Spitting satisfies ‘fighting’ element of disorderly conduct statute

August 29, 2016

The Indiana Supreme Court Monday found that the term “fighting” in the disorderly conduct statute is ambiguous and only covers physical altercations, but still upheld a man’s conviction based on his spitting on his wife during an argument.

Michael Day and M.D. were about to divorce and continued to share their marital home while they figured out what to do with the house. Day wanted to sell it immediately but M.D. wanted to speak to an attorney first. Day initiated an argument with his wife over the house, screaming at her and spitting on her face as she lay in bed. She called 911 four times during that argument, leading to police coming to the home. Day was still screaming when police showed up.

He was charged with and convicted of Class B misdemeanor disorderly conduct, alleged to have knowingly or intentionally engaged in “fighting and/or tumultuous conduct” with his wife. He appealed, claiming the statute requires both a public disturbance and a physical altercation.

The Court of Appeals affirmed in a split decision, with Judge John Baker writing in his dissent, “I simply cannot believe that a verbal argument between members of a household, within their own home, can be the sole basis of a criminal conviction for disorderly conduct.”

The Supreme Court unanimously affirmed the conviction, although they agreed with Day on his point that “fighting” in the statute only covers physical altercations. The justices noted that “fighting” is ambiguous and could include both physical and verbal altercations or it may just include physical altercations.

Using the rule of lenity, they interpreted the term narrowly, meaning it covers only physical altercations. But, Day can still be convicted under the statute because by spitting on his wife, that constitutes a physical altercation, Chief Justice Loretta Rush wrote.  

The justices rejected Day’s claim that the statute doesn’t apply to altercations in private, and is applicable to public disturbances. Rush noted that the language of the statute doesn’t limit it only to public and that previous disorderly conduct statutes did include a public element, but the 1976 amendment discarded that element and remains almost entirely intact today – devoid of a public disturbance element.

The case is Michael Day v. State of Indiana, 24S05-1606-CR-358.


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