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.
[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