from the Franklin Circuit Court. The Honorable Clay M.
Kellerman, Judge. Trial Court Cause No. 24C02-1501-CM-70.
FOR APPELLANT: Joel C. Wieneke Wieneke, Law Office, LLC,
FOR APPELLEE: Gregory F. Zoeller, Attorney General of
Indiana; J.T. Whitehead, Deputy Attorney General,
Judge. Altice, J., concurs. Baker, J., dissents with opinion.
Summary and Issue
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.
and Procedural History
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.
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 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.
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, 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.
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
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.
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.
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
Standard of Review
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
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 reading of individual words. ...