Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 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

Timothy J. Burns

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Brian Burns,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 22, 2016

Court of Appeals Case No.

49A02-1604-CR-894

Appeal from the Marion Superior 

Court

The Honorable Annie ChristGarcia, Judge

Trial Court Cause No.

49G24-1601-F6-3467

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 2 of 7

STATEMENT OF THE CASE

[1] Appellant-Defendant, Brian Burns (Burns), appeals his conviction for disorderly 

conduct, a Class B misdemeanor, Ind. Code § 35-45-1-3(a)(2).

[2] We affirm.

ISSUE

[3] Burns raises one issue on appeal, which we restate as: Whether the State 

established sufficient evidence to support his conviction beyond a reasonable 

doubt. 

FACTS AND PROCEDURAL HISTORY

[4] At approximately 4:00 a.m. on January 26, 2016, Indianapolis Metropolitan 

Police Officer Molly McAfee (Officer McAfee) responded to a report of a 

“troubled person” at the Speedway Gas Station at 1404 West Washington 

Street in Indianapolis, Indiana. (Transcript p. 16). When she and other 

responding officers arrived, Officer McAfee observed Burns walking from the 

west side of the gas station’s parking lot towards the officers. Burns was waving 

his hands in the air and yelling “at the top of his lungs.” (Tr. p. 18). He was 

walking “in an aggressive combative” manner, “with his chest puffed out and 

his hands out.” (Tr. p. 17). Burns was screaming, “[Y]ea I am the one you 

want . . . and I demand you to respect my authority you are not the authority I 

am the authority,” and was using profanity. (Tr. p. 17). The officers tried to 
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calm Burns and figure out what was going on. Burns “made no attempt to 

listen to” them. (Tr. p. 17). 

[5] While the officers repeatedly told Burns to quiet down, other people were 

pulling into the gas station. Some people would pull in, notice what was going 

on and then “pull away[,] they didn’t want to stop” while other people were 

“gawking” and laughing. (Tr. p. 18). Despite Officer McAfee asking “multiple 

times” to quiet down, Burns refused. Even after being arrested and transported 

to jail, Burns continued to yell.

[6] On January 27, 2016, the State filed an Information, charging Burns with 

Count I, intimidation, a Level 6 felony; and Count II, disorderly conduct, a 

Class B misdemeanor. On March 26, 2016, the State filed a motion to dismiss 

Count I, which was granted by the trial court. On April 5, 2016, the trial court 

conducted a jury trial, at the close of which, the jury returned a guilty verdict. 

Immediately following the guilty verdict, the trial court sentenced Burns to 140 

days executed. 

[7] Burns now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

[8] Burns contends that the State failed to establish sufficient evidence to sustain his 

conviction for disorderly conduct beyond a reasonable doubt. Our standard of 

review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740 

N.E.2d 109, 111 (Ind. 2000). In reviewing the sufficiency of the evidence, we 
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examine only “the probative evidence and reasonable inferences” that support 

the verdict. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State, 

867 N.E.2d 144, 146 (Ind. 2007)). We do not assess witness credibility, nor do 

we reweigh the evidence to determine if it was sufficient to support a 

conviction. Lock, 971 N.E.2d at 74. Under our appellate system, those roles 

are reserved for the finder of fact. Id. Instead, we consider only the evidence 

most favorable to the trial court’s ruling and affirm the conviction unless no 

reasonable fact-finder could find the elements of the crime proven beyond a 

reasonable doubt. Id. This evidence need not overcome every reasonable

hypothesis of innocence; it is sufficient as long as “‘an inference may reasonably 

be drawn from it to support the verdict.’” Id (quoting Drane, 867 N.E.2d at 

147). 

[9] In order to establish disorderly conduct, the State was required to prove that 

Burns “recklessly, knowingly, or intentionally” made “unreasonable noise and 

continue[d] to do so after being asked to stop[.]” See I.C. § 35-45-6-3(a)(2). Not 

disputing the intent element, Burns solely focuses his challenge on the 

“unreasonable noise” requirement by alleging that he “did not produce contextinappropriate volume and was not too loud for the circumstances.”1

 

(Appellant’s Br. p. 9). 

 

1 Burns does not allege that his speech could be characterized as protected political expression, directed 

towards criticizing an official acting under color of law and protected by Article I, Section 9 of the Indiana 

Constitution.
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[10] In Price v. State, 622 N.E.2d 954, 966 (Ind. 1993), our supreme court explained 

that the criminalization of “unreasonable noise” was “aimed at preventing the 

harm which flows from the volume” of noise. As such, “[t]he State must prove 

that a defendant produced decibels of sound that were too loud for the 

circumstances.” Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996) 

(emphasis in original). “Whether the State thinks the sound conveys a good 

message, a bad message, or no message at all, the statute imposes the same 

standard: it prohibits context-inappropriate volume. Id. (emphasis in original). 

The Whittington court described different situations in which loud noise can be 

found unreasonable: 

It could threaten the safety of injured parties by aggravating their 

trauma or by distracting the medical personnel tending to them. 

Loud outbursts could agitate witnesses and disrupt police 

investigations. It could make coordination of investigations and 

medical treatment more difficult. Finally, loud noise can be quite 

annoying to others present at the scene. 

Id.

[11] In the instant case, the officers investigated the report of a troubled person. 

When they arrived on the scene, Burns approached them in an aggressive 

manner, waving his hands, and yelling at the top of his lungs across the gas 

station’s parking lot. Despite the officers’ numerous warnings, as testified to by 

Officer McAfee, Burns did not quiet down. Officer McAfee clarified that 

officers were present at the gas station for “[a]pproximately thirty minutes” and 

during that time, they told Burns to calm down at “least fifteen to twenty 
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times.” (Tr. p. 20). Officer McAfee testified that because of Burns’ noise and 

attitude, business at the gas station was disrupted, with some customers leaving 

without a purchase after observing Burns’ tirade. 

[12] Based on the evidence, we conclude that the State presented sufficient evidence 

beyond a reasonable doubt to support Burns’ conviction for disorderly conduct. 

Not only was Burns’ yelling disruptive of the officers’ investigation as he “made 

no attempt to listen to” the officers, it also had an adverse economic impact on 

the gas station’s business that early morning. (Tr. p. 17); see Whittington, 669 

N.E.2d at 1367. Despite numerous warnings, Burns did not cease screaming. 

See Humphries v. State, 568 N.E.2d 1033, 1037 (Ind. Ct. App. 1991) (evidence 

that the officer asked defendant to stop yelling otherwise he would be placed 

under arrest constituted substantial evidence defendant was speaking in an 

unreasonably loud voice). The record reflects that Burns was yelling at least 

from the time the officers arrived until they left approximately thirty minutes 

later. Even his arrest did not deter him from continuing to make unreasonable 

noise. Burns’ request to now find that his behavior did not rise to the level of 

unreasonable noise merely amounts to an invitation to reweigh the evidence, 

which we are not allowed to do. See Lock, 971 N.E.2d at 74.

CONCLUSION

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

beyond a reasonable doubt to sustain Burns’ conviction for disorderly conduct. 

[14] Affirmed.
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[15] Bailey, J. and Barnes, J. concur