Jessica Cundari v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
May 20 2015, 6:42 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Jonathan R. Sichtermann
Indianapolis, Indiana
Deputy Attorney General
Barbara J. Simmons Indianapolis, Indiana
Oldenburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jessica Cundari, May 20, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1410-CR-742
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable Amy M. Jones,
Judge
Appellee-Plaintiff
Cause No. 49G08-1406-CM-31456
Kirsch, Judge.
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[1] Following a bench trial, Jessica Cundari was found guilty of disorderly conduct 1
as a Class B misdemeanor. She appeals, challenging the sufficiency of the
evidence to support her conviction. Specifically, Cundari contends that the
language that constituted disorderly conduct was constitutionally-protected
political speech.
[2] We affirm.
Facts and Procedural History
[3] On June 9, 2014, Cundari called the Indianapolis Metropolitan Police
Department (“IMPD”) to report that she had been attacked the previous night
at her apartment complex. Before calling the police, Cundari had twice entered
the apartment complex office, the first time to deliver an incident report about
the prior evening and the second time to deliver a letter. Apparently, during the
second visit, Cundari had made threatening remarks to the manager of the
apartment complex.
[4] IMPD Officer Todd Wellmann responded to the apartment complex to take
Cundari’s complaint.2 Officer Wellmann’s investigation that day caused him to
speak with the apartment complex manager on two separate occasions. After
1
See Ind. Code § 35-45-1-3.
2
In the record before us, this officer’s name is spelled both as “Wellman” and “Wellmann.” Appellant’s App.
at 10. At trial, the officer was not asked to spell his name. Seriously?! Tr. at 4. While the parties spell this
officer’s name as Wellman, we use the spelling with the double “ln” at the end because that is the way it is
spelled in his probable cause affidavit. Appellant’s App. at 10.
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the second meeting, Officer Wellmann left the office to look for Cundari.
Officer Wellmann found Cundari fifty to seventy-five feet away from the office.
Cundari was speaking with her friends, including a woman named Kiara.
Cundari seemed “pretty aggravated.” Tr. at 7. Based on information supplied
by the apartment complex manager, Officer Wellmann placed Cundari under
arrest for intimidation.
[5] During trial, Officer Wellmann testified that, at the time she was arrested,
Cundari “was swearing and I don’t know at the top of her lungs but in a yelling
tone making threats.” Id. Officer Wellmann “asked her to be quiet on several
occasions. Finally, [a] second officer pulled up and placed [Cundari] on the
backside of [Officer Wellmann’s] car (inaudible) kind of concealing her from
the group of onlookers and her friends that were farther to the west.” Id.Officer Wellmann testified that the yelling and screaming went on “for eight to
ten minutes. Both myself and the other officer asked her numerous times to be
quiet, told her that there were kids, that no amount of yelling was going to get
her out of the situation. Finally, I advised her in addition to the intimidation
she was under arrest for disorderly conduct.” Id. at 8.
[6] At trial, Cundari’s friend Kiara testified in Cundari’s defense. Kiara stated that
Cundari did not yell after she was arrested, “she just kept asking what was she
being arrested for. She was crying. She . . . kept asking the officer and the
officer kept telling her the same thing and wasn’t no yelling though.” Id. at 16.
Following a bench trial, Cundari was found guilty of disorderly conduct. She
now appeals
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Discussion and Decision
[7] Cundari challenges whether the evidence was sufficient to sustain her
conviction for disorderly conduct, emphasizing whether her speech constituted
protected political speech under the Indiana Constitution. The offense of
disorderly conduct is governed by Indiana Code section 35-45-1-3, which
provides in relevant part:
(a) A person who recklessly, knowingly, or intentionally:
(1) engages in fighting or in tumultuous conduct;
(2) makes unreasonable noise and continues to do so after being asked
to stop; or
(3) disrupts a lawful assembly of persons;
commits disorderly conduct, a Class B misdemeanor.
[8] “The constitutionality of the disorderly conduct statute is determined on an as
applied basis under Article 1, section 9 of the Indiana Constitution.” Dallaly v.
State, 916 N.E.2d 945, 951 (Ind. Ct. App. 2009). Article 1, 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.” Ind.
Const. art. 1, § 9 (emphasis added).
[9] Cundari was charged under Indiana Code section 35-45-1-3(a)(2) of the
disorderly conduct statute; however, she does not challenge the sufficiency of
the evidence to convict her under the statute itself. Instead, stating as follows,
she argues that the alleged “disorderly conduct” was protected political speech:
Jessica Cundari was convicted of disorderly conduct for loudly using
profane and offensive language. She did so after she was placed under
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arrest after calling the police to make a report of an assault on her
person. Because her speech focused on the actions of the arresting
officer, it was political in nature. The burden shifted to the State to
produce evidence to prove that Ms. Cundari abused her right to speak.
. . . The State failed to prove that her speech and behavior created a
public nuisance, rose above the level of a fleeting annoyance, or was
otherwise tor[tious]. Since the State failed to prove the speech caused
actual discomfort to others or interfered with their enjoyment of
privacy, this Court must reverse.
Appellant’s Br. at 5.
[10] In reviewing the constitutionality of Indiana Code section 35-45-1-3 as applied
to a defendant, we employ a two-step analysis. Dallaly, 916 N.E.2d at 951.
“‘First, we must determine whether state action has restricted a claimant’s
expressive activity; second, if it has, we must decide whether the restricted
activity constituted an “abuse” of the right to speak.’” Id. (quoting Blackman v.
State, 868 N.E.2d 579, 584-85 (Ind. Ct. App. 2007) (citing Whittington v. State,
669 N.E.2d 1363, 1367 (Ind. 1996)), trans. denied).
[11] “The first prong of this inquiry may be satisfied by a person’s conviction for
making unreasonable noise based solely on her loud speaking during a police
investigation.” Id. at 952 (quoting another source). Here, the record reveals
that Cundari was arrested for disorderly conduct after she swore and yelled at
the officers during her arrest for intimidation. Accordingly, Cundari’s arrest for
disorderly conduct restricted her expressive activity. Id.; see Shoultz v. State, 735
N.E.2d 818, 825 (Ind. Ct. App. 2000) (holding that person’s conviction for
making unreasonable noise based on loud speaking during police investigation
constituted state action restricting defendant’s expressive activity), trans. denied.
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[12] In order to meet the second prong, Cundari must prove that “the State could
not reasonably conclude that the restricted expression was an ‘abuse’ of [her]
right to speak, and therefore, the State could not properly proscribe the conduct,
pursuant to its police power, via the disorderly conduct statute.” Blackman, 868
N.E.2d at 585. “Generally, when we review the State’s determination that a
claimant’s expression was an abuse of the right of free speech under the Indiana
Constitution, we need only find that the determination was rational.” Id.“However, if the expressive activity that precipitated the disorderly conduct
conviction was political in nature, the State must demonstrate that it did not
materially burden the claimant’s opportunity to engage in political expression.”
Id. The State can meet this burden by producing evidence that “the expression
inflicted particularized harm analogous to tortious injury on readily identifiable
private interests.” Id. “In order to demonstrate such particularized harm, the
State must show that the expression caused actual discomfort to persons of
ordinary sensibilities or that it interfered with an individual’s comfortable
enjoyment of his privacy.” Id. Evidence of mere annoyance or inconvenience
is not sufficient. Id.[13] “Expressive activity is political if its aim is to comment on government action,
including criticism of an official acting under color of law.” Id. However,
where the individual’s expression focuses on the conduct of a private party,
including the speaker herself, it is not political. Id. We apply an objective
standard when we review the nature of expression. Id. The claimant bears the
burden of proving that the expressive activity was not an abuse of her right to
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free speech by showing that her expression was political. Id. If the expression
is ambiguous, we must find that the expression was not political and must
review the State’s restriction of the expression under standard rational review.
Id.[14] Cundari contends that her statements to the officers were protected political
speech because she was commenting on the government action of the arrest.
We disagree. To support her contention that the speech was political, Cundari
contends that she did not start yelling while she was in the complex office;
instead, she only began yelling and swearing after she was arrested for
intimidation. Appellant’s Br. at 9. Although Cundari may have been swearing
and yelling during her arrest for intimidation, the record before us does not
support that she was commenting or criticizing the police conduct. Officer
Wellmann testified that Cundari’s tirade had more to do with the staff at the
apartment complex office and the previous night’s events than it had to do with
Officer Wellmann. Tr. at 8. Cundari’s argument that Kiara did not hear
Cundari yell or curse at the officer but only heard her asking why she was being
arrested is simply a request that we reweigh the evidence. Appellant’s Br. at 9.
This we will not do. Blackman, 868 N.E.2d at 584.
[15] Here, Cundari has not successfully demonstrated that the speech constituting
her disorderly conduct was protected political speech. Indiana Code section 35-
45-1-3 was constitutional as applied. As such, the burden did not shift to the
State to show that it did not materially burden the claimant’s opportunity to
engage in political expression. Blackman, 868 N.E.2d 585. Finding that the
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alleged disorderly conduct was not political speech, we find sufficient evidence
to support Cundari’s conviction for disorderly conduct as a Class B felony.
[16] Affirmed.
[17] Vaidik, C.J., and Bradford, J., concur.
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