Johnson v. State

37 S.W.3d 191, 343 Ark. 343, 2001 Ark. LEXIS 15
CourtSupreme Court of Arkansas
DecidedJanuary 18, 2001
DocketCR 00-756
StatusPublished
Cited by17 cases

This text of 37 S.W.3d 191 (Johnson v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. State, 37 S.W.3d 191, 343 Ark. 343, 2001 Ark. LEXIS 15 (Ark. 2001).

Opinions

DONALD L. Corbin, Justice.

Appellant Chon Lenell Johnson appeals the order of the Pulaski County Circuit Court convicting him of disorderly conduct. For reversal, Appellant argues that there was insufficient evidence to support his conviction. The Arkansas Court of Appeals affirmed his conviction in Johnson v. State, 70 Ark. App. 343, 19 S.W.3d 66 (2000). We granted Appellant’s petition for review of that decision, hence our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(e). When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. Fowler v. State, 339 Ark. 207, 5 S.W.3d 10 (1999), cert. denied, 120 S. Ct. 1558 (2000); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). We find no error and affirm.

The record reflects that on the evening of May 1, 1998, Jacksonville Police Officer Mark Swagerty approached Appellant while he was standing on the corner of Ray Road. According to Swagerty, he became suspicious after Appellant began pacing and acting nervous, combined with the fact that it was 11:30 p.m. in a high-crime neighborhood. Swagerty testified that he exited his patrol unit and asked Appellant his name. Appellant responded, “Why are you fucking harassing me?” Based on Appellant’s cursing and violent demeanor, Swagerty decided to call for backup.

Several officers, including Officer Thomas Mayberry, responded to the scene. According to Mayberry, when he arrived, Appellant was flailing his arms around, yelling, and cursing. May-berry stated that he had had previous contacts with Appellant as a police officer. Mayberry attempted to calm him down. Mayberry testified that Appellant told him that he was on the corner waiting for a taxi that he had called. Mayberry attempted to verify Appellant’s claim about the cab, and during this time, Appellant alternately calmed down and then became agitated again. At one point, Mayberry witnessed Appellant exhibit a violent demeanor toward Swagerty by clenching his fists and pulling off his shirt. Mayberry stated that he interpreted these actions as “presassaultive cues.”

The situation between Appellant and the police escalated after Appellant began walking toward a nearby carport. Mayberry asked him to return to the street, but Appellant remained in the carport area. Then, according to Mayberry, Appellant began to sprint across the front porch area. Concerned that Appellant would try to force his way into the residence, the officers pursued him, and Mayberry administered a burst of pepper spray to his face. Appellant continued across the porch and wrapped himself around a wrought iron post on the front porch. Mayberry testified that after being unable to pull his arms loose from the post, he and another officer began to strike Appellant in the fleshy-tissue area of his forearms with their batons. After the officers removed Appellant from the post, they placed him on the ground, handcuffed him, and placed him under arrest. At some point during this conflict, the residents of the home stepped outside to determine the cause of the commotion. They identified themselves as Appellant’s aunt and uncle.

Appellant was charged with the misdemeanor offenses of terroristic threatening in the second degree; resisting arrest; fleeing; disorderly conduct; and public intoxication. He was convicted on all counts in Jacksonville Municipal Court on November 13, 1998. He appealed his convictions to the Pulaski County Circuit Court and waived his right to a jury trial. A bench trial was held on June 18, 1999, and the trial court ultimately found Appellant not guilty on the charges of terroristic threatening, fleeing, and public intoxication. With regard to the charge of resisting arrest, the trial court found Appellant guilty of the lesser offense of failure to submit to arrest. Finally, the court found Appellant guilty of disorderly conduct. The trial court imposed a ninety-day suspended sentence and a $200 fine for the charge of failure to submit to arrest. Appellant was then given a thirty-day suspended sentence and fined $100 on the disorderly conduct charge, with the sentences to be served consecutively. Appellant now appeals only the disorderly conduct conviction.

Appellant’s sole point on appeal is that there was insufficient evidence to support his conviction for disorderly conduct. He makes no challenge to the legality of the police’s initial encounter. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000); Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id.

Appellant argues that his words and conduct directed at the police officers did not rise to the level of “fighting words” as required for a conviction under Ark. Code Ann. § 5-71-207(a) (3) (Repl. 1997). He relies on the case of Houston v. Hill, 482 U.S. 451 (1987), for the proposition that the First Amendment protects a significant amount of verbal criticism and challenge directed at the police. The Hill case is inapplicable to the situation now before this court, however. There, the United States Supreme Court ruled that a city ordinance making it a crime for a person to “oppose, molest, abuse or interrupt any policeman in the execution of his duty” was unconstitutionally overbroad. Id. at 461.

This court distinguished the law struck down in Hill from the proscription set forth in subsection (a)(3), because the Arkansas statute proscribes only “fighting words.” Bailey v. State, 334 Ark. 43, 53, 972 S.W.2d 239, 244 (1998). At issue in Bailey was whether section 5-71-207 was overbroad, and thus unconstitutional. In upholding the constitutionality of the statute, this court acknowledged that subsection (a)(3) proscribes only “fighting words” in compliance with the United States Supreme Court ruling in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). In Chaplinsky, the test for determining whether language falls within this proscription is “what men of common intelligence would understand would be words likely to cause an average addressee to fight.” Id. at 573.

Here, Appellant argues that his statement “Why are you fucking harassing me?” did not rise to the level of fighting words. Section 5-71-207(a) (3) states in relevant part that a person commits the offense of disorderly conduct if he:

In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response [.]

Both Officers Swagerty and Mayberry testified that Appellant was using profane language.

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Johnson v. State
37 S.W.3d 191 (Supreme Court of Arkansas, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
37 S.W.3d 191, 343 Ark. 343, 2001 Ark. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-ark-2001.