COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Overton 

Argued at Salem, Virginia 

SHAWN CHRISTOPHER STEWART 

 MEMORANDUM OPINION* BY 

v. Record No. 0248-96-3 JUDGE SAM W. COLEMAN III 

 MARCH 4, 1997 

COMMONWEALTH OF VIRGINIA and 

 CITY OF LEXINGTON 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

George E. Honts, III, Judge 

 (Robert B. Armstrong, on brief), for 

appellant. 

 (James S. Gilmore, III, Attorney General; 

John K. Byrum, Jr., Assistant Attorney 

General, on brief), for appellees. 

 The appellant, Shawn Christopher Stewart, was convicted by a 

jury of using abusive language, disorderly conduct, and assault 

and battery. He contends on appeal that either the curse and 

abuse conviction or the disorderly conduct conviction is barred 

by Lexington City Code § 15-16.1 because both arose from the same 

course of action. He further asserts that the evidence is 

insufficient to support the disorderly conduct conviction. 

Finding no error, we affirm the decision of the trial court. 

 Viewing the evidence in the light most favorable to the 

Commonwealth, as we must on appeal, a Lexington police officer, 

who was responding to an unrelated 911 call, encountered the 

appellant on a public street. The appellant was belligerent, he 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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cursed the police officer and said "you can't tell me what to do 

. . . I am not going to go anywhere and if you come to the 

corner, I am going to kick your f-----g ass." When the officer 

attempted to arrest the appellant for cursing and using abusive 

language, the appellant resisted arrest and ran. The officer 

pursued, and when the appellant reached his home he brandished a 

stick and threatened to hit the officer with it. The officer 

testified that he told the appellant that he was "not mad at 

[him] at this time, but that if you hit me with that stick you 

are going to piss me off." The officer testified that during the 

confrontation he remained "calm, cool, and collected . . . [and] 

at no time did he feel that he was in danger." 

 Disorderly conduct was not a crime at common law and "is not 

punishable as a separate and distinct crime unless made so by 

statute or ordinance . . . ." Lewis v. Commonwealth, 184 Va. 69, 

72, 34 S.E.2d 389, 390 (1945). Section 15-16.1 of the Lexington 

City Code provides: 

 A person is guilty of disorderly conduct if, 

with the intent to cause public 

inconvenience, annoyance or alarm, or 

recklessly creating a risk thereof, he: (a) 

In any street, highway or public building, or 

while in or on a public conveyance or public 

place, engages in conduct having a direct 

tendency to cause acts of violence by the 

persons at whom, individually, such conduct 

is directed; provided, that such conduct 

shall not be deemed to include the utterance 

or display of any words or to include conduct 

otherwise made punishable under this Code 

 . . . .1

 

 1 The language in Lexington Code § 15-16.1 is similar to 

the language in Virginia Code § 18.2-415. 
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Disorderly conduct, as defined in the statute, encompasses a 

broad range of offending behavior, which has as its common 

denominator conduct having a direct tendency to cause acts of 

violence. Although a more general definition has not been 

articulated, the concept of what behavior constitutes disorderly 

conduct is generally understood. "[W]hether a particular act is 

disorderly conduct depends largely on the facts in the particular 

case, and in the determination of such question not only the 

nature of the particular act should be considered but also the 

time and place of its occurrence as well as all the surrounding 

circumstances." Collins v. City of Norfolk, 186 Va. 1, 5, 41 

S.E.2d 448, 450 (1947). 

 I. 

 Appellant contends that his conviction for disorderly 

conduct must be set aside because Lexington City Code § 15-16.1 

and his conviction for curse and abuse preclude his being 

convicted "for conduct otherwise made punishable under this 

title."2

 While Lexington City Code § 15-16.1 excludes "conduct 

otherwise made punishable under [the] Code," "the choice of 

offenses for which a criminal defendant will be charged is within 

the discretion of the Commonwealth's Attorney." Kauffmann v. 

Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279, 284 (1989). 

 

 2 Code § 18.2-415 contains identical language excluding 

"conduct otherwise made punishable under this title." Also, Code 

§ 19.2-294 contains similar language barring conviction under 

multiple statutes based on the same act. 
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"Two crimes, even though similar because committed by the same 

criminal agent during a continuing course of action against the 

same victims, are not committed by the same act if not 

simultaneously committed." Henry v. Commonwealth, 21 Va. App. 

141, 146, 462 S.E.2d 578, 581 (1995) (interpreting the double 

jeopardy clause); see also Martin v. Commonwealth, 221 Va. 720, 

273 S.E.2d 778 (1981) (same); Jones v. Commonwealth, 218 Va. 757, 

240 S.E.2d 658, cert. denied, 435 U.S. 909 (1978) (interpreting 

Code § 19.2-294). "The test of whether there are separate acts 

sustaining several offenses 'is whether the same evidence is 

required to sustain them.'" Treu v. Commonwealth, 12 Va. App. 

996, 997, 406 S.E.2d 676, 677 (1991) (quoting Estes v. 

Commonwealth, 212 Va. 23, 24, 181 S.E.2d 622, 624 (1971)) 

(interpreting Code § 19.2-294). 

 Here, the appellant's convictions were based on separate 

acts with different evidence supporting each conviction. The 

conviction for curse and abuse was proven by the appellant's 

language, his vulgar profanity, and the abusive manner that he 

directed it toward the officer. The disorderly conduct 

conviction was proven by the manner in which the appellant 

belligerently confronted the officer in a public place, 

challenged him, and after cursing and abusing the officer, fled, 

armed himself with a stick which he brandished and used to 

threaten the officer -- all of which tended to threaten a breach 

of the peace. The same act or acts were not the basis to prove a 
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violation of both statutes. 
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 II. 

 The appellant contends that the evidence is insufficient to 

support the disorderly conduct conviction. Relying upon the 

arresting officer's testimony that he was not angered or 

frightened by the appellant's actions, the appellant argues that 

the Commonwealth failed to prove that his words and actions had a 

tendency to cause violence. 

 Whether this particular arresting officer felt threatened or 

frightened or intimidated so as to cause a breach of the peace is 

not controlling. Although the officer's subjective feelings are 

a factor to be considered, the test is an objective one -- would 

the defendant's conduct provoke a reasonable person to violence. 

See Mercer v. Winston, 214 Va. 281, 284, 199 S.E.2d 724, 726 

(1973) (interpreting former Code § 18.1-255, now Code § 18.2-416, 

prohibiting use of abusive language); Burgess v. City of Virginia 

Beach, 9 Va. App. 163, 167-68, 385 S.E.2d 59, 61 (1989) (holding 

that police officers are not subject to a higher standard of 

restraint). 

 The appellant's belligerent threatening conduct was 

sufficient to support the trial court's decision that his actions 

were likely to provoke or incite a breach of the peace. See Ford 

v. City of Newport News, 23 Va. App. 127, 144, 474 S.E.2d 848, 

851 (1996); Keyes v. City of Virginia Beach, 16 Va. App. 198, 

200, 428 S.E.2d 766, 768 (1993). The appellant's threats to the 

officer, both by words and with the stick, had a "tendency to 
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cause acts of violence" and involved more than the mere utterance 

of abusive language. The appellant's argument that the evidence 

failed to prove that these actions tended to cause acts of 

violence because the officer testified they did not anger him or 

put him in fear of danger has no merit. The appellant's actions, 

cursing and threatening the officer, would have provoked a 

reasonable person to violence. Therefore, the evidence is 

sufficient to support the conviction for disorderly conduct. 

 For the foregoing reasons, we affirm the decision of the 

trial court. 

Affirmed.