MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Jun 19 2020, 9:41 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Taylor-Price                                 Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Reanna Lopez-Smith,                                      June 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-3018
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David J. Certo,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable David M. Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G12-1906-CM-25597



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020                   Page 1 of 9
                                       Statement of the Case
[1]   Reanna Lopez-Smith appeals her convictions for resisting law enforcement, as a

      Class A misdemeanor, and disorderly conduct, as a Class B misdemeanor,

      following a bench trial. Lopez-Smith raises a single issue for our review,

      namely, whether the State presented sufficient evidence to negate her

      affirmative defense that her conduct was protected political speech.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In the evening hours of June 25, 2019, Indianapolis Metropolitan Police

      Department Officer Emily Perkins was dispatched to a reported disturbance in

      the 4400 block of North Linwood Drive. There, Officer Perkins learned that

      there had been “several incidents” between neighbors in an apartment complex

      there “where guns were involved.” Tr. Vol. 2 at 9. Officer Perkins observed a

      vehicle near the reported disturbance with Lopez-Smith inside. Officer Perkins

      learned that Lopez-Smith had recently moved out of the apartment complex

      because of the disturbances.


[4]   As Officer Perkins attempted to leave the apartment complex, she observed

      Lopez-Smith place her vehicle “in the middle of the street, running with the

      lights on and the brake lights . . . on.” Id. at 11. Officer Perkins pulled her

      police cruiser behind Lopez-Smith “for about 30 seconds,” “expect[ing] her to

      leave.” Id. But Lopez-Smith “didn’t move.” Id. Officer Perkins then

      “activated [her] overhead lights” and Lopez-Smith began to turn right onto an

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020   Page 2 of 9
      eastbound street, but “[s]he did not turn. She almost turned. She turned back,

      pulled the vehicle back to the left, [and] proceeded northbound.” Id.


[5]   With Officer Perkins still following her with the cruiser’s overhead lights on,

      Lopez-Smith turned into a Kroger’s parking lot. Lopez-Smith then “ran [a]

      stop sign” while proceeding “30 miles per hour” through the parking lot before

      “pull[ing] across . . . two handicapped” spaces and parking her car there. Id. at

      12. Lopez-Smith then opened the driver’s side door of her vehicle. Officer

      Perkins “yelled at her to get back in the vehicle,” which command Officer

      Perkins had to repeat. Id. Lopez-Smith then “s[at] down with her feet still out

      of the vehicle, door open, so her back was toward the passenger side.” Id.

      Officer Perkins again directed Lopez-Smith “to get back in the vehicle and shut

      the door.” Id.


[6]   Lopez-Smith refused. She “yelled at [Officer Perkins] that she was on the

      phone with her mom . . . .” Id. A crowd of ten or so bystanders began to

      gather. At that point, Officer Perkins was concerned about the possibility of

      firearms given the history of disturbances at the apartment complex. Officer

      Perkins then “immediately” approached the vehicle, and at some point other

      officers arrived. Id. at 13. Lopez-Smith continued to refuse the instructions to

      close the vehicle door and to put down her phone, and so Officer Perkins

      directed Lopez-Smith to exit the vehicle. Lopez-Smith again refused and

      instead “twisted her body back into” the vehicle with “her legs out of

      the . . . driver’s door” and “her body back in to where the passenger

      compartment is . . . .” Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020   Page 3 of 9
[7]   Officer Perkins could not see Lopez-Smith’s hands with her in that position.

      Accordingly, Officer Perkins “grabbed her left arm . . . in an attempt to pull her

      away from the center console . . . .” Id. at 14. Lopez-Smith “pulled back.”

      Lopez-Smith then said, “you can’t do this to me, I’m talking to my mom.” Id.

      Officer Perkins told Lopez-Smith that she was under arrest for resisting, and

      Lopez-Smith then “twisted her body. She flailed her arms. She swung at

      officers. She did everything exactly the opposite of what [officers] told her to

      do . . . .” Id. Officer Perkins “had to grab onto her arm at least four times in

      order to get her hands behind her back” and ended up having to “tak[e] her to

      the ground.” Id.


[8]   Officer Perkins later estimated that she and Lopez-Smith “fought for probably a

      minute or a minute and a half” before Officer Perkins and other officers were

      able to subdue Lopez-Smith. Id. While they waited for another police vehicle

      to escort Lopez-Smith away from the scene, Lopez-Smith continued to

      “scream[] and . . . yell[].” Id. at 15. Lopez-Smith “yelled obscenities at [the

      officers] and cussed [them] out,” she “yelled to everyone that she could get to

      listen to her,” and, along with that, she said the officers did not “hav[e] the right

      to arrest her.” Id. at 23. By the time she was escorted away, a crowd of “20 to

      25 people” had gathered at the scene. Id. at 15.


[9]   The State charged Lopez-Smith with resisting law enforcement, as a Class A

      misdemeanor, and disorderly conduct, as a Class B misdemeanor. After a

      bench trial in which Officer Perkins testified, the court found Lopez-Smith

      guilty of both offenses. This appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020   Page 4 of 9
                                      Discussion and Decision
[10]   On appeal, Lopez-Smith assets that the State failed to present sufficient

       evidence to negate her claim that her conduct was protected political speech

       under Article 1, Section 9 of the Indiana Constitution. As our Supreme Court

       has made clear:


               When a defendant challenges the sufficiency of the evidence
               supporting a conviction, we neither reweigh evidence nor judge
               witness credibility. Instead, this Court will consider only the
               evidence most favorable to the judgment together with all
               reasonable inferences that may be drawn from the evidence. If
               substantial evidence supports the judgment, we’ll affirm the
               convictions.


       Cardosi v. State, 128 N.E.3d 1277, 1283 (Ind. 2019) (quotation marks and

       citations omitted).


[11]   Lopez-Smith does not dispute that the State presented sufficient evidence to

       meet the statutory elements of the two offenses. Rather, she asserts that the

       evidence required the fact-finder to conclude that her conduct was protected

       political speech. Article 1, Section 9 states: “No law shall be passed,

       restraining the free interchange of thought and opinion, or restricting the right

       to speak, write, or print, freely, on any subject whatever: but for the abuse of

       that right, every person shall be responsible.”


[12]   “In reviewing an argument under Article 1, Section 9, we employ ‘a two-step

       inquiry’: first, we ‘determine whether state action has restricted a claimant’s

       expressive activity’; and, second, we ‘decide whether the restricted activity

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020   Page 5 of 9
constituted an abuse of the right to speak.’” Stone v. State, 128 N.E.3d 475, 482

(Ind. Ct. App. 2019) (quoting Williams v. State, 59 N.E.3d 287, 292 (Ind. Ct.

App. 2016)), trans. denied. With respect to the first step:


        As we have explained:


                 . . . the defendant demonstrates that his expression was
                 unambiguous political speech when he shows that the
                 focus of his speech exclusively concerned government
                 action. Such speech must both be directed at state actors
                 and refer to state actors or their conduct. Speech directed
                 toward a private party or that refers to a private party, or
                 the conduct of a private party, is politically ambiguous for
                 purposes of an affirmative defense under art. 1, sec. 9.
                 And when the focus of speech is politically ambiguous, a
                 reasonable fact-finder may reject the asserted affirmative defense.


                 If the defendant does not meet his burden of showing that
                 his speech was unambiguously political, the State’s
                 impairment of his speech—e.g., the defendant’s arrest . . .
                 —is constitutional so long as the State acted rationally in
                 impairing the speech.


        [Williams, 59 N.E.3d] at 289-90 (emphasis added; footnote
        omitted). Thus, “expression that is directed toward a private
        party or refers to the conduct of a private party, even if in part,
        does not demonstrate protected political expression” under
        Article 1, Section 9. Id. at 293. Likewise, “speech in which the
        speaker refers to him- or herself, even when prompted by a state
        actor’s conduct or statements, and even when coupled with
        political statements, permits a reasonable fact-finder to conclude
        that the focus of the entirety of the speech is ambiguous and,
        therefore, not political.” Id. at 294. In other words, where
        speech is at least in part not germane to a public issue, a trier of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020          Page 6 of 9
               fact may find the speech as a whole not protected by Article 1,
               Section 9. See id.


       Id. at 483 (quoting Williams, 59 N.E.3d at 289-94) (brackets omitted; some

       omissions original to Stone).


[13]   Lopez-Smith’s speech was not unambiguously political as a matter of law. Part

       of her speech was directed toward private parties, such as her mother and

       bystanders. Part of her speech was self-referential, such as telling the officers

       that she was going to sue them.


[14]   Still, Lopez-Smith asserts that the facts underlying her convictions are

       analogous to those in U.M. v. State, in which we held that the appellant’s speech

       was protected political speech. 827 N.E.2d 1190, 1193 (Ind. Ct. App. 2005). In

       U.M., we described the facts as follows:


               Police officers received a report of juveniles spray-painting graffiti
               on a garage. When Officer Laton arrived at the scene, U.M. was
               in the back seat of a car with another individual. Officer Laton
               instructed the people in the car to hold up their hands. Despite
               Officer Laton’s directions to do so, one individual in the back
               seat of the car did not keep his hands up. U.M. was sitting next
               to this individual in the back seat of the car and yelled at Officer
               Laton, “F–––– you, he can’t keep his arms up, his arms hurt.”
               Tr. at 14. Officer Laton told U.M. to stop yelling, and the officer
               then removed U.M. and the other individual from the car. U.M.
               continued yelling statements such as, “You guys are all racists; f–
               ––– the police.” Tr. at 14. Officer Laton testified that he
               instructed U.M. to stop yelling two or three times and that it took
               U.M. two or three minutes to heed his orders. Based upon this
               incident, the State filed a petition alleging U.M. to be a
               delinquent child for committing the offense of disorderly
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020   Page 7 of 9
               conduct. U.M. was found to be delinquent by the juvenile court .
               ...


       Id. at 1191-92.


[15]   We reversed the juvenile’s adjudication on the ground that the “conduct” that

       was alleged to have been disorderly was protected political speech. As we

       explained:


               U.M.’s speech was in regard to his companion’s inability to hold
               up his arms and the requirement by Officer Laton that their arms
               stay in the air. U.M.’s remarks were directed at Officer Laton,
               and Officer Laton testified that U.M. was commenting on what
               he was doing at the scene. Although we do not agree with the
               manner in which U.M. conducted himself, . . . U.M. was
               expressing himself regarding the legality and appropriateness of
               police conduct toward his companion.


       Id. at 1193. In other words, in U.M., “the defendant’s speech was directed

       exclusively at state actors and focused exclusively on the actions or conduct of

       state actors.” Williams, 59 N.E.3d at 294. But, as Lopez-Smith’s conduct was

       not so focused, a reasonable fact-finder was free to reject her argument that her

       conduct was unambiguously protected political speech. Stone, 128 N.E.3d at

       483.


[16]   We thus turn to the second step of our Article 1, Section 9 inquiry. As we also

       explained in Williams:


               Having concluded that [the defendant’s] speech was not political,
               we next evaluate the constitutionality of the State’s impairment

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020   Page 8 of 9
               of her expression under standard rationality review. In that
               review, we determine whether the State rationally could have
               concluded that [the defendant’s] expressive activity, because of
               its volume, was an “abuse” of the right to speak. In other words,
               we consider whether [the defendant’s] speech was a threat to
               peace, safety, and well-being.


       59 N.E.3d at 295 (cleaned up).


[17]   The State readily demonstrated this requirement. In Williams, we held that the

       State presented sufficient evidence of an abuse of the right to speak when the

       volume of the defendant’s speech caused neighbors to exit their homes to see

       what was going on. Id. Likewise, here, Lopez-Smith’s volume, language, and

       belligerence toward the officers attracted a crowd of twenty to twenty-five

       bystanders in the Kroger’s parking lot. Accordingly, the State presented

       sufficient evidence to negate her affirmative defense of protected political

       speech under Article 1, Section 9, and we affirm her convictions.


[18]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020   Page 9 of 9
