Lorraine McCoy v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 21, 2020
• Docket: 20A-CR-723
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 3 of 10 [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).

Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 4 of 10 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.

Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 5 of 10 [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

Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 6 of 10 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

Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 7 of 10 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

Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 8 of 10 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

Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 9 of 10 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.

Court of Appeals of Indiana | Opinion 20A-CR-723 | October 21, 2020 Page 10 of 10