Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Valerie K. Boots

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tiffany A. McCoy

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Dennis Gibson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 25, 2019

Court of Appeals Case No.

19A-CR-436

Appeal from the Marion Superior 

Court

The Honorable Clayton Graham, 

Judge

The Honorable Steven J. Rubick, 

Magistrate

Trial Court Cause No.

49G07-1810-CM-33904

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019 Page 2 of 7

STATEMENT OF THE CASE

[1] Appellant-Defendant, Dennis Gibson (Gibson), appeals his conviction for 

disorderly conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a)(1).

[2] We affirm.

ISSUE

[3] Gibson presents this court with one issue on appeal, which we restate as: 

Whether the State presented sufficient evidence beyond a reasonable doubt to 

sustain his conviction for disorderly conduct.

FACTS AND PROCEDURAL HISTORY

[4] On the evening of September 9, 2018, Gibson was waiting to enter Club Blu 

nightclub in downtown Indianapolis, Indiana. Indianapolis Police Officer 

Sergio De Leon (Officer De Leon) was off duty that night but was working 

security at the nightclub. He was sitting in his patrol car, parked outside the 

nightclub’s entrance, while watching “a pretty large crowd of people in front of 

the bar, with many people going in and out.” (Transcript pp. 6, 9).

[5] Officer De Leon noticed two men, later identified as Douglas Currie (Currie) 

and Gibson, near the rear wheel well of his patrol car. While the officer was 

observing them, he saw Gibson throw a “punch” at Currie. (Tr. p. 10). He 

“observed Gibson wind back and . . . strike Currie in the face with his right

hand.” (Tr. p. 6). Watching the entire time, Officer De Leon did not see Currie 

attempt to hit Gibson before or after Gibson punched Currie. Exiting his patrol 
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car, Officer De Leon positioned himself in between Currie and Gibson and 

ordered Gibson to stop. However, Gibson “continued to walk towards Currie 

with his fist closed as if he was going to keep hitting” Currie. (Tr. p. 7). As 

Gibson was “charging” at Currie, Officer De Leon “tried to grab him, and . . . 

ended up falling to the ground.” (Tr. p. 7). Officer De Leon handcuffed 

Gibson.

[6] On October 3, 2018, the State filed an Information, charging Gibson with 

Count I, battery, as a Class B misdemeanor, and Count II, disorderly conduct, 

as a Class B misdemeanor. On January 24, 2019, the trial court conducted a 

bench trial and, at the conclusion of the evidence, found Gibson not guilty of 

battery, but guilty of disorderly conduct. In its ruling from the bench, the trial 

court found as follows:

It’s not in dispute that [Gibson] touched Currie because [Gibson] 

admitted touching [Currie]. [] [Currie] did not care enough to 

show up today to testify. I can’t fully consider the evidence 

regarding battery. [] There are a lot of explanations for why 

people hit each other. And again, [Currie] is not here. Based on 

that I find the State has failed to carry its burden as to Count I. 

But the officer did testify, very clearly and plainly, that he gave 

orders to [Gibson] which were not followed, and he engaged in a 

tumultuous course of conduct as he failed to comply with the 

officer’s orders. The State has met its burden as to Count II.

(Tr. p. 21). That same day, Gibson was sentenced to four days in the Marion 

County Jail. 

[7] Gibson now appeals. Additional facts will be provided if necessary.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019 Page 4 of 7

DISCUSSION AND DECISION

[8] Gibson contends that the State did not present sufficient evidence beyond a 

reasonable doubt to sustain his conviction. When reviewing the sufficiency of 

the evidence to support a conviction, we consider only the probative evidence 

and reasonable inferences supporting the judgment. Jackson v. State, 50 N.E.3d 

767, 770 (Ind. 2016). We neither assess witness credibility nor weigh the 

evidence, and we will affirm the conviction unless no reasonable fact-finder 

could find the elements of the crime proved beyond a reasonable doubt. Id. 

[9] To convict Gibson for disorderly conduct as a Class B misdemeanor, the State 

was required to establish that Gibson “recklessly, knowingly, or intentionally: 

(1) engage[d] in fighting or in tumultuous conduct.” See I.C. § 35-45-1-3(a)(1). 

In Day v. State, 57 N.E.3d 809, 813 (Ind. 2016), our supreme court interpreted 

“fighting” narrowly, as to “cover[] only physical altercations.” “Tumultuous 

conduct,” on the other hand, is defined as “conduct that results in, or is likely to 

result in, serious bodily injury to a person or substantial damage to property.” 

I.C. § 35-45-1-1. “The term ‘likely,’ as used to define tumultuous conduct, 

includes a temporal element of immediacy.” Davis v. State, 672 N.E.2d 1365, 

1367 (Ind. Ct. App. 1996). The trial court found Gibson guilty under the 

tumultuous conduct prong of the charge. 

[10] On appeal, Gibson’s argument focuses on the fact that Currie did not incur 

serious bodily injury, and he denies that any inference existed that serious 

bodily injury was likely to result. Relying on case law interpreting serious 
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bodily injury for a battery conviction, Gibson asserts that the State did not 

establish that Currie had suffered “extreme pain” when Gibson struck him. 

(Appellant’s Br. p. 13). We find Gibson’s argument to be meritless.

[11] Interpreting the serious bodily injury element of the charge, our supreme court 

has noted that tumultuous conduct can be established “when the aggressor 

appears well on his way to inflicting serious bodily injury but relents in the face 

of superior force or creative resistance.” Bailey v. State, 907 N.E.2d 1003, 1007 

(Ind. 2009). In Bailey, after throwing down his drink and his coat, Bailey 

stepped towards the victim in an angry manner, with clinched up fists at his 

sides and let out a series of obscenities all within inches of the victim’s face. Id. 

at 1007. Bailey only backed away from the victim upon noticing an officer 

present. Id. Our supreme court noted that it “was reasonable for the trier of 

fact to conclude that, but for the officer’s arrival, Bailey’s conduct would have 

escalated” as there was sufficient evidence to conclude that serious bodily injury 

was likely to result. Id. 

[12] Likewise here, Officer De Leon testified that Gibson had thrown the first punch 

at Currie before he could interfere. He “observed Gibson wind back and . . . 

strike Currie in the face with his right hand.” (Tr. p. 6). Gibson refused to 

follow Officer De Leon’s order to stop and instead “continued to walk towards 

Currie with his fist closed as if he was going to keep hitting” Currie. (Tr. p. 7). 

Gibson charged at Currie, while Officer De Leon “tried to grab him, and . . . 

ended up falling to the ground.” (Tr. p. 7). Accordingly, but for Officer De 

Leon’s interference, Gibson would have continued his escalating conduct and 
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the trier of fact could reasonably conclude that serious bodily injury was likely 

to result and thus that Gibson had engaged in tumultuous conduct. 

[13] Nevertheless, focusing on the trial court’s concluding remarks, Gibson asserts 

that the trial court’s statement that “[t]here are a lot of explanations for why 

people hit each other” must necessarily preclude a guilty verdict. (Appellant’s 

Br. p. 15). In support of his argument, Gibson refers this court to Kribs v. State, 

917 N.E.2d 1249 (Ind. Ct. App. 2009), where Kribs was charged with 

knowingly or intentionally entering an area of an airport to which access is 

controlled by the inspection of persons and property while he carried a 

handgun. See I.C. § 35-47-6-1.3. In its findings, the trial court stated that it 

believed that Kribs “didn’t remember” that he had the handgun in his 

possession when he entered the airport and that there was no “malicious intent” 

involved. Id. at 1251. We reversed Kribs’s conviction, noting that “[t]he trial 

court observed the witnesses, weighed the evidence, and concluded that Kribs 

was unaware that he had the handgun in his possession when he entered the 

airport and placed it on the x-ray conveyor belt.” Id. We cautioned that “[h]ad 

the trial court remained silent, we would likely have affirmed Kribs’s 

conviction. In such a situation, we could have inferred that the trial court did 

not believe Kribs’s version of events or that it gave more weight to the evidence 

highlighted by the State that Kribs always carried the handgun in his jacket 

pocket.” Id. Relying on the Kribs court’s rationale, Gibson maintains that 

“[t]he court’s words reveal its conclusion that the State not only failed to prove 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-436 | July 25, 2019 Page 7 of 7

Gibson committed battery, but also failed to prove Gibson engaged in 

disorderly conduct by fighting.” (Appellant’s Br. pp. 15-16). 

[14] We cannot say that the trial court’s statement contradicts or otherwise affects 

Gibson’s conviction. While the trial court’s statement that “there are a lot of 

explanations for why people hit each other” reflects upon the underlying 

motives of the actors, this general assertion does not indicate that all or parts of 

the disorderly conduct charge have not been met. Rather, immediately prior to 

the statement, the trial court considered Gibson’s admission that he had hit 

Currie. Accordingly, in light of the complete statement, the trial court’s 

statement did not negate Gibson’s guilty judgment. 

CONCLUSION

[15] Based on the foregoing, we hold that the State presented sufficient evidence 

beyond a reasonable doubt to sustain Gibson’s conviction for disorderly 

conduct.

[16] Affirmed.

[17] Vaidik, C. J. and Bradford, J. concur