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.
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[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
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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
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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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