IC § 35-45-1-3. Disorderly conduct.

– A person who recklessly, knowingly, or intentionally . . . engages in fighting or in tumultuous conduct . . . commits disorderly conduct.

Case Law

– A school police officer observed Δ grabbing a boy’s hair and smacking him with an open hand three times across his face. The officer thought fighting was occurring. The officer tried to grab Δ and Δ tried to pull away and jerk away from him, telling him to get away from her, to get his hands off of her, and not to touch her. At one point, Δ positioned herself and her hands next to a recessed bathroom doorway in the hall so that another officer was needed to handcuff her. Δ argued that she had been playing with a friend. Δ was charged with disorderly conduct.  The evidence did not show beyond a reasonable doubt that Δ was fighting.  The mere act of hitting does not per se constitute fighting. The state must also show the requisite element of hostility. The officer’s assumption, without more, does not establish her motivations beyond a reasonable doubt.  The officer’s inconclusive assumption that J.S. was fighting does not support a finding, beyond a reasonable doubt, that Δ’s actions resulted in, or were likely to result in, serious bodily injury to a person or substantial damage to property. J.S. v. State, 843 N.E.2d 1013 (Ind. App. 2006).

– Δ initiated an argument with another student at school. While the two were standing face to face, Δ pulled out an opened knife and pointed it at the other student. After seeing the knife, the other student struck Δ and left the scene.  Tumultuous conduct is that which results in, or is likely to result in, serious bodily injury to a person or substantial damage to property. The term “likely,” as used to define tumultuous conduct, includes a temporal requirement of immediacy. Δ approached a fellow student in an obvious state of anger and argued about an earlier incident in which one of the student’s friends had allegedly assaulted Δ’s father. Then, when Δ and the student were standing face to face and as little as three feet from each other, Δ pointed an open or unsheathed knife at the other student. In the midst of a heated argument, Δ pointed a knife at another person. Δ’s conduct created an immediate danger of serious bodily injury, which was defused only when the threatened person struck Δ and left. There is sufficient evidence to support the finding that Δ committed disorderly conduct. B.R. v. State, 823 N.E.2d 301 (Ind. App. 2005).

– Officers were patrolling a neighborhood which was in its third day of rioting. Δ and three other men were near a car. Δ had his hands inside the car. Officers asked Δ and the others to go inside. Δ and the others ignored officers. After a number of additional requests, the other men left, but Δ kept his hands in the car. Officers arrested Δ and the three other men. As the police officers were making the arrest approximately one or two hundred people came out of their houses and came down on the officers. Δ was charged with disorderly conduct. Tumultuous conduct is defined by statute as conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property. Tumultuous conduct contemplates physical activity rising to the level of serious bodily injury, substantial property damage, or that either is likely to occur.  Δ’s conduct was not likely to result in personal injury or property damage. There is no evidence that there were any people nearby that could have been immediately injured when Δ ignored the officer’s request to clear the street. Similarly, there is no evidence that there was any property in danger of immediate damage when Δ defied the officer’s request. The fact that personal injury and property damage had been occurring in the area during the rioting does not establish that Δ conduct was in any way connected with such injury and damage. Also, the record contains no evidence to support the allegation that the civil disturbance erupted into looting as a result of Δ’s conduct. The conviction for disorderly conduct is reversed. Davis v. State, 672 N.E.2d 1365 (Ind. Ct. App. 1996).

– Officers were dispatched to an apartment complex to investigate a neighborhood disturbance involving black women and white women. An officer observed seven or eight women yelling at each other. The officer separated the parties. The two groups continued to yell, scream, and curse at each other so another officer took the white women back to their apartment. Except for Δ, the women began to calm down. Both officers and several of the black women asked Δ to quiet down. An officer gently touched Δ on the arm and asked her to step to the side. Δ pulled away and began cursing and yelling at him. By this time, several residents began coming out of their apartments. One officer threatened to arrest Δ if she refused to calm down. He displayed his handcuffs and threatened to take her to jail. Δ continued yelling and screaming so the officer arrested her and attempted to handcuff her. Δ declared it was a false arrest and pulled away. The officers were finally able to place handcuffs on Δ as she struggled and continued to yell.  Tumultuous conduct contemplates physical activity rising to the level of serious bodily injury, substantial property damage, or that either is likely to occur.  There was a likelihood that either Δ or the police officers could have sustained serious bodily injury during the attempt to handcuff Δ. There was a protracted physical struggle in which it took three officers to finally place handcuffs on Δ. One officer was unable to pin Δ to the car while trying to handcuff her and she pulled and yanked to get away. Another officer stated Δ was struggling against him while being handcuffed.  Δ’s conduct prior to the arrest also created a likelihood that serious bodily injury or substantial property damage would result. While one officer was escorting the white women back to their apartments, Whitley yelled at them and taunted them, provoking the white women to yell and curse back at her. Given the racial nature of the confrontation that night, Δ’s conduct could have led to a fight between the two groups which was likely to result in serious bodily injury. Whitley v. State, 553 N.E.2d 511 (Ind. Ct. App. 1990).

– Gebhard walked into the hallway of an apartment house and displayed a handgun with the purpose of confronting anyone in the hallway. I.C. 35-45-1-1 defines Tumultuous Conduct as: “Conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property.” Tumultuous conduct contemplates physical activity rising to the level that people are seriously injured or property substantially damaged, or that either is likely to occur.  Walking into an empty hall with a gun is not tumultuous conduct because it does not rise to the level that persons are immediately likely to be seriously injured. It merely anticipates and suspects future acts, or contingencies. The evidence is insufficient to sustain the conviction. Gebhard v. State, 484 N.E.2d 45 (Ind. Ct. App. 1985).

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