Reanna Lopez-Smith v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 19 2020, 9:41 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Taylor-Price Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Josiah Swinney Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Reanna Lopez-Smith, June 19, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3018 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David J. Certo, Appellee-Plaintiff. Judge The Honorable David M. Hooper, Magistrate Trial Court Cause No. 49G12-1906-CM-25597

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020 Page 1 of 9

Statement of the Case [1] Reanna Lopez-Smith appeals her convictions for resisting law enforcement, as a

Class A misdemeanor, and disorderly conduct, as a Class B misdemeanor,

following a bench trial. Lopez-Smith raises a single issue for our review,

namely, whether the State presented sufficient evidence to negate her

affirmative defense that her conduct was protected political speech. [2] We affirm.

Facts and Procedural History [3] In the evening hours of June 25, 2019, Indianapolis Metropolitan Police

Department Officer Emily Perkins was dispatched to a reported disturbance in

the 4400 block of North Linwood Drive. There, Officer Perkins learned that

there had been “several incidents” between neighbors in an apartment complex

there “where guns were involved.” Tr. Vol. 2 at 9. Officer Perkins observed a

vehicle near the reported disturbance with Lopez-Smith inside. Officer Perkins

learned that Lopez-Smith had recently moved out of the apartment complex

because of the disturbances. [4] As Officer Perkins attempted to leave the apartment complex, she observed

Lopez-Smith place her vehicle “in the middle of the street, running with the

lights on and the brake lights . . . on.” Id. at 11. Officer Perkins pulled her

police cruiser behind Lopez-Smith “for about 30 seconds,” “expect[ing] her to

leave.” Id. But Lopez-Smith “didn’t move.” Id. Officer Perkins then

“activated [her] overhead lights” and Lopez-Smith began to turn right onto an

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eastbound street, but “[s]he did not turn. She almost turned. She turned back,

pulled the vehicle back to the left, [and] proceeded northbound.” Id. [5] With Officer Perkins still following her with the cruiser’s overhead lights on,

Lopez-Smith turned into a Kroger’s parking lot. Lopez-Smith then “ran [a]

stop sign” while proceeding “30 miles per hour” through the parking lot before

“pull[ing] across . . . two handicapped” spaces and parking her car there. Id. at

12. Lopez-Smith then opened the driver’s side door of her vehicle. Officer

Perkins “yelled at her to get back in the vehicle,” which command Officer

Perkins had to repeat. Id. Lopez-Smith then “s[at] down with her feet still out

of the vehicle, door open, so her back was toward the passenger side.” Id.

Officer Perkins again directed Lopez-Smith “to get back in the vehicle and shut

the door.” Id. [6] Lopez-Smith refused. She “yelled at [Officer Perkins] that she was on the

phone with her mom . . . .” Id. A crowd of ten or so bystanders began to

gather. At that point, Officer Perkins was concerned about the possibility of

firearms given the history of disturbances at the apartment complex. Officer

Perkins then “immediately” approached the vehicle, and at some point other

officers arrived. Id. at 13. Lopez-Smith continued to refuse the instructions to

close the vehicle door and to put down her phone, and so Officer Perkins

directed Lopez-Smith to exit the vehicle. Lopez-Smith again refused and

instead “twisted her body back into” the vehicle with “her legs out of

the . . . driver’s door” and “her body back in to where the passenger

compartment is . . . .” Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020 Page 3 of 9 [7] Officer Perkins could not see Lopez-Smith’s hands with her in that position.

Accordingly, Officer Perkins “grabbed her left arm . . . in an attempt to pull her

away from the center console . . . .” Id. at 14. Lopez-Smith “pulled back.”

Lopez-Smith then said, “you can’t do this to me, I’m talking to my mom.” Id.

Officer Perkins told Lopez-Smith that she was under arrest for resisting, and

Lopez-Smith then “twisted her body. She flailed her arms. She swung at

officers. She did everything exactly the opposite of what [officers] told her to

do . . . .” Id. Officer Perkins “had to grab onto her arm at least four times in

order to get her hands behind her back” and ended up having to “tak[e] her to

the ground.” Id. [8] Officer Perkins later estimated that she and Lopez-Smith “fought for probably a

minute or a minute and a half” before Officer Perkins and other officers were

able to subdue Lopez-Smith. Id. While they waited for another police vehicle

to escort Lopez-Smith away from the scene, Lopez-Smith continued to

“scream[] and . . . yell[].” Id. at 15. Lopez-Smith “yelled obscenities at [the

officers] and cussed [them] out,” she “yelled to everyone that she could get to

listen to her,” and, along with that, she said the officers did not “hav[e] the right

to arrest her.” Id. at 23. By the time she was escorted away, a crowd of “20 to

25 people” had gathered at the scene. Id. at 15. [9] The State charged Lopez-Smith with resisting law enforcement, as a Class A

misdemeanor, and disorderly conduct, as a Class B misdemeanor. After a

bench trial in which Officer Perkins testified, the court found Lopez-Smith

guilty of both offenses. This appeal ensued.

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Discussion and Decision [10] On appeal, Lopez-Smith assets that the State failed to present sufficient

evidence to negate her claim that her conduct was protected political speech

under Article 1, Section 9 of the Indiana Constitution. As our Supreme Court

has made clear:

When a defendant challenges the sufficiency of the evidence supporting a conviction, we neither reweigh evidence nor judge witness credibility. Instead, this Court will consider only the evidence most favorable to the judgment together with all reasonable inferences that may be drawn from the evidence. If substantial evidence supports the judgment, we’ll affirm the convictions.

Cardosi v. State, 128 N.E.3d 1277, 1283 (Ind. 2019) (quotation marks and

citations omitted). [11] Lopez-Smith does not dispute that the State presented sufficient evidence to

meet the statutory elements of the two offenses. Rather, she asserts that the

evidence required the fact-finder to conclude that her conduct was protected

political speech. Article 1, Section 9 states: “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.” [12] “In reviewing an argument under Article 1, Section 9, we employ ‘a two-step

inquiry’: first, we ‘determine whether state action has restricted a claimant’s

expressive activity’; and, second, we ‘decide whether the restricted activity

Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020 Page 5 of 9 constituted an abuse of the right to speak.’” Stone v. State, 128 N.E.3d 475, 482 (Ind. Ct. App. 2019) (quoting Williams v. State, 59 N.E.3d 287, 292 (Ind. Ct. App. 2016)), trans. denied. With respect to the first step:

As we have explained:

. . . the defendant demonstrates that his expression was unambiguous political speech when he shows that the focus of his speech exclusively concerned government action. Such speech must both be directed at state actors and refer to state actors or their conduct. Speech directed toward a private party or that refers to a private party, or the conduct of a private party, is politically ambiguous for purposes of an affirmative defense under art. 1, sec. 9. And when the focus of speech is politically ambiguous, a reasonable fact-finder may reject the asserted affirmative defense.

If the defendant does not meet his burden of showing that his speech was unambiguously political, the State’s impairment of his speech—e.g., the defendant’s arrest . . . —is constitutional so long as the State acted rationally in impairing the speech.

[Williams, 59 N.E.3d] at 289-90 (emphasis added; footnote omitted). Thus, “expression that is directed toward a private party or refers to the conduct of a private party, even if in part, does not demonstrate protected political expression” under Article 1, Section 9. Id. at 293. Likewise, “speech in which the speaker refers to him- or herself, even when prompted by a state actor’s conduct or statements, and even when coupled with political statements, permits a reasonable fact-finder to conclude that the focus of the entirety of the speech is ambiguous and, therefore, not political.” Id. at 294. In other words, where speech is at least in part not germane to a public issue, a trier of

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fact may find the speech as a whole not protected by Article 1, Section 9. See id.

Id. at 483 (quoting Williams, 59 N.E.3d at 289-94) (brackets omitted; some

omissions original to Stone). [13] Lopez-Smith’s speech was not unambiguously political as a matter of law. Part

of her speech was directed toward private parties, such as her mother and

bystanders. Part of her speech was self-referential, such as telling the officers

that she was going to sue them. [14] Still, Lopez-Smith asserts that the facts underlying her convictions are

analogous to those in U.M. v. State, in which we held that the appellant’s speech

was protected political speech. 827 N.E.2d 1190, 1193 (Ind. Ct. App. 2005). In

U.M., we described the facts as follows:

Police officers received a report of juveniles spray-painting graffiti on a garage. When Officer Laton arrived at the scene, U.M. was in the back seat of a car with another individual. Officer Laton instructed the people in the car to hold up their hands. Despite Officer Laton’s directions to do so, one individual in the back seat of the car did not keep his hands up. U.M. was sitting next to this individual in the back seat of the car and yelled at Officer Laton, “F–––– you, he can’t keep his arms up, his arms hurt.” Tr. at 14. Officer Laton told U.M. to stop yelling, and the officer then removed U.M. and the other individual from the car. U.M. continued yelling statements such as, “You guys are all racists; f– ––– the police.” Tr. at 14. Officer Laton testified that he instructed U.M. to stop yelling two or three times and that it took U.M. two or three minutes to heed his orders. Based upon this incident, the State filed a petition alleging U.M. to be a delinquent child for committing the offense of disorderly Court of Appeals of Indiana | Memorandum Decision 19A-CR-3018 | June 19, 2020 Page 7 of 9

conduct. U.M. was found to be delinquent by the juvenile court . ...

Id. at 1191-92. [15] We reversed the juvenile’s adjudication on the ground that the “conduct” that

was alleged to have been disorderly was protected political speech. As we

explained:

U.M.’s speech was in regard to his companion’s inability to hold up his arms and the requirement by Officer Laton that their arms stay in the air. U.M.’s remarks were directed at Officer Laton, and Officer Laton testified that U.M. was commenting on what he was doing at the scene. Although we do not agree with the manner in which U.M. conducted himself, . . . U.M. was expressing himself regarding the legality and appropriateness of police conduct toward his companion.

Id. at 1193. In other words, in U.M., “the defendant’s speech was directed

exclusively at state actors and focused exclusively on the actions or conduct of

state actors.” Williams, 59 N.E.3d at 294. But, as Lopez-Smith’s conduct was

not so focused, a reasonable fact-finder was free to reject her argument that her

conduct was unambiguously protected political speech. Stone, 128 N.E.3d at

483. [16] We thus turn to the second step of our Article 1, Section 9 inquiry. As we also

explained in Williams:

Having concluded that [the defendant’s] speech was not political, we next evaluate the constitutionality of the State’s impairment

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of her expression under standard rationality review. In that review, we determine whether the State rationally could have concluded that [the defendant’s] expressive activity, because of its volume, was an “abuse” of the right to speak. In other words, we consider whether [the defendant’s] speech was a threat to peace, safety, and well-being.

59 N.E.3d at 295 (cleaned up). [17] The State readily demonstrated this requirement. In Williams, we held that the

State presented sufficient evidence of an abuse of the right to speak when the

volume of the defendant’s speech caused neighbors to exit their homes to see

what was going on. Id. Likewise, here, Lopez-Smith’s volume, language, and

belligerence toward the officers attracted a crowd of twenty to twenty-five

bystanders in the Kroger’s parking lot. Accordingly, the State presented

sufficient evidence to negate her affirmative defense of protected political

speech under Article 1, Section 9, and we affirm her convictions. [18] Affirmed.

Kirsch, J., and Brown, J., concur.

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