MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         FILED
court except for the purpose of establishing                        Feb 21 2017, 7:58 am

the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen F. Hurley                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kevin Sandifer,                                          February 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1605-CR-1083
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable William Nelson,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G18-1503-F6-9837



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1083 | February 21, 2017     Page 1 of 9
[1]   Kevin Sandifer appeals his convictions of two counts of Level 6 felony battery

      against a public safety official1 and one count of Class A misdemeanor

      disorderly conduct.2 He raises three issues, which we consolidate and restate

      as:


                 1) Whether the State presented sufficient evidence to prove two
                    counts of battery; and


                 2) Whether the disorderly conduct conviction must be
                    overturned because his speech was protected as political
                    speech.


[2]   We affirm.



                                Facts and Procedural History
[3]   On March 20, 2015, Sandifer went to the Marion County Community

      Corrections (“MCCC”) office. Staff determined Sandifer had violated his home

      detention, so they notified the Marion County Sheriff’s Department. Corporal

      Brian Kotarski and Deputy Wayne Loney, both in uniform, arrived at the

      MCCC office to serve an arrest warrant on Sandifer. When they arrived,

      Sandifer was with MCCC case manager Jill Jones.




      1
          Ind. Code § 35-42-2-1 (2014).
      2
          Ind. Code § 35-45-1-3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1083 | February 21, 2017   Page 2 of 9
[4]   Sandifer complied with the officers’ orders while being handcuffed. However,

      he was “yelling expletives . . . towards the staff at Community Corrections.”

      (Tr. at 10.) Sandifer’s yelling was “disrupting everyone in the office.” (Id. at

      36.) Sandifer testified he had said, during the arrest, “man, you got it wrong,

      man. They just set me up for failure” and “they playin’ [sic] games” because he

      did not agree MCCC should have called the police on him. (Id. at 52.)


[5]   While Deputy Loney completed inventory paperwork on Sandifer’s property,

      Corporal Kotarski saw Sandifer was still wearing a ring. Corporal Kotarski

      “approached Mr. Sandifer from behind . . . to get the ring and remove it.” (Id.

      at 12.) Sandifer grabbed the deputy’s “pointing finger” and “started to apply

      pressure to [Corporal Kotarski’s] hand.” (Id.) Corporal Kotarski felt Sandifer

      start to dig his fingernails into Corporal Kotarski’s hand, and Corporal Kotarski

      felt pain. Sandifer did not let go when told to do so. To free himself, Corporal

      Kotarski stepped back while simultaneously pushing Sandifer into the wall.


[6]   Because Sandifer continued to “yell[] profanities at the community corrections

      staff that was in the office,” (id. at 14), Deputy Loney and Corporal Kotarski

      took Sandifer to the alley outside the building. Jones followed them outside.

      Sandifer continued to yell, but now he was telling the two officers “he was

      going to ‘kick our ass, take these cuffs off.’” (Id. at 15.) Corporal Kotarski

      asked Sandifer “to calm down and stop yelling.” (Id. at 16.) However, Sandifer

      stayed quiet only for a “minute or two.” (Id. at 17.) Sandifer called Jones a

      “mother fucking bitch” and referred to the officers individually as “mother



      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1083 | February 21, 2017   Page 3 of 9
      fucker.” (Id. at 38.) When Corporal Kotarski walked past Sandifer to go talk to

      Jones, Sandifer kicked Corporal Kotarski in the shin.


[7]   The State charged Sandifer with two counts of battery against a public safety

      official, disorderly conduct, and public intoxication. 3 The trial court found

      Sandifer not guilty of public intoxication, but guilty of two counts of battery

      against a public safety official and one count of disorderly conduct. The trial

      court sentenced Sandifer to 730 days for each of the battery charges and 180

      days for the disorderly conduct. All counts were ordered served concurrent

      with one another and, except for the time served, all time was suspended to

      supervised probation.



                                   Discussion and Decision
[8]   When reviewing sufficiency of the evidence in support of a conviction, we will

      consider only probative evidence in the light most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007), reh’g denied. The

      decision comes before us with a presumption of legitimacy, and we will not

      substitute our judgment for that of the fact-finder. Id. We do not assess the

      credibility of the witnesses or reweigh the evidence in determining whether the




      3
       Ind. Code § 7.1-5-1-3 (2012). The State also charged Sandifer with resisting law enforcement. See Ind.
      Code § 35-44.1-3-1 (2014). After the State presented its case in chief at trial, Sandifer moved for involuntary
      dismissal of the resisting law enforcement count under Indiana Trial Rule 41, which provides such a motion
      may be granted when the party with the burden of proof has failed to meet that burden. The trial court
      agreed with Sandifer and dismissed that count.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1083 | February 21, 2017             Page 4 of 9
       evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

       is appropriate only when no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

       required to overcome every reasonable hypothesis of innocence and is sufficient

       if an inference may reasonably be drawn from it to support the verdict. Id. at

       147.


                                                    Battery
[9]    To prove battery, the State had to prove Sandifer “touche[d] another person in

       a rude, insolent, or angry manner.” Ind. Code § 34-42-2-1(b)(1). The crime

       increases from a misdemeanor to a Level 6 felony if “[t]he offense is committed

       against a public safety official while the official is engaged in the official’s

       official duty.” I.C. § 34-42-2-1(d)(2). The State presented evidence both

       Deputy Loney and Corporal Kotarski were in uniforms identifying them as law

       enforcement officers. Sandifer challenges only the evidence of his touching “in

       a rude, insolent, or angry manner,” Ind. Code § 34-42-2-1(b)(1), and we

       consider his argument as to each charge individually.


[10]   Sandifer argues he squeezed Corporal Kotarski’s hand because he was

       “startled” and “under the influence of alcohol.” (Appellant’s Br. at 9-10.) Even

       if Sandifer had consumed alcohol, no evidence was presented to show his

       intoxication was involuntary, and “voluntary intoxication is not a defense in a

       criminal prosecution.” Villaruel v. State, 52 N.E.3d 834, 839 (Ind. Ct. App.

       2016). Sandifer’s assertions that his reactions were a result of being startled are


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1083 | February 21, 2017   Page 5 of 9
       an invitation for us to reweigh the evidence, which we will not do. See Drane,

       867 N.E.2d at 146 (appellate court will not reweigh evidence or judge the

       credibility of witnesses). Corporal Kotarski testified that as they were removing

       and inventorying Sandifer’s property pursuant to his arrest, Sandifer grabbed

       Corporal Kotarski’s finger with sufficient force to cause pain and tried to dig his

       fingernails into Corporal Kotarski’s hand. This evidence is sufficient to justify

       Sandifer’s conviction of one count of battery. See, e.g., Phelps v. State, 669

       N.E.2d 1062, 1064 (Ind. Ct. App. 1996) (battery conviction upheld on the

       testimony of single witness).


[11]   As to the second count, Sandifer asserts that, because only Corporal Kotarski

       witnessed the kick to Corporal Kotarski’s shin, we should consider Sandifer’s

       claim that he “did not intentionally kick Kotarski and if he did touch him with

       his foot[,] it was inadvertent.” (Appellant’s Br. at 10.) However, we may not

       reweigh the evidence or assess the credibility of the witnesses. See Drane, 867

       N.E.2d at 146. “Moreover, the uncorroborated testimony of one witness may

       be sufficient by itself to sustain a conviction on appeal.” Toney v. State, 715

       N.E.2d 367, 369 (Ind. 1999). Corporal Kotarski’s testimony that Sandifer

       kicked him in the shin shortly after threatening to “kick [the officers’] ass,” (Tr.

       at 17), is sufficient to support an inference that Sandifer’s kick occurred in a

       “rude, insolent, or angry manner.” See, e.g., K.D. v. State, 754 N.E.2d 36, 41

       (Ind. Ct. App. 2001) (testimony permitted inference defendant’s manner was

       rude, insolent, or angry).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1083 | February 21, 2017   Page 6 of 9
                                          Disorderly Conduct
[12]   Sandifer asserts the State presented insufficient evidence to support a conviction

       for disorderly conduct because his speech was protected under Article 1,

       Section 9 of the Indiana Constitution. To prove Class A misdemeanor

       disorderly conduct, the State had to prove Sandifer “knowingly or intentionally

       ma[d]e an unreasonable noise; and continued to do so after being asked to

       stop.” (App. Vol. II at 22); see also Ind. Code § 35-45-1-3(a)(2) (2014).


               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. 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
               evaluate the constitutionality of the impairment under standard
               rationality review. Id. at 1370.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1083 | February 21, 2017   Page 7 of 9
       Barnes v. State, 946 N.E.2d 572, 577 (Ind. 2011), adhered to on reh'g, 953 N.E.2d

       473 (Ind. 2011).


[13]   Because police arrested Sandifer for disorderly conduct based on his speech, the

       first prong is satisfied. See, e.g., Whittington v. State, 669 N.E.2d 1363, 1368

       (Ind. 1996) (arrest for speech satisfied first prong). Thus, we turn to whether

       the speech for which Sandifer was arrested was “political speech.” For speech

       to be political, it must focus “on the conduct of government officials and

       agents,” id. at 1370 n.11, and it must not veer from remarking “on the conduct

       of government officials and agents.” Id.


[14]   While Sandifer’s speech may have started as political by commenting on the

       actions of MCCC staff, it devolved into name-calling and threats. Such speech

       is not political and is then reviewed only for rationality, i.e., the State must

       prove it was rational to conclude Sandifer was abusing his right to speak. See

       Williams v. State, 59 N.E.3d 287 (Ind. Ct. App. 2016).


[15]   Sandifer was asked to calm down and failed to do so. Sandifer admitted “there

       was a whole lot of people in [MCCC]. Matter of fact, because of my mouth, a

       whole lot of ‘em [sic] came out and they started looking ‘cause [sic] they

       wanted to know what’s goin’ [sic] on.” (Tr. at 52.) Corporal Kotarski told him

       to “calm down and stop yelling[.]” (Id. at 16.) Sandifer’s yelling, after being

       warned to stop, is sufficient to sustain the disorderly conduct conviction

       because his speech was not political and was an abuse of his right to speak. See

       Barnes, 946 N.E.2d at 578 (conviction for disorderly conduct deemed minimal


       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1083 | February 21, 2017   Page 8 of 9
       impairment of the right to expression and sustained because Barnes was just

       yelling at the officers and had been told to calm down).



                                               Conclusion
[16]   The State presented sufficient evidence to prove both battery charges.

       Sandifer’s speech was not political and was an abuse of his right to speak under

       Art. 1, Sec. 9 of the Indiana Constitution. Thus, the State properly convicted

       him of disorderly conduct based on his speech. We therefore affirm.


[17]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1083 | February 21, 2017   Page 9 of 9
