*1 and who stated the incident who witnessed “playing around” Neidige was at 261. tray. Record on the jumped
she hearsay. was objected that
Neidige that it was argue not Barrel did
Cracker excep- particular ato pursuant
admissible Nevertheless, hearing officer ad-
tion. it. The written statement
mitted 801(c), and it
hearsay, see Evid. R. exception. to an This pursuant
admitted support the cannot be used to
statement
Board’s conclusion. properly considered only evidence
The report. disciplinary was the
by the Board indicated, was insufficient this evidence
As conclusion the Board’s Ac- horseplay. engaged
Neidige denying erred
cordingly, the Board this conclusion. upon claim based
Neidige’s and remanded.1
Reversed J.,
NAJAM, concurs.
RUCKER, J., concurs in result. JOHNSON, Appellant-
Carlos
Defendant, Indiana, Appellee-Plaintiff.
STATE 49A02-9901-JV-15.
No. Appeals of Indiana.
Court of 17, 1999.
Nov. Neidige her has not met Neidige Barrel concludes bore 1. Cracker Barrel notes that injury claim. proof elements of her proving that she suffered on the burden of burden arising out of and in findings of an accident as a result and conclusions Board entered employment, Roebel v. see the course of her horseplay issue. On re only regarding the (Ind.Ct. Corp., Dana mand, may conclude that Board well specifically App.1994), the Board burden, but it is Neidige has not met her testimony regarding the cir found that her obligation these determina to make Board’s injury was not credible. of her cumstances in the first instance. tions credibility, Cracker Based this lack *2 adjudication as II. Whether Johnson’s Ar- child contravenes Indiana ticle Consti- tution.
III. Whether *3 child contravenes the delinquent a Amend- First and Fourteenth ments of the United States Consti- tution.
We affirm. to the delin-
The facts most favorable and his quency finding reveal that Johnson arguing were at their home. John- mother his mother that he did not intend son told proba- terms of his comply with certain juvenile delinquency a tion that arose from mother called determination. Johnson’s police. arrived Johnson When eating candy. Indianapo- in a chair sitting asked Police Officer Steve Atzhorn lis Record problem “what the was.” Johnson Atzhorn and at looked at 145. Johnson Atzhorn asked Johnson shrugged. up- question again. Johnson became same Atzhorn, his began arguing set mother, a officer. Johnson second attend the he was not stated that Indiana, Halbert, Indianapolis, Steven J. to.” “classes he was Attorney Appellant. for Atzhorn testified that be- Record at 145. in a voice cause Johnson Modisett, Attorney Jeffrey A. General else, no additional everyone than louder Scherrer, Indiana, Deputy Attor- E. Sarah regarding could be asked Indiana, General, Indianapolis, Attor- ney Johnson Atzhorn asked situation. neys Appellee. for with At- arguing continued quiet. Johnson Atzhorn arrested mother. zhorn and his OPINION a de- adjudicated Johnson was Johnson. STATON, Judge disorderly con- upon child based linquent duct, a B misdemeanor which is Class adjudication appeals Carlos by appeals. an adult.1 He when committed three child. He raises delinquent as a as: which we restate appeal, issues on I. sufficient the evidence is
I.Whether
Johnson’s
support
Sufficiency
the Evidence
delinquent
child based
the evi
contends that
disorderly con-
the commission of
finding
dence is insufficient
duct.
act
would be
(1998)
an
(disorderly
the child commits
§
if
35-45-1-3
1.
Ind.Code
also,
adult....”)
statute).
§
by
Ind.Code 31-37-
See
an
conduct
offense if committed
an
(1998) ("A
act
child commits
1-2
disorderly conduct. When the
produced
State seeks
defendant
decibels
sound that
juvenile adjudicated
to have a
as a delin were too loud for the circumstances.”
quent
committing
an act that would be Whittington,
(emphasis
Johnson is correct in his asser
freely,
any subject
on
whatever: but for
tion that the
speech
volume of his
is criti
the
right,
abuse of that
every person shall
cal in determining
whether was unrea
be responsible.” In Whittington, our su
sonable
meaning
within the
preme
of IC 35-45-1-
a two-step inquiry
created
for
stated,
our supreme
As
court has
“the
reviewing the constitutionality of an appli
criminalization of ‘unreasonable noise’ was
disorderly
cation of the
conduct statute
‘aimed at preventing the harm which
“First,
§
flows under
9.
Here, the has not it was Johnson has satisfied claimant established the by establishing that State and should prong political first evaluate the constitu- per A expressive activity. his any restricted tionality state-imposed restriction of unreasonable making son’s conviction expression rationality the under standard solely on noise based Id. review.” police investigation satisfies this during present ease, In the Johnson ar adjudi delinquency Id. at 1370. A prong. mother, gued and officers and his type of con cation based the same stated that he was not to attend restricting expres duct is also State action “classes he was to.” activity. sive at 145. that he Record Johnson asserts In order to meet second commenting on his earli the terms of that “the State prong, prove opin probation, expressing er re reasonably conclude that the could ion that unfair “conditions were ” of expression was an ‘abuse’ stricted and he did onerous not want to abide thus, right speak, Thus, Appellant’s them.” Brief at 8. properly proscribe could not State argues criticizing he was the State for conduct, via pursuant police power, its these imposing unfair conditions. disorderly conduct Id. at statute. *5 that We conclude comments Johnson’s way try a can to 1369. “One claimant ambiguous. Although implau- are it is not burden is to that his or her meet this show criticizing that Johnson the sible was State activity If a political. was expressive conditions, probation unfair it imposing attempt, in the claimant succeeds that equally plausible that was sim- is that its action has State demonstrate commenting ply on his own conduct and materially op the claimant’s not burdened merely intentions. Johnson stated that he engage political expres to in portunity to going required was not attend the that his ex argues sion.” Id. classes. This comment could be construed activity political. was pressive nothing to than Johnson’s reflect more param- supreme The discussed wants, opinion that can do what he expression Whitting- political in eters interpretation, when he wants. Under this ton. saying nothing about State political common ex- feature [T]he action. Because Johnson has estab- action.... pression is reference to state political, lished that his comments were if ... its Expressive political is rationality apply “we must review deter- ac- point government is comment on mining whether the could have con- state tion, policy or applauding whether an old activity, expressive cluded that [Johnson’s] one, can- opposing a new or a proposing volume, its of the because of was an ‘abuse’ criticizing office the con- didate for or was, words, speak or a right to other an official under color of acting duct of peace, safety, well-being.” threat contrast, In an individu- law.... where Id. at 1371. expression on the conduct al’s focuses speaker private party including a case, facts of it is reason- Under the this — political. himself or herself —it is not man- conceivable that ably Johnson’s ner of interfered with at 1370. The court noted Id. why investigation into the reasons John- expression the nature of should called her home. standard, son’s mother them to objective by an judged their perform must be able bears of establish- the claimant the burden interruption without been work unreasonable expression would have in- they legitímate are conducting “If political. Id. the ex- understood Therefore, context, could ambiguous, vestigation. viewed State pression, is rationally that Johnson’s reviewing court find that have concluded should I right prob- conduct constituted an abuse of the A. At first asked what the thus, just within the lem and he at speak, fell State’s looked me police power. shrugged. sitting Johnson’s did He was there I eating candy not contravene Article 9 of the in a chair. asked again got him upset, Indiana Constitution. and then he arguing with me and his mother and the other officer. Then he said he III. going wasn’t to his classes he was The First and Fourteenth Amendments to. And after that it was hard to talk what about Finally, Johnson contends that his on. I asked him to he adjudication contravenes the First and quiet argue and he continued Fourteenth Amendments of the United with me and And I his mother. argument States Constitution. arrested him. paragraphs on this issue consists of two and a are footnote. We unable to discern Q. making any Was he unreasonable precise argument nature of Johnson’s noises? from this abbreviated discussion. Johnson A. making impossible He was to talk Appellate has waived issue. Ind. Rule about the situation. 8.3(A)(7); Stevenson, Mitchell v. R. at 145. After cross-examination the N.E.2d 558 n. 3 (Ind.Ct.App.1997), following testimony resumed on re-direct: trans. denied. Q. clarify. you Just to When said Affirmed. upset. specifically he became What was he doing? NAJAM, J., concurs. got point A. His voice loud. Not to the *6 RUCKER, J., part concurs in and dis- screaming, where he was but he in part opinion. sents with speaking than everybody louder again kept talking else. And and RUCKER, Judge, concurring in part they just was ... any couldn’t ask in dissenting part other about what go- I on due parts saying. concur II and III of to what he was However, majority opinion. I respectfully R. at 146. part I dissent because I am not con- Relying Whittington on v. vinced there is sufficient evidence to show (1966) 1363, N.E.2d majority has that Johnson’s speech amounted to unrea- determined that Johnson’s manner of my sonable noise. Indeed review of the speaking was unreasonable because dis- convinces record me that the volume of rupted police investigation. In that case speech nothing had to do with present the defendant was in his home charge disorderly arrest and of con- police when the were summoned to investi- Rather, duct. it appears arresting of- gate a of report Upon domestic violence. ficer irritated argued because Johnson arrival, the Whitting- officers encountered
with him and quit talking refused to ton, who had drinking, along been with his ordered do following so. The direct sister and the boyfriend. sister’s Par- examination of the officer is instructive: amedics had also arrived on the scene. Q. Okay. you And after arrived there While the attempting officers were to de- you speak did per- [Johnson] termine what had happened, argument sonally? erupted Whittington between and the sis- A. IYes did. boyfriend. ter’s Whittington became “loud Q. And what was said or what were his and boisterous” and when asked to settle
actions at that time? persisted down he very “a loud and on this and would I therefore dissent issue The officers Id. at 1366. angry manner.” trial judgment of the court. reverse disorderly con- Whittington arrested charged and he was convicted duct during the on his loud
based Discussing the facts investigation. disorderly to the applied case as
of the statute, our ob-
conduct
served: found unreasonable noise could be
Loud on a number Whittington’s like a case REID, Appellant-Defendant, Lorenzo safety It could threaten the grounds. their injured by aggravating parties medical by distracting the trauma or Indiana, Appellee-Plaintiff. STATE them. Loud out- tending personnel No. 89A01-9806-CR-222. agitate witnesses dis- bursts could It could investigations. rupt police Indiana. Appeals Court of investigations and coordination of make Nov. more difficult. Final- medical treatment annoying quite can ly, loud noise at the scene. present
others added). Although (emphasis
Id. at 1367 to stand for the
Whittington does seem loud outbursts “can” dis-
proposition that investigations, proposition
rupt police differently, the
is fact sensitive. Stated Whittington clearly show that the
facts in speech was “loud boister-
defendant’s were dis- and as a result
ous” contrast, By investigation. in their
rupted us the record is clear
in the case before *7 nor speech was neither loud
that Johnson’s
boisterous, can it nor be characterized I fail to importantly,
an Just as outburst. speaking manner of
see how Johnson’s The offi- investigation.
disrupted by Johnson’s were called to the scene
cers arguing
mother because had been violence, no indication of
her. There was violence, any other crimi- or that
threat had occurred or was about
nal nothing to In essence there was
occur. why had been
investigate other than a son even as- his mother. Thus
arguing with not, manner I do that Johnson’s
suming, as noise, po- constituted home did not in the Johnson presence
lice anticipated by investigation
amount to disrupt. noise could
Whittington that loud