or likely to affect persons in a place to
which the public or a substantial group has access; among the
places included are highways, transport facilities, schools,
prisons, apartment houses, places of business or amusement, or
any neighborhood.
Model Penal Code § 250.2(1)(a) (1980) (emphasis in original); see also
Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996) (noting Indiana’s
disorderly conduct statute is patterned on Section 250.2). Although similar to
Section 250.2, the statute departs from the language of the Model Code in
important respects; namely, the legislature specifically omitted any reference to
disrupting the “public.” See Whittington, 669 N.E.2d at 1367.
[13] In Whittington, Whittington arrived home intoxicated and subsequently got into
a verbal and physical altercation with his sister and her boyfriend inside; the
sister was injured. The police were called, and when the police arrived,
Whittington continued to argue with the boyfriend. The police also observed
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that the sister was injured, and an ambulance was requested. After being told
by police to be quiet and calm down, Whittington continued to act in a
belligerent manner, and as a result, Whittington was arrested. Relevant here,
all of this occurred inside a private residence, and there was no evidence that
the sounds were detectable beyond the walls of the apartment, but there were
others in the apartment who did not live there. The State charged Whittington
with disorderly conduct under Indiana Code section 35-45-1-3(a), alleging he
made unreasonable noise and continued to do so after being asked to stop. In
determining whether the disorderly conduct statute applied to circumstances
such as this, our supreme court first looked at the difference between the Model
Penal Code and Indiana’s disorderly conduct statute. The Court recognized the
legislature specifically deleted any reference to the requirement a person disrupt
the public and thereby held “the application of the statute can extend to
situations in addition to those constituting public nuisance.” Id. at 1367.
[14] We are not persuaded Indiana’s disorderly conduct statute is ambiguous
because the term “fighting” is undefined, nor are we persuaded its location in
an article and chapter of the criminal code describing offenses against the public
creates any ambiguity. Because the statute is not ambiguous, we will apply the
plain and ordinary meaning of the language in the statute to determine whether
the evidence is sufficient to support Day’s conviction for disorderly conduct.
See Adams, 960 N.E.2d at 798.
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II. Disorderly Conduct
A. Standard of Review
[15] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh
the evidence nor reassess the credibility of witnesses. Bailey v. State, 907 N.E.2d
1003, 1005 (Ind. 2009). We will affirm a conviction unless “no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable doubt.”
Drane, 867 N.E.2d at 146-47 (citation omitted).
B. Sufficiency of the Evidence
[16] To convict Day of disorderly conduct, the State was required to prove he
“recklessly, knowingly, or intentionally . . . engage[d] in fighting or tumultuous
conduct . . . .” Ind. Code § 35-45-1-3(a)(1). As noted above, we have
previously defined the term “fighting” within the meaning of the disorderly
conduct statute. See J.S., 843 N.E.2d at 1016. In J.S., a high school police
officer was patrolling the hallway and witnessed J.S. grab a male student’s hair
and smack him with an open hand three times across his face. Assuming it was
a fight, the officer intervened and arrested J.S; J.S. claimed she was just flirting
with the boy. The State charged J.S. with disorderly conduct, alleging J.S. was
“fighting at school.” Id. After the delinquency hearing, the trial court entered a
true finding of disorderly conduct, explaining the act of hitting the other student
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two or three times constituted fighting within the meaning of the disorderly
conduct statute.
[17] On appeal, J.S. argued the evidence was insufficient to support her conviction
for disorderly conduct because “the officer’s mistaken belief about [her]
flirtatious behavior is not evidence of fighting to support an adjudication for
disorderly conduct . . . .” Id. at 1015. Defining the term as a physically or
verbally hostile encounter, we concluded the evidence was not sufficient to
support J.S.’s conviction because the only evidence suggesting J.S. acted with
hostility was the police officer’s testimony that he assumed the pair were
fighting.
[18] Unlike J.S., the evidence supporting Day’s conviction is more probative than a
police officer’s mere assumption. Before arriving home, Day called M.D.,
screaming “You f***cking bitch. I ought to kill you.” Tr. at 8. When he
arrived home, Day began screaming at M.D. in front of their children. Day
continued to call M.D. a “f***cking bitch” and demanded she sign the papers
to sell the house; Day claimed he would not allow M.D to leave until she
signed the papers. While M.D. pleaded with Day to stop screaming in front of
the children, she became fearful for herself and her children, calling 911
multiple times. Even when the children began crying, Day did not stop yelling,
and at some point, Day approached M.D. and spit in her face. When Deputy
Strait arrived at the residence, he witnessed Day cornering M.D. and pointing
his finger in M.D.’s face. In addition, Deputy Strait could hear Day screaming
from outside the house.
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[19] Day’s conduct was hostile and we conclude Day engaged in “fighting” within
the meaning of Indiana’s disorderly conduct statute.3 See J.S., 843 N.E.2d at
1016. To the extent Day argues the evidence is insufficient because his conduct
occurred in his private residence, we are not persuaded the disorderly conduct
statute is ambiguous, see supra Part I.B., and given the plain and ordinary
meaning of the statute, Day himself concedes, “[I]t seems that a verbal
altercation or hostility between family members in the privacy of their own
home could satisfy the crime of disorderly conduct by fighting.” Br. of
Appellant at 6.
[20] Finally, we take this opportunity to respectfully address the dissent. The dissent
describes the encounter between Day and M.D. as a “verbal argument,”
arguing the legislature did not intend for a “verbal argument” between members
of a household, occurring within their own home, to be the sole basis of a
criminal conviction for disorderly conduct. The dissent presents a good
argument, and we agree the legislature did not intend to criminalize the act of
engaging in a “verbal argument.” However, we reemphasize it is the legislature
who enacts a statute defining a crime, and when we are tasked with interpreting
the statute on appeal, our primary goal is to determine and give effect to the
legislature’s intent. See Adams, 960 N.E.2d at 798. The best evidence of the
legislature’s intent is the statute’s text, id., and given the disorderly conduct
statute’s text and the definition of “fighting,” the legislature intended to
3
In fact, we note Day is fortunate not to have been charged with a more serious offense.
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criminalize, without regard to the location, the act of engaging in a physically
or verbally hostile encounter. Therefore, our decision does not suggest, contrary
to the dissent’s assertion, an individual can be convicted of disorderly conduct
for engaging in a physical encounter or a verbal encounter. Rather, to be
convicted of “fighting” under the Indiana disorderly conduct statute, an
individual must engage in either a physically hostile encounter or a verbally
hostile encounter. In addition, we note the dissent attempts to minimize Day’s
conduct by describing the encounter as a “verbal argument.” This was much
more than a verbal argument. We conclude the evidence is sufficient to prove
Day committed disorderly conduct.
Conclusion
[21] Indiana’s disorderly conduct statute is not ambiguous, and given the plain and
ordinary meaning of the statute’s language, we conclude the evidence is
sufficient to support Day’s conviction. Accordingly, we affirm.
[22] Affirmed.
Altice, J., concurs.
Baker, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Michael Day, Court of Appeals Case No.
24A05-1506-CR-724
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Baker, Judge, dissenting.
[23] I respectfully dissent. I simply cannot believe that a verbal argument between
members of a household, within their own home, can be the sole basis of a
criminal conviction for disorderly conduct. Were this the case, spouses would
have to fear arguing, parents would have to fear raising their voices at their
children, and siblings would have to fear squabbling over toys. I cannot
conclude that our legislature intended that two teenaged siblings arguing over
what TV show to watch within their own home could be adjudicated
delinquent. That cannot possibly be included in the definition of “fighting” or
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“tumultuous conduct[.]” I.C. § 35-45-1-3(a). But under the majority opinion,
which affirms a criminal conviction for a verbal argument between spouses
within the confines of a residence, these basic human interactions would,
indeed, be criminal.4
[24] The majority emphasizes that a “verbally hostile encounter” is what the statute
requires. Initially, I note that the phrase “verbally hostile encounter” cannot be
found in the statute. Moreover, I have significant questions about the ability of
anyone, including law enforcement, prosecutors, and citizens, to distinguish
between a “verbal argument” and a “verbally hostile encounter.” Most people
would readily admit that verbal arguments between spouses or between
teenaged siblings are frequently laced with—or entirely comprised of—hostility.
I do not believe that the addition of hostility is a meaningful statutory
distinction; nor does it cause me to conclude that such behavior can or should
form the basis of a criminal conviction.
[25] Finally, the majority opines that the interaction in this case was “much more
than a verbal argument.” Slip op. p. 13. I disagree. Aside from the incident in
which Day spat on his wife—which I have already stated could form the basis
of a separate criminal charge and conviction—it was entirely a verbal argument.
Was it laced with hostility? Perhaps. But that does not change the fact that it
4
There is some evidence in the record that Day spat on his wife. This act constitutes a separate offense of
class B misdemeanor battery by bodily waste. Ind. Code § 35-42-2-1(b). Had Day been charged and
convicted of this offense rather than disorderly conduct, I would have no issue with the outcome.
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was a verbal argument, and does not change my belief that these facts are
insufficient to support a criminal conviction for disorderly conduct by fighting
or tumultuous conduct. I disagree with this application of the disorderly
conduct statute, and believe we should reverse Day’s conviction.
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