from the Franklin Circuit Court 2, No. 24C02-1501-CM-70 The
Honorable Clay M. Kellerman, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
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
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.
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.
and Procedural History
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.
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.
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.
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.
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.
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.
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