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.
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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.
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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.
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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). . . . 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.”Â . . . 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.
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.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.