Sharpnack, SJ.
Lorraine McCoy appeals her conviction of disorderly conduct, a Class B misdemeanor. 1 We reverse her conviction.
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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). 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.
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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 to be on property, and requested that officer leave if he did not have warrant), trans. denied (2001).
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)… 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).
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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.
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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 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.
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.
Reversed.
Riley, J., and Vaidik, J., concur.