Whittington v. State , 1994 Ind. App. LEXIS 569 ( 1994 )

STATON, Judge.

Eric Whittington appeals his conviction for disorderly conduct, a class B misdemeanor.¹ He presents for this court's review the sole issue of whether there is sufficient evidence to sustain the conviction.

We reverse.

On May 12, 1998, Officer Anthony Finnell responded to a report of a domestic dispute at an Indianapolis apartment. Rhonda Whittington (Erie's sister) reported that Whittington had struck her in the abdomen. As Officer Finnell gathered information and summoned an ambulance, Whittington continued to argue with his sister's boyfriend. Whittington was unresponsive to the officer's admonition to "calm down." In a loud and angry manner, Whittington uttered the following phrases: "this is all bullshit" and "fuck this shit." Record, p. 66.

IND.CODE 35-45-1-8(2) provides that a person who "recklessly, knowingly or intentionally makes unreasonable noise and continues to do so after being asked to stop" engages in disorderly conduct. The State charged that Whittington made unreasonable noise by "cursing, yelling and acting in a belligerent manner." Record, p. 7.

Art. I, § 9 of the Indiana Constitution guarantees to the citizens of this state the right of free expression.² The legislature's sole authority over expression is to sanction individuals who commit abuse. Price v. State (1993), Ind., 622 N.E.2d 954, 958. Abating excessive noise is an objective legitimately pursued by the legislature; I.C. 35-45-1-3(2) is rationally calculated to achieve this objective. Id. at 960.

Our supreme court reiterated:

"[I.C. 35-45-1-8(2)] was adopted to provide relief to people whose privacy or use and enjoyment of land has been intolerably impaired by unwelcome and unreasonable noise. It is expressly aimed at preventing the harm which flows from the volume of the expression and not its substance."

Id. at 966.

"Section 85-45-1-3(2) is aimed at the intrusiveness and loudness of expression, not whether it is obscene or provocative."

Id. at 960, n. 6.

The statutory prohibition against unreasonable noise is content-neutral Thus, the State could not meet its burden of proof merely by establishing that Whittington issued epithets; it was incumbent upon the State to show that his speech infringed upon a right of peace and tranquility enjoyed by others.

A determination of whether loud speech is unduly intrusive and unreasonable requires consideration of the forum employed. Radford v. State (1994), Ind.App., 627 N.E.2d 1331, 1333 (Staton, J., dissenting). In Frisby v. Schultz (1988), 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420, the Supreme Court stated:

"To ascertain what limits, if any, may be placed on protected speech, we have often focused on the 'place' of that speech, considering the nature of the forum the speaker seeks to employ. Our cases have recognized that the standards by which limitations on speech must be evaluated 'differ depending on the character of the property at issue."

Id. at 479, 108 S.Ct. at 2500.

The forum employed by Whittington was his own home. Thus, the potential for invading the right of others to peace and quietude was diminished. Compare: Price, supra (involving a crowded residential alley); Radford, supra (involving a hospital hallway adjacent to an OB-GYN clinic) and Stites v. State (1994), Ind.App., 627 N.E.2d 1343 (involving a residential street).

Officer Finnell, the State's sole witness, testified that Whittington was "loud and boisterous, very upset and cursing." Record, pp. 65-6. However, there is no evidence that Whittington's speech was detectable by anyone outside his residence or that it "intolerably impaired" another person's privacy or use of his land.

We reverse Whittington's conviction and remand with instructions to enter a judgment of acquittal.

FRIEDLANDER, J., concurs in result and files separate opinion; HOFFMAN, J., dissents and files separate opinion.

1 . IND.CODE 35-45-1-3.

2 . The First Amendment to the United States Constitution (prohibiting laws abridging the freedom of speech) has been incorporated into the Fourteenth Amendment and thus applies to all states.