Full Opinion

Pursuant to Ind. Appellate Rule 65(E), the trial court and parties shall not take any action in reliance upon this Opinion until it is certified. IN THE Court of Appeals of Indiana FILED Oct 14 2026, 9:43 am State of Indiana, CLERK Indiana Supreme Court Appellant-Plaintiff Court of Appeals and Tax Court v. Cooper P. Archer, Appellee-Defendant October 14, 2026 Court of Appeals Case No. 25A-CR-3197 Appeal from the Delaware Circuit Court The Honorable Thomas A. Cannon Jr., Judge Trial Court Cause No. 18C05-2506-CM-29 Opinion by Judge Mathias Judges Bailey and Scheele concur. Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 1 of 19 Mathias, Judge. [1] The State purports to appeal from the trial court’s entry of a directed verdict that acquitted Cooper Archer of two counts of Class B misdemeanor disorderly conduct. In particular, the State purports to appeal reserved questions of law under Indiana Code section 35-38-4-2(a)(4) (2026). [2] Recent precedents from our Supreme Court have sought to clarify principles of Indiana constitutional jurisprudence that Indiana’s judiciary has long taken for granted. Such clarifying precedents are important, but they also cast doubt on cases that Indiana’s courts have long assumed to be jurisdictionally correct. The State’s attempt to appeal under Indiana Code section 35-38-4-2(a)(4) is just such a scenario. [3] However, while we acknowledge the constitutional concerns our Supreme Court’s recent precedents cast on our jurisdiction to hear the State’s appeal here, ultimately we need not decide those concerns because we agree with Archer that the State’s arguments on appeal are improper under the statute. [4] Accordingly, we dismiss the State’s appeal with prejudice. Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 2 of 19 Facts and Procedural History1 [5] On February 28, 2025, the Ball State University Board of Trustees held a public meeting on campus. This was the first public meeting of the Board of Trustees following Governor Braun’s appointment of Brian Gallagher to the Board. 2 The meeting was well attended by members of the public, including several people who were protesting Gallagher’s appointment. [6] Archer was among the protesters. He carried a sign reading, “What would Benny do?,” an apparent reference to the statue Beneficence on Ball State’s campus. See Appellant’s Br. at 9 n.1. At the commencement of the meeting, the protesters stood up one-by-one and made short statements expressing their disagreement with Gallagher’s appointment (other protesters expressed disagreement on other topics as well). When Archer stood up to express his disagreement, he specifically asked Gallagher: “why did you protect sexual predators?,” Ex. 1 at 00:41 to 00:43, and alleged that Gallagher had “fired three women” who had “reported an unsafe working environment” at Gallagher’s business, id. at 00:46 to 00:52. As he was being peacefully escorted out of the meeting, Archer asked: “How can we trust you to make a safe campus for all people, especially our women, when that’s what you do to women at your own 1 We held oral argument in this case on September 18, 2026, at the Indiana University O’Neill School of Public and Environmental Affairs. We thank the School’s faculty and staff as well as the attending Indiana University students for their kind hospitality. We also thank counsel for the quality of their written and oral advocacy. 2 The transcript and the parties’ briefs are inconsistent on the spelling of Gallagher’s first name. We follow the spelling used by Ball State University on its website. Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 3 of 19 company?” Id. at 00:53 to 00:59. Archer’s disruption of the meeting lasted approximately twenty seconds, and the disruption from all of the protesters lasted about ninety seconds. [7] One week later, the State charged Archer with two counts of Class B misdemeanor disorderly conduct for his role in the ninety-second disruption of the Board’s public meeting. Specifically, in Count 1, the State alleged that Archer had recklessly, knowingly, or intentionally made unreasonable noise and continued to do so after being asked to stop. Appellant’s App. Vol. 2, p. 16; see Ind. Code § 35-45-1-3(a)(2) (2024). And, in Count 2, the State alleged that Archer had recklessly, knowingly, or intentionally disrupted a lawful assembly of persons. Appellant’s App. Vol. 2, p. 17; see I.C. § 35-45-1-3(a)(3). [8] Archer requested a jury trial, and, in early November, he moved to dismiss the State’s charges against him. In that motion, he argued that the State’s charges were in violation of his rights under Article 1, Section 9 of the Indiana Constitution. Appellant’s App. Vol. 2, pp. 59-60. That provision states: “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. [9] The State did not respond to Archer’s motion to dismiss, and the trial court denied it four days later. Appellant’s App. Vol. 2, pp. 5-6. Archer renewed his motion to dismiss on November 17, and the trial court again denied it without Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 4 of 19 response from the State. Id. at 7, 90-98, 100. Two days before his scheduled jury trial, Archer submitted proposed final jury instructions that included his proffered affirmative defense under Article 1, Section 9. Id. at 103-08. Again, the State did not object or otherwise respond to Archer’s suggestion that he had a viable affirmative defense under the Indiana Constitution. Id. at 8. [10] At the commencement of Archer’s ensuing jury trial, the State opened by stating to the jury: “Well, this isn’t a who done it. It’s all on video . . . . And the reason we’ve asked you here today is to decide whether or not what Cooper Archer did was an abuse of the right of free speech.” Tr. Vol. 2, p. 50. Archer’s counsel likewise opened with a statement to the jury about how “this . . . case really is about free speech,” adding: “we[’]re going to ask you [to] find a verdict of not guilty on both counts due either to an insufficient amount of evidence or because . . . Mr. Cooper Archer’s free speech rights are valid.” Id. at 51. [11] The State then presented the testimony of one witness (Ball State University's Chief of Police) and a video recording that showed the entirety of the disruption of the Board’s February 2025 public meeting. Following the close of the State’s case, Archer moved for a directed verdict in accordance with Indiana Trial Rule 50. In support of his motion, Archer argued that “the State just simply [did] not have . . . sufficient evidence” to prove its case and that “the evidence is just on its face insufficient . . . before we even get to the free speech analysis.” Tr. Vol. 2, pp. 68-69. He further argued in the alternative that, because he had been engaged in constitutionally protected speech, “the burden [was] on the State to Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 5 of 19 prove” that he had committed “an abuse” of his rights under the Indiana Constitution. Id. at 69-70. [12] In response, the State asserted that Archer’s commentary at the public meeting “interrupted a lawful assembly.” Id. at 71. The State also asserted that a “sign told him when he came in that he needed to be quiet” and, further, a member of the Board had asked the protesters “to be quiet.” Id. Thus, the State argued that its case “should go to the jury.” Id. The State neither objected to Archer raising an affirmative defense under the Indiana Constitution nor argued that the law of Trial Rule 50 or the law of Archer’s affirmative defense precluded Archer’s arguments in support of his motion for a directed verdict. Id. at 71-72. The State also did not suggest that Archer’s arguments under either Trial Rule 50 or Article 1, Section 9 were premised on an erroneous understanding of the law. [13] The trial court granted Archer’s Rule 50 motion. In doing so, the court stated as follows: [E]vidence of mere annoyance or inconvenience is not sufficient to overcome a person’s political free speech rights. . . . [T]he State has failed to meet its burden in this case. Didn’t even come close . . . . [T]he evidence just does . . . not . . . support the charges. . . . [The] Court is going to grant [the] motion . . . on both counts. . . . [I]t is protected speech, . . . and . . . this case is not even close. Id. at 72-73. The court then acquitted Archer of both counts. [14] This appeal ensued. Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 6 of 19 Standard of Review [15] The issues raised in this appeal are questions of law, which we review de novo. Russell v. State, 234 N.E.3d 829, 857 (Ind. 2024). 1. Recent precedents from our Supreme Court cast constitutional doubt on the State’s appeal under Indiana Code section 35-38-4-2(a)(4). [16] The State appeals following the trial court’s acquittal of Archer, contending that its appeal is authorized by Indiana Code section 35-38-4-2(a)(4), which provides that the State may take an appeal “as of right . . . [u]pon a question reserved by the [S]tate, if the defendant is acquitted.” However, recent Indiana Supreme Court precedents create constitutional concerns with the State’s attempt to appeal under that statute. [17] As our Supreme Court has recently explained: Indiana’s constitution imposes structural limits on the exercise of judicial power. Although our constitution lacks the “case or controversy” requirement found in Article III of the United States Constitution, our separation-of-powers clause, Ind. Const. art. 3, § 1, fulfills a similar function. Standing is a significant restraint on the ability of Indiana courts to act, as it denies the courts any jurisdiction absent an actual injured party participating in the case. Indiana law is clear that standing requires an injury, which is met if the party shows it has suffered or is in immediate danger of suffering a direct injury as a result of the complained-of conduct. Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 7 of 19 Hoosier Contractors, LLC v. Gardner, 212 N.E.3d 1234, 1238 (Ind. 2023) (citation modified). [18] Further: Because standing under the Indiana Constitution is jurisdictional, it must exist at all stages of litigation—not merely at the outset. In Solarize [Ind., Inc. v. Southern Indiana Gas & Electric Co., 182 N.E.3d 212, 216 (Ind. 2022)], for example, we dismissed one of the parties for lack of standing, although no one had objected to that party’s standing at any prior stage of the litigation before other tribunals. It follows that a party must likewise establish standing at each stage of litigation within a given tribunal. It is not enough, in other words, for a claimant to establish injury in its pleadings; it must do so at each successive stage of the litigation. Id. (citation modified). Thus, the Indiana Constitution requires a plaintiff to demonstrate an injury-in-fact to seek judicial relief, and standing must be shown throughout the entirety of the proceedings, including any appeals. [19] The Indiana Constitution’s requirement of standing throughout the entirety of the proceedings is independent of statutory permission to seek judicial relief. In City of Gary v. Nicholson, our Supreme Court considered a statute that appeared to confer standing to seek judicial relief upon any “person lawfully domiciled in Indiana.” 190 N.E.3d 349, 351 (Ind. 2022) (quoting I.C. § 5-2-18.2-5). The plaintiffs asserted that that statute defined the entirety of their standing requirements. But our Supreme Court disagreed. Id. The Court recognized that the statute did not contain “an injury-in-fact requirement,” and, “[b]ecause the Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 8 of 19 plaintiffs allege no injury, there is no justiciable dispute.” Id. That is, the Court held that complying with the statutory language was by itself insufficient to “meet our constitutional requirements for conferring standing” to seek judicial relief. Id. at 352. [20] Importantly, our Supreme Court’s theory of standing under the Indiana Constitution is based on our constitutional separation of powers. Hoosier Contractors, 212 N.E.3d at 1238. Based on that foundation, in Solarize our Supreme Court declared that “the legislature cannot expand—or restrict— beyond constitutional limits the class of persons who possess standing” to seek judicial relief. 182 N.E.3d at 216 n.2. That is, the Indiana Constitution’s implied restriction of the exercise of judicial power to those who show and maintain the ability to show an injury-in-fact cannot be altered by statute. Id. [21] There is of course no question that the Indiana Constitution expressly grants standing to the State to bring criminal charges. Ind. Const. art. 7, § 18. But Indiana’s common law has generally not recognized a right of the State to pursue appellate review following an acquittal in a criminal case. As our Supreme Court long ago explained, a “verdict and judgment of acquittal . . . are conclusive” on the question of the State’s alleged injury-in-fact, i.e., that a criminal offense has occurred. State v. Davis, 4 Blackf. 345 (Ind. 1837) (emphasis added). As the Court said, “the provisions of our constitution” prohibit the State from prosecuting an appeal following such a determination because a contrary rule would impermissibly expose the defendant to double jeopardy. Id. In other words, once a trial court has entered a judgment of acquittal for a criminal Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 9 of 19 defendant, the State’s standing to invoke the power of the judiciary in that case is over. See id. [22] But not allowing the State to obtain appellate review of what it considers poor trial court decision-making has long been seen as systemically problematic, not for the disposed-of case at hand but for future cases. Thus, our legislature has long provided for a statutory right by the State to appeal reserved questions of law following an acquittal in a criminal case. See State v. Wilcox, 66 Ind. 557, 561 (1879) (citing an 1876 statutory enactment allowing for such appeals). [23] Our legislature’s authority to enact such a statute has never been questioned. In Wilcox, our Supreme Court stated that the statutory enactment “required” the Court to hear a properly reserved question of law. Id. The Indiana Supreme Court has also acknowledged that it “has frequently permitted such appeals in deference to the statute enacted by the General Assembly as a way to furnish guidance to trial courts in future cases.” State v. Goodrich, 504 N.E.2d 1023, 1024 (Ind. 1987). [24] But our Supreme Court’s more recent exploration into the constitutional limits of justiciability now calls such statutes into question. City of Gary says statutory permission is not by itself constitutionally sufficient to secure a right to judicial relief, calling Wilcox’s assessment of a statutory predecessor to Indiana Code section 35-38-4-2(a)(4) into question. City of Gary, 190 N.E.3d at 351-52. Hoosier Contractors makes clear that standing must be maintained throughout all stages of litigation, which, coupled with Davis’s historical rule that the State may not Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 10 of 19 appeal following an acquittal, means that an acquittal is the final and conclusive determination of the State’s alleged injury-in-fact in criminal cases. Hoosier Contractors, 212 N.E.3d at 1238. And Solarize says that the legislature “cannot expand[ ]or restrict” the Indiana Constitution’s standing requirements, which calls into question Indiana Code section 35-38-4-2(a)(4)’s attempt to do just that with respect to the State’s purported authority to appeal a reserved question of law following an acquittal.3 Solarize, 182 N.E.3d at 216 n.2. [25] We held oral argument in this matter and asked the State if it had constitutional standing to prosecute this appeal or only statutory standing. In response, the State suggested that it had inherent authority to participate as a real party in interest in any judicial action in order to present to the judiciary its opinions on Indiana law.4 In support of that broad declaration, the State provided us with 3 Another constitutional problem looms for the State. Our Supreme Court has long recognized that Indiana Code section 35-38-4-2(a)(4)’s apparent conferral on the State of a right to appellate review arises out of a case that would otherwise be moot on appeal. State v. Jackson, 889 N.E.2d 819, 820 n.2 (Ind. 2008). But our Supreme Court has also recognized that the Indiana Constitution generally requires moot appeals to be dismissed. In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991) (“When the concrete controversy at issue in a case has been ended or settled, or in some manner disposed of, so as to render it unnecessary to decide the question involved, the case will be dismissed.”) (quotation marks omitted). And, while our Supreme Court at least presently continues to allow for exceptions to the general rule of dismissing moot appeals, two Justices have recently called into question whether those exceptions are consistent with Indiana’s constitutional standards of justiciability. Seo v. State, 148 N.E.3d 952, 969 (Ind. 2020) (Slaughter, J., dissenting) (“I would clarify . . . that any mootness doctrine consistent with our state constitution’s mandate of separate governmental powers requires an actual dispute.”); id. at 965 (Massa, J., dissenting) (declining to apply the “great public interest” exception to “constitutional questions” on the ground that such questions “should be avoided unless answering them is absolutely necessary to a disposition of the cause on its merits”) (quotation marks omitted); cf. Hoosier Contractors, 212 N.E.3d at 1238 (“The standing requirement mandates that courts act in real cases[] and eschew action when called upon to engage only in abstract speculation. . . . [A] party must . . . establish standing at each stage of litigation . . . .”). 4 The State also asserted that an acquittal in a criminal matter is an injury-in-fact against the State. That proposition is both contrary to the common-law rule that the State’s alleged injury-in-fact is conclusively resolved by an acquittal and also, if correct, would render Indiana Code section 35-38-4-2(a)(4) unnecessary. Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 11 of 19 five authorities. Four were opinions in civil actions, which are readily distinguishable from the State’s appeal following an acquittal in a criminal case. [26] The fifth, Maine v. Taylor, 477 U.S. 131, 137 (1986), is a federal criminal appeal in which a lower federal court declared a Maine statute unconstitutional. The State of Maine then intervened and sought certiorari from the United States Supreme Court on the constitutionality of its statute. The Supreme Court held that the State had standing to intervene because “a State clearly has a legitimate interest in the continued enforceability of its own statutes.” Id. [27] Taylor is distinguishable for two straight-forward reasons. First, we are not a federal court determining the constitutionality of a state statute, and the State is not before us as an intervenor in any such matter. Second, the criminal defendant in Taylor entered into a conditional guilty plea—that is, he admitted to committing a criminal offense conditioned on the constitutionality of the alleged offense, and then the parties proceeded to dispute that constitutionality. Thus, Taylor did not involve a State attempting to prosecute a direct appeal following an acquittal. [28] The State’s broad assertion of its constitutional standing is problematic for another reason. Namely, it ignores our Supreme Court’s unambiguous requirement that a plaintiff must be able to identify an injury-in-fact at every stage of the judicial process. According to the State, its belief that Indiana law was not followed, to the State’s satisfaction, by the trial judge in this case is equivalent to an injury-in-fact under the Indiana Constitution. That is not a Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 12 of 19 proposition that our Supreme Court has ever adopted, and, indeed, it is directly contrary to the State’s own position before our Supreme Court in City of Gary. See 190 N.E.3d at 352 (noting that the State participated in the appeal to offer its view of the relevant statutory language and that the State had conceded “that dismissal would be appropriate if the plaintiffs lack standing”). Our Supreme Court has, on the other hand, declared that the Indiana Constitution’s “standing requirement mandates that courts act in real cases, and eschew action when called upon to engage only in abstract speculation.” Hoosier Contractors, 212 N.E.3d at 1238 (quotation marks omitted). We are therefore not persuaded by the State’s authorities in support of its understanding of its constitutional standing to bring an appeal following an acquittal. [29] However, at our oral argument, the State did assert an alternative theory that, in a vacuum, might have had some persuasive force. In particular, the State asserted that it was within the legislature’s power to expand or restrict access to the judiciary. We understand that theory to be based on the checks and balances of power inherent in our Constitution’s separation of powers. But the State’s position appears to be expressly contrary to City of Gary and Solarize, and, without further guidance from our Supreme Court, we are bound by those precedents. [30] We express these concerns to bring attention to perhaps unforeseen consequences of deviations from long-standing Indiana practices and to remind the parties that constitutional justiciability in all cases must be satisfied throughout the entirety of the judicial process. However, while we have Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 13 of 19 concerns with the State’s constitutional standing to maintain this appeal, we nonetheless need not decide that question as we conclude that the State has failed to demonstrate that our review has been secured under Indiana Code section 35-38-4-2(a)(4). See, e.g., Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024) (“the longstanding principle of constitutional avoidance weighs against deciding constitutional questions not absolutely necessary to a merits disposition.”) (citation modified). 2. The State’s appeal is improper under Indiana Code section 35-38-4-2(a)(4). [31] As our Supreme Court has noted, Indiana Code section 35-38-4-2(a)(4) permits the State to appeal a question of law after a criminal defendant is acquitted. Even if the State is successful [on appeal], however, the once-acquitted defendant may not be retried. Although the issues in such cases are necessarily moot, the purpose of the appeal is to provide guidance for lower courts in similar future cases. State v. Jackson, 889 N.E.2d 819, 820 n.2 (Ind. 2008) (emphasis added; citations and quotation marks omitted). And, as we have previously summarized: When a defendant is acquitted and the State appeals a reserved question of law, only questions of law are considered by this court. [State v.] Walton, 715 N.E.2d [824,] 825 n.3 [(Ind. 1999)] (citing State v. Goodrich, 504 N.E.2d 1023, 1024 (Ind. 1987)); [State v.] Hunter, 898 N.E.2d [455,] 457 [(Ind. Ct. App. 2008)]. Consequently, factual determinations are not appropriate on appeal as a reserved question of law. See State v. Covell, 580 N.E.2d 704, 706 (Ind. Ct. App. 1991) (State’s contention that Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 14 of 19 error in admitting exhibit prejudiced State is question of fact[] and thus is inappropriate question for State to appeal on reserved question of law pursuant to I.C. § 35-38-4-2(4)). State v. Luna, 932 N.E.2d 210, 213-14 (Ind. Ct. App. 2010). [32] The Indiana Supreme Court has long held that the “question reserved” by the State under Indiana Code section 35-38-4-2(a)(4) and its predecessors does not include the State’s sufficiency-of-the-evidence arguments or an argument by the State that an acquittal was factually erroneous. See State v. Rinehart, 241 Ind. 129, 130, 170 N.E.2d 236, 237 (1960) (dismissing the State’s appeal for simply arguing that an acquittal was factually incorrect); State v. Hall, 58 Ind. 512, 513- 14 (1877) (“by the statutory provision above quoted, it was intended, in case of an acquittal, to allow the State an appeal from the decision of the court below upon some matter of law only . . . . It was clearly not intended . . . that the State may appeal to this court . . . and obtain its opinion upon the correctness of the acquittal under the evidence.”) (emphasis added). We have also recognized that the “reserved question” language under the statute means that the State presented the question to the trial court before presenting it to our Court. Luna, 932 N.E.2d at 213. [33] The State argues that the trial court’s acquittal of Archer was erroneous because the State’s prosecution of him “did not conflict with” his rights under Article 1, Section 9 of the Indiana Constitution. Appellant’s Br. at 16. By all appearances, the State’s argument here is that it presented an evidentiary foundation from which the jury could have found Archer guilty of the State’s charges, while the Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 15 of 19 trial court, acting under its Trial Rule 50 authority, concluded that the State’s evidence could support only one factual conclusion: that the charges were in conflict with Archer’s Article 1, Section 9 rights. The State’s arguments here are, in effect, sufficiency-of-the-evidence arguments. They are therefore not properly before us under section 35-38-4-2(a)(4). [34] The State also argues that the trial court’s ruling under Trial Rule 50 “invert[ed] the burden of proof” by entering judgment on Archer’s affirmative defense even though Archer had not yet presented a defense. Id. at 38. But Indiana Trial Rule 50(A) expressly permits a trial court to enter a directed verdict when the charges “are not supported by sufficient evidence . . . .” See also Cosme v. Clark, 232 N.E.3d 1141, 1148 (Ind. 2024) (clarifying that determining the sufficiency of the evidence under Trial Rule 50 is a question of law; the trial court “may assess both the quantity and quality of the evidence presented . . . but may not weigh the conflicting evidence or assess witness credibility”). Further: It has long been a basic tenet of Indiana law that, although the defendant bears the burden of placing his affirmative defense in issue, the prosecution bears the ultimate burden of negating any defense which is sufficiently raised . . . beyond a reasonable doubt . . . . This court has held that . . . [the defendant] bear[s] the “burden” of placing the [affirmative defense] in question where the state’s evidence has not done so. Bradford v. State, 675 N.E.2d 296, 300 (Ind. 1996) (citation modified). [35] Here, the record is clear that the dispute between the parties to the jury was not whether the evidence supported the State’s charges but whether the evidence Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 16 of 19 defeated Archer’s affirmative defense. The State itself said as much in its opening statement to the jury. And the State at no point objected to the propriety of Archer’s motion for a directed verdict or to his putative affirmative defense; the State’s arguments in the trial court were simply that its case was factually sufficient to support a conviction. Thus, the State’s arguments on appeal mischaracterize the record by purporting to raise legal questions that were not raised in the trial court, and the State did not “reserve” any question for our review under Trial Rule 50. See Luna, 932 N.E.2d at 213. [36] Further, our Supreme Court has addressed similar scenarios and long declined to recognize them as appealable under what is now Indiana Code section 35-38- 4-2(a)(4): If, in this case, there was no evidence fairly tending to sustain the charge in the indictment, then we think the court was not guilty of any abuse of its discretion either in refusing to allow the argument to proceed or in giving [an] instruction . . . . But, to enable us to review the action of the court in respect to the matters complained of, it would be necessary for us first to go through the evidence and to determine what it may have tended, or may not have tended, to prove. That would be requiring us first to express an opinion upon the facts of the case, and then to draw conclusions of law from those facts, which would be a proceeding, in our opinion, not contemplated by the statute authorizing appeals by the State in criminal cases, upon questions reserved at the trial. Where this court can not render a decision upon a matter of law, reserved in a criminal cause, without first passing upon the facts of the case, no appeal can be taken by the State. Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 17 of 19 State v. Overholser, 69 Ind. 144, 144-45 (1879) (citations omitted). But that is what the State proposes in the instant appeal: an assessment of the facts to determine whether the trial court properly rendered a decision as a matter of law. The State’s request is impermissible under Indiana Code section 35-38-4- 2(a)(4). Id. [37] Still, in its Reply Brief, the State recasts its Article 1, Section 9 arguments as the following two allegedly reserved questions of law: 1. What the proper standard is for analyzing an affirmative defense under Article 1, Section 9 (according to the State, the trial court “erred as a matter of law . . . both by applying an unjustifiably heightened standard of review” to Archer’s defense “and by resolving disputes in the evidence in the jury’s place”), Reply Br. at 8; 2. Whether “the Indiana Constitution . . . protect[s] disruptive conduct as ‘core’ speech,” id. at 8-9. [38] These arguments in the State’s Reply Brief are straw-man arguments. At no point in the proceedings before the trial court did the parties or the court discuss some purported “heightened standard of review” for Archer’s defense, nor did the parties or the trial court declare or even suggest that the Indiana Constitution “protect[s] disruptive conduct as ‘core’ speech.” See id. at 8-9. These arguments are just vehicles for the State to air its disagreement with the trial court’s judgment of acquittal for Archer. Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 18 of 19 Conclusion [39] For all of these reasons, we conclude that the State’s arguments on appeal are not properly before us under Indiana Code section 35-38-4-2(a)(4). We therefore dismiss the State’s appeal with prejudice. [40] Dismissed with prejudice. Bailey, J., and Scheele, J., concur. ATTORNEYS FOR APPELLANT Theodore E. Rokita Attorney General of Indiana Evan Matthew Comer Supervising Deputy Attorney General Indianapolis, Indiana ATTORNEY FOR APPELLEE Vincent C. Walker McKinney & Company Law Muncie, Indiana Court of Appeals of Indiana | Opinion 25A-CR-3197 | October 14, 2026 Page 19 of 19