Lorraine McCoy v. State of Indiana ( 2020 )

FILED
Oct 21 2020, 9:46 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria Bailey Casanova Curtis T. Hill, Jr.
Casanova Legal Services, LLC Attorney General of Indiana
Indianapolis, Indiana
Angela N. Sanchez
Assistant Section Chief for
Criminal Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lorraine McCoy, October 21, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-723
v. Appeal from the Noble Superior
Court
State of Indiana, The Honorable Steven C. Hagen,
Appellee-Plaintiff. Judge
Trial Court Cause No.
57D02-1908-CM-584
Sharpnack, Senior Judge.
Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 1 of 10
Statement of the Case
[1] Lorraine McCoy appeals her conviction of disorderly conduct, a Class B
1
misdemeanor. We reverse her conviction.
Issue
[2] McCoy presents two issues, which we consolidate as one: whether the evidence
is sufficient to sustain her conviction of disorderly conduct.
Facts and Procedural History
[3] On August 10, 2019, Sergeant Nathaniel Stahl of the Kendallville Police
Department was dispatched to a residence for a domestic dispute. When
Sergeant Stahl arrived, he learned that Shawn Fritz rented the residence and
that he had allowed Shay Bell to move in a few days prior but that he now
wanted her to leave. Bell began packing up her belongings, and Fritz went to a
nearby residence to obtain his landlord’s name and phone number from the
occupant of that residence, McCoy. Fritz returned to his residence with the
information and shared it with Sergeant Stahl and other officers that had
arrived on the scene.
[4] McCoy then came out of her residence and began asking questions, advising
Fritz and the officers as to the legal implications of the situation, and arguing
1
Ind. Code § 35-45-1-3 (2014).
Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 2 of 10
with the officers about how to handle the situation with Bell. Sergeant Stahl
told McCoy, “This over here does not involve you.” Ex. 1 (Officer Pegan’s
body camera footage) at 20:11:44. McCoy argued with the Sergeant, stating
that she became involved when Fritz knocked on her door for the landlord
information. The sergeant repeated that the situation did not involve her.
McCoy then marched up to Sergeant Stahl, looked at the tag on his uniform to
obtain his name, and began to walk away. As she did so, the sergeant
instructed her, “You stay over there.” Id. at 20:11:55. McCoy stopped, turned
around, and began walking back toward Sergeant Stahl and yelled, “No! You
don’t need to talk to me disrespectfully!” Id. at 20:11:55-58. Sergeant Stahl
replied, “Ma’am, you’ve got a disorderly conduct warning. Go to your
residence.” Id. at 20:11:57-20:12:00. McCoy remained where she was and
yelled at Sergeant Stahl: “Really?! Really?! Cuz I . . . I . . . I . . . my right . . .”
Id. at 20:11:59-20:12:02. Sergeant Stahl pointed to McCoy’s residence, possibly
grazing her arm with his finger as he pointed, and ordered, “Ma’am, go to your
residence.” Ex. 2 (Officer Stahl’s body camera footage) at 20:12:02. McCoy
screamed, “Get your hands off of me!” Ex. 1 at 20:12:03-05. The sergeant
replied, “I’m going to tell you one more time . . .”, but he was interrupted by
McCoy screaming, “No! My right. Free speech!” Id. at 20:12:05; 20:12:06-08.
At that point, Sergeant Stahl put McCoy in handcuffs.
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[5] Based upon this incident, the State charged McCoy with disorderly conduct, a
2
Class B misdemeanor, and resisting law enforcement, a Class A misdemeanor.
Following a trial to the bench, the court found McCoy guilty of disorderly
conduct and not guilty of resisting. The court sentenced McCoy to 180 days,
suspended to four days and ordered no probation. She now appeals her
conviction.
Discussion and Decision
[6] In reviewing McCoy’s challenge to the sufficiency of the evidence to support
her conviction for disorderly conduct, we neither reweigh the evidence nor
judge the credibility of the witnesses. See Sandleben v. State, 29 N.E.3d 126, 131
(Ind. Ct. App. 2015), trans. denied. Instead, we consider only the evidence most
favorable to the judgment and any reasonable inferences drawn therefrom. Id.
If there is substantial evidence of probative value from which a reasonable fact-
finder could have found the defendant guilty beyond a reasonable doubt, the
judgment will not be disturbed. Labarr v. State, 36 N.E.3d 501, 502 (Ind. Ct.
App. 2015).
[7] To show that McCoy committed disorderly conduct, the State needed to prove
that she recklessly, knowingly, or intentionally made unreasonable noise and
continued to do so after being asked to stop. See Ind. Code § 35-45-1-3(a)(2).
2
Ind. Code § 35-44.1-3-1 (2019).
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Within McCoy’s challenge to the sufficiency of the evidence, however, is a
question of constitutional dimension: whether she was engaged in protected
political expression when she interacted with Sergeant Stahl such that her
conviction of disorderly conduct violates article 1, section 9 of the Indiana
Constitution.
[8] 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.” Because a person’s conduct or expression may
constitute free speech protected under article 1, section 9, application of the
disorderly conduct statute must pass constitutional scrutiny. Barnes v. State, 946
N.E.2d 572, 577 (Ind. 2011), adhered to on reh’g, 953 N.E.2d 473. We employ a
two-step inquiry to review the constitutionality of an application of the
disorderly conduct statute. Whittington v. State, 669 N.E.2d 1363, 1367 (Ind.
1996). We must first determine whether state action has restricted a claimant’s
expressive activity. Id. If it has, we must then decide whether the restricted
activity constituted an “abuse” of the right to speak. Id.
[9] The first prong of the inquiry may be satisfied based solely on the police
restricting a claimant’s loud speaking during a police investigation. Barnes, 946
N.E.2d at 577. Here, McCoy was arrested for disorderly conduct after she
yelled at Officer Stahl. Thus, McCoy has established that the State restricted
her expressive activity.
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[10] For the second prong, we consider whether the claimant’s expressive activity
constituted an abuse of the right to speak. This prong hinges on whether the
claimant’s expression constituted political speech. Id. If the claimant
demonstrates that her speech was political, the State’s restriction of the speech
is unconstitutional unless the State can demonstrate that it has not materially
burdened the claimant’s political expression. Whittington, 669 N.E.2d at 1369.
Such expression is not materially burdened if the State produces evidence that
the expression inflicted “‘particularized harm’ analogous to tortious injury on
readily identifiable private interests.” Id. at 1370 (quoting Price v. State, 622
N.E.2d 954, 964 (Ind. 1993)). To demonstrate the requisite level of harm, there
must be evidence that the speech caused actual discomfort to persons of
ordinary sensibilities or that it interfered with an individual’s comfortable
enjoyment of his or her privacy. Johnson v. State, 747 N.E.2d 623, 630 (Ind. Ct.
App. 2001). Evidence of mere annoyance or inconvenience is not sufficient.
Price, 622 N.E.2d at 964.
[11] We thus begin by determining whether McCoy’s speech was political.
Expressive activity is political, for purposes of article 1, section 9, if its point is
to comment on government action, including criticism of the conduct of an
official acting under color of law. Whittington, 669 N.E.2d at 1370. However,
where an individual’s expression focuses on the conduct of a private party,
including the speaker herself, it is not political. Id. We must judge the nature of
the expression by an objective standard, and the burden of proof is on the
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claimant to demonstrate that her expression would have been understood as
political. Id. If the expression is ambiguous, we must conclude the speech was
not political and evaluate the constitutionality of the State’s restriction of the
expression under standard rationality review. Id.
[12] Under the circumstances presented here, McCoy commented on and criticized
government action. During the interaction, Sergeant Stahl instructed McCoy to
go back to her residence and stay there. McCoy replied that he should not
speak to her in a disrespectful manner. Sergeant Stahl then issued a disorderly
conduct warning and attempted to direct McCoy back to her own yard.
McCoy responded that the sergeant should keep his hands off of her. McCoy’s
statements were directed at the appropriateness and legality of Sergeant Stahl’s
conduct toward her and thus constituted criticism of the conduct of an official
acting under color of law. See Jordan v. State, 37 N.E.3d 525 (Ind. Ct. App.
2015) (holding that profanity-laced statements yelled at police by defendant
during traffic stop were political speech in the form of criticism of police action
in that statements focused on police conduct); Johnson, 747 N.E.2d 623
(determining that defendant’s barrage of profanity at officer constituted political
speech where defendant was commenting on actions of officer acting under
color of law when officer attempted to issue citation to defendant); Shoultz v.
State, 735 N.E.2d 818 (Ind. Ct. App. 2000) (holding that defendant engaged in
protected political speech when he asked arresting officer what the problem was
and why he was bothering other people, demanded whether officer had warrant
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to be on property, and requested that officer leave if he did not have warrant),
trans. denied (2001).
[13] After Sergeant Stahl’s disorderly conduct warning and just before McCoy was
arrested, she told the sergeant, “No” and invoked her right to free speech.
Although this last comment shifted to more of a defense of her own conduct,
prior to the sergeant’s warning McCoy had been protesting the way the sergeant
was treating her. A conviction for disorderly conduct requires proof of
“unreasonable noise” both before and after an official warning. See Ind. Code §
35-45-1-3(a)(2). McCoy’s pre-warning speech constituted political expression
such that the element of the offense of disorderly conduct that requires
unreasonable noise before an official warning was not met. See Price, 622
N.E.2d 954 (holding that defendant’s overall complaint, which included her
statement that she had not done anything after being threatened with arrest,
constituted political speech); see also Whittington, 669 N.E.2d at 1370 (discussing
its earlier decision and stating: “In Price, the State conceded that Colleen Price
was protesting police treatment of another citizen before an officer warned her
to be quiet. 622 N.E.2d at 956-57. After the warning, her expression did shift
to a defense of her own conduct, id. at 957, but a conviction for disorderly
conduct requires proof of “unreasonable noise” both before and after an official
warning. See Ind. Code Ann. §35-45-1-3(2) (West Supp. 1996). It was the
State’s reliance on Price’s pre-warning political expression to prove an essential
element of the offense that was fatal to the conviction.”); see also Jordan, 37
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N.E.3d at 532-33 (viewing defendant’s statements as comment on police
authority even when officer told defendant that she needed to leave and
defendant responded that she did not need to leave). We conclude that
McCoy’s overall complaint constituted political speech.
[14] Having determined that McCoy’s statements were political speech, we now
turn to whether the State demonstrated that it did not materially burden her
opportunity to engage in such speech. To do so, the State was required to
produce evidence that McCoy’s speech inflicted particularized harm analogous
to tortious injury on readily identifiable private interests. See Whittington, 669
N.E.2d at 1370.
[15] The only evidence presented by the State was the testimony of Officer Pegan,
Sergeant Stahl, and Officer Kline, all of whom testified that McCoy was
“yelling.” Tr. Vol. II, pp. 28, 49, 64. However, Deputy Polly testified that he
was “fifty feet or more” from McCoy, and he could not clearly hear what she
was saying. Id. at 83. In its brief to this Court, the State notes that, in the
officers’ body camera footage, McCoy’s neighbors can be seen “entering and
exiting their house,” and children can be seen “playing across the street.”
Appellee’s Br. p. 17. The fact that neighbors were outside their homes is not
sufficient to show that their peace and tranquility were infringed upon. Indeed,
on cross examination Officer Kline acknowledged that neighbors were packing
things into a vehicle and that children across the street were hollering at the
officers to get them to wave and that none of these activities changed
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throughout the course of the afternoon. See Tr. Vol. II, p. 75. Thus, the
evidence showed that McCoy’s neighbors were undisturbed by her extremely
brief interaction with Sergeant Stahl and that they went on with their business
as usual. The State failed to show that McCoy’s speech infringed upon the
peace and tranquility of the neighbors or that any nearby resident was caused
actual discomfort.
Conclusion
[16] Based upon the foregoing, we reverse McCoy’s conviction on the ground that
the evidence is insufficient to support a conviction for disorderly conduct that
would be consistent with article 1, section 9 of the Indiana Constitution.
[17] Reversed.
Riley, J., and Vaidik, J., concur.
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