MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 21 2016, 9:03 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
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
Oldenburg, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon Cunningham, December 21, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1604-CR-892
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Allan Reid, Judge
Appellee-Plaintiff. Pro Tempore
Trial Court Cause No.
49G10-1409-CM-45342
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-892 | December 21, 2016 Page 1 of 5
Case Summary
[1] Brandon Cunningham (“Cunningham”) was convicted after a bench trial of
Disorderly Conduct, as a Class B misdemeanor.1 He now appeals, challenging
the sufficiency of the evidence to sustain his conviction.
[2] We affirm.
Facts and Procedural History
[3] On September 26, 2014, Cunningham and several other individuals were at the
Mosaic Lounge in Indianapolis. Members of the Indianapolis Metropolitan
Police Department (“IMPD”) had been dispatched to the bar after a report of a
fight in progress.
[4] IMPD Lieutenant Laurence Wheeler (“Lieutenant Wheeler”) was among the
officers who responded to the call. When Lieutenant Wheeler and other
officers arrived at the bar, they yelled for people to stop fighting; everyone
present other than Cunningham responded to police instructions.
Cunningham, however, continued to attempt to fight with the bar employees
who had ejected him along with other patrons. Police told Cunningham to stop
fighting several more times, but he did not do so, and instead continued to
1
Ind. Code § 35-45-1-3(a)(1).
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-892 | December 21, 2016 Page 2 of 5
attempt to run up to bouncers at the bar and scream at people. Cunningham
was then arrested.
[5] On September 26, 2014, Cunningham was charged with Disorderly Conduct, as
a Class B misdemeanor. A bench trial was conducted on March 21, 2016, at
the conclusion of which the court took the case under advisement.
[6] On April 4, 2016, the court found Cunningham guilty as charged and entered a
judgment of conviction against him. A sentencing hearing was conducted the
same day, during which the trial court sentenced Cunningham to 180 days
imprisonment, with two days executed and the remainder suspended to
probation pending completion of thirty-two hours of community service.
[7] This appeal ensued.
Discussion and Decision
[8] Cunningham’s appeal challenges the sufficiency of the evidence underlying his
conviction. Our standard of review in such cases is well-settled.
This court will not reweigh the evidence or assess the credibility
of witnesses. Cox v. State, 774 N.E.2d 1025, 1028 (Ind. Ct. App.
2002). Only the evidence most favorable to the judgment,
together with all reasonable inferences that can be drawn
therefrom will be considered. Id. If a reasonable trier of fact
could have found the defendant guilty based on the probative
evidence and reasonable inferences drawn therefrom, then a
conviction will be affirmed. Id. at 1028-29.
Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007).
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-892 | December 21, 2016 Page 3 of 5
[9] Cunningham was convicted of Disorderly Conduct, as a Class B misdemeanor.
To convict Cunningham of the offense as charged, the State was required to
prove beyond a reasonable doubt that he recklessly, knowingly, or intentionally
engaged in fighting or tumultuous conduct. I.C. § 35-45-1-3(a)(1); App’x at 14.
Cunningham’s challenge centers on whether there was sufficient evidence that
he engaged in fighting or tumultuous conduct; proof of either one is sufficient,
because the statute is written in the disjunctive. See Davis v. State, 819 N.E.2d
91, 100 (Ind. Ct. App. 2004) (observing that a statute written in the disjunctive
as to a specific element of an offense required proof of only one type of
conduct), trans. denied. Tumultuous conduct is “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.
[10] The Indiana Supreme Court addressed the question of sufficiency of the
evidence of tumultuous conduct in Bailey v. State, 907 N.E.2d 1003 (Ind. 2009).
In Bailey, the court affirmed a student’s conviction for Disorderly Conduct
where Bailey “threw down his drink and coat … ‘throwing down the gauntlet,’”
stepped toward a school dean, “clinched up his fists at his sides and let out a
series of obscenities all within inches of Dean Knight’s face.” Id. at 1003
(quoting the trial court’s findings of fact). Bailey backed away from the school’s
dean only upon seeing a police officer. Id. The Bailey court thus concluded that
it was reasonable for the finder of fact to conclude that had police not
intervened, “Bailey’s conduct would have escalated” and “serious bodily injury
was likely to result.” Id. (emphasis in original).
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[11] Here, Lieutenant Wheeler testified that Cunningham was part of a crowd of
people involved in a fight after being ejected from a bar. Lieutenant Wheeler
further testified that when police arrived, everyone ceased aggressive conduct
except for Cunningham, who persisted in attempting to fight the bar’s bouncers
and cursing and yelling threats even after police instructed him to stop several
times. As in Bailey, it was reasonable for the trial court to infer that
Cunningham’s conduct would, if unchecked, likely have led to serious injury.
[12] Cunningham suggests that his actions were intended to break up a fight and
places emphasis on his testimony at trial rather than that of Lieutenant
Wheeler. In other words, he would have us reweigh the evidence at trial. This
we cannot do. See Sargent, 875 N.E.2d at 767. We accordingly affirm
Cunningham’s conviction.
[13] Affirmed.
Najam, J., and May, J., concur.
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Brandon Cunningham v. State of Indiana (mem. dec.)
Combined Opinion