Price v. State

• Decision Date: 14 September 1992
• Docket Number: No. 49A02-9109-CR-378,49A02-9109-CR-378
• Citation: 600 N.E.2d 103
• Parties: Colleen PRICE, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 103

600 N.E.2d 103

Colleen PRICE, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A02-9109-CR-378.

Court of Appeals of Indiana,

Second District.

Sept. 14, 1992.

Fran Quigley, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Appellant Colleen Price was convicted of Disorderly Conduct a Class B Misdemeanor, ¹ and Public Intoxication, a Class B Misdemeanor. ² Her appeal presents the following issues for our review:

I. Whether the "unreasonable noise" prohibition of I.C. 35-45-1-3(2), Indiana's disorderly conduct statute, violates the First and Fourteenth Amendments of the United States Constitution upon grounds of vagueness or overbreadth;

II. Whether the "unreasonable noise" prohibition violates article I, section 9 of the Indiana Constitution; and

III. Whether the evidence is sufficient to support the judgment upon the counts of Disorderly Conduct and Public Intoxication?

We affirm.

The facts most favorable to the judgment reveal that Officer Doug Cook of the Indianapolis Police Department was driving in the 1600 block of East Pleasant Street at 3:00 a.m. on January 1, 1991. He saw Price standing on the sidewalk in front of a house, arguing with Eddie Coleman and Paula Brown. The three were yelling loud enough for Officer Cook to be able to hear them from his car.

Officer Cook approached the three and made inquiry about the occurrence. Coleman became abusive. Officer Cook told him to quiet down three times, but Coleman simply became more abusive. Officer Cook told Coleman he was under arrest, whereupon Coleman started to run. As Officer Cook started after him, Price grabbed his arm. When Cook broke free, Price grabbed the microphone cord of his police radio. Officer Cook jerked the cord from Price and chased Coleman.

Officer David A. Carver of the Indianapolis Police Department was driving by the scene just as Coleman ran away. Officer Carver pursued Coleman, caught him, and effected the arrest. Price and Brown confronted the officers in an alley as they were bringing Coleman to the police car. They protested Coleman's arrest to the officers loudly and abusively, yelling and screaming. Officer Cook told Price to get out of the way and threatened her with arrest for disorderly conduct, to which she responded by yelling: "Fuck you. I haven't done anything." Record at 84. Officer Cook asked Price to quiet down twice, but Price kept yelling. The altercation was loud enough to attract the attention of neighbors, who came out of their houses. Cook arrested Price.

Price had been at a New Year's Eve party at which beer had been served earlier in the evening. Coleman, Brown and Price were still in front of the house where the party had been when Officer Cook first drove by and spotted them arguing. Price admitted drinking four or five glasses of beer earlier in the evening at the party. Officer Cook noticed that Price's speech was slurred, and that her breath had a strong odor of alcohol. Officer Cook opined that she was intoxicated.

I.

Price asserts that the trial court erred in denying her motion to dismiss the Disorderly Conduct charge upon federal constitutional grounds. She argues that the "unreasonable noise" provision with which she was charged is vague and overbroad in violation of the First and Fourteenth Amendments.

I.C. 35-45-1-3(2) provides:

"A person who recklessly, knowingly, or intentionally: ...

(2) Makes unreasonable noise and continues to do so after being asked to stop; ... commits disorderly conduct, a Class B misdemeanor."

A.

Price first challenges the statute as overbroad. A defendant may challenge a statute facially upon overbreadth grounds, whether or not the individual defendant's conduct is constitutionally protected. Osborne v. Ohio (1990) 495 U.S. 103, n. 8, 110 S.Ct. 1691, 1697, n. 8, 109 L.Ed.2d 98. However, a statute is not overbroad merely because one might conceive of a single impermissible application. Id., 495 U.S. at 1697; City of Houston, Texas v. Hill (1987) 482 U.S. 451, 458-60, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398. Rather, a statute is overbroad only if it prohibits a substantial amount of protected conduct. Osborne, supra; Hill, supra.

Authoritative constructions by state courts control the overbreadth analysis. Osborne, supra, 495 U.S. at 1698, 1701-02; Ward v. Rock Against Racism (1989) 491 U.S. 781, 795-96, 109 S.Ct. 2746, 2756, 105 L.Ed.2d 661. An opinion of an intermediate appellate court may be considered "authoritative" for purposes of constitutional analysis when it has received acceptance as the law over a period of time. Kolender v. Lawson (1983) 461 U.S. 352, 355, n. 4, 103 S.Ct. 1855, 1857, n. 4, 75 L.Ed.2d 903. In considering a constitutional challenge, Indiana courts accord a statute every reasonable presumption supporting its validity and place the burden upon the party challenging it to show unconstitutionality. Brady v. State (1991) Ind., 575 N.E.2d 981, 984.

Our Supreme Court interpreted the predecessor statute to I.C. 35-45-1-3(2) in Hess v. State (1973) 260 Ind. 427, 297 N.E.2d 413; rev'd by Hess v. Indiana (1973) 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303. That statute stated:

"Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct...." (Emphasis supplied.) I.C. 35-27-2-1 (Burns Code Ed.Supp.1972, Sec. 10-1510). (For identical provision, see I.C. 35-27-2-1 (Burns Code Ed.1975).)

In deciding the case, our Supreme Court held that the statute could not be applied to a person exercising his right to free speech unless the speech 1) was obscene, 2) consisted of fighting words, 3) amounted to a public nuisance, or 4) incited imminent lawless action, citing the relevant United States Supreme Court cases holding speech in these particular categories to be unprotected by the First Amendment. Although the United States Supreme Court reversed the Hess decision, it did not question Indiana's analysis of speech in terms of these separate categories. Rather, the Court held that the Indiana courts erred in holding the statement Hess had made to be fighting words. Hess v. Indiana, supra, 414 U.S. at 106-10, 94 S.Ct. at 328-29.

I.C. 35-45-1-3 is worded differently than the predecessor statute interpreted in Hess. However, our courts have consistently applied the categories-of-speech analysis enunciated in Hess. ³ In State v. New (1981) Ind., 421 N.E.2d 626, our Supreme Court considered the present statute. In New, the defendant believed that he and another had been wrongfully dispossessed of rental property. The two were trying to break open a padlocked door to the property when police officers confronted them, and told them to get a court order. The defendant ignored the officer and told the other to "cut the son of a bitch [lock] off." The officer told him to stop cussing or he would arrest him for disorderly conduct, to which the defendant responded: "move him out of the way and cut the son of a bitch off." Id. at 627.

The trial court applied the Hess framework to the new statute and concluded that New's indictment must be quashed because his speech did not fall within any of the Hess categories of unprotected speech. The parties agreed that the statute was constitutional, so the court did not explicitly address that question. Nevertheless, our Supreme Court applied the only arguably relevant prong of the Hess framework to reverse the trial court, holding that New's speech was intended and likely to produce imminent disorder. Id. at 629.

This court has interpreted I.C. 35-45-1-3(2) on numerous occasions, consistently applying the Hess framework. In Mesarosh v. State (1984) 4th Dist. Ind.App., 459 N.E.2d 426, 427-28, the court explicitly recognized the Hess categories of unprotected speech and upheld a conviction by applying the "fighting words" category. Similar results were reached in Gilles v. State (1988) 4th Dist. Ind.App., 531 N.E.2d 220, 222-23, trans. denied, cert. denied; Brittain v. State (1990) 1st Dist. Ind.App., 565 N.E.2d 757, 760-61, Brown v. State (1991) 3d Dist. Ind.App., 576 N.E.2d 605, 606-07, and Robinson v. State (1992) 2d Dist. Ind.App., 588 N.E.2d 533; (Hess category analysis recognized and various epithets held to be fighting words). See also Gamble v. State (1992) 2d Dist. Ind.App., 591 N.E.2d 142. In Cavazos v. State (1983) 2d Dist. Ind.App., 455 N.E.2d 618, 619-21, we impliedly recognized the Hess analysis in overturning a conviction upon grounds that the epithet "asshole" did not constitute fighting words. See also Robinson, supra, (Shields, J., dissenting). Finally, in Martin v. State (1986) 3d Dist. Ind.App., 499 N.E.2d 273, the public nuisance category was applied to sustain a conviction.

Although these cases have consistently included obscenity in listing the categories of unprotected speech, we have found no Indiana case which upholds a conviction for obscenity under I.C. 35-45-1-3(2), and we see no relevance of the obscenity category to the "unreasonable noise" prohibition. This conclusion is supported by comparison of the provision with the comparable provision of the Model Penal Code.

Model Penal Code Sec. 250.2, approved by the American Law Institute in 1962, provides in relevant part:

"(1) A person is guilty of disorderly conduct if ... he:

(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present." (Emphasis supplied).

The Model Penal Code Commentary, supra, Sec. 250.2, at 334, describes the emphasized language as follows:

"As compared to other formulations, the Model Code phrase 'offensively coarse' has two chief virtues. First, it makes plain the...