No. 85-153 IN THE SUPREME COURT OF THE STATEOF MONTANA 1985

CITY OF BILLINGS, Plaintiffand Respondent,

-vsEARL BATTEN, Defendantand Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District, Inand for the County of Yellowstone, The Honorable DianeG. Barz, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Calton & Hamrnan; FrancesM. Calton, Billings,Montana

For Respondent: Bonnie Sutherland,Assistant City Attorney, Billings, Montana

Submitted on Briefs: June 28, 1985 Decided: September 12, 1985

Filed: 

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# G&w" ClerkMr. Chief Justice J. A. Turnage delivered the Opinion of the Court.Defendant a.ppealshis conviction for disorderly conduct, a violation of S 45-8-101, MCA, following jury trials in both the City Court of Billings and subsequently in the District Court of the Thirteenth Judicial District, Yellowstone County. He was fined $100 and assessed jury costs of $316. Claiming that S 45-8-101,MCA, is unconstitutional and that Billings failed to establish a prima facie case,the defendant appeals to this Court. We affirm the judgment of the District Court holding that S 45-8-101, MCA, is constitutionally valid and that appellant's violation of that statute has been establishedby substantialevidence. The following issues are raised on appeal: 1. Whether appellant's statements and conduct were protected by the Constitution. 2. Whether § 45-8-101, MCA, is void forvagueness and overbreadth. 3. Whether appellant's statements and conduct establish the necessary elements of disorderly conduct under § 45-8-101,MCA. 4. Whether the District Court erred in denying appellant's motion to dismiss for failure of the respondent to establish a prima facie case. The testimony of the parties conflict. The following facts come primarily from the testimony of Joseph Carlson, his son,Mike Carlson, and hiswife,Cathy Carlson. Appellant Earl Batten was charged with the misdemeanor crime of disorderly conduct as a resultof his actions on the night of April 21, 1984. On that date, Batten owned abusiness named Rimrock Honda, which was located next to an open field. On the other side of the open field and across the street, approximately one-half block away, the Joseph Carlson family resides. The DennisGambill family livesnext door to the Carlsons. On the night of April 21, 1.984,at approximately 8:30 p.m., the Carlsons sent their fifteen-year-old son, Steve, to Buttrey's food store for some milk. Buttrey's is located across the street,a-crossthe field,and on the other side of Batten'sproperty from the Ca.rlsonresidence. The open field and Batten'spropertywere routinely used by pedestriansas a route from the residential area to Buttrey's and the other stores. As Steve left the house to go to Buttrey's, Joseph Carlson watched him from the frontwindow. Although it was dark out, the area was illuminated by a sign on appellant's property. As Joseph Carlson watched his son walk toward Buttrey's, he noticed a person stand.ingby a cluster of small trees near the route followed by Steve. As Steve started down a path across the field,the person by the trees started to follow the boy. This activity concerned Joseph and he called his wife, Cathy Carlson, to the window. She saw the figure of the person in the shadow of the trees. At that point, neither Joseph nor Cathy Carlson could identify the figure

# . After seeing the figure followhis son,Joseph Carlson believed his sonmight be in danger. He therefore ran outside after picking up a golf club for protection and started after Steve. At that time his nineteen-year-old son, Mike Carlson, drove into their driveway. Mike Carlson joined his father,and both followed Steve tomake sure that the unidentified figurewould notharm the youngerboy.As Steve continued on the path, Cathy Carlson went outside onto the driveway. On her way out, she grabbed a pair of binoculars to help her see the confrontation. It then appears that appellant stopped and waited for Joseph and Mike Carlson to overtake him. There ensued a verbal battle inwhich appellant ordered the Carlsons off his property. The Carlsons left appellant's property,but appellant continued his verbal attack calling Joseph Carlson a communist government worker, no good son-of-a-bitch, chickenshit, and m----------r. Appellant said, "Fight me. Hit me. You have a golf club. Come on. I want to fight you.

### " Appellant's voice had become loud and he started laughing at the Carlsons. He continued to swear and challenge the Carlsons. Joseph Carlson testified to at least five people turning around and looking in their direction from an adjacent commercialparking lot. Meanwhile, Cathy Carlson was observing the commotion from the Carlsons

## ' frontyard. Sheheard a loud "f--k you.

### " Although she does not know who said that, she knows it was not her husband's or her son's voice. She could hear that particular language clearly, and it came from the areawhere appellantand her husbandwere. Cathy Carlsonwas afraid for her family and called their next-door neighbors, the Gambills. TheGambills came outside and testified to hearing the yelling and that it was loud, although they could not make out individualwords. Mike Carlson was angered by appellant's profanity and challengesand told his fatherhe was going to hit appellant. Joseph grabbed Mike and told him to go and gethis brother at Buttrey's instead. Mike followed his father's orders. Appellant continued to yell at Joseph. After three or fourminutes of this, Joseph attempted to walk home. He planned to get his car and drive over to Buttrey's to pick up his

sons so that theywould nothave to confrontappellantagain. Appellant yelled after Joseph "come back and fight you m----------r. Iwant to get it over with." Joseph started to walk faster,and appellant started to followhim. Joseph then ran the rest of the way to his house. Joseph and Gambill then drove to Buttrey's to pick up theboys. Just after Cathy Carlson called the Gambills, she called the police. Officer Keith Richard Buxbaum was dispatched to the Carlsons' residence in response to the call. When Officer Buxbaum arrived along with Officer Barta, the incidentwas over. The police searched the area for appellant but could not find him. Officer Buxbaum then requested

awarrant for appellant fordisorderly conduct in his report. Appellantwas arrested onMay 3,1984. Appellant was charged under § 45-8-101, MCA, which provides: Disorderly conduct. (1) A person commits the offense of disorderly conduct if he knowingly disturbs the peace by: (a) quarreling, challenging to fight,or fighting; (b)making loud or unusual noises; fc)using threatening, profane, or abusive language;

(2)A person convicted of the offense of disorderly conduct shall be fined not to exceed $100 or be imprisoned in the county jail for a term not to exceed 10 days,or both.The firsttwo issues presented by appellant concernhis constitutional right of free speech and whether or not the statute is unconstitutionally vague and overbroad. This Court recently considered similar issues in City of Whitefish



### v. O'Shaughnessy (Mont. 1985), 

### -P.2d 

### - 

## , 42 St.Rep. 928. In that case we expressly declined to construe S 45-8-101, MCA, because appellant in that case was charged under a Whitefish municipal ordinance rather than the statute. However, O'Shaughnessy remains Montana's primary precedent concerning statutes or ordinances which seek topreserve the peace through regulation of loud, profane, and threatening speech. In this decision, we will consider the specific facts and construe 5 45-8-101(1),MCA, in lightof theprincipleswe espoused inO'Shaughnessy. In OIShaughnessywe were presented with the following ordinance: Whitefish Municipal Ordinance, 9.64.010. No Person within the municipality, or within three miles of the municipal limits, shall willfully and maliciously disturb the peace and quiet of any street,neighborhood, family,or person by loud, tumultuous noise, or by tumultuous or offensive conduct, or by using offensive, loud radio or television sets, or by threatening, quarreling, scolding, hallooing, hollering, challengingto fight,or fighting,orby cursing, swearing, uttering obscene, profane, vulgar, or indecent language in the presence of any person or persons, or by committing any obscene, vulgar, indecent, or lewd act in any public place, or in view of any person or persons. The appellant's charge and conviction under this ordinance stemmed from his offensive statement to a police officer, that is, "Well, m----------r, I will holler and yell when and wherever I want to

# . .." We upheld the convictionholding that the jury properly found that appellant's speech constituted "fighting"words which are not protected.by the Constitution, Chapli-nskyv. New Hampshire (1942), 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031,and by narrowly construing the ordinance as only applying to words that have a direct tendency to violence and which are willfully and maliciously uttered. Under this narrow construction Whitefish's ordinance is not unconstitutional for vagueness and.overbreadth because it is only applicable to unprotected speech. See Gooding v. Wilson (19721, 405 U.S. 518, 92 S.Ct. 1103, 31

As just di.scussed, "fighting words" are not constitutionally protected speech. The right of free speech is not absolute. Chaplinsky, 315 U.S. at 571. A state has the power constitutionally to punish "fighting words" under carefully drawn statutes not susceptible of application to protected expression. Gooding, 405U.S. at 522. In O'Shaughnessy we approved the following jury instructions regarding "fightingwords": You are instructed that the words and language of thedefendant must have been of suchnature thatmen of common intelligence would understand would be words likely to cause an average person hearing such words to fight. Threatening, profane, and obscenewords, saidwithout a disarming smile,are generally considered to be "fightingwords." The appellant, by the City's version of the encounter, repeatedly called Carlson a number of profanities and a communist government worker, and also challenged him to fight. Appellant's language and conductnearly provoked Mike Carlson to fight and so concerned Joseph Carlson that he ran from the confrontation. This Court holds that appellant'sspeech and conduct constituted "fighting words" that are unprotected by the constitution. Having thus determined that appellant's right to free speech did not entitle him to conduct himself as he did, we

now turn to the statute to determine whether it is vague or overbroad and facially invalid. A statutemay be held unconstitutional if it isvague and overbroad. 12A.L.R.3d 1448. Vagueness and overbreadth are related concepts often spoken of together. A statute must be drawnwith sufficient clarity and definiteness to inform persons of ordinary intelligence what actions are proscribed (vagueness) and it cannot be susceptible of reaching constituti.onally protected activity (vaguenessand overbreadth). In O'Shaughnessy we also discussed vagueness and.overbreadth doctrine and concluded that invalidation of a potentially vague or overbroad statute can be avoided by a narrow construction of the statute. Statutes or ordinances regulating expressive conduct must be carefully drawn or authoritatively construed to punish only unprotected forms of speech. Wurtz v. F.isley (9thCir. 1983)

## , 719 F.2d 1438. We therefore construed theWhitefish ordinance narrowly to apply only to words that have a direct tendency to violence and which are willfully and maliciously uttered. The disputed portion of § 45-8-101,MCA, is very similar to the Whitefish ordinance we upheld in O'Shaughnessy. The only difference of any substance is that the ordinance requires the elements of willful and malicious whereas the statute substitutes "knowingly" for those intent elements. Such a substitution is explained by the fact that Montana's Penal Code revamped common law intent requirements and no longer utilizes terms like "willfully and malicious" but replaced such terms with "purposely" and "knowingly." 37Mont.L,.Rev. 401. If anything, the statute's utilization of the intent element of "knowingly" rather than "willfully and maliciously" makes the statute less vague than the ordinance because S 45-2-101(33), MCA, specifically defines "knowingly 

# -" Use of the intent element of "knowingly" does not render the statute unconstitutionallyva.gue. We now construe § 45-8-101(1),MCA, as only applying to words that have a direct tendency to violence and which are knowingly uttered. So construed, the statute is not unconstitutionalon its face for vagueness or overbreadth.

I1 Appellant next alleges that hiswords and actions were not sufficient to support a charge of disorderly conduct. Appellant disputeswhat the jury chose to believe and alleges that the testimony could not establish the elements delineated in the statute under which he was charged. Specifically, appellantalleges that the elements of "disturbing the peace" and "using threatening, profane, or abusive language" were not established. This Courtwill not substitute its judgment for that of the lury; a jurywhich, in this case, was able to view firsthand the evidence presented, observe the demeanor of the witnesses andweigh the credibility of eachparty. The facts stated at the outset of this opinion are sufficient to support the verdict of the jury. We hold that those facts are sufficientto establish the elements of disorderly conduct as enumerated in § 45-8-101,MCA. Appellant questions whether his behavior could constitute "disturbing the peace" under the statute. He quotes the Criminal LawCommission Comments under S 45-8-101,MCA,whichrequire that in order for conduct to disturb the peace, the behavior must disturb "others"and that it is not sufficient that a single person or a very fewpersons have grounds for complaint. Appellant argues that there were not sufficient people present to constitute "others" and that therefore he could nothave disturbed thepeace. Although we have never decided howmany people must be disturbed before the peace is disturbed, one Montana case involvingthe crime of breach of the peace, formerS 94-4560, R.C.M. 1947, provides guidance. In State v. Turley (19741, 164Mont. 231, 521 P.2d 690,Turley's conviction fordisturbing the peace was upheld. Section 94-3560, R.C.M. 1.947, prohibited disturbances of the peace by ''loud or unusual. noise or tumultuous or offensive conduct or threatening, quarrelling, challenging to fight or fighting.'' Turley was convicted under this statute when only he, his wife, and a third partywere present towitness his conduct. In the instant case, not only did appellant directly confrontand threaten Joseph andMike Carlsonby calling them names,using profanity, threatening and trying to get them to fighthim, but the commotion initiatedby appellantalso drew the attention of more persons. The neighbors of the Carlsons and Cathy Carlson could hear the appellant's yelling from a half block away. Cathy Carlson heard appellant yell "f--k you" at her husband and son. At least five people in the Buttrey's parking lot turned around and looked in the direction of the commotion. We hold that sufficient people were disturbed by appellant's conduct to constitute a disturbance of thepeace. The next element which appellant argues has not been sufficiently proven to support his conviction is his use of"threatening, profane, or abusive language." In this opinion

we have already construed this element as applying only to words thathave a direct tendency toviolence. We hold that appellant's conduct and speech as outlined earlier in this opinionwere sufficiently offensiveas to provoke violence in others. Any reasonable man would be outraged by appellant's conduct.

I11 Finally, appellant argues that the trial court committed reversible error in denying his motion to dismiss for failure of plaintiff to establish a prima facie case. Since

we have held that a prima facie case was established, there isno need to dealwith this contention further. The judgment is affirmed.

ief Justice

/ We concur: