B.B. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 29, 2013
• Docket: 49A02-1210-JV-852
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any May 29 2013, 9:38 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

RUTH JOHNSON GREGORY F. ZOELLER PATRICIA CARESS McMATH Attorney General of Indiana Marion County Public Defender Agency Indianapolis, Indiana KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

B.B., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1210-JV-852 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Geoffrey A. Gaither, Magistrate Cause No. 49D09-1204-JD-1004

May 29, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge B.B. appeals the juvenile court’s adjudication that he committed the delinquent act of

disorderly conduct,1 a Class B misdemeanor if committed by an adult. He presents the

following restated issue: whether there was sufficient evidence to support the delinquency

adjudication.

We affirm.

FACTS AND PROCEDURAL HISTORY

On the evening of April 5, 2012, S.C. was at the home of J.Z. when R.E. and B.B.

approached the residence. S.C. and J.Z. looked out the window and saw the two males. J.Z.

knew R.E. because they had gone to school together, but they were not friends after “a falling

out” in middle school. Tr. at 17. Neither J.Z. nor S.C. knew B.B. or had seen him before that

day.

J.Z. and S.C. exited the house “to see if it was really them,” and saw the two boys

approximately fifteen to twenty feet away, near an alley. Id. at 19. J.Z. and S.C. saw B.B.

take off his shirt, jump up and down while waving a knife, and yell at them, “come at me,

come at me.” Id. at 10, 27. Meanwhile, J.Z.’s father, Billy, observed what was occurring

through a window, and he too exited the house. B.B. was still showing the knife when Billy

got outside. The two boys fled on foot, and Billy called the police as he and the girls chased

the boys. The police instructed Billy and the girls to stop any pursuit and wait, and shortly

thereafter, the police apprehended R.E. and B.B. The police brought Billy and the two teen

1 See Ind. Code § 35-45-1-3.

2 girls to the scene of the arrest, where the three identified B.B. as the person who had been

waving the knife and yelling.

The State filed a petition alleging that B.B. was a delinquent child for an act that

would have been Class B misdemeanor disorderly conduct if committed by an adult. The

juvenile court held a denial hearing, where Billy and the two teen girls testified as to the

above events. B.B. testified to a different series of events, stating that he and R.E. were at a

park that day, when Billy and two other men came to the park and threw bricks at them. He

and R.E. started running and were at some point stopped by the police. B.B. denied having a

knife in his possession that day.

At the conclusion of the hearing, the juvenile court entered a true finding as to

disorderly conduct. Thereafter, the court held a dispositional hearing and, finding that no

probation or services were warranted, closed the case. B.B. now appeals.

DISCUSSION AND DECISION

B.B. contends that the evidence presented is insufficient to sustain the true finding that

he committed disorderly conduct. When reviewing a juvenile delinquency adjudication, we

will consider only the evidence and reasonable inferences supporting the judgment. B.R. v.

State, 823 N.E.2d 301, 306-07 (Ind. Ct. App. 2005). We neither reweigh the evidence nor

judge witness credibility. Id. We will affirm if there is substantial evidence of probative

value such that a reasonable trier of fact could have concluded the defendant was guilty

beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

3 To support a finding that B.B. committed disorderly conduct as charged, the State was

required to prove that he recklessly, knowingly, or intentionally engaged in fighting or

tumultuous conduct. See Ind. Code § 35-45-1-3(1). Tumultuous conduct is that which

“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. The term “likely,” as used to define tumultuous conduct,

includes a temporal requirement of immediacy. B.R., 823 N.E.2d at 306-07. Tumultuous

conduct “may occur when the aggressor appears well on his way to inflicting serious bodily

injury but relents in the fact of superior force or creative resistance.” Bailey, 907 N.E.2d at

1007. B.B. maintains that the evidence was not sufficient because there was no imminent

likelihood of resulting serious bodily injury or property damage.

Here, the evidence reflects that on the day in question, R.E. and B.B. approached

J.Z.’s house on foot. J.Z. and S.C. saw the boys through a window, and they exited the

house. At that time the boys were fifteen to twenty feet away. B.B. took off his shirt and

started waving a knife. While doing so, he said to them, “[C]ome at me, come at me,” which

suggested or even invited confrontation. Tr. at 27. Although B.B. argues that his conduct

did not present a danger of immediate serious injury, we find that the facts indicate

otherwise, as he brandished a knife while making threatening remarks designed to incite

violence. The evidence most favorable to the judgment and the reasonable inferences

therefrom establish that a trier of fact could reasonably conclude that B.B.’s conduct created

an immediate danger of serious bodily injury, which was defused only when Billy and the

girls chased B.B. and R.E. See B.R., 823 N.E.2d at 307 (defendant student engaged in

4 delinquent act of disorderly conduct when he pointed knife at fellow student during

argument, which was defused only when the threatened person struck defendant). We

conclude that the State presented sufficient evidence to support the delinquency adjudication.

Affirmed.

VAIDIK, J., and PYLE, J., concur.