Christopher Bailey challenges the sufficiency of evidence supporting his convictions of Class B misdemeanor battery
FACTS AND PROCEDURAL HISTORY
In 2007, Bailey was a student at Perry Meridian High School. One morning in November, Bailey was waiting in line in the cafeteria to purchase breakfast. Assistant principal Sara Brewer approached Bailey and told him to pull up his pants. Bailey told her: "leave me alone, because, you know, I ain't in the mood." (Tr. at 22.) When Bailey started to walk toward another cafeteria line, Brewer put her arm up to stop Bailey and direct him out of the cafeteria and to the dean's office. Bailey, who "was upset," (id. at 12), bumped into Brewer's outstretched arm as he walked away.
Dean of Students Brian Knight was ten or fifteen feet from Brewer in the cafeteria. He heard Bailey yelling and looked over as Bailey walked through Brewer's outstretched arm. Knight went over to confront Bailey. Bailey "threw down his drink and his coat," (id. at 14), put his face about nine inches from Knight's face, balled up his fists, and insulted Knight
The State charged Bailey with battery and disorderly conduct. After a bench trial, the court found Bailey guilty of both charges.
DISCUSSION AND DECISION
Bailey claims the evidence was insufficient to support either of his convictions. We must affirm a conviction unless no reasonable fact-finder could have found the evidence proved the defendant's guilt beyond a reasonable doubt. Winn v. State, 748 N.E.2d 352, 357 (Ind.2001). When making our determination, we must view the evidence and the inferences there from in the light most favorable to the judgment, and we may neither reweigh the evidence nor reassess the credibility of the witnesses. Id.
The State alleged Bailey "did knowingly touch Sara Brewer ... in a rude, insolent or angry manner." (App. at 13.) "A person engages in conduct `knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." Ind.Code § 35-41-2-2. We do not believe the State proved a knowing battery.
Bailey had his hands down and was pulling up his pants as he "just walked" away from Brewer. (Tr. at 25.) Brewer testified that when Bailey began to walk toward another cafeteria line, she put her arm up in front of him as an attempt to direct him out of the cafeteria. Bailey notes "the State presented no evidence that Bailey had an opportunity to stop walking or change the direction of his path in order to avoid making contact with Brewer's outstretched arm." (Appellant's Br. at 8.) Without knowing the amount of space between Brewer and Bailey when Brewer put her arm up, we cannot infer Bailey walked with awareness "of a high probability" that he was going to bump into Brewer's outstretched arm. Accordingly, we reverse this conviction.
2. Disorderly Conduct
When charging Bailey with disorderly conduct, the State alleged he "did recklessly, knowingly, or intentionally ... engage in fighting or in tumultuous conduct." (App. at 14.) Conduct is tumultuous when it "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. At trial the State admitted "no harm did result and a fight did not result." (Tr. at 20.) Accordingly, the State urged the trial court to convict Bailey based on its argument "that harm was impending and could likely result from the actions of the defendant." (Id.)
Bailey balled his hands into fists, stood less than a foot from Knight's face, and was yelling curse words at Knight. Bailey asserts that evidence is insufficient, as a matter of law, to demonstrate conduct likely to result in serious bodily injury or property damage. We agree.
In Whitley v. State, 553 N.E.2d 511 (Ind. Ct.App.1990), police responded to a "neighborhood disturbance" between two groups of women. After police arrived, they separated the groups and asked the women to be quiet. Whitley continued to taunt and yell at the other group of women. On appeal she challenged whether yelling could be tumultuous conduct, and we held:
Id. at 513-14. In dissent, Judge Sullivan noted:
Id. at 515 (Sullivan, J., dissenting).
Then, in the civil context, we addressed whether a teenager's yelling on a school bus was "tumultuous":
N.J. ex rel. Jackson v. Metropolitan School Dist. of Washington Twp., 879 N.E.2d 1192, 1196 (Ind.Ct.App.2008) (internal citations omitted).
Bailey's conduct is more similar to N.J.'s conduct than to the "protracted
NAJAM, J., and ROBB, J., concur.