MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                               Jun 18 2015, 6:03 am
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
Kimmerly A. Klee                                         Gregory F. Zoeller
Greenwood, Indiana                                       Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Adrienne Tyler,                                          June 18, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1411-CR-807
        v.                                               Appeal from the Marion Superior
                                                         Court
                                                         The Honorable Jose Salinas, Judge
State of Indiana,
                                                         The Honorable Shatrese Flowers,
Appellee-Plaintiff                                       Commissioner
                                                         Trial Court Cause Number 49G14-
                                                         1305-FD-35608




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015          Page 1 of 17
                                          Case Summary
[1]   During the late-evening or early-morning hours of May 30 and 31, 2013,

      Appellant-Defendant Adrienne Tyler became involved in an altercation with

      police after a passenger in her vehicle observed the passenger’s vehicle

      abandoned and damaged on the side of the road. During the altercation, Tyler

      yelled obscenities directed toward the officers, pushed an officer and slapped

      him on the face. She then continued to struggle with the officer after he

      attempted to place her under arrest.


[2]   Tyler was subsequently charged with Class D felony possession of a controlled

      substance, Class D felony battery on an officer, Class D felony resisting law

      enforcement, and Class B misdemeanor disorderly conduct. She pled guilty to

      the Class D felony possession of a controlled substance charge. A jury found

      her guilty of the remaining charges. Tyler was sentenced to an aggregate 365-

      day sentence, with two days executed and the remainder suspended to

      probation.


[3]   On appeal, Tyler challenges the sufficiency of the evidence to sustain her

      conviction for Class B misdemeanor disorderly conduct. She also contends that

      the trial court erred in instructing the jury with respect to that charge.

      Concluding that the evidence is sufficient to sustain Tyler’s conviction and that

      the claimed error in instructing the jury was harmless, we affirm.



                            Facts and Procedural History

      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 2 of 17
[4]   During the late-evening or early-morning hours of May 30 and 31, 2013,

      Lashanda Brownie, her cousin, and Tyler were “hanging out.” Tr. p. 224. At

      some point, Brownie loaned her cousin her vehicle so that he could go and

      purchase some drinks and cigarettes for the group. Brownie’s cousin never

      returned.


[5]   At approximately 1:00 or 1:30 a.m. on May 31, 2013, Indianapolis

      Metropolitan Police Officer Alan Leinberger was driving his fully marked

      police cruiser northbound near 9th and Wallace Streets. While driving, Officer

      Leinberger observed a southbound vehicle that appeared to have a flat right

      passenger side tire, which looked as if it were about to fall off of the rim.

      Officer Leinberger also noticed that the vehicle appeared to have sustained

      some front end damage. Officer Leinberger turned around, initiated his

      overhead lights and siren, and attempted to stop the vehicle in order to find out

      what happened. The driver of the vehicle did not stop, but rather turned

      northbound on Wallace Street.


[6]   When the vehicle didn’t stop, Officer Leinberger requested backup. Lieutenant

      Thomas Black and Officers Beniam Kumbi and Joel Anderson responded to

      Officer Leinberger’s call for assistance. Officer Leinberger soon thereafter

      found the vehicle abandoned and parked along the side of Wallace Street.

      Officer Leinberger observed that the vehicle looked as though it had been

      involved in an accident. Because the vehicle was abandoned and parked in the

      line of traffic, Officer Leinberger intended to tow the vehicle.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 3 of 17
[7]    When her cousin failed to return, Brownie eventually asked Tyler to take her

       home. While on their way to Brownie’s residence, Brownie noticed her

       damaged vehicle abandoned and parked on the side of the road. Brownie

       approached the officers and asked “What’s going on? That’s my car.” Tr. pp.

       98-99.


[8]    After Brownie approached the officers, Officer Leinberger asked Brownie for

       identification in order to verify that she was indeed the owner of the vehicle.

       Brownie and Officer Leinberger walked back to the SUV that was being driven

       by Tyler and in which Brownie had been a passenger. As Brownie and Officer

       Leinberger continued their conversation and approached the SUV, Tyler started

       “getting loud,” yelling “Don’t tell nothing. We know what’s going on here.

       This is bullshit. Don’t say a f[******] word.” Tr. pp. 103-04.


[9]    Officer Leinberger instructed Tyler to “keep [her] voice down” telling her “[w]e

       don’t need to yell.” Tr. p. 104. Tyler ignored this instruction and kept yelling

       things to the effect of “We don’t need to say anything. Don’t say anything to

       them. Don’t give them shit. We know what’s going on.” Tr. p. 104. Tyler

       continued to yell even after both Lieutenant Black and Officer Kumbi repeated

       Officer Leinberger’s prior instruction to stop. In all, Tyler was instructed to

       stop yelling at least four or five times. She did not comply with any of these

       instructions.


[10]   Tyler eventually became involved in a physical altercation with Lieutenant

       Black, putting her hands on his chest and attempting to push him away. Tyler


       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 4 of 17
       also slapped Lieutenant Black in the face. Lieutenant Black indicated that he

       did not want to arrest Tyler, but felt he had no choice after she slapped him.

       Lieutenant Black then notified Tyler that she was under arrest. Tyler continued

       to struggle, “flailing her body and her arms.” Tr. p. 155. Tyler “kept moving

       around and pulling her arms and twisting her body” in an attempt to pull away

       from Lieutenant Black and Officer Kumbi. Tr. p. 199.


[11]   As a result of Tyler’s actions, Brownie’s focus shifted away from Officer

       Leinberger to Tyler. Brownie then became “very animated” and attempted to

       move towards the commotion that was being created by Tyler. Tr. p. 112.

       Although distracted by Tyler’s actions, Brownie eventually complied with

       Officer Leinberger’s instructions to “[j]ust stand still” and to “stay with [him].”

       Tr. p. 113.


[12]   On May 31, 2013, Appellee-Plaintiff the State of Indiana (the “State”) charged

       Tyler with Class D felony possession of a controlled substance, Class D felony

       battery on an officer, Class D felony resisting law enforcement, and Class B

       misdemeanor disorderly conduct. Prior to the commencement of Tyler’s jury

       trial, which was held on September 22, 2014, Tyler pled guilty to the Class D

       felony possession of a controlled substance charge. Following the conclusion of

       the evidence, the jury found Tyler guilty of the remaining charges. On October

       27, 2014, the trial court conducting a sentencing hearing during which it

       merged the Class D felony battery on an officer charge with the Class D felony

       resisting law enforcement charge. The trial court sentenced Tyler pursuant to



       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 5 of 17
       alternate misdemeanor sentencing to an aggregate 365-day sentence, with two

       days executed and the remainder suspended to probation. This appeal follows.



                                  Discussion and Decision
[13]   On appeal, Tyler contends that the evidence is insufficient to sustain her

       conviction for Class B misdemeanor disorderly conduct. Tyler also contends

       that the trial court abused its discretion in instructing the jury. We will address

       each contention in turn.


                               I. Sufficiency of the Evidence
[14]   The offense of disorderly conduct is governed by Indiana Code section 35-45-1-

       3, which provides in relevant part that: “(a) A person who recklessly,

       knowingly, or intentionally … (2) makes unreasonable noise and continues to

       do so after being asked to stop … commits disorderly conduct, a Class B

       misdemeanor.” “The constitutionality of the disorderly conduct statute is

       determined on an as applied basis under Article 1, section 9 of the Indiana

       Constitution [(“Article 1, section 9”)].” Dallaly v. State, 916 N.E.2d 945, 951

       (Ind. Ct. App. 2009). Article 1, section 9 provides that: “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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 6 of 17
[15]   In arguing that the evidence is insufficient to sustain her conviction for Class B

       misdemeanor disorderly conduct, Tyler argues that the speech at issue

       constituted protected free speech under the Indiana Constitution.

               In reviewing the constitutionality of [Indiana Code section] 35-45-1-3
               as applied to a defendant, we employ a two-step analysis. “First, we
               must determine whether state action has restricted a claimant’s
               expressive activity; second, if it has, we must decide whether the
               restricted activity constituted an ‘abuse’ of the right to speak.”
               Blackman v. State, 868 N.E.2d 579, 584-585 (Ind. Ct. App. 2007) (citing
               Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996)), trans. denied.
               Where a state action restricts a defendant’s expressive activity, only if
               the State correctly determines that a defendant has abused his right to
               speak may the statute be constitutionally applied.


       Dallaly, 916 N.E.2d at 952.


[16]   “‘The first prong of this inquiry may be satisfied by a person’s conviction for

       making unreasonable noise based solely on his loud speaking during a police

       investigation.’” Id. (quoting Shoultz v. State, 735 N.E.2d 818, 825 (Ind. Ct. App.

       2000), trans. denied). Here, the record reveals that Tyler was arrested for

       disorderly conduct after she screamed and swore at the officers. Tyler has

       therefore established that the State restricted her expressive activity. See id.

       (providing that the recorded established that the State restricted Dallaly’s

       expressive activity where he was arrested for disorderly conduct after he

       screamed and swore at officers); Johnson v. State, 719 N.E.2d 445, 449 (Ind. Ct.

       App. 1999) (holding that a person’s conviction for making unreasonable noise

       based on loud speaking during a police investigation constitutes state action

       restricting defendant’s expressive activity).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 7 of 17
               Most cases turn on the second prong of the analysis. The Indiana
               Supreme Court recently reiterated “that the right of free speech
               protected in [Article 1, section 9] is expressly qualified by the phrase
               ‘but for the abuse of that right, every person shall be responsible.’”
               J.D. v. State, 859 N.E.2d 341, 344 (Ind. 2007). In order to satisfy the
               second prong of the test, a defendant “must prove that ‘the State could
               not reasonably conclude that the restricted expression was an “abuse”
               of [his] right to speak, and therefore, the State could not properly
               proscribe the conduct, pursuant to its police power, via the disorderly
               conduct statute.’” Blackman, 868 N.E.2d at 585 (quoting Johnson, 719
               N.E.2d at 449). Generally, whether the State correctly determined
               that a defendant’s expression constituted an abuse of the right to free
               speech is subjected to rationality review. Id. However, if the
               defendant demonstrates that the expressive activity precipitating the
               disorderly conduct conviction was political in nature, then the burden
               shifts to the State to demonstrate that it did not materially burden the
               claimant’s opportunity to engage in political expression. Id.; see also
               Anderson v. State, 881 N.E.2d 86, 90 (Ind. Ct. App. 2008). If the speech
               is determined to be ambiguous, “then the expression is not political,
               and we review the State’s restriction of the expression under standard
               rational review.” Anderson, 881 N.E.2d at 90.
               “Expressive activity is political if its aim is to comment on government
               action, including criticism of an official acting under color of law.”
               Blackman, 868 N.E.2d at 585. Where the expressive activity focuses on
               a private party’s conduct, including the conduct of the speaker himself,
               the expression is not political. Id. The nature of the expression is
               reviewed under an objective standard. Id. In instances where some of
               a defendant’s expressive activity is deemed political is coupled with
               other comments found not to be political expression, the “dual nature”
               of this expression may lead to the conclusion that the expression was
               ambiguous. Id. at 585-586.


       Dallaly, 916 N.E.2d at 952.


[17]   In the instant matter, Tyler and Brownie first encountered the investigating

       officers after Brownie noticed her damaged vehicle abandoned and parked on

       the side of the road. Brownie approached the officers and asked “What’s going

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 8 of 17
       on? That’s my car.” Tr. pp. 98-99. After Brownie approached the officers,

       Officer Leinberger asked Brownie for identification in order to verify that she

       was indeed the owner of the vehicle. Brownie and Officer Leinberger walked

       back to the SUV that was being driven by Tyler and in which Brownie had been

       a passenger. As Brownie and Officer Leinberger continued their conversation

       and approached the SUV, Tyler started “getting loud,” yelling “Don’t tell

       nothing. We know what’s going on here. This is bullshit. Don’t say a

       f[******] word.” Tr. pp. 103-04. Officer Leinberger instructed Tyler to “keep

       [her] voice down” telling her “[w]e don’t need to yell.” Tr. p. 104. Tyler

       ignored this instruction and kept yelling things to the effect of “We don’t need

       to say anything. Don’t say anything to them. Don’t give them shit. We know

       what’s going on.” Tr. p. 104. Tyler continued to yell even after both

       Lieutenant Black and Officer Kumbi repeated Officer Leinberger’s prior

       instruction to stop. In all, Tyler was instructed to stop yelling at least four or

       five times. She did not comply with any of these instructions. As a result of

       Tyler’s actions, Brownie’s focus shifted away from Officer Leinberger to Tyler.


[18]   The record before us on appeal demonstrates that the aim or focus of Tyler’s

       initial expressive activity was to criticize the actions of the police officers that

       occurred during the officers’ interaction with Tyler and Brownie. Further,

       nothing in the record indicates that Tyler’s initial comments focused on any

       topic other than the state action which was taken against her and Brownie. We

       therefore conclude that Tyler’s expression therefore qualified as political

       expression. As such, the burden shifted to the State to demonstrate that it did


       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 9 of 17
       not materially burden Tyler’s opportunity to engage in political expression. See

       Dallaly, 916 N.E.2d at 953 (providing that the burden shifted to the State to

       demonstrate that it did not materially burden Dallaly’s opportunity to engage in

       political expression after Dallaly presented evidence demonstrating that the aim

       or focus of his initial expressive activity was to criticize the actions taken by

       police officers while effecting his arrest).


[19]   The State may demonstrate that it did not materially burden the defendant’s

       opportunity to engage in political expression by producing evidence that the

       expression inflicted particularized harm analogous to tortious injury on readily

       identifiable private interests. Id. (internal quotations omitted). “‘When the

       expressions of one person cause harm to another in a way consistent with

       common law tort, an abuse under [Article 1, section 9] has occurred.’” Id.

       (quoting 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.’”

       Id. (quoting Blackman, 868 N.E.2d at 585).


[20]   In J.D., the Indiana Supreme Court held that unlike in cases where the alleged

       harm resulting from a defendant’s exercise of their right to political expression

       did not rise above the level of a fleeting annoyance, the juvenile defendant

       abused her right to political expression when the expression, which consisted of

       persistent loud yelling, obstructed or interfered with the police by obscuring the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 10 of 17
       officer’s “attempts to speak and function as a law enforcement officer.” 859

       N.E.2d at 344. In reaching this holding, the Indiana Supreme Court found that

       because the speech in question obstructed and interfered with the police officer

       and was therefore not “relatively harmless,” the juvenile defendant’s otherwise

       political speech “clearly amounted to an abuse of the right to free speech and

       thus subjected her to accountability under [Article I, section 9].” Id. Similarly,

       in Dallaly, we concluded that because Dallaly’s speech interfered with the duties

       of the police officers at the scene, Dallaly abused his free speech rights under

       Article 1, section 9. 916 N.E.2d at 954. The Indiana Supreme Court’s holding

       in J.D. and our conclusion in Dallaly are in line with the previously stated belief

       that police officers conducting a legitimate investigation “must be able to

       perform their duties without unreasonable interruption.” Anderson v. State, 881

       N.E.2d 86, 91 (Ind. Ct. App. 2008) (quoting Blackman, 868 N.E.2d at 588).


[21]   Here, the record provides that Tyler’s expressions interfered with Officer

       Leinberger’s legitimate attempt to verify that Brownie was the owner of the

       damaged vehicle that had been abandoned by Brownie’s cousin on the side of

       the road. As a result of Tyler’s actions, Brownie’s focus shifted from Officer

       Leinberger to Tyler and she was then unable to continue her conversation with

       Officer Leinberger. Thus, like in J.D. and Dallaly, the speech at issue, while

       political in nature, constituted an abuse of Tyler’s free speech rights under

       Article 1, section 9 because Tyler’s speech interfered with Officer Leinberger’s

       ability to conduct a legitimate investigation into who owned the abandoned and




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 11 of 17
       damaged vehicle. Tyler, therefore, may be held accountable for her expressions

       under Article 1, section 9.


[22]   Having concluded that Tyler’s expressions were not protected political speech,

       we now address whether the evidence is sufficient to sustain her conviction for

       disorderly conduct.

               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative evidence
               and reasonable inferences supporting the verdict. It is the fact-finder’s
               role, not that of appellate courts, to assess witness credibility and
               weigh the evidence to determine whether it is sufficient to support a
               conviction. To preserve this structure, when appellate courts are
               confronted with conflicting evidence, they must consider it most
               favorably to the trial court’s ruling. Appellate courts affirm the
               conviction unless no reasonable fact-finder could find the elements of
               the crime proven beyond a reasonable doubt. It is therefore not
               necessary that the evidence overcome every reasonable hypothesis of
               innocence. The evidence is sufficient if an inference may reasonably
               be drawn from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in original).

       Upon review, appellate courts do not reweigh the evidence or assess the

       credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002).

[23]   In order to convict Tyler of Class B misdemeanor disorderly conduct, the State

       was required to prove that Tyler recklessly, knowingly, or intentionally made

       an unreasonable noise and continued to do so after being asked to stop. Ind.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 12 of 17
       Code § 35-45-1-3(a)(2). Based on the nature of Tyler’s outbursts, as detailed

       above, and the fact that she refused to stop yelling when instructed numerous

       times to do so by the responding officers, we conclude that the evidence is

       sufficient to sustain Tyler’s conviction for Class B misdemeanor disorderly

       conduct. Tyler’s claim to the contrary effectively amounts to a request for this

       court to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at

       435.


                                        II. Jury Instructions
[24]   Tyler also contends that the trial court erred in instructing the jury.

               The trial court has broad discretion in the manner of instructing the
               jury and we review its decision thereon only for an abuse of that
               discretion. Stringer v. State, 853 N.E.2d 543, 548 (Ind. Ct. App. 2006).
               We review the refusal of a tendered instruction by examining whether
               the tendered instruction correctly states the law, whether there is
               evidence in the record to support giving the instruction, and whether
               the substance of the tendered instruction is covered by other given
               instructions. Springer v. State, 798 N.E.2d 431, 433 (Ind. 2003). Jury
               instructions are to be considered as a whole and in reference to each
               other. Stringer, 853 N.E.2d at 548. The ruling of the trial court will
               not be reversed unless the instructions, when taken as a whole,
               misstate the law or mislead the jury. Kelly v. State, 813 N.E.2d 1179,
               1185 (Ind. Ct. App. 2004), trans. denied. Before a defendant is entitled
               to a reversal, he must affirmatively show that the erroneous instruction
               prejudiced his substantial rights. Stringer, 853 N.E.2d at 548.


       Snell v. State, 866 N.E.2d 392, 395-96 (Ind. Ct. App. 2007).

[25]   “The purpose of an instruction is to inform the jury of the law applicable to the

       facts without misleading the jury and to enable it to comprehend the case



       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 13 of 17
       clearly and arrive at a just, fair, and correct verdict.” Id. at 396 (citing Gravens v.

       State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied).

               In instructing a jury, the trial court has a statutory duty to state to the
               jury all matters of law that are necessary for its information in giving
               its verdict. Ind. Code § 35-37-2-2(5); Dayhuff v. State, 545 N.E.2d 1100,
               1102 (Ind. Ct. App. 1989), trans. denied. Each party to an action is
               entitled to have the jury instructed on his particular theory of
               complaint or defense. Collins v. Rambo, 831 N.E.2d 241, 245 (Ind. Ct.
               App. 2005) (quotations omitted). “As a general rule, a defendant in a
               criminal case is entitled to have the jury instructed on any theory of
               defense which has some foundation in the evidence.” Howard v. State,
               755 N.E.2d 242, 247 (Ind. Ct. App. 2001). This is so even if the
               evidence supporting the defense is weak and inconsistent. Id.
               However, the evidence must have some probative value to support the
               defense. Id.


       Id.

[26]   Tyler was convicted of disorderly conduct. Again, “[a] person commits

       disorderly conduct as a Class B misdemeanor when she recklessly, knowingly,

       or intentionally makes unreasonable noise and continues to do so after being

       asked to stop.” Id. (citing Ind. Code § 35-45-1-3(a)(2)). “Article I, section 9 of

       the Indiana Constitution 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.” Id.


[27]   Prior to trial, Tyler submitted a jury instruction addressing the protected speech

       provision of Article 1, section 9. The proffered jury instruction read as follows:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 14 of 17
        It is an issue in this case whether Ms. Tyler’s speech was protected by
        [Article 1, section 9] of the Indiana state constitution, which states
        that:
                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.
        Indiana’s right to free speech imposes limits on prosecutions for
        Disorderly Conduct. If a person in engaged in “political” speech, he
        or she may not be convicted of Disorderly Conduct unless the State
        can show that the person caused actual discomfort to specific and
        identifiable private citizens or interfered with the comfortable
        enjoyment of privacy for specific and identifiable private citizens.
        Mere annoyance or inconvenience is not enough.
        To determine whether this increased protection applies to Ms. Tyler,
        you must engage in the following two-step consideration.
        First, you must decide whether State action in this case restricted Ms.
        Tyler’s opportunity to engage in expressive activity. “Expressive
        activity” has a broad meaning under the Indiana Constitution, and
        extends to any subject whatsoever and every conceivable mode of
        expression. State action restricts expressive activity when the [S]tate
        imposes a direct and significant burden on a person’s opportunity to
        speak his or her mind in whatever fashion he or she deems
        appropriate. Proof of an arrest for Disorderly Conduct involving loud
        speech is sufficient to find that State action restricted expressive
        activity.
        Second, you must consider whether Ms. Tyler’s expression constituted
        an abuse of that right to speak. In order to decide this, you must first
        consider whether or not Ms. Tyler was engaged in political speech,
        which includes any criticism of the legality or appropriateness of police
        conduct towards another person. Political speech has more
        constitutional protection than non-political speech. If you find that
        Ms. Tyler engaged in political speech, then she abused her right to
        speak only if the State has convinced you beyond a reasonable doubt
        that she caused actual discomfort to specific and identifiable private
        citizens or interfered with the comfortable enjoyment of privacy for
        specific and identifiable private citizens. If you find that Ms. Tyler was
        not engaged in political speech, then she abused her right to speak if

Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 15 of 17
               the State has convinced you beyond a reasonable doubt that her
               behavior could rationally be considered “unreasonable noise.”
                      If the State has not convinced you beyond a reasonable doubt
               that she abused her right to speak, you must find her “not guilty” of
               Disorderly Conduct.


       Appellant’s App. p. 65.             The trial court refused the tendered instruction,

       determining that Tyler’s speech at issue “wasn’t political speech.” Tr. p. 305.

[28]   Tyler argues on appeal that the trial court erred in refusing her tendered jury

       instruction. The State acknowledges on appeal that “it appears that the

       instruction tendered by [Tyler] is a correct statement of the law as accepted by

       the Snell panel and other cases dealing with disorderly conduct.” Appellee’s Br.

       p. 13. The State further acknowledges that the substance of the tendered

       instruction was not covered by any other instruction. As such, our review on

       appeal is limited to whether there is evidence in the record to support the giving

       of Tyler’s tendered instruction. See Snell, 866 N.E.2d at 396; Stringer, 853

       N.E.2d at 548. In light of our discussion and conclusion above, we believe that

       there was sufficient evidence in the record to support the giving of Tyler’s

       tendered instruction addressing protected political speech.


[29]   Because the proffered instruction is a correct statement of the law that was not

       covered by any other instructions and the evidence supports the giving of the

       instruction, we conclude that the trial court erred in refusing the proffered

       instruction. “However, an error in the giving or refusing of an instruction is

       harmless where a conviction is clearly sustained by the evidence and the jury



       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 16 of 17
       could not properly have found otherwise.” Snell, 866 N.E.2d at 399 (citing Dill

       v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)).


[30]   As we concluded above, the evidence is sufficient to sustain Tyler’s conviction

       for disorderly conduct. Thus, even if the jury had been properly instructed, the

       outcome would have undoubtedly been the same. Stated differently, although

       Tyler’s speech was political in nature, it nevertheless constituted an abuse of

       Tyler’s free speech rights because it interfered with Officer Leinberger’s police

       duties. Accordingly, Tyler was not prejudiced by the trial court’s erroneous

       refusal of her tendered jury instruction.



                                               Conclusion
[31]   In sum, we conclude that the evidence is sufficient to sustain Tyler’s conviction

       for Class B misdemeanor disorderly conduct. We also conclude that while the

       trial court abused its discretion in instructing the jury in relation to the

       disorderly conduct charge, the abuse of the trial court’s discretion was harmless.

       Accordingly, we affirm.


[32]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1411-CR-807 |June 18, 2015   Page 17 of 17
