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Day v. State

Supreme Court of Indiana

August 29, 2016

Michael Day, Appellant (Defendant),
v.
State of Indiana, Appellee (Plaintiff).

         Appeal from the Franklin Circuit Court 2, No. 24C02-1501-CM-70 The Honorable Clay M. Kellerman, Judge

         On Petition to Transfer from the Indiana Court of Appeals, No. 24A05-1506-CR-724

          ATTORNEY FOR APPELLANT Joel C. Wieneke Wieneke Law Office, LLC Brooklyn, Indiana

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana J.T. Whitehead Tyler G. Banks Andrew A. Kobe Deputy Attorneys General Indianapolis, Indiana

          Rush, Chief Justice.

         As Michael Day's marriage dissolved, the family home became increasingly tense, until one night Day came home, screamed in his wife's face, and spat in her eye. Four 911 calls later, Day was arrested. He was subsequently convicted of disorderly conduct based on "fighting." Here, he asks us to interpret the disorderly conduct statute's "fighting" subsection to require both a public disturbance and a physical altercation, claiming the State failed to prove either element.

         Guided by well-established principles of statutory interpretation, we conclude that the "fighting" subsection does not contain a public disturbance element but does require a physical altercation. Still, Day's intentional spitting provided sufficient evidence of a physical altercation. We thus affirm his disorderly conduct conviction.

         Facts and Procedural History

         Defendant Michael Day and his wife, M.D., were on the brink of divorce. While continuing to share their marital home, they often engaged in fiery arguments. Regrettably, these verbal battles were often within their two young sons' earshot. The arguments increasingly turned to one subject-what to do with their home. Day wanted to sell it immediately, but M.D. wanted to speak with a lawyer first.

         One evening, that argument flared up again. While M.D. was driving their younger son home from the movies, Day called her and said, "You f***ing b****. I ought to kill you." M.D. immediately hung up. Upon returning home, she went to bed and locked the door, fearing what Day might do.

         About a half hour later, M.D. awoke to Day shouting in the living room. He opened the bedroom door and screamed, "You f***ing b****. You will sign these papers for the house." M.D. pleaded with Day to leave her alone, but he refused. Instead, he walked up to the bed where she was lying, leaned over, and deliberately spat on her face. M.D. had to wipe the spit away as it ran into her eye.

         When Day finally left the bedroom, M.D. called 911 out of fear for herself and the children. But she quickly hung up because Day stormed back in, screaming. The 911 operator called back and dispatched officers after she heard Day's screaming and M.D. agreed that she needed help.

         After two more 911 calls, the police arrived. As the officers walked up to the house, they heard Day's continued screaming. Looking through the glass front door, they saw Day cornering M.D. with his finger pointed in her face. Even as the officers entered, Day continued his diatribe.

         The State charged Day with B-misdemeanor disorderly conduct, alleging he knowingly or intentionally engaged in "fighting and/or tumultuous conduct with [M.D.]" After a bench trial, the court found Day guilty and sentenced him to six months, suspended to probation. Day appealed, arguing that the disorderly conduct statute requires both a public disturbance and a physical altercation and that the State failed to prove those elements.

         The Court of Appeals affirmed in a split decision. Day v. State, 48 N.E.3d 921 (Ind.Ct.App. 2016). The majority held the "fighting" subsection required neither a public disturbance nor a physical altercation, and sufficient evidence supported the conviction. Id. at 924-27. Judge Baker dissented, contending that the disorderly conduct ...


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