# FILED January 29, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON DECEMB ER SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9701-CR-00042 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT FRANK E.BRADFORD, ) JUDGE ) Appe llant. ) (Direct Appe al-Disorde rly Conduc t)

FOR THE APPELLANT : FOR THE APPELLEE : EDWARD THOMPSON JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter Shelb y Cou nty Pu blic De fende r’s Office CLINTON J. MORGAN Memphis, TN 38103 Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 WILLIAM L . GIB BONS Distri ct Attorney General

OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION Appe llant, Frank E. Bradford, was c o nvicted of the o ffense of diso rderly conduct in viol ation of Tennesse e Code Annotated Secti on 39-17-305. He was sentenced to serve thirty days in the Sh elby C ounty Corre ctiona l Cente r. In this appea l he allege s that the e vidence is insufficient to suppo rt the verdict.

After a review of the reco rd we find there is su fficient evidence to sup port the verdic t and we affirm the ju dgme nt of the trial co urt.

FACTUAL BACKGROUND On May 16, 199 5, Memp his Police Officer G regory Quinn and his part ner Offic erTracy McDonald were on pat rol in J efferson Davi s Park located i n downtown Memph is.Aro und 5 :00p.m. Quin n and McD onald observed appell ant lying on a park bench with a bot tle of bee r and a backpack. The off icers advi sed Appe ll ant he could not drink in t he park and that he had to leave. Appellan t responded with an ob scenity and the officers informe d him h e was u nder arre st. As Officer McDonald attempted to handcuff Appel lant, he p unch ed her in the chest. Quinn grabb ed Ap pellan t while McD onald sprayed him with pepper sp ray. Appe llant wa s finally h andc uffed a nd tran sporte d to jail.

The beer b ottle Appellant had been holding had been opened and part of the contents we re missing. Althou gh Ap pellan t sme lled of a lcoho l the offic ers did not think he w as drun k. Officer Quinn stated t hat although the park was op en to the public at th e time A ppellant w as app roache d by the o fficers, there is a city ordinance which prohibits drinking in the park.-3- SUFFICI ENCY OF THE EVI DENCE When an accused challenges the suffici ency of the convicti ng evidence , this Court must revi ew the record to determine i f the proof adduced atthe trial is suffic ientto support the findi ngs by the tri erof fact o f guilt be yond a reaso nable doubt. T.R.A.P. 13(e) . We do no reweigh o r re-evaluate the evide nce and a re required to afford t he State the st rongest legitimate vi ew of the proof contained in the rec ord as well a s all reas onable and legi timate in ferences whic h may be drawn therefrom

. State v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8). Questions concerning the cr edibili ty of wi tnesses, t he weight and val ue to be given to the evidence , as well as factual issue s raised by the evid ence are resolved by the trier of fact, not this C ourt. Cabbage , 571 S.W .2d 832 , 835. A guilty verdictrendered by the jur y and approved by the tri al judge accr edits th e testimony

of the witnesses for t he State, and a pr esumption of gui lt repl aces the presumption of innocen ce. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 197 3). Although this case involv ed a bench trial, t he findings o f the t rial j udge who conducted thepro ceed ing s ca rr y t he s ame weight as a jury verdict. State v. Tate , 615 S.W .2d 161, 162 (Tenn. Crim . App. 1981 ).

D isor derly conduct is defined as fol lows at Tennessee Code Annotated Section 39-17- 305: (a) A pers on co mm its an o ffense who, in a pub lic place an d with inten t to caus e pub li c an noyanceor a larm: (1) Engag es in fighting or in violent or threa tening beha vior; (2) Refuses to obey an offici al order to disperse i ssued to ma intain publ ic sa fety i n dangerous proxi mity to a f ire, hazar d or other emergency; or (3) Creates a hazardous o r physic ally offensive condit ion by any act that serves no legit imate purpose. (b) A person also vi olates t his secti on who makes unreasonabl e nois e which prevents others fr om carrying on lawful activities. (c) A violation of this section is a C lass C misd emean or.-4- The State in dicted Appe llant in a three c ount in dictm ent for v iolation of this statute. The indictment alleged that Appell ant with the requisite intent to cause public annoyance did: Coun t 1: “. . . engag e in threate ning be havior . . .” Count 2: “ . . . create a phy sically o ffensiv e conditi on by acts t hat served no legitim ate purp ose. . .” Count 3: “. . . make unreasonable noise which prevented others fr om carrying o n lawful ac tivities . . .” This case is rem arkab ly similar to the case of State v. Creasy , 885 S.W.2d 829 (Tenn. Crim. App. 1994). In that cas e, as wellas the one sub judice , the def endan t claimed the use of obscenit y directed at poli ce officers cannot standing alone form the basis of a disord erly cond uct charg e. Id. at 831. This C ourt found thatobsce nity which does not amount to the use of “fi ghting words” is protec

ted speech under the feder al and state cons titut ions and cannot t herefore be proscribedby the d isorde rly condu ct statute. Id. Howe ver, the us e of obsc enity coupled with phys ically threate ning or viole nt beha vior may fo rm the b asis of a conviction for disorde rly condu ct. Id. at 832.

In the instant case, as i n Creasy , the record re flects that Ap pellan t not on ly cursed the police officer s, butactuall y struck Of ficer McDonal d. Such behavior is clearly

suffic ient to sustain a verd ict of gu ilty to the c harge of diso rderly condu ct.
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE-5-

CONCUR:

___________________________________ JOE B. JONES, PRESI DING J UDGE

___________________________________ J. CU RWOOD WITT, JR. JUDGE