Pursuant to Ind.Appellate Rule 65(D),

this Mem orandum 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 : ATTORNEYS FOR APPELLEE : BARBARA J. SIMMONS GREGORY F. ZOELLER Oldenberg, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDI ANA

MITCHEL L MULNIX, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A02

- 1402

- CR

- 71 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patrick Murphy, Commissioner Cause No. 49F07

- 1311

- CM

- 73556

Augu st 28, 2014 MEMORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK, Chief Judge2 Case Summary
Mitchell Mulnix appeals his conviction for Class B misdemeanor disorderly
conduct. Mulnix contends that the evidence i s insufficient to su pport his conviction.
F inding the evidence sufficient, we affirm. Facts and Procedural History On November 12, 2013, Mulnix , who had been drinking, came home and began arguing with his wife, Leah Davis. Leah told him to leave the house; however, he
refused and went to lie down in a bedroom. From the bedroom, Mulnix began screaming at Leah, calling her a “b****.” Tr. p. 20

. Another resident living in the ho use , Johnny Combs, asked Mulnix to le ave, but he refused. Johnny called the police.
When t wo Indianapolis Metropolitan P olice Department Officers arrived at the house, they found an “extremely intoxicated” Mulnix, who had bloodshot eyes and slurred speech, and the officers observed “beer cans on the floor and around the bed.” Id.
at 28. The officers trie d to convince Muln ix to leave the house

. Mulnix calmed down for a time, and the officers thought they had resolved the situation. But when they stepped
outside the house , Mulnix went “above and beyond” what he was doing earlier, screaming at Leah and calling her a “f***** * b****.” Id. at 29. Mulnix also began yelling for Johnny “to come back into the back bedroom for a confrontation.” Id. at 30. When the officers asked Mulnix to try to find another place to stay for the night, he replied, “f*** you.” Id.
Because Mul nix was “belligerent , ” “confrontational , ” and “so intoxicated,” the
officers did not believe that it was safe for Leah and Mulnix’s children, who also lived in3

the house, to be near their father. Id. Again, they asked Mulnix to make arrangements to sleep elsewhere that night. When he repeatedly refused, the officers asked him to stand up and put his hands behind his back. Id. at 31. Mulnix stood up and “kind of flexed his muscles,” leading one officer to think “we were going to be in for a fight,” but then complied and put his hands behind his back. Id. As Johnny described it, Mulnix “started to . . . kind of fight[] them and they ended up putting him on the floor and handcuffing him and taking him out.” Id. at 20. Mulnix continued to yell and curse at his wife until he was transported to jail. Id. at 32. The State charged Mulnix with Class A misdemeanor trespass and Class B misdemeanor disorderly conduct. After a bench trial, the trial court found Mulnix guilty of Class B misdemeanor disorderly c onduct. Mulnix was sentenced to 180 days in the Marion County Jail, with 68 days suspended. Mulnix now appeals.
Discussion and Decision
When reviewing the sufficiency of the evidence needed to s upport a criminal conviction, we neither reweigh the evid ence nor judge the credibility of witnesses. Bailey v . State , 907 N.E

. 2d 1003 , 1005 ( Ind

. 2009 )

. We consider only the “the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id

. (quotation omitted ). A conviction will be affirmed if there is substantial evidence of probative value supporting each element o f the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id

. A4

judgment of guilt may be based upon an inference reasonably drawn from the evidence.
See Drane v. State , 867 N.E.2d 144, 147 (Ind. 2007).
Mulnix contends t hat the evidence i s insufficient to support his Class B misdemeanor disorderly conduct conviction. To convict Mulnix as charged in this case , the State was required to prove that he knowingly or i ntentionally engaged in fighting or
tumultuous conduct

. In d. Code § 35

- 45

- 1

- 3 (a)(1) 1 ; see also Appellant’s App. p. 14 (charging information). 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

- 4 5

- 1

- 1; Bailey , 907 N.E.2d at 1006.
In Bailey , our Supreme Court found sufficient evidence of tumultuous conduct
wh ere a high

- school student threw down his drink and coat, angrily stepped toward a dean with his fists clenched at his sides , and yelled obsc enities in the dean’s face. The student only retreated when he saw a school police officer nearby. The Court found that the trier of fact could have reasonably inferred that serious bodily injury would have
occurred if the officer had not arrived. The Cou rt explained that t umultuous conduct may

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.” 907 N.E.2d at 1007. The
Court concluded that the evidence was sufficient to establish tumultuous conduct for Bailey’s disorderly conduct conviction.
We likewise find sufficient evidence to establish tumultuous conduct to sustain Mulnix’s disorderly conduct conviction. Mulnix, who was extremely intoxicated, was

1 This section was amended effective July 1, 2014, as part of the recent criminal

- code revision

. The revision did not alter the statutory language referenced above.5

yell ing obscenities at his wife and encouraging another resident, Johnny, to fight him.
Mulnix refused to leave the house and cursed at police officers who asked him to do so
several times . The officers were worried about the safety of Mulnix’s children if M ulnix
remained in the house. W hen officers instructed Mulnix to stand and put his hands behind his back, he “kind of flexed his muscles,” leading one officer to think “we were going to be in for a fight,” though he ultimately complied with their instructi ons. As Johnny described it, Mulnix “started to . . . kind of fight[] them and they ended up putting him on the floor and handcuffing him and taking him out.” Mulnix continued to scream and curse while handcuffed; ultimately, the situation was only diffu sed when the officers transported him to jail. From this evidence, the trial court could have reasonably concluded that serious bodily injury or substantial property damage was likely to occur

— but for the presence of the officers willing to use whatever f orce was necessary to ke ep the situation under control

— and w e will not second

- guess the court’s determination in
this re spect . The evidence is sufficient to sustain Mulnix’s conviction for disorderly
conduct

. Affirmed. FRIEDLANDER, J., and MAY, J., concu r.