Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                       GREGORY F. ZOELLER
Marion County Public Defender                       Attorney General of Indiana
Indianapolis, Indiana

                                                    GARY R. ROM
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                                  FILED
                                                                              Jan 31 2013, 9:18 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                      CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




EDMOND MILLER,                                      )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A02-1108-CR-721
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable William J. Nelson, Judge
                            Cause No. 49F07-1006-CM-50998


                                         January 31, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Edmond Miller (“Miller”) was convicted after a bench trial of disorderly conduct 1

as a Class B misdemeanor. He appeals, raising the following restated issue: whether

sufficient evidence was presented to support his conviction because Miller’s conduct

constituted protected political speech under Article I, Section 9 of the Indiana

Constitution.

       We reverse.

                           FACTS AND PROCEDURAL HISTORY

       Around 7:00 p.m. on June 28, 2010, Miller was in his car heading home after

stopping at a local restaurant, Bar-B-Q Heaven, in Indianapolis, Indiana. As he was

driving on 30th Street, Miller noticed a patrol car driving behind him. Miller changed

lanes to let the officer, Officer Phillip Bulfer with the Indianapolis Metropolitan Police

Department (“Officer Bulfer”), pass him. Officer Bulfer did not pass Miller, but instead,

changed lanes, and continued to drive behind Miller. Miller changed lanes a second time,

and Officer Bulfer again followed him. Officer Bulfer then initiated a traffic stop on

Miller near the intersection of 30th Street and White River Parkway East Drive for failing

to signal continuously for 200 feet before changing lanes. There was a park about 100 to

150 feet to the south of the area where the traffic stop occurred, and there were children

playing baseball at the park.

       Officer Bulfer approached Miller’s car and observed Miller quickly moving his

hands back and forth between the center console, underneath the seat, and the glove box.

Officer Bulfer feared that Miller could be retrieving a weapon, so he ordered Miller to

       1
           See Ind. Code § 35-45-1-3.

                                            2
exit the car and placed him in handcuffs. Miller was “very irate” and began yelling and

swearing, asking Officer Bulfer “why [he] was doing this.” Tr. at 6, 7. Miller kept

interrupting the officer and was being very loud. Officer Bulfer asked Miller to stop

yelling and pointed to the children, saying “you’re . . . yelling and cussing in front of

these small children.” Id. at 7. Miller did not stop yelling. Officer Bulfer then searched

Miller’s car, but found no contraband or weapons. Miller was frustrated because Officer

Bulfer would not tell him why he was being arrested.

       The State charged Miller with disorderly conduct as a Class B misdemeanor. A

bench trial was held, and after evidence was heard, the trial court found Miller guilty as

charged. He was sentenced to 180 days with 174 days suspended and credit for 6 days of

time served. Miller now appeals.

                                 DISCUSSION AND DECISION

       Our standard of review for sufficiency claims is well-settled. When we review a

claim of sufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct. App.

2009) (citing Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003)). We look only to the

probative evidence supporting the judgment and the reasonable inferences therein to

determine whether a reasonable trier of fact could conclude the defendant was guilty

beyond a reasonable doubt. Id. If there is substantial evidence of probative value to

support the conviction, it will not be set aside. Id. It is the function of the trier of fact to

resolve conflicts of testimony and to determine the weight of the evidence and the



                                               3
credibility of the witnesses. Yowler v. State, 894 N.E.2d 1000, 1002 (Ind. Ct. App.

2008).

         Miller argues that the evidence was insufficient to support his conviction for

disorderly conduct. In order to convict Miller of disorderly conduct, the State was

required to prove beyond a reasonable doubt that Miller 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). Miller contends that the State failed to meet its burden.

Specifically, he asserts that he was engaged in protected political speech at the time of his

arrest, and therefore, his speech was protected under Article I, Section 9 of the Indiana

Constitution.

         A two-step inquiry is applied when we review the constitutionality of an

application of the disorderly conduct statute. Johnson v. State, 747 N.E.2d 623, 629 (Ind.

Ct. App. 2001). First, we must determine whether state action has restricted a claimant’s

expressive activity. Id. (citing Shoultz v. State, 735 N.E.2d 818, 825 (Ind. Ct. App.

2000), trans. denied (citing Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996))).

Second, if it has, we must decide whether the restricted activity constituted an “abuse” of

the right to speak. Id. The first prong of the inquiry may be satisfied by a person’s

conviction for making unreasonable noise based solely on his loud speaking during a

police investigation. Id. Here, Miller was arrested for loudly yelling and swearing at

Officer Bulfer after being handcuffed during the traffic stop. We conclude, and the State

concedes, that the evidence showed that the State restricted Miller’s expressive activity.



                                             4
       Under the second prong, when reviewing the State’s determination that expression

was an “abuse” of the free speech right under the Indiana Constitution, we are typically

only required to find that the determination was rational. Id. at 630. Expressive activity

is political, for purposes of Article I, Section 9 of the Indiana Constitution, if its point is

to comment on government action, including criticism of the conduct of an official acting

under color of law. Blackman v. State, 868 N.E.2d 579, 585 (Ind. Ct. App. 2007), trans.

denied. However, “where an individual’s expression focuses on the conduct of a private

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

nature of expression by an objective standard, and the burden is on the claimant to

demonstrate that his or her expression would have been understood as political. Id. If the

expression is ambiguous, we must conclude the speech was non-political and review the

constitutionality of a disorderly conduct conviction under standard rationality review. Id.

       In the present case, Officer Bulfer testified that, Miller “kept on” yelling and

swearing at the officer and asking Officer Bulfer “why was [he] doing this.” Tr. at 7.

Miller testified that he repeatedly asked Officer Bulfer why he was being pulled over, and

after Officer Bulfer handcuffed him, he asked why he was being arrested. Id. at 16, 17.

The trial court’s findings indicated that Miller’s speech focused on criticizing Officer

Bulfer’s actions.   Id. at 21-22.    We, therefore, conclude that the focus of Miller’s

expressive activity was to criticize the actions of Officer Bulfer in pulling him over,

handcuffing him, and arresting him, and it was, thus, political speech.

       In establishing that the State did not materially burden the defendant’s opportunity

to engage in political expression, the State can do so by producing evidence that the

                                              5
expression inflicted particularized harm analogous to tortious injury on readily

identifiable private interests. Dallaly v. State, 916 N.E.2d 945, 953 (Ind. Ct. App. 2009)

(citing Blackman, 868 N.E.2d at 585). When the expressions of one person cause harm

to another in a way consistent with common law tort, an abuse under Article I, Section 9

has occurred. Id. (citing Madden v. State, 786 N.E.2d 1152, 1157 (Ind. Ct. App. 2003),

trans. denied). “In order to demonstrate such particularized harm, the State must show

that the expression caused actual discomfort to persons of ordinary sensibilities or that it

interfered with an individual’s comfortable enjoyment of his privacy. Evidence of mere

annoyance or inconvenience is not sufficient.” Blackman, 868 N.E.2d at 585 (citation

omitted).

       In two recent cases, our Supreme Court determined that speech that obstructed or

interfered with the ability of the police to perform their duties constituted an abuse of the

right to free speech under the Indiana Constitution. In J.D. v. State, 859 N.E.2d 341 (Ind.

2007), an officer investigating a complaint against a juvenile in a residential facility

approached her to find a peaceable solution to the problem, with an arrest as “the last

resort.” Id. at 343. The juvenile loudly interrupted the officer’s attempts to speak to her

and did not respond to requests to “stop hollering.” Id. After she was threatened with

arrest, she continued to speak over the officer and was arrested. Id. The juvenile

challenged the sufficiency of the evidence supporting the trial court’s adjudication of

delinquency for commission of disorderly conduct, arguing that her conduct was

protected political speech. Id. at 343-44. The Supreme Court distinguished the facts of

J.D. with that of Price v. State, 622 N.E.2d 954 (Ind. 1993), where the defendant loudly

                                             6
objected to the arrest of another person and officers’ threats to arrest her for her protest.

Id. at 344. The Court found that in Price, “the defendant’s speech did not obstruct or

interfere with the police,” whereas the juvenile’s alleged political speech in J.D.

hampered the officer’s ability to perform his law enforcement duties. Id.

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

473 (Ind. 2011), police were investigating a domestic violence situation when the

defendant yelled loudly at one of the officers, which prompted a warning to stop or face

arrest for disorderly conduct; the defendant then retorted, “if you lock me up for

[d]isorderly [c]onduct, you’re going to be sitting right next to me in a jail cell.” 946

N.E.2d at 574. The defendant challenged his eventual conviction for disorderly conduct

by arguing that his speech, consisting of yelling at and threatening the officers,

constituted protected speech. Id. at 578. Relying on J.D., our Supreme Court found that

the defendant’s speech was that of a person of interest refusing to cooperate with a police

investigation and was not within the contours of political speech contemplated by Price.

Id.

       We find the present case to be distinguishable from the above cases. In J.D., the

juvenile’s loud interruptions of the officer’s attempts to speak with her and continued

speaking over the officer, interfered with the officer’s stated purpose of finding a

peaceable solution through a conversation with the juvenile without making an arrest.

859 N.E.2d at 344. In Barnes, the defendant’s speech, consisting of yelling loudly at and

threatening the officers, was not even determined to be political speech because it was

determined to be merely a person of interest refusing to cooperate with a police

                                             7
investigation and not focused on criticizing the officers’ actions. 946 N.E.2d at 578.

Here, unlike in Barnes, we have already determined that Miller’s speech constituted

political speech as the focus of his expressive activity was to criticize the actions of

Officer Bulfer in pulling him over, handcuffing him, and arresting him and was thus

political speech. Additionally, unlike in J.D., where the speech at issue clearly interfered

with the officer’s attempt to have a conversation with the juvenile, here, the State failed

to present any evidence that Miller’s speech, although loud and profane, interfered with

Officer Bulfer conducting his duties. Nothing in Miller’s speech prevented the officer

from issuing a traffic citation to Miller for changing lanes without signaling properly. He

was clearly able to conduct his duties in that he was able to complete a full search of

Miller’s car for officer safety and found no contraband or weapons. We conclude that

Miller’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 Miller’s conviction

for disorderly conduct.

       Reversed.

MATHIAS, J., and CRONE, J., concur.




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