Kevin Sandifer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 21, 2017
• Docket: 49A02-1605-CR-1083
• Status: Published

Opinion

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

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

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

IN THE COURT OF APPEALS OF INDIANA

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

May, Judge.

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

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

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

as:

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

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

[2] We affirm.

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

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

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

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

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

Sandifer was with MCCC case manager Jill Jones.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kotarski stepped back while simultaneously pushing Sandifer into the wall.

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

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

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

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

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

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

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

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

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

Jones, Sandifer kicked Corporal Kotarski in the shin.

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

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

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

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

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

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

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

supervised probation.

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

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

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

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

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

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

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

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

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

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

required to overcome every reasonable hypothesis of innocence and is sufficient

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

147.

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

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

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

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

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

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

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

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

consider his argument as to each charge individually.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

testimony of single witness).

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

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

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

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

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

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

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

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

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

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

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

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

rude, insolent, or angry).

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

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

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

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

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

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

Because one’s conduct or expression may be free speech protected under the Indiana Constitution, an application of the disorderly conduct statute must pass constitutional scrutiny. We employ a two-step inquiry in reviewing the constitutionality of an application of the disorderly conduct statute: we (1) “determine whether state action has restricted a claimant’s expressive activity” and (2) “decide whether the restricted activity constituted an ‘abuse’ of the right to speak.” Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996). The first prong may be satisfied based solely on the police restricting a claimant’s loud speaking during a police investigation. Id. at 1370. The second prong hinges on whether the restricted expression constituted political speech. Id. at 1369-70. If the claimant demonstrates under an objective standard that the impaired expression was political speech, the impairment is unconstitutional unless the State demonstrates that the “magnitude of the impairment” is slight or that the speech amounted to a public nuisance such that it “inflict[ed] ‘particularized harm’ analogous to tortious injury on readily identifiable private interests.” Id. (quoting Price v. State, 622 N.E.2d 954, 964 (Ind. 1993)). If the expression, viewed in context, is ambiguous, it is not political speech, and we evaluate the constitutionality of the impairment under standard rationality review. Id. at 1370.

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

473 (Ind. 2011).

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

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

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

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

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

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

of government officials and agents.” Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[17] Affirmed.

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

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