MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Dec 11 2019, 9:52 am

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
Zachary J. Stock                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Angela Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Murphy,                                           December 11, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1289
        v.                                              Appeal from the Hendricks
                                                        Superior Court
State of Indiana,                                       The Honorable Stephenie LeMay-
Appellee-Plaintiff.                                     Luken, Judge
                                                        Trial Court Cause No.
                                                        32D05-1811-CM-1664 & 32D05-
                                                        1811-CM-1668



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019                 Page 1 of 12
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, James Murphy (Murphy), appeals his convictions for

      intimidation, a Class A misdemeanor, Ind. Code § 35-45-2-1(a)(1); resisting law

      enforcement, a Class A misdemeanor, I.C. § 35-44.1-3(a)(1); and disorderly

      conduct, a Class B misdemeanor, I.C. § 35-45-1-3(a)(2).


[2]   We affirm in part, and reverse in part.


                                                   ISSUE
[3]   Murphy presents this court with one issue on appeal, which we restate as:

      Whether the State presented sufficient evidence beyond a reasonable doubt to

      support his convictions.


                      FACTS AND PROCEDURAL HISTORY
[4]   On August 20, 2018, United States Postal Service (USPS) mail carrier Kiesha

      Fassett (Fassett) was delivering mail on Gibbs Street in Plainfield, Indiana.

      Murphy drove toward Fassett, parked his truck, and exited. Murphy

      approached Fassett and accused her of “withholding his check.” (Transcript

      Vol. II, p. 13). When Fassett stated that she did not have Murphy’s check,

      Murphy threatened Fassett that if she “didn’t deliver his check,” he was going

      to hurt her. (Tr. Vol. II, p. 15). Scared by Murphy’s actions, Fassett warned

      Murphy to “back up” or that she would use her “dog spray” on him. (Tr. Vol.

      II, p. 16). Fassett called the police as well as her “postal supervisors due to her

      fear of returning” on that route to deliver mail. (Appellant’s App. Vol. II, p.

      14). Murphy drove off before the police arrived.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 2 of 12
[5]   On August 24, 2018, Officer Cole Wuest (Officer Wuest) of the Plainfield

      Police Department went to Murphy’s home. Upon arrival, Officer Wuest

      knocked on the door and initiated contact with Murphy. Officer Wuest advised

      Murphy that he was there to follow up on the incident between Murphy and

      Fassett. Murphy admitted that he “did get angry” during his encounter with

      Fassett, and he claimed that he was upset with Fassett since she was supposed

      to be delivering his $1,000 “tax check.” (Appellant’s App. Vol. II, p. 15).


[6]   On September 4, 2018, under Cause Number 32D05-1811-CM-1664 (Cause

      No. 1164), the State filed an Information, charging Murphy with intimidation,

      a Class A misdemeanor. Also, a no-contact order was issued against Murphy.

      On October 2, 2018, the State issued a warrant for Murphy’s arrest because he

      failed to appear for his initial hearing.


[7]   On October 3, 2018, in the company of other officers, Officer Joshua Jellison

      (Officer Jellison), arrived at Murphy’s home to arrest Murphy. Murphy’s

      mother answered the door and Officer Jellison informed her that he was there

      to speak with Murphy. When Murphy came to the door, Officer Jellison

      informed Murphy that he had a warrant for his arrest. Officer Jellison asked

      Murphy “approximately two (2) to three (3) times to step out of the house.”

      (Tr. Vol. II, p. 43). Murphy refused to exit his house and at that point, Officer

      Jellison put his “right hand on the cusp of [Murphy’s] right elbow, and [his] left

      hand on [Murphy’s] wrist” so that he “could gain control and place [Murphy]

      in cuffs.” (Tr. Vol. II, p. 43). Officer Jellison then attempted to pull Murphy

      out of the house, but Murphy pulled away multiple times. With the help of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 3 of 12
      another officer, Officer Jellison forcefully removed Murphy from the house.

      During his arrest, Murphy repeatedly yelled at the officers that he “didn’t need

      to come with [the officers],” the warrant was not “good”, and he had “been

      pardoned for his crimes.” (Tr. Vol. II, p. 49). Also “screaming at the top of his

      lungs,” Murphy yelled that he had been “pardoned by Donald Trump” and “he

      wasn’t responsible for whatever the original charge was on the warrant.” (Tr.

      Vol. II, pp. 44, 51).


[8]   Despite numerous warnings, Murphy did not cease screaming. Eventually

      Murphy calmed down. The commotion resulted in Murphy’s mother exiting

      the house. Murphy’s mother then approached the officers and yelled at the

      officers that they were not going to take her son. The officers detained

      Murphy’s mother. Observing his mother in handcuffs, Murphy resumed being

      animated, and addressing the officer’s actions against his mother, he screamed

      at the “top of his lungs,” stating, “you can’t do this.” (Tr. Vol. II, p. 39).


[9]   The following day on October 3, 2018, in Cause Number 32D05-1811-CM-

      1668(Cause No. 1668), the State filed another Information, charging Murphy

      with Class A misdemeanor resisting law enforcement, and Class B

      misdemeanor disorderly conduct. On November 16, 2018, Cause No. 1668

      was transferred to the Hedrick Superior Court to be heard with Cause No.

      1664. On May 16, 2019, the trial court conducted a joint bench trial for both

      Causes. At the close of the evidence, the trial court found Murphy guilty on all

      Counts. The trial court then sentenced Murphy to concurrent sentences of 365

      days for intimidation, 365 days for resisting law enforcement, and 180 days for

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 4 of 12
       disorderly conduct. The trial court, however, suspended Murphy’s sentence to

       probation.


[10]   Murphy now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review


[11]   Murphy claims that there was insufficient evidence to convict him of

       intimidation, resisting law enforcement, and disorderly conduct. When

       reviewing a claim of insufficient evidence, it is well-established that our court

       does not reweigh evidence or assess the credibility of witnesses. Walker v. State,

       998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all of the evidence, and

       any reasonable inferences that may be drawn therefrom, in a light most

       favorable to the verdict. Id. We will uphold the conviction “‘if there is

       substantial evidence of probative value supporting each element of the crime

       from which a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178

       (Ind. 2004)).


                                                II. Intimidation


[12]   Murphy first argues that there “is absolutely no evidence that [his] threat to

       harm Fassett was made in retaliation for a prior lawful act.” (Appellant’s Br. p.

       9). To prove intimidation, the State was required to establish beyond a

       reasonable doubt that: “A person who communicates a threat to another


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 5 of 12
       person, with the intent: . . . (2) That the other person be placed in fear of

       retaliation for a prior lawful act . . . commits intimidation, a Class A

       misdemeanor.” I.C. § 35-45-2-1(a)(2). Murphy appears to be challenging the

       sufficiency of the second element.


[13]   In Chastain v. State, 58 N.E.3d 235, 241 (Ind. Ct. App. 2016), trans. denied, we

       held that “a conviction under the intimidation statute should not depend upon a

       precise parsing of the threatening language used by a defendant or a detailed

       timeline of when a threat was issued in relation to a prior lawful act.” (internal

       citations omitted). Rather, what is required is that there be a clear nexus

       between the prior lawful act and the defendant’s threat. See id. (emphasis

       added).


[14]   On August 20, 2018, Murphy drove up to Fassett while she was delivering mail

       for the USPS, parked his truck and exited, and then repeatedly demanded his

       check from Fassett. When Fassett stated that she did not have Murphy’s check,

       Murphy repeatedly threatened to hurt Fassett. Fasset committed a lawful act—

       refusing to deliver a nonexistent check to Murphy—and Murphy immediately

       threatened to harm Fassett. Thus, it was reasonable for the trier of fact to find

       that there was a clear nexus between that prior lawful act and Murphy’s threat

       to harm Fassett. Fassett was engaged in a prior lawful act, and Murphy’s threat

       was in direct response to Fassett’s prior lawful act. Therefore, we conclude that

       the State presented sufficient evidence beyond a reasonable doubt to support

       Murphy’s intimidation conviction.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 6 of 12
                                       III. Resisting Law Enforcement


[15]   To convict Murphy of Class A misdemeanor resisting law enforcement, the

       State was required to prove beyond a reasonable doubt that Murphy 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. I.C. § 35-44.1-3-

       1(a)(1).


[16]   Murphy argues that “[i]t is also difficult to see how refusing to leave one’s

       house or simply pulling away from an officer constitutes forceful resistance.”

       (Appellant’s Br. p. 11). When Officer Jellison arrived at Murphy’s home, he

       informed Murphy that he had a warrant for his arrest. Officer Jellison asked

       Murphy “approximately two (2) to three (3) times to step out of the house.”

       (Tr. Vol. II, p. 43). Murphy refused to exit his house and at that point, Officer

       Jellison put his “right hand on the cusp of [Murphy’s] right elbow, and [his] left

       hand on [Murphy’s wrist” so that he “could gain control and place [Murphy] in

       cuffs.” (Tr. Vol. II, p. 43). Officer Jellison then attempted to pull Murphy out

       of the house, but Murphy pulled away multiple times. With the help of another

       officer, Officer Jellison forcefully removed Murphy from the house. Because

       Murphy was attempting to kick the officers, he was forced to sit down on the

       ground.


[17]   Based on the evidence, the State presented sufficient evidence beyond a

       reasonable doubt that Murphy forcibly resisted law enforcement. See Walker v.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 7 of 12
       State, 998 N.E.2d 724, 725 (Ind. 2013) (“A person forcibly resists a police

       officer when he uses strong, powerful, violent means to impede an officer in the

       lawful execution of his duties.”)


                                            IV. Disorderly Conduct


[18]   Lastly, to prove that Murphy committed Class B misdemeanor disorderly

       conduct, the State needed to prove beyond a reasonable doubt that Murphy

       recklessly, knowingly, or intentionally made unreasonable noise and continued

       to do so after being asked to stop. See I.C. § 35-45-1-3(a)(2).


[19]   Murphy contends that he was engaging in political speech at the time of his

       arrest, and thus, his outbursts were protected by Article 1, section 9 of the

       Indiana Constitution. Article 1, section 9 provides: “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.”


[20]   In reviewing the constitutionality of Indiana Code section 35-45-1-3 as applied

       to a defendant, we employ a two-step analysis. “First, we must determine

       whether state action has restricted a claimant’s expressive activity; second, if it

       has, we must decide whether the restricted activity constituted an ‘abuse’ of the

       right to speak.” Blackman v. State, 868 N.E.2d 579, 584-85 (Ind. Ct. App. 2007)

       (citing Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996)).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 8 of 12
[21]   Here, the record reveals that Murphy was arrested for disorderly conduct after

       he screamed at Officer Jellison and other officers during his arrest despite being

       asked to stop several times. See Johnson v. State, 719 N.E.2d 445, 448 (Ind. Ct.

       App. 1999) (holding that a person’s conviction for making unreasonable noise

       based solely on his loud speaking during a police investigation constitutes state

       action restricting the claimant’s expressive activity). Murphy has established

       that the State restricted his expressive activity, therefore, the first prong is

       satisfied.


[22]   Turning to the second prong, it


               hinges on whether the restricted expression constituted political
               speech. If the claimant demonstrates under an objective standard
               that the impaired expression was political speech, the impairment
               is unconstitutional unless the State demonstrates that the
               magnitude of the impairment is slight or that the speech
               amounted to a public nuisance such that it inflict[ed]
               particularized harm analogous to tortious injury on readily
               identifiable private interests. If the expression, viewed in context,
               is ambiguous, it is not political speech, and we evaluate the
               constitutionality of the impairment under standard rationality
               review.


       Barnes v. State, 946 N.E.2d 572, 577 (Ind. 2011), adhered to on reh’g, 953 N.E.2d

       473 (Ind. 2011).


[23]   At the bench trial, Officer Jellison testified that during the arrest, Murphy

       challenged the validity of the warrant. Officer Jellison stated that Murphy

       repeatedly yelled at the officers that he “didn’t need to come with [the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 9 of 12
       officers],” the warrant was not “good”, and he had “been pardoned for his

       crimes.” (Tr. Vol. II, p. 49). Murphy additionally stated that “he wasn’t

       responsible for whatever the original charge was on the warrant because he had

       been pardoned by Donald Trump.” (Tr. Vol. II, p. 51). Also, evidence was

       presented that when Murphy observed his mother in handcuffs, Murphy, who

       had complied with the officers’ demand to remain quiet, loudly protested her

       arrest by stating, “you can’t do this.” (Tr. Vol. II, p. 39). Murphy subsequently

       testified that although he was not a “big fan of the constitution,” he at least had

       a “constitutional right” to know “what he was being arrested for.” (Tr. Vol. II,

       p. 54). In his brief, Murphy contends that he “did not believe the officers were

       engaged in a lawful arrest,” and while his outbursts were not delivered in a

       “sophisticated manner,” they were political expressions, and are therefore

       protected. (Appellant’s Br. p. 14).


[24]   This court has repeatedly concluded that where the defendant’s speech was

       directed exclusively at state actors and focused exclusively on the actions or

       conduct of state actors, the speech is political. For example, in Dallaly v. State,

       916 N.E.2d 945, 953 (Ind. Ct. App. 2009), we concluded that the aim or focus

       of the defendant’s expressive activity was to criticize the actions of the police

       officers and constituted political expression. In U.M. v. State, 827 N.E.2d 1190,

       1193 (Ind. Ct. App. 2005), we held that defendant’s speech in regard to his

       companion’s inability to hold up his arms was an expression regarding the

       legality and appropriateness of police conduct toward his companion and was

       political speech. Lastly, in Johnson v. State, 747 N.E.2d 623, 630-31 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 10 of 12
       App. 2001), we held that the defendant criticized the conduct of an official

       acting under color of law, therefore, his speech was protected political speech.


[25]   Here, during his encounter with the officers, notwithstanding his claim that he

       had been pardoned by President Trump, Murphy loudly protested the legality

       of the warrant, and the appropriateness of police conduct toward him and his

       mother. Indeed, Murphy’s statements criticized the conduct of an official

       acting under color of law. See Johnson, 747 N.E.2d at 630. Thus, Murphy’s

       speech constituted political speech as the focus of his expressive activity was to

       criticize the actions of Officer Jellison and others in arresting him and his

       mother. See Shoultz v. State, 735 N.E.2d at 826-27 (holding that Shoultz

       engaged in protected political speech when he asked the arresting police officer

       what the problem was and why he was bothering other people, demanded

       whether the officer had a warrant to be on the property, and requested that the

       officer leave if he did not have a warrant), trans. denied. Accordingly, Murphy

       has met the second prong of the test.


[26]   If the claimant demonstrates under an objective standard that the impaired

       expression was political speech, the impairment is unconstitutional unless the

       State demonstrates that the “magnitude of the impairment” is slight or that the

       speech amounted to a public nuisance such that it “inflict[ed] ‘particularized

       harm’ analogous to tortious injury on readily identifiable private interests.”

       Barnes, 946 N.E.2d at 577 (quoting Whittington, 669 N.E.2d at 1370).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 11 of 12
[27]   In the instant case, Officer Jellison and the other officers described Murphy’s

       protests as loud. However, we cannot say that the State demonstrated that the

       magnitude of the impairment was slight. Nor can we say that the harm suffered

       by Murphy’s neighbors rose above the level of a fleeting annoyance or that the

       State demonstrated that Murphy’s loud protests diverted the officers’ attention

       away from the task at hand, i.e., arresting Murphy due to Murphy’s speech.


[28]   Accordingly, we conclude that Murphy’s speech was protected political speech

       and did not constitute an abuse of the right to free speech under the Indiana

       Constitution. We, therefore, reverse Murphy’s Class B misdemeanor disorderly

       conduct conviction.


                                             CONCLUSION
[29]   Based on the foregoing, we conclude that the State presented sufficient evidence

       beyond a reasonable doubt to convict Murphy of his intimidation and resisting

       law enforcement offenses. However, we reverse Murphy’s conviction for Class

       B misdemeanor disorderly conduct after concluding that Murphy’s speech was

       protected political speech and did not constitute an abuse of the right to free

       speech under the Indiana Constitution.


[30]   We affirm in part, and reverse in part.


[31]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1289 | December 11, 2019   Page 12 of 12
