Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                              FILED
                                                            Apr 17 2012, 9:09 am
court except for the purpose of
establishing the defense of res judicata,                          CLERK
collateral estoppel, or the law of the case.                     of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

BARBARA J. SIMMONS                              GREGORY F. ZOELLER
Oldenburg, Indiana                              Attorney General of Indiana

                                                ANDREW R. FALK
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMIE E. GREEN,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A05-1106-CR-316
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Rebekah F. Pierson-Treacy, Judge
                      The Honorable Shatrese Flowers, Commissioner
                            Cause No. 49F19-1103-CM-14302


                                      April 17, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

       Appellant-Defendant, Jamie Green (Green), appeals his conviction for disorderly

conduct, a Class B misdemeanor, Ind. Code § 35-45-1-3.

       We affirm.

                                        ISSUES

       Green raises two issues on appeal, which we restate as follows:

       (1) Whether the State presented sufficient evidence to support Green’s conviction

beyond a reasonable doubt; and

       (2) Whether Green’s disorderly conduct conviction violates Article 1, Section 9 of

the Indiana Constitution.

                        FACTS AND PROCEDURAL HISTORY

       On March 2, 2011, Green and his friends went to the Brass Flamingo, a bar in

Marion County, Indiana. They arrived close to the end of the cover charge period. Green

and his friends attempted to enter the Brass Flamingo without paying the cover charge,

but left the bar after the bouncer refused to let them in. Subsequently, Green and his

friends returned and tried again to enter the Brass Flamingo without paying the cover

charge. The bouncer then pushed Green out the door of the Brass Flamingo and pinned

him against a car near the entrance.

       During the confrontation between Green and the bouncer, Officer Scott Yaden

(Officer Yaden), a police officer with the Indianapolis Metropolitan Police Department,

arrived at the scene. Officer Yaden did not immediately step into the confrontation, but

took the time to observe and assess the situation. Officer Yaden observed that the
bouncer had already pinned Green down and was repeatedly telling Green to calm down

and leave. Officer Yaden noticed that Green was “combative” and “argumentative.”

(Transcript p. 13).   He could also smell “the strong odor of an alcoholic beverage”

emanating from Green. (Tr. p. 14).       When observing that Green did not leave as

instructed, Officer Yaden stepped in and told Green to leave. However, Green did not

comply and started arguing with the staff of the Brass Flamingo instead. About this time

Officer Yaden saw that a crowd was gathering. After Green continued arguing with the

staff of the Brass Flamingo, Officer Yaden told Green that he had “had [his] chance,”

arrested Green, and sat him down on the curb. (Tr. pp. 16-17).

       Although Green was initially quiet after being arrested, he then “began to get

loud” and questioned “why he was being placed under arrest.” (Tr. p. 17). Officer Yaden

responded that he was arrested for public intoxication. Green’s friends kept coming out

of the Brass Flamingo, “pretty much enticing [Green].” (Tr. p. 17). Green became

“louder and louder” and cursed at a volume “loud enough [to be heard] a block away.”

(Tr. p. 18). Officer Yaden instructed Green several times to be quiet, but Green did not

obey. Green’s yelling drew around “forty to fifty people” to the scene, forcing the staff

of the Brass Flamingo to “escort people in and out to their vehicles” in order to break up

the crowd. (Tr. pp. 18, 25-26).

       On March 2, 2011, the State filed an Information charging Green with disorderly

conduct, a Class B misdemeanor, Ind. Code § 35-45-1-3. On June 9, 2011, the trial court

conducted a bench trial. The trial court found Green guilty as charged and sentenced him
to 180 days, with 2 days credit and 178 days suspended. The trial court also ordered

Green to perform 32 hours of community service at a not-for-profit organization.

         Green now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

                               I. Sufficiency of the Evidence

         On appeal, Green challenges the sufficiency of the evidence to support his

disorderly conduct conviction. In reviewing the sufficiency of the evidence needed to

support a criminal conviction, we consider only the probative evidence and reasonable

inferences supporting the decision. Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011)

(quoting Whedon v. State, 765 N.E.2d 1276, 1277 (Ind. 2002)). We neither reweigh the

evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

2009).     On a challenge to the sufficiency of the evidence, the evidence needs not

overcome every reasonable hypothesis of innocence. Pogue v. State, 937 N.E.2d 1253,

1256 (Ind. Ct. App. 2011), trans. denied. The evidence is sufficient if an inference may

reasonably be drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144,

147 (Ind. 2007). When confronted with conflicting evidence, we consider it in a light

most favorable to the trial court’s ruling. Id. at 146. We will affirm a conviction unless

“no reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).

         Green maintains that the facts of his case do not fit the elements of disorderly

conduct as charged. In particular, Green argues that he did not create any unreasonable

noise during his encounter with Officer Yaden. Indiana Code § 35-45-1-3 provides, in
pertinent part, that “[a] person who recklessly, knowingly, or intentionally: (1) engages

in fighting or in tumultuous conduct; [or] (2) makes unreasonable noise and continues to

do so after being asked to stop … commits disorderly conduct, a Class B misdemeanor.”1

       Under the Indiana disorderly conduct statute, the purpose of criminalizing

“unreasonable noise” is to prevent “the harm which flows from the volume of the

expression.” Price v. State, 622 N.E.2d 954, 966 (Ind. 1993). The statute specifically

prohibits “context-inappropriate volume.” Whittington v. State, 669 N.E.2d 1363, 1367

(Ind. 1996).     Accordingly, to sustain a disorderly conduct conviction for making

unreasonable noise, the State must prove that the sound produced by a defendant is too

loud for the circumstances. Id.

       Expression with an excessive volume can be found unreasonable when it agitates

others at the scene, interferes with law enforcement operations, or is quite annoying to all

present.   Id.; J.D. v. State, 859 N.E.2d 341, 344 (Ind. 2007).                In Whittington, the

defendant cursed and yelled with a volume that could be heard from one room to another

during an encounter with law enforcement, and he persisted in a “very loud and angry

manner” after the police asked him to be quiet. Whittington, 669 N.E.2d at 1366. The

Whittington court affirmed the defendant’s disorderly conduct conviction because his

loud speaking agitated others nearby, disrupted police investigations, made coordination

of investigations difficult, and was very annoying to those present at the scene. Id. at

1367, 1371. Likewise, in J.D., the defendant persistently yelled at an eardrum breaking


1
 On appeal, the State conceded that only the unreasonable noise element is applicable and accordingly
argued that Green only committed disorderly conduct by making unreasonable noise (Appellee Br. p. 7).
volume when encountering the police and persisted to do so after the police threatened

him with arrest. J.D., 859 N.E.2d at 343. The J.D. court rejected the defendant’s

challenge of insufficient evidence as her yells interfered with a policeman’s function as a

law enforcement officer. Id. at 344.

       Green’s yelling at high volume sufficiently supports his conviction. The facts in

the present case are akin to those in Whittington and J.D.            Green’s yelling was

unreasonably loud because it could be heard “a block away.” (Tr. p. 18).         Although

Green was initially loud, he became even worse when his friends started to incite him,

resulting in a gathering of “forty to fifty people.” (Tr. pp. 18, 25). Though Officer Yaden

asked Green to stop and be quiet several times, Green did not comply. The crowd drawn

by Green’s yelling forced the staff of the Brass Flamingo to “escort people in and out to

their vehicles so that they weren’t standing there.” (Tr. 26). Based on these facts, a

reasonable inference can be made that Green disrupted law enforcement operations and

annoyed the Brass Flamingo’s patrons. Thus, we find that the State presented sufficient

evidence beyond a reasonable doubt to support Green’s conviction.

                    II. Article 1, Section 9 of the Indiana Constitution

       Next, Green argues that his disorderly conduct conviction violates the Indiana

Constitution because his expression was protected political speech. Article 1, Section 9

of the Indiana Constitution mandates:

       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.
       Since one’s expressive activity may be political speech protected under the

Indiana Constitution’s free speech provision, an application of the Indiana disorderly

conduct statute must pass constitutional scrutiny. See Price, 622 N.E.2d at 961. In

Indiana, we employ a two-step analysis in reviewing the constitutionality of an

application of the Indiana disorderly conduct statute. Whittington, 669 N.E.2d at 1367.

Pursuant to this two-step analysis, we need to decide (1) “whether [a] state action has

restricted a [defendant’s] expressive activity” and (2) “whether the restricted activity

constitute[s] an ‘abuse’ of the right to [free speech].” Id.

                           A. Restrictions on Expressive Activity

       Under the first prong of the analysis, a defendant must establish that “the state

action has, in the concrete circumstances of the case, restricted his or her opportunity to

engage in expressive activity.” Id. This prong may be satisfied when a defendant has

been convicted of disorderly conduct based on his loud expression during an encounter

with law enforcement. Id. at 1370. Green was convicted of disorderly conduct for

yelling with an inappropriate volume and for persisting to do so after being asked to stop.

Thus, Green has established that the State has restricted his opportunity to engage in

expressive activity.

                                   B. Political Expression

       If, as here, the State action has restricted one’s expressive activity, we then must

decide whether the restricted activity constituted an “abuse” of the right to free speech.

See U.M. v. State, 827 N.E.2d 1190, 1192 (Ind. Ct. App. 2005). In the ordinary case, we

only have to find that the State’s determination of an “abuse” to be rational. See id.
However, if a defendant is able to show that his expressive activity was “political,” the

State must demonstrate that it did not “materially burden” the defendant’s opportunity to

engage in political expression.     Id.   The State does not materially burden political

expression if the restricted speech “inflicted particularized harm analogous to tortuous

injury on readily identifiable private interests.” Id. “Evidence of mere annoyance or

inconvenience is not sufficient” to justify restricting political speech. Id.

       In determining whether expressive activity is political expression, we review the

nature of the expression under an objective standard without speculating what the speaker

might have meant. Whittington, 669 N.E.2d at 1370. The defendant bears the burden of

demonstrating that his expression was political. Id.

       Expressive activity constitutes political expression “if its aim is to comment on

government action, including criticism of an official acting under color of law.”

Blackman v. State, 868 N.E.2d 579, 585 (Ind. Ct. App. 2007), trans. denied. On the other

hand, expressive activity is not political expression when the expressive activity focuses

on the conduct of private individuals, including on the speaker himself or herself.

Whittington, 669 N.E.2d at 1370. A mixture of political expression and non-political

expression renders the expressive activity ambiguous. Blackman, 868 N.E.2d at 585-86.

If expressive activity is ambiguous in context, we will find that it does not constitute

political speech and will review the constitutionality of the state-imposed restriction

under the rationality standard. Whittington, 669 N.E.2d at 1370.

       In Blackman, the defendant’s expressive activity encompassed two parts: (1) her

shouted curses at a police officer during a pat-down search, her continued shouting after
the search was over, her refusal to leave the scene despite the officer telling her to do so

several times, and (2) her assertion of her right to be where she was. Blackman, 868

N.E.2d at 585-86. The defendant’s former expressions were considered “political in

nature” as they were directed to the legality and appropriateness of government actions

under color of law. Id. However, we found that the defendant’s assertion of her right to

be where she was an expression focusing on her own conduct and was therefore not

political in nature. Id. at 586. We considered the expressions of the defendant as a whole

and concluded that the defendant’s expressive activity was ambiguous as to whether the

defendant was commenting on her own conduct or that of the police. Id.

       Green’s yelling was akin to the defendant’s ambiguous expressions in Blackman

because Green’s expressive activity included not only comments on an official acting

under color of law, but also expressions involving the conduct of private individuals.

Specifically, Green’s comments concerning his arrest, which he questioned as “why he

was being placed under arrest,” were political expressions because they were comments

on Officer Yaden’s actions. (Tr. p. 17). However, we cannot consider Green’s loud

yelling in response to his friends as political expression because a reasonable inference

can be made that such expressive activity focused on the conduct of private individuals.

When taking all of Green’s abovementioned expressions as a whole, we find that Green’s

expressive activity was ambiguous.

       Having concluded that Green’s speech was not a political expression, we evaluate

constitutionality of his disorderly conduct conviction “under standard rationality review.”

Whittington, 669 N.E.2d at 1370. A disorderly conduct conviction that does not involve
political speech is constitutional if it is reasonable to conclude that the defendant’s

expressive activity “was an ‘abuse’ of the right to speak or was, in other words, a threat

to peace, safety, and well-being.” Id. at 1371.

       Here, Green’s expressive activity certainly met this standard.        Green’s high

volume while yelling drew a gathering of “forty to fifty” people watching outside of the

Brass Flamingo. (Tr. pp. 18, 24-25). The gathering was significant enough to force the

staff of the Brass Flamingo to “escort people in and out to their vehicles.” (Tr. p. 26). A

reasonably inference can be made that Green’s expressive activity posed a threat to

peace, safety, and well-being. Therefore, Green’s conviction does not violate his free

speech rights protected under Article 1, Section 9 of the Indiana Constitution.

                                     CONCLUSION

       Based on the foregoing, we conclude that (1) the State presented sufficient

evidence to support Green’s disorderly conduct conviction beyond a reasonable doubt,

and (2) Green’s conviction does not violate Article 1, Section 9 of the Indiana

Constitution.

       Affirmed.

FRIEDLANDER, J. and MATHIAS, J. concur
