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FOR PUBLICATION

FILED
Feb 20 2008, 9:00 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: BARBARA J. SIMMONS Batesville, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DERRICK ANDERSON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A05-0706-CR-312

APPEAL FROM THE MARION SUPERIOR COURT The Honorable, John A. Kitley, Judge Pro Tempore Cause No. 49F07-0702-CM-022960

February 20, 2008 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary Derrick Anderson appeals his conviction for Class B misdemeanor disorderly conduct. Specifically, he contends that because his expressions to the responding police officers were protected political speech under Article I, Section 9 of the Indiana Constitution, the evidence is insufficient to support his conviction. Because we conclude that Anderson's expressions were not political speech and that they constituted an abuse of his right to speak, he is subject to accountability under Section 9. In addition, we conclude that the evidence is sufficient to support Anderson's conviction. We therefore affirm. Facts and Procedural History On February 7, 2007, the assistant manager at the Laundry and Tan Connection in the Twin-Aire shopping center in Indianapolis asked Indianapolis Metropolitan Police Department Officer Chris Edwards to ask Anderson to leave the tanning booth he was in because his time had expired and "they couldn't reach him through the door." Tr. p. 4. Officer Edwards knocked on the tanning booth door for approximately two to three minutes, but Anderson did not respond. Officer Edwards then retrieved the key and opened the door. Anderson was lying in the tanning bed, which was off, and did not respond until Officer Edwards unplugged his headphones. Officer Edwards told

Anderson that his time was up and that he needed to leave and then stepped out of the room so that Anderson could get dressed. When Anderson still had not emerged from the tanning booth ten minutes later, the assistant manager again asked Officer Edwards to ask Anderson to leave. By this 2

time, another IMPD officer, Officer Douglas Lepsky, had arrived on the scene to assist Officer Edwards. When Officer Edwards knocked on the tanning booth door on this occasion, Anderson responded "f*** you" once or twice. Id. at 6. Officer Edwards opened the door, and Anderson was "almost" dressed. Id. at 5. Officer Edwards then asked Anderson to "please hurry up because the employees wanted him out of this establishment as soon as possible." Id. at 11. Anderson "continued cursing" as he finished dressing. Id. Once Anderson was dressed, the officers escorted him to the front of the store. When Anderson still did not leave, Officer Edwards "forcibly told him to leave and had to physically escort him out of the business." Id. at 6. As Anderson was being escorted out of the business, he stated that he wanted to buy a lottery ticket. Officer Edwards responded that Anderson "had been asked to leave several times and it was time for him to go." Id. Anderson, who still did not leave, was "loud," id., and "verbally abusive," id. at 12. Anderson was "cursing loud enough that even though [they] were in the tanning department people in the laundry area were turning [their] attention due to the loud verbal disruption by" Anderson. Id. Once outside, Officer Edwards told Anderson to leave because the business did not want him there any longer. Anderson "continued being verbally abusive by cursing loudly." Id. Anderson then walked a couple of paces but stopped. Officer Edwards told Anderson to leave "several" more times. Id. at 7. Nevertheless, Anderson refused to do so. At this point Officer Edwards arrested him for disorderly conduct. Some of the customers came outside to watch the ordeal, and customers coming and going witnessed

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it as well. In all, Officer had to ask Anderson to stop talking three or four times and asked him to leave three or four times as well. The next day, the State charged Anderson with Disorderly Conduct as a Class B misdemeanor.1 Following a bench trial, Anderson was found guilty as charged. The trial court sentenced him to 180 days, all suspended but for time served. Anderson now appeals. Discussion and Decision On appeal, Anderson contends that because his expressions to Officers Edwards and Lepsky were protected political speech under Article I, Section 9 of the Indiana Constitution, the evidence is insufficient to support his conviction for disorderly conduct. Before deciding whether the evidence is sufficient to support Anderson's conviction, we must first determine whether his expressions to the officers were protected political speech under Article I, Section 9 of the Indiana Constitution. Article I, 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." The right of free speech protected in Section 9 is "expressly qualified by the phrase `but for the abuse of that right, every person shall be responsible.'" J.D. v. State, 859 N.E.2d 341, 344 (Ind. 2007). When reviewing whether the State has violated Article I, Section 9, we must determine: (1) whether state action has restricted a

claimant's expressive activity and (2) if it has, whether the restricted activity constituted

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Ind. Code

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