Fritz Bernier v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jun 23 2015, 9:09 am
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 ATTORNEYS FOR APPELLEE
Barbara J. Simmons Gregory F. Zoeller
Oldenburg, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Fritz Bernier,1 June 23, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1410-CR-718
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable Rebekah F. Pierson-
Treacy, Judge
Appellee-Plaintiff. The Honorable Shatrese M. Flowers,
Master Commissioner
Cause No. 49G19-1406-FD-33675
1
We note that, due to a clerical error, the Appellant’s name was incorrectly entered in the trial court’s record
as Bernier Fritz rather than his correct name of Fritz Bernier. Although an oral motion was made prior to
the jury trial to amend the charging information to reflect the correct name and was granted by the trial court,
see tr. at 52-53, it does not appear that the amendment was ever made. Because the CCS in this case
continued to list the Appellant as Bernier Fritz, that name reference was used in the appeal. In order to
correct this incorrect name entry, we remand this case to the trial court so that the trial record can be
amended to reflect the Appellant’s correct name as Fritz Bernier.
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Kirsch, Judge.
[1] Fritz Bernier was convicted after a jury trial of disorderly conduct 2 as a Class B
misdemeanor and was sentenced to 180 days executed. He appeals, raising the
following issue for our review: whether the State presented sufficient evidence
to support his conviction for disorderly conduct.
[2] We affirm and remand.
Facts and Procedural History
[3] At around 5:00 p.m. on June 28, 2014, Indiana State Capitol Police Officers
Michael Hollandsworth and James Rice were driving north on Meridian Street
past Veteran’s Park in Indianapolis, Indiana. The officers noticed that two park
benches were overturned. People were sitting on another nearby park bench,
and fifteen to twenty yards away from these people a man later identified as
Bernier was walking in the park waving a knife over his head. Officer
Hollandsworth pulled the patrol car onto the sidewalk and activated the
emergency lights.
[4] When the officers got out of their car, Bernier was about ten to fifteen feet away
from the people on the bench. He held the knife above his head and was
shouting, “I’ll kill you” and other vulgarities. Tr. at 83, 108. When Bernier
saw the officers, he turned his body away from them and put the knife in his
2
See Ind. Code § 35-45-1-3(a)(1).
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pocket. Officer Hollandsworth told Bernier to show his hands, and Bernier
removed the knife from his pocket and dropped in on the ground. Officer Rice
then placed Bernier in handcuffs.
[5] Bernier smelled like alcohol, his eyes were red and bloodshot, his dexterity was
slow, and his balance was poor. He continued to yell after he had been
handcuffed, accusing the officers of racism, calling them names, and screaming
other obscenities. He asked one of the officers to remove the handcuffs so they
“could go at it.” Id. at 137. Bernier also continued to yell at the people on the
bench, saying he was going to “kill them.” Id. at 135-37. Additionally, he
began to spit at the officers, and when an officer arrived to take Bernier to jail,
the officer put a spit mask on Bernier.
[6] The State charged Bernier with Class B misdemeanor disorderly conduct and
Class D felony criminal recklessness. The State dismissed the criminal
recklessness charge prior to the trial. At the conclusion of the jury trial, Bernier
was found guilty of disorderly conduct, and the trial court sentenced him to 180
days executed. Bernier now appeals.
Discussion and Decision
[7] The deferential standard of review for sufficiency claims is well settled. This
court will neither reweigh the evidence nor assess the credibility of witnesses.
Tooley v. State, 911 N.E.2d 721, 724 (Ind. Ct. App. 2009), trans. denied; Elisea v.
State, 777 N.E.2d 46, 48 (Ind. Ct. App. 2002). Rather, we will consider only
the evidence and reasonable inferences most favorable to the trial court’s ruling.
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Elisea, 777 N.E.2d at 48. We will affirm unless no reasonable fact-finder could
find the elements of the crime proven beyond a reasonable doubt. Tooley, 911
N.E.2d at 724-25. Thus, if there is sufficient evidence of probative value to
support the conclusion of the trier of fact, then the verdict will not be disturbed.
Trimble v. State, 848 N.E.2d 278, 279 (Ind. 2006).
[8] Bernier argues that the State failed to present sufficient evidence to support his
conviction for disorderly conduct. He claims that the State did not prove that
he engaged in fighting or tumultuous conduct because nothing in the record
indicated that any serious injury or substantial damage to property was likely to
result from his conduct. Bernier asserts that, although his conduct could be
characterized as annoying, it never posed any threat of serious bodily injury and
was, therefore, not tumultuous conduct.
[9] In order to convict Bernier of disorderly conduct as a Class B misdemeanor, the
State was required to prove beyond a reasonable doubt that he recklessly,
knowingly, or intentionally engaged in fighting or in tumultuous conduct. Ind.
Code § 35-45-1-3(a)(1). Tumultuous conduct is “conduct that 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. Disorderly 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.” Bailey v. State, 907 N.E.2d
1003, 1007 (Ind. 2009).
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[10] The evidence presented at trial showed that, as Officers Hollandsworth and
Rice arrived at the scene, Bernier was about fifteen to twenty yards away from
the people on the bench, waving a knife above his head. By the time the
officers had gotten out of their car, Bernier was within ten or fifteen feet of the
people on the bench and was yelling at the people that he was going to kill
them. This evidence established that Bernier was “well on his way to inflicting
serious bodily injury” before he relented “in the face of superior force” of the
police. See id.[11] Bernier’s conduct prior to his arrest is similar to the conduct found sufficient to
constitute disorderly conduct in B.R. v. State, 823 N.E.2d 301 (Ind. Ct. App.
2005). There, B.R. initiated an argument with a fellow student at his high
school, and while the two were standing face to face, B.R. pulled out a knife
and pointed it at the other student, at which time, the other student hit B.R. and
fled. Id. at 302. This court concluded that B.R.’s conduct “created an
immediate danger of serious bodily injury, which was defused only when the
threatened person struck B.R. and left.” Id. at 307. In the present case, Bernier
created an immediate danger of serious bodily injury when he threatened the
people on the bench while waving the knife over his head, and that danger was
defused only when the officers placed Bernier in handcuffs and removed the
knife.
[12] In Bailey, our Supreme Court affirmed a conviction for disorderly conduct,
where the defendant student threw down his coat and drink, stepped toward his
dean of students, “began to unleash a series of obscenities while standing with
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his fist clinched at his sides,” and only backed away when he saw a school
police officer. 893 N.E.2d at 1004, 1007. The Supreme Court held that a trier
of fact could reasonably conclude that the defendant’s conduct would have
escalated if not for the arrival of the officer. Id. at 1007. Even though the
defendant did not wield a weapon, the Court determined that his clenched fists
and the testimony of the dean that he felt the defendant was ready to hit him
constituted sufficient evidence that serious bodily injury was likely to result
from the defendant’s conduct. Id.
[13] Here, Bernier’s tumultuous conduct continued even after he was handcuffed.
He yelled at the officers, accused them of racism, called them derogatory
names, and screamed other obscenities. He also told one of the officers to
remove the handcuffs so that he could fight the officer. One of the officers
described Bernier’s yelling and screaming as “fighting words.” Tr. at 154.
Additionally, Bernier was spitting at the officers, and the jail transport officer
had to put a spit mask on him. This post-arrest conduct was likely to result in
serious bodily injury to Bernier or one of the police officers.
[14] We conclude that the evidence presented at the jury trial was sufficient to prove
that Bernier recklessly, knowingly, or intentionally engaged in fighting or in
tumultuous conduct. Sufficient evidence was, therefore, presented to support
his conviction for disorderly conduct. We affirm Bernier’s conviction, but
remand with instructions that the trial court amend the trial record to correctly
reflect the appellant’s name as “Fritz Bernier.”
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[15] Affirmed and remanded.
Vaidik, C.J., and Bradford, J., concur.
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