In Re Julio L.

990 P.2d 683, 195 Ariz. 482

Opinions

OPINION

THOMPSON, Presiding Judge.

¶ 1 Julio L. (juvenile) appeals from an adjudication of delinquency for disorderly con duct pursuant to Ariz.Rev.Stat. Ann. (A.R.S.) § 13-2904. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Juvenile is a student at Escuela Azteca, an alternative middle school for students who are not successful in a regular middle school setting. Sandra Ferrero (Ferrero) is the director-principal of the school.

¶ 3 On December 5, 1997, Ferrero entered juvenile’s classroom at about 8:30 a.m. The students at Escuela Azteca are required to wear uniforms, however, juvenile was not wearing his uniform. When Ferrero asked him why he was not in uniform, he explained that it wasn’t clean. Ferrero testified that juvenile “was just having a bad morning all around.” During the morning session class, juvenile was talking to other students, laughing, and giggling while the teachers gave their overview of the day’s events.

¶ 4 Ferrero decided to confront juvenile during “transition time,” which is the time period between the morning session and the homeroom session. As juvenile was walking to his homeroom class, Ferrero asked juvenile twice if he would talk with her outside the classroom. He ignored her both times, entered the classroom, and sat down. She asked him a third time to leave the classroom and talk to her. Juvenile looked directly at Ferrero, said “fuck you,” and kicked the chair next to him. The chair tipped over, but did not strike anyone. Although she had experience dealing with problematic students, Ferrero testified that she was offended by juvenile’s language and conduct. Fer-rero told him that his behavior warranted an officer referral and ordered him to leave the classroom. Juvenile, “talking and arguing under his breath,” followed her to the office.

¶ 5 The state filed a petition against juvenile, alleging disorderly conduct pursuant to A.R.S. § 13-2904. An adjudication hearing was held on April 21, 1998. The juvenile court adjudicated juvenile delinquent, finding that his “conduct constituted seriously disruptive behavior.” See A.R.S. § 13-2904(A)(1). Juvenile timely appealed. This court has jurisdiction pursuant to A.R.S. § 12-120.21(A)(1) and A.R.S. § 8-236(A).

DISCUSSION

¶ 6 Juvenile argues that there is insufficient evidence to support the juvenile court’s holding. We will not reweigh the evidence in determining its sufficiency. Rather, we must view the evidence in the light most favorable to sustaining the verdict, resolving all reasonable inferences in favor of the state. See State v. Sanders, 118 Ariz. 192, 196, 575 P.2d 822, 826 (App.1978) (citing State v. Gaines, 113 Ariz. 206, 549 P.2d 574 (1976)). Only when there is a complete absence of probative facts to support a judgment, or when a judgment is clearly contrary to any substantial evidence may we reverse on the grounds of insufficient evidence. See id.

A. Seriously Disruptive Behavior

¶ 7 Section 13-2904(A)(1) states that

A. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person:

1. Engages in fighting, violent or seriously disruptive behavior[.]

¶8 Juvenile argues that his conduct did not constitute “seriously disruptive behavior” within the meaning of the statute. The record indicates that juvenile’s behavior worsened over the course of the morning. Initially, juvenile was not dressed in the mandatory uniform, and he was talking during class. He then ignored two requests from Ferrero to speak with her outside the classroom. After cursing at Ferrero, he angrily kicked over a chair and argued with her. The evidence reflects that at least several students and a teacher were present during juvenile’s misbehavior. Ferrero testified that she was concerned about how the class might react to juvenile’s conduct. She insisted that she “couldn’t let him back into the classroom after he said fuck you. I couldn’t do that.” Finally, Ferrero testified that, although juvenile did not appear to be provoking her into a fight, she was offended after juvenile cursed and kicked the chair.¹

¶ 9 Juvenile insists that he has not breached the statute, because there is no evidence that the other students and teacher were actually offended by his conduct. However, our supreme court has held that evidence of actual disturbance is not required. See State v. Johnson, 112 Ariz. 383, 385, 542 P.2d 808, 810 (1975).² Instead, the statute merely requires that juvenile acted “unth intent to disturb the peace----” A.R.S. § 13-2904(A) (Supp.1998) (emphasis added).³

¶ 10 Arizona courts have not interpreted the application of “seriously disruptive behavior” within a school setting. Other jurisdictions have done so. In In re D.A.D., 224 Ga.App. 527, 481 S.E.2d 262, 263-64 (1997), a juvenile was charged with disorderly conduct. There, while most of the juvenile’s class was playing touch football, the juvenile could not play because he did not “dress out” in shorts and a t-shirt. See id. When a class of special education students walked by, the juvenile called one of the students “retarded.” See id. at 264. The juvenile ignored his teacher’s instructions to stop talking. See id. When the teacher told him to “shut up before I hit you in the mouth,” the juvenile slapped the teacher’s hand and said, “get your fucking hands out of my face.” Id. The juvenile shouted some more obscenities, and he was subsequently charged with disorderly conduct. See id. Similar to A.R.S. § 13-2904, the statute in D.A.D. prohibited “engag[ing] in any violent, tumultuous, obstreperous, or similar disorderly conduct tending to infringe on the peace and repose of the citizens of the City.” Id. (emphasis added). The court found sufficient evidence to affirm the juvenile’s conviction. See id. Specifically, the court held that the juvenile’s conduct “would tend to infringe on the relative peace of the other students individually and disrupt the class generally.” Id. The court did not consider whether juvenile actually disrupted his classmates. See id,

¶ 11 In City of Chicago v. Mateja, 57 Ill.App.3d 144, 14 Ill.Dec. 781, 372 N.E.2d 1060, 1062 (1978), the court reversed a juvenile’s conviction for disorderly conduct. There, the juvenile threw a “sign-out” card onto his teacher’s desk, and demanded that she sign it for him. See id. 14 Ill.Dec. 781, 372 N.E.2d at 1061. After she signed it, he grabbed the card and said, “Mrs. Morris, you’re an asshole.” Id. The juvenile then stood in the doorway and cursed at the teacher until a security officer arrived and removed him from the classroom. See id. Unlike the statute in our case, the applicable statute in Moteja provided that “[a] person commits disorderly conduct when he knowingly ... [djoes any act in such unreasonable manner as to provoke, make or aid in making a breach of peace.” Id. The court reversed the juvenile’s conviction because “there was no showing that his behavior led to any disturbance or disorder.” Id. 14 Ill.Dec. 781, 372 N.E.2d at 1062. Section 13-2904(A)(1) requires no such showing. See State v. Johnson, 112 Ariz. at 385, 542 P.2d at 810 (not necessary that state prove any particular person was disturbed by defendant’s conduct).

¶ 12 We conclude that there is sufficient evidence of “seriously disruptive behavior” to affirm juvenile’s conviction for disorderly conduct.

B. First Amendment Considerations

¶ 13 Juvenile argues that, under these facts, the application of A.R.S. § 13-2904(A)(1) violates his First Amendment right to free speech. It is well-established, however, that an individual’s right to free speech is not absolute. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Moreover, the United States Supreme Court has consistently rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’....” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

¶ 14 Conduct must be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments....” Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). The Constitution protects a wide variety of conduct. See id. at 406-08, 94 S.Ct. 2727 (United States flag with peace symbol taped to it displayed upside down out of apartment window in protest against invasion of Cambodia and killings at Kent State University); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 504, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (school children wearing black armbands to protest American involvement in Vietnam); Brown v. Louisiana, 383 U.S. 131, 135-37, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (blacks conducting a sit-in in a “whites only” library reading room to protest segregation). In the present ease, juvenile’s conduct does not merit the First Amendment protection granted in the preceding cases, because his intentional misbehavior is not similarly “imbued with elements of communication.” Spence, 418 U.S. at 409, 94 S.Ct. 2727. The Constitution does not shield juvenile’s arbitrary decision to disobey school authorities.

¶ 15 It is probative that juvenile’s actions occurred while he was in school. For example, in M.C. v. State, 695 So.2d 477, 480-84 (Fla.Dist.Ct.App.1997), the court affirmed a juvenile’s conviction for disorderly conduct in school. The court distinguished a similar case, L.A.T. v. State, 650 So.2d 214 (Fla.Dist. Ct.App.1995), where the court reversed a juvenile’s conviction for disorderly conduct in a shopping center parking lot. The court in M.C. explained that the school environment was more restrictive than other public settings, stating that, “[wjhile L.A.T.’s loud verbal protests ... may be constitutionally protected in the setting of an open public shopping center parking lot, those same protests may not enjoy such constitutional protection in other settings.” 695 So.2d at 480.

¶ 16 The United States Supreme Court has noted that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker, 393 U.S. at 506, 89 S.Ct. 733. However, “the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Id. at 507, 89 S.Ct. 733.⁴ The environment of juvenile’s conduct cannot be ignored. Indeed, “[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). In the present case, juvenile’s intentional misconduct is clearly incompatible with the function and purpose of the school. We find no constitutional infirmity in his conviction for disorderly conduct.

CONCLUSION

¶ 17 For all the foregoing reasons, we affirm the holding of the trial court.

CONCURRING: JEFFERSON L. LANKFORD, Judge.

Footnotes

1

. Juvenile maintains that Ferrero "had to anticipate hearing such language, because her school was designed to teach students who had behavioral problems.” Other jurisdictions have found this argument unpersuasive. See In re Nahif A., 123 Md.App. 193, 717 A.2d 393, 400 (1998) (prohibition against disorderly conduct in school does not exclude students with behavior problems).

2

. The dissent asserts that the present case is distinguishable from Johnson because juvenile here was charged with disturbing the peace of a particular person. Aside from the fact that the current version of oür disorderly conduct statute requires only an intent to disturb, juvenile was properly convicted for conduct that violates the statute. The specification in the charge of one way of committing an offense does not preclude proof that the offense was committed another way. See Rule 13.5, Ariz. R.Crim. P. (charge is deemed amended to conform to the evidence); State v. Stough, 137 Ariz. 121, 123, 669 P.2d 99, 101 (App.1983) (although charged with committing crime in one way, defendant properly convicted on evidence he committed charged offense in another manner).

3

. We further note that the term "disruptive” is defined as “causing, tending to cause, or caused by disruption; disrupting.” Random House Dictionary of the English Language 569 (2d ed.1987).

4

. In Tinker, the Court reversed the suspensions of three students who wore black armbands in protest of the Vietnam war. See 393 U.S. at 514, 89 S.Ct. 733. The Court likened the wearing of armbands to "pure speech,” and insisted that a prohibition on speech cannot be sustained unless it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others....” Id. at 509, 513, 89 S.Ct. 733. Here, juvenile’s disruptive conduct illustrates that he was not engaging in the type of expressive conduct contemplated in Tinker.