TUNGATE v. STATE (2025)

MEMORANDUM DECISION

[1] Caleb L. Tungate appeals his convictions for resisting law enforcement as a class A misdemeanor and disorderly conduct as a class B misdemeanor. He challenges the sufficiency of the evidence to support his convictions. We affirm.

Facts and Procedural History

[2] Around 1:00 a.m. on April 21, 2024, Tungate entered an Airplane Express gas station store in Bluffton and bought a pack of cigarettes. He reentered the store approximately twenty minutes later to buy more cigarettes. He did not have enough change to purchase more cigarettes, so he exited the store to retrieve money from his car. When he returned, he had a piece of “window glass” in his hand and started arguing with the store clerk about “trickery” and accusing her of stealing money from him. Transcript Volume II at 50, 55. Because his behavior was making the store clerk “uncomfortable, suspicious,” she “called the cops.” Id. at 50.

[3] At around 1:06 a.m., Bluffton Police Officer Amanda Johnson responded to an “abandoned vehicle” call at a medical office on Main Street. Id. at 58. Bluffton Police Officer Benjamin Griner also arrived at that scene to assist Officer Johnson. The officers were approached by Tungate, who was driving an “older style Oldsmobile.” Id. at 59. When Tungate approached the officers, his demeanor was “irate.” Id. at 60. He told the officers he believed “that there was an individual in [the] abandoned vehicle who stole items out of his car.” Id. He was “yelling” and “cussing” at the officers. Id. When officers told him there was nobody in the abandoned vehicle, he called the officers “liars” and refused to listen to what they were saying. Id. Officers warned Tungate to stop yelling and to “lower his voice” or he “would go to jail.” Id. at 69.

[4] After a few minutes, Tungate did “a U-turn and headed south.” Id. at 61. Fifteen minutes later, Officer Griner saw Tungate driving faster than the speed limit. As Officer Griner followed Tungate, he received a report of “suspicious activity” from the Airplane Express gas station, indicating that Tungate had punched out his car window, had littered glass in the station's parking lot, and had blood on his hands or on the change he brought to the counter. Id. at 71. When Tungate pulled into the parking lot of a convenience store and exited his vehicle, Officer Griner activated his vehicle's emergency lights, pulled into the lot, and approached Tungate.

[5] During their “brief conversation,” Tungate was “flippant” and “difficult to communicate with.” Id. at 72. Tungate repeatedly tried to “walk away” from Officer Griner despite being repeatedly advised that he was not free to leave “because he was stopped for reasonable suspicion of an ordinance or infraction violation.” Id. Two other officers, including Wells County Sheriff's Deputy Maciej Zaklikiewicz, arrived to assist. Tungate “had to be asked or told approximately ten (10) different times to provide his identification before he did so,” and he was also repeatedly warned “for disorderly conduct” as he was yelling at officers. Id. Nevertheless, Tungate's “loud behavior continued,” and officers considered his “volume,” which occurred at “random” outbursts, to be “unreasonable for the circumstances.” Id. at 73. Officers acknowledged that “just across the street” there was a residential neighborhood with people who were “probably” sleeping. Id. at 107.

[6] When Officer Griner went into his vehicle to prepare a littering citation, he could still hear Tungate continue to yell loudly about various topics that “did not appear to be relevant or emergent.” Id. Officer Griner exited his vehicle, and after Tungate was again warned by other officers to quiet down to no avail, Officer Griner “moved behind” Tungate and advised him to place his hands behind his back for handcuffing. Id. at 75. Tungate “pulled his arms away” and “leaned away” when Officer Griner tried to handcuff him. Id. Officer Griner and Deputy Zaklikiewicz “struggled to gain control of [Tungate's] arms for some time.” Id. Another officer advised Tungate to “quit resisting” or “he would be tased.” Id. Tungate continued to resist and one of the officers tased him, but the “taser was ineffective.” Id. Two more taser attempts were also ineffective and Tungate began “forcibly” “pulling wires and probes out.” Id. Tungate “[t]ook a drag off a cigarette” before being “taken to the ground” by Deputy Zaklikiewicz and successfully handcuffed. Id.

[7] The State charged Tungate with resisting law enforcement as a class A misdemeanor, disorderly conduct as a class B misdemeanor, refusal to identify self as a class C misdemeanor, speeding as a class A infraction, and littering as a class B infraction. The court held a bench trial on July 30, 2024. At the close of the evidence, the court found Tungate guilty of resisting law enforcement, disorderly conduct, and littering.¹

Discussion

[8] When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id.

[9] To convict Tungate of resisting law enforcement as a class A misdemeanor as charged, the State was required to prove that he knowingly or intentionally forcibly resisted, obstructed, or interfered with a law enforcement officer or a person assisting the officer while the officer was lawfully engaged in the execution of the officer's duties. Ind. Code § 35-44.1-3-1(a)(1). Tungate's sole assertion regarding this conviction is that the State failed to demonstrate that the two officers that he admittedly forcibly resisted or interfered with, Officer Griner and Deputy Zaklikiewicz, “were licensed Indiana law enforcement officers.” Appellant's Brief at 14.

[10] Here, Officer Griner testified that he had been an Officer with the Bluffton Police Department for over nine years. Deputy Zaklikiewicz testified that he had been employed as a Sheriff's Deputy by the Wells County Sheriff's Office for almost six years. Tungate cites no authority, and we are unaware of any, to support his suggestion that this evidence was insufficient to establish that Officer Griner and Deputy Zaklikiewicz were “law enforcement officers” within the meaning of the statute, or that the State was required to prove the existence of the officers so-called “licenses.” Based upon the record, we conclude that evidence of probative value exists from which the court could determine that the officers were law enforcement officers and that Tungate committed resisting law enforcement as a class A misdemeanor.

[11] To convict Tungate of disorderly conduct as a class B misdemeanor as charged, the State was required to prove that he recklessly, knowingly, or intentionally made an unreasonable noise, and continued to do so after being asked to stop. Ind. Code § 35-45-1-3(a)(2). Regarding this conviction, Tungate admits that he knowingly or intentionally continued to make noise after being asked to stop. His sole assertion is that the State failed to prove that the noise was “unreasonable” considering “the location, time of day, and who was affected by this noise, which was nobody.” Appellant's Brief at 16.

[12] As the Indiana Supreme Court has explained, in order to demonstrate “unreasonable noise” under the disorderly-conduct statute, the State “must prove that a defendant produced decibels of sound that were too loud for the circumstances.” Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996) (emphasis removed).

Loud noise could be found unreasonable ․ on a number of grounds. It could threaten the safety of injured parties by aggravating their trauma or by distracting the medical personnel tending them. Loud outbursts could agitate witnesses and disrupt police investigations. It could make coordination of investigations and medical treatment more difficult. Finally, loud noise can be quite annoying to others present at the scene.

Id.

[13] Officers testified that Tungate yelled, cussed, and engaged in loud outbursts both when addressing officers on the scene of the abandoned vehicle and again in the convenience store parking lot. Officers repeatedly warned Tungate to lower his voice to no avail. Officers stated that they considered Tungate's volume to be unreasonable under the circumstances, as officers who were quite far away from Tungate could hear him, and the second encounter took place across the street from a residential neighborhood after 1:00 a.m. Moreover, the evidence demonstrated that Tungate's noise was disruptive to the officers’ investigation because it prevented them from being able to communicate properly with him, promptly obtain his identification, or obtain answers to their questions. Based upon the record, we conclude that evidence of probative value exists from which the court could find that Tungate committed disorderly conduct as a class B misdemeanor.

[14] For the foregoing reasons, we affirm Tungate's convictions.

[15] Affirmed.

FOOTNOTES

1.   Tungate makes no argument regarding his littering infraction.

Brown, Judge.

Mathias, J., and Kenworthy, J., concur.