MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 22 2016, 8:31 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Burns, November 22, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1604-CR-894 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Annie Christ- Appellee-Plaintiff. Garcia, Judge Trial Court Cause No. 49G24-1601-F6-3467
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Brian Burns (Burns), appeals his conviction for disorderly
conduct, a Class B misdemeanor, Ind. Code § 35-45-1-3(a)(2).
[2] We affirm.
ISSUE
[3] Burns raises one issue on appeal, which we restate as: Whether the State
established sufficient evidence to support his conviction beyond a reasonable
doubt.
FACTS AND PROCEDURAL HISTORY
[4] At approximately 4:00 a.m. on January 26, 2016, Indianapolis Metropolitan
Police Officer Molly McAfee (Officer McAfee) responded to a report of a
“troubled person” at the Speedway Gas Station at 1404 West Washington
Street in Indianapolis, Indiana. (Transcript p. 16). When she and other
responding officers arrived, Officer McAfee observed Burns walking from the
west side of the gas station’s parking lot towards the officers. Burns was waving
his hands in the air and yelling “at the top of his lungs.” (Tr. p. 18). He was
walking “in an aggressive combative” manner, “with his chest puffed out and
his hands out.” (Tr. p. 17). Burns was screaming, “[Y]ea I am the one you
want . . . and I demand you to respect my authority you are not the authority I
am the authority,” and was using profanity. (Tr. p. 17). The officers tried to
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 2 of 7 calm Burns and figure out what was going on. Burns “made no attempt to
listen to” them. (Tr. p. 17).
[5] While the officers repeatedly told Burns to quiet down, other people were
pulling into the gas station. Some people would pull in, notice what was going
on and then “pull away[,] they didn’t want to stop” while other people were
“gawking” and laughing. (Tr. p. 18). Despite Officer McAfee asking “multiple
times” to quiet down, Burns refused. Even after being arrested and transported
to jail, Burns continued to yell.
[6] On January 27, 2016, the State filed an Information, charging Burns with
Count I, intimidation, a Level 6 felony; and Count II, disorderly conduct, a
Class B misdemeanor. On March 26, 2016, the State filed a motion to dismiss
Count I, which was granted by the trial court. On April 5, 2016, the trial court
conducted a jury trial, at the close of which, the jury returned a guilty verdict.
Immediately following the guilty verdict, the trial court sentenced Burns to 140
days executed.
[7] Burns now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Burns contends that the State failed to establish sufficient evidence to sustain his
conviction for disorderly conduct beyond a reasonable doubt. Our standard of
review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740
N.E.2d 109, 111 (Ind. 2000). In reviewing the sufficiency of the evidence, we
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 3 of 7 examine only “the probative evidence and reasonable inferences” that support
the verdict. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State,
867 N.E.2d 144, 146 (Ind. 2007)). We do not assess witness credibility, nor do
we reweigh the evidence to determine if it was sufficient to support a
conviction. Lock, 971 N.E.2d at 74. Under our appellate system, those roles
are reserved for the finder of fact. Id. Instead, we consider only the evidence
most favorable to the trial court’s ruling and affirm the conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. This evidence need not overcome every reasonable
hypothesis of innocence; it is sufficient as long as “‘an inference may reasonably
be drawn from it to support the verdict.’” Id (quoting Drane, 867 N.E.2d at
147).
[9] In order to establish disorderly conduct, the State was required to prove that
Burns “recklessly, knowingly, or intentionally” made “unreasonable noise and
continue[d] to do so after being asked to stop[.]” See I.C. § 35-45-6-3(a)(2). Not
disputing the intent element, Burns solely focuses his challenge on the
“unreasonable noise” requirement by alleging that he “did not produce context-
inappropriate volume and was not too loud for the circumstances.” 1
(Appellant’s Br. p. 9).
1 Burns does not allege that his speech could be characterized as protected political expression, directed towards criticizing an official acting under color of law and protected by Article I, Section 9 of the Indiana Constitution.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 4 of 7 [10] In Price v. State, 622 N.E.2d 954, 966 (Ind. 1993), our supreme court explained
that the criminalization of “unreasonable noise” was “aimed at preventing the
harm which flows from the volume” of noise. As such, “[t]he State must prove
that a defendant produced decibels of sound that were too loud for the
circumstances.” Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996)
(emphasis in original). “Whether the State thinks the sound conveys a good
message, a bad message, or no message at all, the statute imposes the same
standard: it prohibits context-inappropriate volume. Id. (emphasis in original).
The Whittington court described different situations in which loud noise can be
found unreasonable:
It could threaten the safety of injured parties by aggravating their trauma or by distracting the medical personnel tending to them. Loud outbursts could agitate witnesses and disrupt police investigations. It could make coordination of investigations and medical treatment more difficult. Finally, loud noise can be quite annoying to others present at the scene.
Id.
[11] In the instant case, the officers investigated the report of a troubled person.
When they arrived on the scene, Burns approached them in an aggressive
manner, waving his hands, and yelling at the top of his lungs across the gas
station’s parking lot. Despite the officers’ numerous warnings, as testified to by
Officer McAfee, Burns did not quiet down. Officer McAfee clarified that
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 22 2016, 8:31 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Burns, November 22, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1604-CR-894 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Annie Christ- Appellee-Plaintiff. Garcia, Judge Trial Court Cause No. 49G24-1601-F6-3467
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, Brian Burns (Burns), appeals his conviction for disorderly
conduct, a Class B misdemeanor, Ind. Code § 35-45-1-3(a)(2).
[2] We affirm.
ISSUE
[3] Burns raises one issue on appeal, which we restate as: Whether the State
established sufficient evidence to support his conviction beyond a reasonable
doubt.
FACTS AND PROCEDURAL HISTORY
[4] At approximately 4:00 a.m. on January 26, 2016, Indianapolis Metropolitan
Police Officer Molly McAfee (Officer McAfee) responded to a report of a
“troubled person” at the Speedway Gas Station at 1404 West Washington
Street in Indianapolis, Indiana. (Transcript p. 16). When she and other
responding officers arrived, Officer McAfee observed Burns walking from the
west side of the gas station’s parking lot towards the officers. Burns was waving
his hands in the air and yelling “at the top of his lungs.” (Tr. p. 18). He was
walking “in an aggressive combative” manner, “with his chest puffed out and
his hands out.” (Tr. p. 17). Burns was screaming, “[Y]ea I am the one you
want . . . and I demand you to respect my authority you are not the authority I
am the authority,” and was using profanity. (Tr. p. 17). The officers tried to
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 2 of 7 calm Burns and figure out what was going on. Burns “made no attempt to
listen to” them. (Tr. p. 17).
[5] While the officers repeatedly told Burns to quiet down, other people were
pulling into the gas station. Some people would pull in, notice what was going
on and then “pull away[,] they didn’t want to stop” while other people were
“gawking” and laughing. (Tr. p. 18). Despite Officer McAfee asking “multiple
times” to quiet down, Burns refused. Even after being arrested and transported
to jail, Burns continued to yell.
[6] On January 27, 2016, the State filed an Information, charging Burns with
Count I, intimidation, a Level 6 felony; and Count II, disorderly conduct, a
Class B misdemeanor. On March 26, 2016, the State filed a motion to dismiss
Count I, which was granted by the trial court. On April 5, 2016, the trial court
conducted a jury trial, at the close of which, the jury returned a guilty verdict.
Immediately following the guilty verdict, the trial court sentenced Burns to 140
days executed.
[7] Burns now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[8] Burns contends that the State failed to establish sufficient evidence to sustain his
conviction for disorderly conduct beyond a reasonable doubt. Our standard of
review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740
N.E.2d 109, 111 (Ind. 2000). In reviewing the sufficiency of the evidence, we
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 3 of 7 examine only “the probative evidence and reasonable inferences” that support
the verdict. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (quoting Drane v. State,
867 N.E.2d 144, 146 (Ind. 2007)). We do not assess witness credibility, nor do
we reweigh the evidence to determine if it was sufficient to support a
conviction. Lock, 971 N.E.2d at 74. Under our appellate system, those roles
are reserved for the finder of fact. Id. Instead, we consider only the evidence
most favorable to the trial court’s ruling and affirm the conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. This evidence need not overcome every reasonable
hypothesis of innocence; it is sufficient as long as “‘an inference may reasonably
be drawn from it to support the verdict.’” Id (quoting Drane, 867 N.E.2d at
147).
[9] In order to establish disorderly conduct, the State was required to prove that
Burns “recklessly, knowingly, or intentionally” made “unreasonable noise and
continue[d] to do so after being asked to stop[.]” See I.C. § 35-45-6-3(a)(2). Not
disputing the intent element, Burns solely focuses his challenge on the
“unreasonable noise” requirement by alleging that he “did not produce context-
inappropriate volume and was not too loud for the circumstances.” 1
(Appellant’s Br. p. 9).
1 Burns does not allege that his speech could be characterized as protected political expression, directed towards criticizing an official acting under color of law and protected by Article I, Section 9 of the Indiana Constitution.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 4 of 7 [10] In Price v. State, 622 N.E.2d 954, 966 (Ind. 1993), our supreme court explained
that the criminalization of “unreasonable noise” was “aimed at preventing the
harm which flows from the volume” of noise. As such, “[t]he State must prove
that a defendant produced decibels of sound that were too loud for the
circumstances.” Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996)
(emphasis in original). “Whether the State thinks the sound conveys a good
message, a bad message, or no message at all, the statute imposes the same
standard: it prohibits context-inappropriate volume. Id. (emphasis in original).
The Whittington court described different situations in which loud noise can be
found unreasonable:
It could threaten the safety of injured parties by aggravating their trauma or by distracting the medical personnel tending to them. Loud outbursts could agitate witnesses and disrupt police investigations. It could make coordination of investigations and medical treatment more difficult. Finally, loud noise can be quite annoying to others present at the scene.
Id.
[11] In the instant case, the officers investigated the report of a troubled person.
When they arrived on the scene, Burns approached them in an aggressive
manner, waving his hands, and yelling at the top of his lungs across the gas
station’s parking lot. Despite the officers’ numerous warnings, as testified to by
Officer McAfee, Burns did not quiet down. Officer McAfee clarified that
officers were present at the gas station for “[a]pproximately thirty minutes” and
during that time, they told Burns to calm down at “least fifteen to twenty
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 5 of 7 times.” (Tr. p. 20). Officer McAfee testified that because of Burns’ noise and
attitude, business at the gas station was disrupted, with some customers leaving
without a purchase after observing Burns’ tirade.
[12] Based on the evidence, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to support Burns’ conviction for disorderly conduct.
Not only was Burns’ yelling disruptive of the officers’ investigation as he “made
no attempt to listen to” the officers, it also had an adverse economic impact on
the gas station’s business that early morning. (Tr. p. 17); see Whittington, 669
N.E.2d at 1367. Despite numerous warnings, Burns did not cease screaming.
See Humphries v. State, 568 N.E.2d 1033, 1037 (Ind. Ct. App. 1991) (evidence
that the officer asked defendant to stop yelling otherwise he would be placed
under arrest constituted substantial evidence defendant was speaking in an
unreasonably loud voice). The record reflects that Burns was yelling at least
from the time the officers arrived until they left approximately thirty minutes
later. Even his arrest did not deter him from continuing to make unreasonable
noise. Burns’ request to now find that his behavior did not rise to the level of
unreasonable noise merely amounts to an invitation to reweigh the evidence,
which we are not allowed to do. See Lock, 971 N.E.2d at 74.
CONCLUSION
[13] Based on the foregoing, we hold that the State presented sufficient evidence
beyond a reasonable doubt to sustain Burns’ conviction for disorderly conduct.
[14] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 6 of 7 [15] Bailey, J. and Barnes, J. concur
Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-894 | November 22, 2016 Page 7 of 7