96-278

 No. 96-278

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

STATE OF MONTANA,

 Plaintiff and Respondent,

 v.

PHILIP L. GRANBY,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,

 In and for the County of Jefferson,

 The Honorable Robert J. Boyd, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 

 Eric Rasmusson, Attorney at Law, Boulder, Montana

 For Respondent:

 

 Hon. Joseph P. Mazurek, Attorney General; Christina Lechner Goe,

Assistant

 Attorney General, Helena, Montana

 Valerie D. Wilson, Jefferson County Attorney, Boulder, Montana

 Submitted on Briefs: April 24, 1997

 Decided: June 17, 1997

Filed:

 __________________________________________

 Clerk

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Justice W. William Leaphart delivered the Opinion of the Court.

 Appellant, Philip L. Granby appeals from the February 20, 1996 Judgment of the

Fifth Judicial Court, Jefferson County, convicting him of the offenses of disorderly

conduct, in violation of 45-8-101, MCA, and violating privacy in communications, in

violation of 45-8-213, MCA. We affirm in part and reverse in part.

 We restate the issues on appeal as follows:

 1) Did Granby waive his claim of insufficiency of the evidence as to both 

offenses

by failing to raise the issue in the District Court?

 2) Was there sufficient evidence for the District Court to convict Granby of 

the

offense of disorderly conduct?

 3) Was there sufficient evidence for the District Court to convict Granby of 

the

offense of violating privacy in communications?

 Factual and Procedural Background

 The following facts are taken from the parties' testimony at trial. On June 10,

1994, Granby went to the home of his ex-wife, Delores Aaberg, in order to remove a

non-running vehicle from her premises that he had been awarded in their decree of

dissolution. Granby's brother and friend accompanied him to help him tow the 

vehicle. 

Upon their arrival, Aaberg came outside and told Granby that he would have to leave,

as his presence on the premises was in violation of the restraining order 

incorporated in

the decree of dissolution. Granby refused to leave and an argument ensued.

 Aaberg testified that during the argument Granby asked her "did you get enough

dick today" and gestured toward her as if he were masturbating. Granby's friend

corroborated this statement and testified further that he had to "break up the 

fight,"

grabbing Granby by the arm and pulling him out of the way. Aaberg and Granby's two

young daughters were present for at least part of the argument. 

 Approximately two weeks later, Aaberg called Granby to discuss visitation with

the children. According to Aaberg, she told Granby that her roommate, Richard

Hayward, had died, and that in response Granby said: "So your dick died, huh, that's 

too

bad. How long did you know him? Not very long at all, I'll bet." Aaberg then hung

up the phone. She also testified that Granby had made other annoying or harassing 

phone

calls to her on numerous occasions. Granby testified that it was Aaberg who 

initiated the

call in question, but he did not deny making the statements.

 On July 8, 1994, Aaberg went to the sheriff's office to file a complaint against

Granby because of these incidents. On August 25, 1994, the Justice Court of 

Jefferson

County found that there was probable cause and issued a warrant for Granby's arrest

based on five misdemeanor charges: theft, criminal trespass to property, violating 

privacy

in communications, violation of a protective order, and disorderly conduct. A bench 

trial

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was subsequently held in Justice Court. Granby failed to appear and he was convicted

of all five misdemeanors.

 Granby filed a notice of appeal in District Court and a bench trial was held in

February, 1996. The county attorney dismissed the theft charge at the end of the 

trial

and the District Court found Granby not guilty of the offenses of criminal trespass 

to

property and violation of a protective order. The court found Granby guilty of the

offenses of violating privacy in communications and disorderly conduct. Granby 

appeals

both convictions based on the sufficiency of the evidence.

 Discussion

 1) Did Granby waive his claim of insufficiency of the evidence as

 to both offenses by failing to raise the issue in the District Court?

 The State argues that Granby has waived the claim of sufficiency of the evidence

as to the disorderly conduct and violation of privacy in communications offenses 

because

he never presented these arguments to the District Court. The State claims that if 

Granby

believed that the evidence was insufficient to meet the State's burden of proof, he 

could

have filed a motion for judgment of acquittal based on insufficiency of the evidence 

under

 46-16-403, MCA, or made an oral motion to dismiss, either at the close of the

prosecutor's case or at the close of all the evidence. The State cites 46-20-104

(2),

MCA, and State v. Walsh (Mont. 1997), 931 P.2d 42, 45, 54 St.Rep. 64, 65, as support

for its contention that because Granby failed to raise insufficiency of the evidence 

at the

District Court level, it is waived for purposes of appeal. 

 Section 46-20-104(2), MCA, provides:

 Upon appeal from a judgment, the court may review the verdict or

 decision and any alleged error objected to which involves the merits or

 necessarily affects the judgment. Failure to make a timely objection during

 trial constitutes a waiver of the objection except as provided in

 46-20-701(2).

 Granby argues that the plain language of 46-20-104(2), MCA, provides this

Court with ample authority to review Granby's convictions. He argues that the 

statute

distinctly separates review of a verdict or decision from alleged error committed 

during

the district court proceedings, and requires a defendant to object to error, but 

does not

require a defendant to object to the verdict or decision itself, in order to 

preserve the case

for appeal. Granby further argues that the decision in Walsh was based on 

inappropriate

authority and that the decision is contrary to the legislature's intent in its 

adoption of 

46-20-104, MCA. We agree.

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 In Walsh, this Court declined to consider Walsh's challenge to charges of

accountability "because Walsh failed to argue at any time prior to filing his brief 

on

appeal that the evidence was insufficient to support the verdict on the 

accountability

charges . . . . See State v. Johnson (1993), 257 Mont. 157, 162, 848 P.2d 496, 

499." 

Walsh, 931 P.2d at 45.

 Granby argues that the Walsh Court's reliance on Johnson was misplaced. In

Johnson the defendant claimed on appeal that the testimony of an accomplice was

insufficiently corroborated. Johnson, 848 P.2d at 498. The Court in Johnson 

declined

to address the issue because nothing in the record "disclosed a challenge to the 

sufficiency

of the corroborative evidence, or the evidence as a whole, by way of either a motion 

for

an acquittal or a motion for a directed verdict." Johnson, 848 P.2d at 498. The 

Court

did not hold that a general claim of insufficiency of the evidence to support the 

verdict

was barred on appeal for the failure to either move for a judgment of acquittal or a

dismissal at the end of trial. The Court simply declined to address an allegation of

specific trial error on appeal on the basis of the defendant's failure to object to 

the trial

error in the district court. It is clear that the Court in Johnson was concerned 

with error

committed during the course of the trial, and not with review of the defendant's 

verdict

or final judgment. Therefore, we agree with Granby that Walsh's reliance on Johnson

was misplaced. 

 Additionally, Granby argues that the result in Walsh is contrary to the intent 

of the

Code Commission when it recommended adoption of 46-20-104, MCA, by the

legislature. The Commission Comments provide:

 [Subsection (2)] also broadens the scope of appeal in one respect. Under

 the present code it is necessary to make a motion for a new trial and then

 appeal from an adverse ruling if the grounds of appeal are also the grounds

 for a motion for a new trial. No such requirement is intended to be

 imposed by this code. All questions heretofore raised on such an appeal

 may be raised on appeal from the judgment regardless of whether a motion

 for a new trial has been made in the trial court. . . . It is the purpose of

 Subsection [(2)] to provide one complete, full and adequate review by

 enlarging the power of the reviewing court. This is accomplished by

 allowing the court to decide all questions raised by the entire proceeding,

 below, including an appeal from a motion for a new trial.

 Although the Comments discuss a motion for new trial rather than a motion for a

judgment of acquittal or directed verdict, we believe the reasoning is equally 

applicable. 

It is clear that the legislature intended that a reviewing court have the power to 

provide

a comprehensive review of the district court proceedings for sufficiency of the 

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evidence

without the necessity of a motion challenging the sufficiency of the evidence in the 

district

court. 

 Furthermore, allowing a comprehensive review of a verdict or decision without a

motion for acquittal does not deny a district court the opportunity to rule on the 

issue of

sufficiency of the evidence. Under 46-16-403, MCA, a district court may, "on its 

own

motion . . . dismiss the action . . ." when the evidence is insufficient to support 

a finding

or verdict of guilty.

 For the foregoing reasons, we conclude that Walsh's holding that an appellant

waives the right to challenge the sufficiency of the evidence to support a verdict 

on appeal

by failing to raise the issue in the district court was decided on the basis of 

inappropriate

authority and is contrary to the intent of the legislature. Therefore, we overrule 

Walsh

insofar as it bars a claim of insufficiency of the evidence to support a verdict on 

appeal

for failure to raise the issue in the district court. 

 Furthermore, we agree with Granby that a plain reading of 46-20-104, MCA,

indicates that an appellant need not challenge the sufficiency of the evidence at 

the district

court level in order for this Court to review a "verdict or decision" on the basis of

sufficiency of the evidence. The second sentence in 46-20-104, MCA -- "Failure to

make a timely objection during trial constitutes a waiver of the objection . . ." --

addresses an appeal based on "any alleged error objected to which involves the 

merits or

necessarily affects the judgment," and does not prohibit this Court from reviewing a

verdict or decision as a whole. For the foregoing reasons we hold that Granby did 

not

waive his claims of insufficiency of the evidence as to either offense.

Standard of Review

 This Court reviews the sufficiency of the evidence to determine whether, after

viewing the evidence in the light most favorable to the prosecution, any rational 

trier of

fact could have found the essential elements of the crime beyond a reasonable doubt. 

State v. Richards (1995), 274 Mont. 180, 184, 906 P.2d 222, 224. This standard 

applies

to judge-made findings of fact, as well as to findings of fact by a jury. State v. 

Bower

(1992), 254 Mont. 1, 833 P.2d 1106.

 2) Was there sufficient evidence for the District Court to convict Granby

 of the offense of disorderly conduct?

 

 The District Court found that Granby "knowingly and intentionally disturbed the

peace . . . by making loud or unusual noises, and/or using threatening, profane or

abusive language, by accusing Delores Aaberg of 'screwing around' and using abusive

language concerning Ms. Aaberg's sexual life and by using his hands in a lewd manner

suggesting masturbation . . . . " Section 45-8-101(1), MCA, provides:

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 A person commits the offense of disorderly conduct if he knowingly

 disturbs the peace by:

 . . .

 (b) making loud or unusual noises;

 (c) using threatening, profane, or abusive language;

 . . . .

 

 Granby presents a constitutional challenge to his disorderly conduct 

conviction. 

He argues that his conduct during the incident at Aaberg's residence did not rise to 

the

level of "fighting words" designed to provoke or incite violence and, therefore, his

conduct constitutes "protected speech" as defined in City of Billings v. Batten 

(1985), 218

Mont. 64, 705 P.2d 1120. However, Granby failed to raise this constitutional 

challenge

to his conviction in the District Court and it is therefore waived pursuant to 46-

20-

104(2), MCA. In City of Columbia Falls v. Bennett (1991), 247 Mont. 298, 301, 806

P.2d 25, 27, this Court rejected the appellant's constitutional challenge to the 

disorderly

conduct statute for failure to raise the issue in his opening appellate brief. 

Because the

constitutionality of the statute was not at issue, it was not necessary for the 

Court to apply

the constitutional interpretation of the statute set out in Batten, that a person's 

conduct or

language must constitute "fighting words" in order for a conviction to stand. 

Instead, the

Court simply analyzed whether the appellant's language and conduct constituted

"threatening, profane, or abusive language" in violation of the disorderly conduct 

statute

as written. Bennett, 806 P.2d at 26-27. We apply the same analysis here.

 Both parties testified that they were heatedly arguing with each other in the

presence of others. Both Aaberg and Granby's friend testified that Granby stated 

"did

you get enough dick today" and used abusive and profane gestures. Granby's friend

testified that he had to "break up the fight" and "haul" Granby away. When viewed in

the light most favorable to the prosecution, any rational trier of fact could have 

found that

Granby knowingly disturbed the peace by using threatening, profane, or abusive 

language

and gestures. Therefore, we hold that there was sufficient evidence to convict 

Granby

of the offense of disorderly conduct and affirm his conviction on this charge.

 3) Was there sufficient evidence for the District Court to convict Granby of 

the

offense of violating privacy in communications?

 Granby argues that sufficient evidence in the record does not exist to support 

the

conviction of violating privacy in communications. Section 45-8-213(1)(a), MCA,

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provides the following:

 [A] person commits the offense of violating privacy in communications if

 he knowingly or purposely:

 (a) with the purpose to terrify, intimidate, threaten, harass, annoy,

 or offend, communicates with any person by telephone and uses any

 obscene, lewd, or profane language, suggests any lewd or lascivious act, or

 threatens to inflict injury or physical harm to the person or property of any

 person (the use of obscene, lewd, or profane language . . . is prima facie

 evidence of an intent to terrify, intimidate, threaten, harass, annoy, or

 offend) . . . . 

 Granby testified that Aaberg called him on June 24, 1994. During this

conversation Aaberg told Granby that her roommate, Richard Hayward, had died. 

Granby responded: "So your dick died, huh, that's too bad. How long did you know

him? Not very long at all, I'll bet." Granby argues that this statement does not 

contain

obscene, lewd, or profane language and does not reflect an intent to"terrify, 

intimidate,

threaten, harass, annoy, or offend." The State argues that, when taken in context, 

the

obscene overtone in the comment is apparent. We hold that this statement alone does 

not

constitute obscene, lewd, or profane language. Furthermore, considering the

circumstances under which it was made, including the fact that Aaberg initiated the 

call,

and that Granby was responding to Aaberg's comment, we hold that it was not made with

the intent to harass or annoy. Therefore, after viewing the evidence in the light 

most

favorable to the prosecution, we hold that the evidence presented is not sufficient 

to

support the conviction for violating privacy in communications and Granby's 

conviction

on this charge is reversed. 

 In conclusion, we hold that Granby did not waive his claims of insufficiency of 

the

evidence; there was sufficient evidence to convict him of the offense of disorderly

conduct; and there was not sufficient evidence to convict him of violating privacy 

in

communications. Therefore, Granby's conviction for disorderly conduct is affirmed; 

his

conviction for violation of privacy in communications is reversed; and his sentence 

for

violation of privacy in communications is vacated.

 /S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

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/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

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