                                                                              FILED
                                                                          Aug 26 2016, 8:21 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Jennifer L. Koethe                                        Gregory F. Zoeller
      LaPorte, Indiana                                          Attorney General of Indiana

                                                                Angela N. Sanchez
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Dorothy Williams,                                         August 26, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                46A03-1511-CR-1913
              v.                                                Appeal from the LaPorte Superior
                                                                Court
      State of Indiana,                                         The Honorable Michael S.
      Appellee-Plaintiff.                                       Bergerson, Judge
                                                                Trial Court Cause No.
                                                                46D01-1411-F5-433



      Najam, Judge.


                                        Statement of the Case
[1]   Dorothy Williams appeals from her conviction for disorderly conduct, as a

      Class B misdemeanor, following a jury trial. She asserts on appeal that there is

      insufficient evidence to support her conviction because her conviction was

      Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016                  Page 1 of 14
      based on political speech, which Williams raised as an affirmative defense

      under article 1, section 9 of the Indiana Constitution. Where, as here, the

      defendant is not the original subject of a police investigation, 1 the defendant

      demonstrates that her expression was unambiguous political speech when she

      shows that the focus of her 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.


[2]   If the defendant does not meet her burden of showing that her speech was

      unambiguously political, the State’s impairment of her speech—e.g., the

      defendant’s arrest for disorderly conduct—is constitutional so long as the State

      acted rationally in impairing the speech. However, if the defendant meets her

      burden of showing unambiguous political speech, the burden shifts to the State

      to demonstrate that the defendant’s exercise of her speech was an abuse of her

      right to that expression. While the words used by the defendant do not matter

      to this analysis, the State can meet this heightened burden in either of the




      1
        Our supreme court has held that a person of interest to an investigation who refuses to cooperate with an
      investigating officer is not protected by the political-speech defense under art. 1, sec. 9. Barnes v. State, 946
      N.E.2d 572, 578 (Ind.), aff’d on reh’g, 953 N.E.2d 473 (2011), superseded by statute on other grounds, see Cupello v.
      State, 27 N.E.3d 1122, 1124 (Ind. Ct. App. 2015).

      Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016                              Page 2 of 14
      following circumstances: (1) the defendant’s volume had more than a fleeting

      interference with a private interest,2 or (2) the defendant interfered with an

      ongoing police investigation.3


[3]   Here, during her encounter with police at her home, Williams directed some of

      her speech toward her neighbors, and she repeatedly referred to herself and her

      own conduct during the encounter. Accordingly, the focus of her speech was

      politically ambiguous for purposes of the art. 1, sec. 9 affirmative defense, and

      the fact-finder was free to reject Williams’ affirmative defense. As her speech

      was politically ambiguous, the State’s impairment of her speech was

      constitutional so long as it was rational. And it was here: the State presented

      evidence that some of her neighbors, while in their homes, were actually alerted

      to Williams’ encounter with police by the volume of her speech, and the State

      further showed that numerous officers diverted their attention away from the

      task at hand because of Williams’ speech. Accordingly, we affirm Williams’

      conviction for disorderly conduct, as a Class B misdemeanor.




      2
        E.g., Madden v. State, 786 N.E.2d 1152, 1157 (Ind. Ct. App. 2003) (holding that the defendant’s political
      speech was an abuse of the right to speak when her speech was “loud enough to draw a crowd” that
      disrupted traffic), trans. denied.
      3
        E.g., Dallaly v. State, 916 N.E.2d 945, 953-54 (Ind. Ct. App. 2009) (holding that the defendant’s political
      speech was an abuse of the right to speak when it interfered with an officer’s ability to function as a law
      enforcement officer, which, in turn, created a traffic hazard).

      Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016                          Page 3 of 14
                                  Facts and Procedural History
[4]   Around 6:00 a.m. on November 21, 2014, six to ten officers of the Michigan

      City Police Department went to Williams’ residence on Highland Avenue to

      serve an arrest warrant on Robert Sanders, Jr. Sanders is Williams’ brother,

      and, according to his driver’s license records, Sanders lived at Williams’

      residence. Williams’ minor niece, V.G., also lived at that residence, as did

      Williams’ elderly and disabled mother, Rady Sanders. Rady is paralyzed from

      the waist down, and Williams is responsible for Rady’s care.


[5]   Detective William Henderson knocked on Williams’ front door, and Williams

      answered. Detective Henderson asked Williams if Sanders was at the residence

      and informed Williams that he had an arrest warrant for Sanders. Williams

      “started yelling” and said that Sanders was not there. Tr. at 59. Williams

      appeared “verbally and completely irate that [the officers] were there” and

      repeatedly told the officers that Sanders “didn’t live there.” Id. at 60. When

      Detective Henderson asked for permission to enter the residence to ensure that

      Sanders was not present, Williams “slammed the door in [his] face.” Id.


[6]   Detective Henderson “continued to try and [make] verbal contact” with

      Williams over the next ten to fifteen minutes. Williams “continued yelling” at

      him in response. Id. at 61. Detective Henderson then contacted a prosecutor

      and requested a search warrant.


[7]   Pursuant to protocol, while they awaited the search warrant Detective

      Henderson instructed the other officers at the scene “to make sure that [they]

      Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016   Page 4 of 14
      maintained a solid perimeter and nobody came in or out” of the residence. Id.

      at 62. Detective Henderson requested the presence of additional officers to

      assist with maintaining that perimeter. Shortly thereafter, fifteen to twenty

      officers total were maintaining a perimeter around Williams’ residence. The

      officers used unmarked vehicles and did not activate any vehicular emergency

      lights or sirens.


[8]   At approximately 7:00 a.m., Williams and V.G. exited the front door of the

      residence. Williams walked V.G. through the police perimeter to a nearby car,

      which took V.G. to her school. When Williams walked back towards her

      residence, Detective Henderson stopped her at the police perimeter and

      informed her that he could not let her reenter the residence “for safety reasons”

      because, first, once a person exits a surrounded residence, “it’s one less person

      [the officers] have to worry [about] that has access to any firearms[] or anything

      that could harm [others],” and, second, if the subject of the search warrant is

      inside the residence, the person who has come outside can “see where [the

      officers] are tactically around [the residence], so if [the subject] were to try to

      plan any assault . . . [the officers will have] given up [their] positions . . . .” Id.

      at 140-41.


[9]   “After informing her of that,” Williams grew “irate” and began “yelling,

      screaming, [and] cussing” at the officers. Id. at 65. Detective Henderson asked

      her to “please be quiet” “several times,” to no avail. Id. at 140. Officers

      informed Williams that she was not under arrest, and Williams loudly asked,

      “You mean to tell me you are not going to let me enter my motherf***ing

      Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016    Page 5 of 14
       house?” Id. at 66. Williams then loudly declared, “I’m going back in my

       house,” and that she was “going back in here to see about my mother, you

       know my mother’s in here and she’s sick, I’m going back in here to see her.”

       Id. at 297-98. When informed that she would be arrested for disorderly conduct

       if she continued her loud outburst, Williams loudly informed the officers that

       she “doesn’t care about going to jail.” Id. at 66.


[10]   In response to Williams’ outburst, her neighbors came out of their nearby

       residences to see what was going on “like there was a show.” Id. at 68, 155.

       When officers continued to deny Williams reentry into her residence, Williams

       loudly asked the officers how they could “deny my right to go back in my own

       home” when she had not committed any crime and was not under arrest. Id. at

       275. Williams then proceeded to “tell my neighbors to look and see how the

       Michigan City police department [is] treating me . . . and an elderly woman[.]”

       Id. at 276.


[11]   Williams’ outburst required Detective Henderson to turn his “back to the

       residence[] and . . . fully engage[] . . . with Ms. Williams rather than keep[ his]

       post around the house,” which “could’ve been a big danger” to Detective

       Henderson and other officers. Id. at 176. Williams’ outburst also “divert[ed]

       some of [the] . . . officers” who were responsible for “dealing with the tactical

       surrounding [of] that residence” from that responsibility “[to] being concerned

       with [Williams’] demeanor and how she was going to react with the other

       officers [who] were dealing directly with her.” Id. at 102. Williams’ outburst

       lasted approximately two to four minutes before officers arrested her for

       Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016   Page 6 of 14
       disorderly conduct. Upon obtaining a search warrant and searching Williams’

       residence, the officers found Sanders hiding in the attic.


[12]   The State charged Williams with assisting a criminal, as a Level 5 felony, and

       disorderly conduct, as a Class B misdemeanor. A jury acquitted Williams of

       assisting a criminal, but it found her guilty of disorderly conduct. The trial

       court entered judgment and sentence accordingly. This appeal ensued.


                                      Discussion and Decision
                                                    Overview

[13]   Williams contends that the State presented insufficient evidence to support her

       conviction. In reviewing a sufficiency of the evidence claim, we do not reweigh

       the evidence or assess the credibility of the witnesses. Sharp v. State, 42 N.E.3d

       512, 516 (Ind. 2015). Rather, we look to the evidence and reasonable

       inferences drawn therefrom that support the verdict, and we will affirm the

       conviction if there is probative evidence from which a reasonable jury could

       have found the defendant guilty beyond a reasonable doubt. Id.


[14]   To prove disorderly conduct, as a Class B misdemeanor, the State had to show

       that Williams recklessly, knowingly, or intentionally made unreasonable noise

       and continued to do so after being asked to stop. Ind. Code § 35-45-1-3(a)(2)

       (2014). On appeal, Williams does not suggest that the State failed to present

       sufficient evidence to demonstrate that she committed disorderly conduct.

       Rather, she maintains that the evidence underlying her conviction shows that



       Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016   Page 7 of 14
       her speech was political speech, an affirmative defense under article 1, section 9

       of the Indiana Constitution.


[15]   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.” As our supreme court has explained:


                  Because one’s conduct or expression may be free speech
                  protected under the Indiana Constitution, an application of the
                  disorderly conduct statute must pass constitutional scrutiny. We
                  employ a two-step inquiry in reviewing the constitutionality of an
                  application of the disorderly conduct statute: we (1) “determine
                  whether state action has restricted a claimant’s expressive
                  activity” and (2) “decide whether the restricted activity
                  constituted an ‘abuse’ of the right to speak.” Whittington v. State,
                  669 N.E.2d 1363, 1367 (Ind. 1996). The first prong may be
                  satisfied based solely on the police restricting a claimant’s loud
                  speaking during a police investigation.[4] Id. at 1370. The second
                  prong hinges on whether the restricted expression constituted
                  political speech. Id. at 1369-70. 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.” Id. (quoting Price v.
                  State, 622 N.E.2d 954, 964 (Ind. 1993)). If the expression,
                  viewed in context, is ambiguous, it is not political speech, and we




       4
           The State does not suggest that Williams failed to satisfy this requirement.


       Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016         Page 8 of 14
               evaluate the constitutionality of the impairment under standard
               rationality review. Id. at 1370.


       Barnes v. State, 946 N.E.2d 572, 577 (Ind.), aff’d on reh’g, 953 N.E.2d 473 (2011),

       superseded by statute on other grounds, see Cupello v. State, 27 N.E.3d 1122, 1124

       (Ind. Ct. App. 2015).


[16]   Here, we first consider whether Williams’ speech was unambiguous political

       speech under art. 1, sec. 9. We then “evaluate the constitutionality” of the

       State’s “impairment” of Williams’ speech. See id.


                                               Political Speech

[17]   We first consider whether Williams’ speech was political speech for purposes of

       the art. 1, sec. 9 affirmative defense. We review the defendant’s speech under

       an objective standard. Id. However, Williams carried the burden of proof to

       demonstrate to the fact-finder that her expression was unambiguously political.

       Whittington, 669 N.E.2d at 1370. As the fact-finder rejected her asserted

       defense, Williams now appeals from a negative judgment. In such appeals, “we

       will reverse only if the evidence is without conflict and leads inescapably to the

       conclusion that the [appellant] is entitled” to her requested relief. Barnett v.

       State, 867 N.E.2d 184, 186 (Ind. Ct. App. 2007), trans. denied.


[18]   As our supreme court has explained:

               Expressive activity is political, for the purposes of [art. 1, sec. 9],
               if its point is to comment on government action, whether
               applauding an old policy or proposing a new one, or opposing a
               candidate for office or criticizing the conduct of an official acting
       Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016    Page 9 of 14
               under color of law. The judicial quest is for some express or
               clearly implied reference to governmental action.


       Whittington, 669 N.E.2d at 1370 (footnote omitted). Thus, “political expression

       focuses on the conduct of government officials and agents.” Id. at 1370 n.11.

       “In contrast, where an individual’s expression focuses on the conduct of a

       private party—including the speaker himself or herself—it is not political.” Id.

       at 1370. And, as our case law has applied art. 1, sec. 9, 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.


[19]   For example, in Price, the defendant responded to an officer who had

       threatened to arrest her by saying, “F--- you. I haven’t done anything.” 622

       N.E.2d at 957. Although the parties before the court in Price did not challenge

       whether that assertion was political, in Whittington the court revisited that

       language and concluded that it was “not political” because it was “a defense of

       [the defendant’s] own conduct.” Whittington, 669 N.E.2d at 1370 (discussing

       Price, 622 N.E.2d at 957). Likewise, on the facts before it in Whittington our

       supreme court concluded that the defendant’s statements that he “had not done

       anything and that the other witnesses were lying” were not political statements

       because they did not refer to the conduct of state actors. Id. at 1366, 1370-71.

       The court in Whittington further held that other statements made by the

       defendant were not political because they “were not directed toward” state

       actors but, rather, were “directed . . . toward his sister’s boyfriend, who may

       have been the one who summoned the police.” Id. at 1370-71.

       Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016   Page 10 of 14
[20]   This court has likewise concluded that speech in which the speaker refers to

       him- or herself, even when prompted by a police officer’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. For example, in Anderson v. State, 881

       N.E.2d 86, 90 (Ind. Ct. App. 2008), we held that the defendant “asserting a

       right to be where he was, which is a comment on his own behavior,” rendered

       his speech not political. In Blackman v. State, 868 N.E.2d 579, 586 (Ind. Ct.

       App. 2007), trans. denied, we held that the defendant’s comment that she had

       “every right to be there, that she did not have to leave the scene” focused on her

       own conduct, and, therefore, it was not political, even though it was in direct

       response to officer conduct that the defendant had asserted to be

       unconstitutional. In Wells v. State, 848 N.E.2d 1133, 1150 (Ind. Ct. App. 2006),

       we held that a politician’s statement upon arrest that he had been set up by his

       political adversaries was not political because it “reasonably [could] be viewed

       simply as an attempt . . . to ‘talk his way out’ of . . . further investigation . . . .”

       And in Johnson v. State, 719 N.E.2d 445, 449 (Ind. Ct. App. 1999), we held that

       the defendant’s assertion to an officer that the defendant was not going to

       attend classes required for his probation was not political because it could have

       been interpreted as focusing on the defendant’s own conduct rather than state

       action.


[21]   However, where the defendant’s speech was directed exclusively at state actors

       and focused exclusively on the actions or conduct of state actors, we have


       Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016    Page 11 of 14
       repeatedly concluded that the speech is political.5 E.g., Dallaly v. State, 916

       N.E.2d 945, 952-53 (Ind. Ct. App. 2009); U.M. v. State, 827 N.E.2d 1190, 1193

       (Ind. Ct. App. 2005); Madden v. State, 786 N.E.2d 1152, 1156-57 (Ind. Ct. App.

       2003), trans. denied; Johnson v. State, 747 N.E.2d 623, 630-31 (Ind. Ct. App.

       2001); Shoultz v. State, 735 N.E.2d 818, 826-27 (Ind. Ct. App. 2000), trans.

       denied.


[22]   Applying that law here, we hold that a reasonable fact-finder could have

       concluded that the focus of the entirety of Williams’ speech was ambiguous

       and, therefore, not political. During her encounter with the officers outside of

       her house, Williams said the following: “I don’t care if I go to jail”; “I’m going

       back in my house”; “my mother’s in here and she’s sick, [so] I’m going back in

       here to see her.” Tr. at 66, 297-98. Williams also directed part of her speech

       toward her neighbors, stating: “look and see how the Michigan City police

       department [is] treating me . . . and an elderly woman[.]” Id. at 276. Williams’

       statements refer to herself or her mother; they refer to her own conduct; and

       they were directed at least in part toward private parties. As our case law

       applies art. 1, sec. 9, those statements are plainly not political. Thus, a

       reasonable fact-finder could have concluded that the focus of the entirety of her

       speech was ambiguous and, therefore, that Williams’ did not meet her burden




       5
         In one recent case, a panel of this court held that the defendant’s assertion that she “did not need to go”
       was political in light of the overall context of her speech, which was a criticism of officers for, in the
       defendant’s view, unjustly stopping African-Americans. Jordan v. State, 37 N.E.3d 525, 532-33 (Ind. Ct. App.
       2015). Williams does not argue that her facts are analogous to those in Jordan. See Ind. Appellate Rule
       46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016                     Page 12 of 14
       to establish her affirmative defense. Thus, we reject Williams’ argument to the

       contrary on appeal.


                           State’s Impairment of Williams’ Expression

[23]   Having concluded that Williams’ speech was not political, we next “evaluate

       the constitutionality of the [State’s] impairment [of her expression] under

       standard rationality review.” Barnes, 946 N.E.2d at 577. In that review, we

       determine whether the State rationally could have concluded that Williams’

       expressive activity, because of its volume, was an “abuse” of the right to speak.

       Whittington, 669 N.E.2d at 1371. In other words, we consider whether

       Williams’ speech was “a threat to peace, safety, and well-being.” Id.


[24]   Applying that standard in Whittington, our supreme court held:


               We easily conclude that Whittington has not negated “every
               conceivable basis” for the state action in his case.


               In Price we abstractly observed that “abating excessive noise is an
               objective our legislature may legitimately pursue.” On the facts
               of this case, it is reasonably conceivable that the loud outbursts in
               the concrete circumstances of this case could have agitated other
               persons in the apartment, sparked additional disruptions of
               [Officer] Finnell’s investigation, or interfered with his ability to
               manage the medical crew and the alleged crime scene. The noisy
               tirade could have threatened the safety of Whittington’s sister by
               aggravating her trauma or by distracting the medical personnel
               tending her injury. Finally, the volume of the speech
               undoubtedly made it highly annoying to all present. The state
               could therefore have believed Whittington’s outbursts constituted
               an “abuse” of the right to speak and, as such, fell within the
               purview of the police power.
       Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016   Page 13 of 14
       Id. (citations omitted; emphases added).


[25]   The facts presented by the State here are far more concrete than the

       hypothetical harms held to be sufficient in Whittington. Here, the State

       presented evidence that, as a result of the volume of Williams’ speech, her

       neighbors came out of their homes to see what was going on. The State also

       presented evidence that numerous officers were distracted from the task at

       hand—securing a perimeter around the residence—by Williams’ outburst. As

       such, a reasonable fact-finder could have easily concluded that Williams’

       outburst was an abuse of her right to speak. Accordingly, the State’s arrest of

       Williams was rational and, therefore, constitutional. See Barnes, 946 N.E.2d at

       577. We affirm Williams’ conviction.


                                                   Conclusion

[26]   In sum, we hold that a reasonable fact-finder could conclude that the focus of

       Williams’ speech was politically ambiguous and, therefore, that she did not

       meet her burden under art. 1, sec. 9. We further hold that the State acted

       rationally in impairing Williams’ speech. Thus, we affirm her conviction.


[27]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Opinion 46A03-1511-CR-1913 | August 26, 2016   Page 14 of 14
