Borchert v. State, 49A02-9210-CR-481

• Citation: 621 N.E.2d 657
• Decision Date: 13 October 1993
• Docket Number: No. 49A02-9210-CR-481,49A02-9210-CR-481
• Parties: Steven BORCHERT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 657

621 N.E.2d 657

Steven BORCHERT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9210-CR-481.

Court of Appeals of Indiana Third District.

Oct. 13, 1993.

Edward S. Adams, Hall & Adams, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Suzann Weber Lupton, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Appellant-defendant Steven Borchert appeals from his conviction for disorderly conduct, a Class B misdemeanor.

Borchert raises three issues for review:

(1) whether Borchert's speech was protected by either the Indiana or the United States Constitution;

(2) whether the State presented sufficient evidence to sustain Borchert's conviction of disorderly conduct; and

(3) whether the trial court erred by allowing a police officer to testify as to the volume of Borchert's speech.

The facts relevant to this appeal disclose that on February 1, 1992, Steve Borchert, and approximately twenty-five others, were involved in a protest outside the Indianapolis Women's Clinic in Indianapolis, Indiana. The protestors congregated in a public alley approximately 150 feet from the building that housed the clinic. As escorts carrying large portable radios led patients from their vehicle into the building, protesters would yell to the clinic patients.

Indianapolis Police Officer Tammy Peters, who was working at the clinic as a part-time security officer, was approached by people inside the clinic who complained that they could hear Borchert, and he was disturbing both employees and the patients. Peters knew Borchert from previous encounters and was familiar with his voice. Borchert was heard shouting statements such as: "Mommy don't kill me. Mommy don't kill me." Peters approached Borchert, informing him that his voice could be heard inside the building and warned him to quiet down or he would be arrested. Shortly thereafter, clinic employees again approached Peters with the same complaint. Peters again went outside where she told Borchert that he was being placed under arrest. Borchert refused to recognize Peters' authority to place him under arrest, requiring Peters to call for back-up.

Borchert was charged with disorderly conduct and resisting arrest. At trial, the State requested a dismissal of the charge of resisting arrest. Subsequently, Borchert was convicted of disorderly conduct. He now appeals.

Borchert challenges his disorderly conduct conviction. More specifically, Borchert contends that he was engaged in constitutionally protected speech at the time of his arrest. As Borchert points out, a review of a disorderly conduct conviction based upon speech requires that this Court examine the charged events in light of the constitutional protections afforded speech. Brown v. State (1991), Ind.App., 576 N.E.2d 605, 606. Spoken words generally fall within the constitutional guarantee of freedom of speech; however, several categories of speech fall outside the ambit of its protection. Gilles v. State (1988), Ind.App., 531 N.E.2d 220, 222, cert. denied (1989), 493 U.S. 939, 110 S.Ct. 337, 107 L.Ed.2d 325. As this Court has previously set forth:

" 'These categories include: (a) obscenity, see generally Miller v. California, (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; (b) speech in circumstances where its time, place or manner of delivery unduly interferes with privacy of the home or a similar competing interest, sometimes called 'nuisance' speech, see e.g. Kovacs v. Cooper, (1949) 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 and see generally Nowak, Rotunda, Young, Handbook on Constitutional Law 812-17 (1978); (c) speech advocating immediate violence or similar lawless action which is likely to follow, see generally Hess v. Indiana, (1973) 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303; Brandenburg v. Ohio, (1969) 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430; and (d) 'fighting words,' personally abusive language likely to provoke a violent reaction by listeners toward the speaker, see generally Chaplinsky v. New Hampshire, (1942) 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031[.]' "

Id. at 222, quoting, Mesarosh v. State (1984), Ind.App., 459 N.E.2d 426, 427-428. Here, Borchert's prosecution was based upon speech constituting a public nuisance.

This Court addressed the constitutionality of Indiana's disorderly conduct statute in Price v. State (1992), Ind.App., 600 N.E.2d 103, and held that the prosecution of unreasonable noise which constitutes a public nuisance does not violate the First and Fourteen Amendments of the United States Constitution or the free speech provision of the Indiana Constitution. This Court noted that the United States Supreme Court has "recognized that governments have a substantial interest in protecting their citizens from unwelcome noise." Id. at 115, citing, Ward v. Rock Against Racism (1989), 491 U.S. 781, 795-796, 109 S.Ct. 2746, 2756, 105 L.Ed.2d 661, 678. Additionally, this Court recognized that the language of Indiana's Constitution "seems intended at least in part to enable the State to enact statutes to punish unreasonably loud speech." Id.

Borchert's contention that Price supports his claim that his speech was not prohibited public nuisance speech, is erroneous. In Price, this Court traced the history of public nuisance laws and pointed out that such laws were often targeted at punishing persons who operated places in which public disorder was encouraged and against those persons making great noise at night. Id. at 114. This Court, however, did not limit punishable acts of public nuisance speech to only those falling within these limited areas. Rather, this Court looked to the reasonableness of the challenged noise to determine whether the defendant's speech constituted a public nuisance, hence, supporting the defendant's disorderly conduct conviction. Id. at 115.

Standing by itself, evidence of loudness does not constitute unreasonable noise. Cavazos v. State (1983), Ind.App., 455 N.E.2d 618, 621. Loudness may be unreasonable, but that determination must be made in the context of the surrounding circumstances.

Martin v. State (1986), Ind.App., 499 N.E.2d 273, 275; Cavazos, 455 N.E.2d at 621.

In Martin, the defendant was involved in an altercation with police officers near a volleyball court in an outdoor picnic area. In sustaining the defendant's conviction for disorderly conduct, the court noted that defendant's response to the police officers' admonishments was "almost a yell," "very loud," and "louder than necessary to be heard." Thus, the Court concluded that the defendant's speech was unreasonably loud and, therefore, an unprotected nuisance. Martin, 499 N.E.2d at 274-275.

In the present case, despite the fact that radios were playing and that the other protestors admitted to raising their own voices, Peters testified that the clinic employees complained that they could hear Borchert's shouts inside the building 150 feet away. When Peters came outside, after being requested to do so by clinic employees, she immediately approached Borchert and warned him to quiet down because he could be heard inside the clinic. Borchert failed to heed the warning and approximately one hour later was heard shouting again by the clinic employees inside the building. As in Martin, there was evidence presented that Borchert utilized an unnecessarily high volume of speech; one which was unreasonable under...