MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Oct 08 2019, 9:26 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


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

                                                         Matthew J. Goldsmith
                                                         Certified Legal Intern
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

General M. Boyd,                                         October 8, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-363
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Hooper,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G12-1808-CM-25692



Sharpnack, Senior Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019                  Page 1 of 10
                                          Statement of the Case
[1]   General M. Boyd appeals his conviction of disorderly conduct, a Class B
                            1
      misdemeanor. We affirm.


                                                     Issue
[2]   Boyd raises one issue, which we restate as: whether the trial court erred in

      rejecting Boyd’s claim that his conduct was constitutionally protected speech.


                                   Facts and Procedural History
[3]   On the night of July 26, 2018, Officer Kenneth Casey of the Indianapolis

      Metropolitan Police Department was dispatched to Monument Circle with

      other officers to investigate a report of a “suspicious person.” Tr. Vol. 2, p. 6.

      As the officers approached the subject of the report, Officer Casey noticed

      another man, later identified as Boyd, sitting in the doorway of the Soldiers and

      Sailors Monument with some belongings.


[4]   While the officers spoke with the subject of the report, Officer Casey saw Boyd

      gather up his belongings and walk away, down the Monument’s steps and then

      along a street. As he walked away, Boyd “continuously” looked back at the

      officers. Id. Officer Casey deemed Boyd’s behavior to be suspicious.




      1
          Ind. Code § 35-45-1-3(a)(2) (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019   Page 2 of 10
[5]   By the time the officers finished talking with the reported suspicious person,

      Boyd was walking back toward the Monument. Officer Casey and his fellow

      officers approached Boyd. Officer Casey wanted to talk with Boyd because he

      was concerned that sleeping in the Monument’s doorway could “be a potential

      hazard” to anyone exiting the Monument. Id. at 7.


[6]   As the officers approached Boyd, the following events occurred:


              A      As we were doing that, he started yelling at me and the
              other officers, asking why we were approaching him and getting
              louder and louder and saying we can’t – we didn’t have to stop
              him, or anything.

              Q        And could you describe this yelling for me?

              A      Yes. It was – He was just basically spouting, you know,
              why are you guys stopping us? Why are you guys stopping me?
              You know, why are you approaching me right now, or anything
              like that. And, I was proceeding to try to tell him at the same
              time, as well, as he kept getting louder and louder.

              Q        And did you ask him to stop?

              A      Yes. Me and the other officers asked him at least five
              times to stop, but he still continued to get louder and louder,
              drawing a larger crowd.

              Q     And, I mean, was it – Would you describe the yelling like
              screaming or like just a loud voice, like maybe like this for a
              courtroom?

              A        It was more or less screaming then.

              Q        Uh-huh.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019   Page 3 of 10
              A     Screaming, I wouldn’t say maybe at the top of his lungs,
              but quite loud that you could overhear it over the motorcycles
              that were driving through the Monument.

              Q        And about what time was this?

              A        It was approximately about 12:00 a.m.

              Q        And were there other people on the street?

              A        Yes.

              Q     And did this cause any of these people to get involved or
              watch or –

              A       There was quite a few people that stopped and observed
              while we were on the street talking to Mr. Boyd as he was getting
              louder. We were trying to calm him down and tell him to be a
              little more silent so we could just have a conversation. But, as he
              kept yelling louder and louder, bikers started stopping and then
              the motorcyclist stopped, as well, and we had quite a bit or a little
              bit of a crowd forming up during that altercation.

              Q        Thank you. How long did this disturbance take?

              A     I can’t be too certain, but it probably was maybe about 45
              minutes to an hour.

              Q        And he was yelling that whole time, or –

              A        It was probably about half the time.


      Id. at 7-8.


[7]   Boyd testified that he “wasn’t doing anything” when Officer Casey and other

      officers “ran up on [him].” Id. at 13. He described his interaction with the

      officers as follows:


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019   Page 4 of 10
               Q    What was the content of your speech? What did you say
               when he approached you?

               A      This is how I reacted. He said, hey, stop. So, I turned
               around and said, for what. And, he said, oh. I said, for what?
               Why do you want to speak to me? And he said, you, you have to
               stop. And I said, for what? What am I doing? And, that’s when
               I got excited and I said why, why, why am I being stopped.
               Because he looked with an intimidating factor and his face was
               already angry, and I did nothing to him. So, I don’t know why
               he stopped me.

       Id. at 13-14.


[8]    Boyd admitted that he was in an “excited” state while interacting with the

       officers. Id. at 14. The officers eventually arrested him.


[9]    On August 6, 2018, the State charged Boyd with disorderly conduct, a Class B

       misdemeanor. The case was tried to the bench, and Boyd claimed his conduct

       was protected speech under the Indiana Constitution. The trial court ordered

       the parties to file briefs discussing the constitutional issue. After reviewing the

       briefs, the trial court determined Boyd was guilty as charged and imposed a

       sentence. This appeal followed.


                                    Discussion and Decision
[10]   Both parties frame the issue on appeal as whether the State presented sufficient

       evidence to sustain Boyd’s conviction of disorderly conduct. To obtain a

       conviction as charged, the State was required to prove beyond a reasonable

       doubt that Boyd: (1) recklessly, knowingly, or intentionally; (2) made an

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019   Page 5 of 10
       unreasonable noise; and (3) continued to do so after being asked to stop. Ind.

       Code § 35-45-1-3(a)(2).


[11]   Despite the parties’ framing of the issue, Boyd does not dispute that his conduct

       during the police encounter met the requirements of Indiana Code section 35-

       45-1-3(a)(2). He instead claims that he should not have been arrested and

       prosecuted because he was engaging in expressive conduct that is protected by

       article 1, section 9 of the Indiana Constitution. In other words, Boyd is raising

       a constitutional challenge to Indiana Code 35-45-1-3 as applied to his conduct.

       We review de novo allegations of a constitutional violation. Hall v. State, 36

       N.E.3d 459, 466 (Ind. 2015).


[12]   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.”


[13]   When reviewing the constitutionality of an application of the disorderly

       conduct statute, we first ask whether State action has restricted a claimant’s

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

       Here, the State concedes that Boyd’s arrest restricted expressive activity.

       Appellee’s Br. p. 9. Next, we consider whether the defendant’s activity

       constituted an “abuse” of the right to speak. Whittington, 669 N.E.2d at 1367.


[14]   Generally, when the State determines that a claimant’s expression was an abuse

       of the right to free speech under the Indiana Constitution, we need only find

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019   Page 6 of 10
       that the determination was rational. Anderson v. State, 881 N.E.2d 86, 90 (Ind.

       Ct. App. 2008). However, if the expressive activity that precipitated the

       disorderly conduct conviction was political in nature, the State must

       demonstrate that it did not materially burden the claimant’s opportunity to

       engage in political expression. Id. Where an individual’s expression focuses on

       the conduct of a private party, including the speaker himself or herself, the

       expression is not political. Whittington, 669 N.E.2d at 1370.


[15]   In this case, Boyd’s remarks were focused on himself (“What am I doing?”) and

       were arguably not political. See Williams v. State, 59 N.E.3d 287, 294-95 (Ind.

       Ct. App. 2016) (defendant’s speech not unambiguously political; her comments

       were directed toward herself and other private parties).


[16]   Even if Boyd’s comments were political in nature, they still amounted to an

       abuse of the right to speak. In J.D. v. State, 859 N.E.2d 341 (Ind. 2007), a

       deputy sheriff stationed at a group home for children asked J.D., a juvenile, to

       speak with her in her office. The deputy wanted to talk with J.D. about her

       relationship with the home’s manager and had no plan to arrest J.D.


[17]   J.D. entered the deputy’s office, but instead of conversing with the deputy, J.D.

       repeatedly and loudly interrupted her. The deputy repeatedly asked J.D. to stop

       yelling, but J.D. disregarded the deputy’s requests. J.D. continued yelling even

       after the deputy warned her that she could be arrested if she did not lower her

       voice. The deputy eventually put J.D. in custody, and a juvenile court later




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019   Page 7 of 10
       determined she was a juvenile delinquent for an act that would be Class B

       misdemeanor disorderly conduct if committed by an adult.


[18]   On appeal, J.D. argued that her arrest restricted her right to engage in political

       speech. The Indiana Supreme Court determined that J.D.’s “alleged political

       speech” consisted of yelling over the deputy and frustrating her attempts to

       speak and function as a law enforcement officer. Id. at 344. The Court

       determined she had abused her right to express herself, and her arrest did not

       violate section 9 of the Indiana Constitution.


[19]   In Boyd’s case, Officer Casey did not want to arrest Boyd when he approached

       him. Instead, Officer Casey merely wanted to speak with Boyd about

       occupying the doorway to the Monument, which posed a safety hazard.

       Instead of having a discussion with the officers, Boyd shouted at them, loudly

       enough to be heard over passing motorcycles. The officers asked him to speak

       more quietly, but he continued to shout for approximately thirty minutes,

       drawing a crowd and causing a passing motorcyclist to stop. Much like the

       juvenile in J.D., Boyd’s conduct obstructed and interfered with Officer Casey’s

       attempts to speak and function as a law enforcement officer. As a result, Boyd

       abused his right to express himself, and even if his speech was political, the

       State did not materially burden his right to free expression. His shouting at

       police officers for thirty minutes was not protected under section 9.


[20]   Boyd cites Jordan v. State, 37 N.E.3d 525 (Ind. Ct. App. 2015), in support of his

       claim that he did not abuse his right to engage in political speech, but that case


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019   Page 8 of 10
       is distinguishable. In Jordan, an officer performed a traffic stop of Jordan’s

       vehicle. Jordan began to yell at the officer shortly after they began conversing,

       and she continued to yell while the officer informed her that he was

       impounding her vehicle. The officer ultimately gave Jordan a citation, and she

       cleaned out her car and stood on a sidewalk while a tow truck prepared to take

       her vehicle away, shouting loudly the entire time. The officer repeatedly

       warned Jordan to be quiet and ultimately arrested her. A panel of this court

       reversed Jordan’s conviction for Class B misdemeanor disorderly conduct,

       concluding Jordan’s speech was political in nature and that her screaming at the

       officers during the stop and while she stood on the sidewalk was not an abuse of

       that right.


[21]   There are several crucial distinctions between the facts of Jordan and the facts of

       Boyd’s case. In Jordan, the officer demanded that Jordan be quiet and leave the

       scene of the traffic stop. In Boyd’s case, Officer Casey did not want to silence

       Boyd. To the contrary, he wanted to have a conversation with Boyd. Next,

       although Jordan’s conduct was annoying, she did not prevent the officer from

       doing his job. He conducted the stop, issued a citation to Jordan, and

       impounded her car, all while Jordan shouted at him. By contrast, in Boyd’s

       case his conduct completely obstructed Officer Casey from talking with him

       about how occupying the Monument’s doorway could pose a safety hazard.

       This case more closely resembles J.D., in which the officer wanted to talk with

       J.D. and was unable to do so because of J.D.’s shouting.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019   Page 9 of 10
                                                Conclusion
[22]   For the reasons stated above, we affirm the judgment of the trial court.


[23]   Affirmed.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-363 | October 8, 2019   Page 10 of 10
