ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Anna Onaitis Holden Gregory F. Zoeller
Ann M. Sutton Attorney General of Indiana
Indianapolis, Indiana
Nicole M. Schuster
Deputy Attorney General
FILED
Indianapolis, Indiana
Jun 18 2009, 3:03 pm
In the
CLERK
Indiana Supreme Court of the supreme court,
court of appeals and
tax court
No. 49S02-0812-CR-00630
CHRISTOPHER BAILEY,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
Appeal from the Marion Superior Court, No. 49F19-0711-CM-242612
The Honorable Rebekah Pierson-Treacy, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0801-CR-65
June 18, 2009
Shepard, Chief Justice.
Christopher Bailey, convicted of battery and disorderly conduct as the result of an early
morning confrontation in his high school, has argued on appeal that there is insufficient evidence
to support his convictions. The Court of Appeals agreed and reversed both convictions. We
granted transfer and now affirm on both counts, concluding that the evidence demonstrates
Bailey intentionally touched the assistant principal in a rude, insolent, or angry manner and also
engaged in tumultuous conduct with the dean of students.
Facts and Procedural History
On the morning of November 14, 2007, Christopher Bailey was in the cafeteria at Perry
Meridian High School in Marion County. Assistant Principal Sarah Brewer was monitoring
morning breakfast service when she asked Bailey to pull up his pants. (Tr. at 11.) Bailey refused
and was upset in general. (Tr. at 11-12.) Assistant Principal Brewer extended her arm in an
effort to prevent Bailey from walking to another cafeteria line and direct him towards the dean’s
office. Bailey angrily pushed through Assistant Principal Brewer’s arm using his body while
keeping his hands at his sides. (Tr. at 11-12, 14, 22-26.)
Ten or fifteen feet away from this encounter, Dean of Students Brian Knight observed
Bailey push through Ms. Brewer’s arm. (Tr. at 13-14, 29.) When the dean moved closer to
confront Bailey, Bailey threw down his drink and coat, stepped towards the dean, coming within
six to twelve inches of his face, and began to unleash a series of obscenities while standing with
his fist clinched at his sides. (Tr. at 14-15, 27-30.) About this moment Perry Township School
Police Officer Douglas Hunter, summoned to the scene from traffic duty, entered the cafeteria
and observed a group of students watching Bailey’s tirade against Dean Knight. Once Bailey
saw the officer approaching, he backed away and calmly left the cafeteria area heading towards
the dean’s office. Bailey was arrested shortly thereafter.
The State charged Bailey with battery, as a Class B misdemeanor, Ind. Code § 35-42-2-1
(2008) and disorderly conduct, as a class B misdemeanor, Ind. Code § 35-45-1-3 (2008).
Following a bench trial, Bailey was found guilty on both counts. Bailey appealed, and the Court
of Appeals reversed. Bailey v. State, 893 N.E.2d 749 (Ind. Ct. App. 2008). We granted transfer
and now affirm the judgment of the trial court.
Standard of Review
Bailey contends there is insufficient evidence to support his convictions. When reviewing
the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh
evidence nor judge witness credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). “We
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consider only the evidence supporting the judgment and any reasonable inferences that can be
drawn from such evidence.” Id. We will affirm if 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. Id.
I. The Evidence to Support Battery
To convict Bailey of battery, the State was required to prove he “knowingly or
intentionally touche[d] another person in a rude, insolent, or angry manner.” Ind. Code § 35-42-
2-1 (2008). The charging information specified that Bailey knowingly touched Assistant
Principal Brewer. Indiana’s General Assembly has defined knowingly:
(b) A person engages in conduct “knowingly” if, when he engages
in the conduct, he is aware of a high probability that he is doing so.
Ind. Code § 35-41-2-2 (2008). Bailey contends he did not knowingly touch Brewer.1
Assistant Principal Brewer testified she “put [her] arm out to tell him he needed to leave
if he wasn’t going to comply and he pushed through my arm.” (Tr. at 11.) She explained that
Bailey did not use his hands, but used his body to push through her arm. (Tr. at 11-12.) Dean
Knight testified he was ten to fifteen feet away when he observed Bailey, who “pushed his way
through Miss Brewer, who had put her arm out.” (Tr. at 14.) The trier of fact could infer
Bailey’s push or physical movement of disrespect, indicating he was not going to comply with
Brewer’s request, constituted a knowing touching in a rude, insolent, or angry manner.
Moreover, Bailey’s own testimony provided an inference that a knowing touching
occurred in an angry or insolent manner. Bailey initially insisted that he did not touch Brewer: “I
didn’t touch her or nothing, you know. I had my hands down. I was just walking through.” (Tr. at
23.) Upon cross-examination, however, he conceded that although he did not touch her using his
hands, he may have touched her with another part of his body.
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We need not address Bailey’s arguments concerning whether he intentionally touched Brewer as he was charged
with “knowingly” touch[ing] Sarah Brewer.” (App. at 13.)
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Prosecutor: But did you touch her arm?
Bailey: No, ma’am.
Prosecutor: Not with your body?
Bailey: No. I had my hand down. I was pulling my pants.
Prosecutor: Would some other part of your body have touched
her arm?
Bailey: I mean, she had it right there.
Court: Your answer was what? I didn’t hear you.
Bailey: Yes. She had it right there. She had her arm there.
(Tr. at 25.) Bailey also admitted being angry when he interacted with Brewer. (Tr. at 26.)
How close Bailey was to Assistant Principal Brewer at the moment she extended her arm
is a legitimate question of fact bearing on whether Bailey committed a knowing touching. Here,
the testimony by the school staff and by Bailey provided the trier of fact with sufficient evidence
to conclude Bailey was aware that Assistant Principal Brewer’s arm barred his way and
knowingly pushed through it. We conclude the State proved a knowing touching in a rude,
insolent, or angry manner.
II. The Evidence on Disorderly Conduct
To convict Bailey of disorderly conduct, the State was required to prove he recklessly,
knowingly, or intentionally engaged in fighting or in tumultuous conduct. Ind. Code § 35-45-1-
3(a)(1) (2008). 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
(2008). Bailey contends his actions do not rise to the requisite level to fulfill the statutory
definition of tumultuous conduct.
There are relatively few Indiana decisions examining tumultuous conduct in the context
of the sufficiency of the evidence to support a disorderly conduct conviction.
In Whitley v. State, 553 N.E.2d 511 (Ind. Ct. App. 1990), the Court of Appeals affirmed
a disorderly conduct conviction arising out of a “neighborhood disturbance” between two groups
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of women. Id. at 512. After police arrived and separated the groups, Whitley continued to taunt
the other group. Id. On appeal, she challenged whether yelling could be tumultuous conduct.
The court held the language of the statute was unambiguous and Whitley’s physical struggle with
police while they attempted to handcuff her and her conduct before her arrest, in each occasion,
created a likelihood that serious bodily injury or substantial property damage would result.
Specifically, the court pointed to the racial nature of the confrontation and Whitley’s persistence
in yelling and taunting the other group, before her arrest, could have led to a fight between the
groups. Id. at 513-514. In dissent, Judge Sullivan noted the likelihood of serious bodily injury
from Whitley’s conduct prior to her arrest was insufficient, as at least three police officers were
present at the “crucial time.” Id. at 515.
The Whitley court relied in part on Gebhard v. State, 484 N.E.2d 45 (Ind. Ct. App. 1985),
although it noted that Gebhard involved the adequacy of charging information, not the
sufficiency of the evidence. Whitley, 553 N.E.2d at 513 n.3. In Gebhard, the defendant was
convicted under the tumultuous conduct section of disorderly conduct statute for “walking out
into the hallway of [an] apartment house . . . , and displaying a .45 caliber handgun in his hand
with the purpose of confronting anyone in the hallway . . . ” Gebhard, 484 N.E.2d at 47. The
court determined the statutory definition of tumultuous conduct “contemplates physical activity
on [the defendant’s] part rising to the level that either people are seriously injured or property
substantially damaged, or that either is likely to occur.” Id. at 48.
The court also explained that the words “engages in” contained in the disorderly conduct
statute “obviously requires [sic] present, completed conduct which is likely to injure persons.”
Id. It reversed Gebhard’s conviction, holding that the information alleged “an offense that may
happen, a future act, a contingency, that is, a chance encounter with some person or persons.
Walking in an empty hall with a pistol is not tumultuous conduct because it does not rise to the
level that persons are immediately likely to be seriously injured.” Id. The court concluded “IF
persons had appeared and IF Gebhard had menaced them with a loaded pistol, a different result
may have been reached.” Id. at 48-49.
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Counsel for Bailey reads these cases as suggesting that finding a probability of violence
is warranted only when it seems that a defendant’s moves are likely to provoke the opposing
party to respond with actions that would lead to serious bodily injury (that is to say, in this case,
only if it seemed Dean Knight might escalate to violence). (Appellant’s Br. at 6.) To be sure,
disorderly conduct may be found under such circumstances, but the statute is not so confined.
Disorderly conduct may also 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.
For example, In B.R. v. State, 823 N.E.2d 301 (Ind. Ct. App. 2005), the Court of Appeals
held the evidence was sufficient to convict B.R. of disorderly conduct under tumultuous conduct.
B.R., a student, approached another student in anger, and in the midst of a heated argument,
pointed an open or unsheathed knife at the other student and the immediate danger of serious
bodily injury was only defused when the threatened student struck B.R. and left. Id. at 307.
By contrast, the Court of Appeals addressed tumultuous conduct in a civil law context in
N.J. ex rel. Jackson v. Metropolitan School Dist. Of Washington Twp., 879 N.E.2d 1192 (Ind.
Ct. App. 2008). The court held that the conduct of N.J., yelling at another girl on a school bus
but never approaching her, was not enough to demonstrate that serious bodily injury or
substantial property damage was likely to occur. Id. at 1197-1198.
Here, Bailey’s conduct was closer to B.R.’s than to N.J.’s. Bailey threw down his drink
and his coat and the trier of fact inferred this equaled “throwing down the gauntlet, as in I’m
throwing it down so I have my arms free to fight you.” (Findings of the Court Tr. at 39.) Bailey
stepped towards Dean Knight in an angry manner, clinched up his fists at his sides and let out a
series of obscenities all within inches of Dean Knight’s face. The record indicates Bailey backed
away from Dean Knight only upon seeing Officer Hunter. It was reasonable for the trier of fact
to conclude that, but for the officer’s arrival, Bailey’s conduct would have escalated. Although
Bailey did not produce a weapon as B.R. did, his clinched fists and the testimony of Dean Knight
(“I felt like he was ready to hit me”) were sufficient to conclude serious bodily injury was likely
to result.
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The trier of fact could reasonably infer that serious bodily injury would result had Officer
Hunter not arrived given Bailey’s anger in approaching Dean Knight, throwing his coat and
drink, his verbal tirade, and his clinched fists. The evidence was thus sufficient to convict.
Conclusion
We affirm the convictions for battery and disorderly conduct.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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