Rush, CJ.
As Michael Day’s marriage dissolved, the family home became increasingly tense, until one night Day came home, screamed in his wife’s face, and spat in her eye. Four 911 calls later, Day was arrested. …
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The State charged Day with B-misdemeanor disorderly conduct, alleging he knowingly or intentionally engaged in “fighting and/or tumultuous conduct with [M.D.]” After a bench trial, the court found Day guilty and sentenced him to six months, suspended to probation. Day appealed, arguing that the disorderly conduct statute requires both a public disturbance and a physical altercation and that the State failed to prove those elements.
The Court of Appeals affirmed in a split decision. Day v. State, 48 N.E.3d 921 (Ind. Ct. App. 2016). The majority held the “fighting” subsection required neither a public disturbance nor a physical altercation, and sufficient evidence supported the conviction. Id. at 924–27. Judge Baker dissented, contending that the disorderly conduct statute does not prohibit private, verbal altercations. Id. at 927–28 (Baker, J., dissenting).
Day sought transfer, which we granted, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).
This case involves two distinct standards of review. We first address whether the “fighting” subsection of the disorderly conduct statute includes certain elements. Because this presents a matter of statutory interpretation, it receives de novo review. Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016). We then determine whether sufficient evidence supports Day’s conviction under the statute as interpreted. See Buelna v. State, 20 N.E.3d 137, 141 (Ind. 2014). …
Indiana’s disorderly conduct statute prohibits certain types of behaviors. Specifically, the statute provides, “A person who recklessly, knowingly, or intentionally: (1) engages in fighting or in tumultuous conduct; (2) makes unreasonable noise and continues to do so after being asked to stop; or (3) disrupts a lawful assembly of persons; commits disorderly conduct, a Class B misdemeanor.” Ind. Code § 35-45-1-3(a) (2014).
Day argues that the “fighting” subsection is ambiguous on two points: whether it includes public and private disturbances and whether it includes physical and verbal altercations. He asks that we interpret the subsection narrowly—covering only public disturbances and physical altercations. In response, the State argues that the “fighting” subsection unambiguously extends to both private and verbal altercations.
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Day contends that the statute’s “fighting” subsection requires a public disturbance. The State responds that the General Assembly chose not to include a public element, and this Court should decline to engraft one. We agree with the State.
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Here, the “fighting” subsection “does not say” that the State must prove public disturbance. Instead, it simply reads, “A person who recklessly, knowingly, or intentionally . . . engages in fighting or in tumultuous conduct . . . commits disorderly conduct.” I.C. § 35-45-1-3(a). …
We could end our discussion here with that straightforward observation: the legislature did not include a public disturbance element. See Jackson, 50 N.E.3d at 773. But we note two additional indications that the omission was intentional—a public element explicitly appeared both in past versions of the disorderly conduct statute and also in the Model Penal Code (“MPC”) version, from which the legislature adapted Indiana’s statute.
From 1943 to 1976, Indiana’s disorderly conduct statute prohibited acting in a “disorderly manner so as to disturb the peace and quiet of any neighborhood or family.” See, e.g., Ind. Code § 10-1510 (Burns 1943) (emphasis added). In 1976, however, the General Assembly discarded that public requirement. I.C. § 35-45-1-3 (Supp. 1977). And that 1976 version remains almost entirely intact today—still devoid of a public disturbance element. Compare id., with I.C. § 35-45-1-3 (2014).
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In sum, the disorderly conduct statute unambiguously applies to both public and private disturbances. Day is not immune from prosecution simply because he confined his “fighting” to his house. We turn now to Day’s second claim—that “fighting” is ambiguous as to whether it covers both physical and verbal altercations.
Day argues that the term “fighting” is ambiguous because it can be interpreted in two reasonable ways—it might include both physical and verbal altercations or it might include only physical altercations. He then invokes the rule of lenity, asking us to adopt the narrower interpretation, covering only physical altercations. The State responds that “fighting” is not ambiguous, but simply broad—including both types of altercations. We agree with Day that “fighting” allows two reasonable interpretations, and we adopt the narrower one—that “fighting” covers only physical altercations. But even so, Day’s spitting provides sufficient evidence to support his conviction.
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Because “fighting” ambiguously permits two interpretations—one narrow and the other broad—we consult rules of statutory construction to resolve the ambiguity. In particular, we consider two rules, noscitur a sociis and the rule of lenity. Both counsel in favor of interpreting “fighting” narrowly to cover only physical altercations.
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Thus, applying the rule of lenity, we adopt the narrower interpretation of “fighting,” covering only physical altercations.
But even under our narrow interpretation of “fighting,” Day’s intentional, point-blank spitting on M.D. constitutes sufficient evidence to support his conviction. …
… We thus affirm Day’s conviction for B-misdemeanor disorderly conduct.
Rucker, David, Massa, and Slaughter, JJ., concur.