FILED

January 29, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9701-CR-00042

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. CHRIS CRAFT

FRANK E. BRADFORD, ) JUDGE

)

Appellant. ) (Direct Appeal-Disorderly Conduct)

FOR THE APPELLANT: FOR THE APPELLEE:

EDWARD THOMPSON JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

Shelby County Public Defender’s

Office CLINTON J. MORGAN

Memphis, TN 38103 Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243

WILLIAM L. GIBBONS

District Attorney General

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

Appellant, Frank E. Bradford, was convicted of the offense of disorderly

conduct in violation of Tennessee Code Annotated Section 39-17-305. He was

sentenced to serve thirty days in the Shelby County Correctional Center. In this

appeal he alleges that the evidence is insufficient to support the verdict.

After a review of the record we find there is sufficient evidence to support

the verdict and we affirm the judgment of the trial court.

FACTUAL BACKGROUND

On May 16, 1995, Memphis Police Officer Gregory Quinn and his partner

Officer Tracy McDonald were on patrol in Jefferson Davis Park located in

downtown Memphis. Around 5:00 p.m. Quinn and McDonald observed appellant

lying on a park bench with a bottle of beer and a backpack. The officers advised

Appellant he could not drink in the park and that he had to leave. Appellant

responded with an obscenity and the officers informed him he was under arrest.

As Officer McDonald attempted to handcuff Appellant, he punched her in the

chest. Quinn grabbed Appellant while McDonald sprayed him with pepper spray.

Appellant was finally handcuffed and transported to jail.

The beer bottle Appellant had been holding had been opened and part of

the contents were missing. Although Appellant smelled of alcohol the officers did

not think he was drunk. Officer Quinn stated that although the park was open to

the public at the time Appellant was approached by the officers, there is a city

ordinance which prohibits drinking in the park.
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SUFFICIENCY OF THE EVIDENCE

When an accused challenges the sufficiency of the convicting evidence,

this Court must review the record to determine if the proof adduced at the trial is

sufficient to support the findings by the trier of fact of guilt beyond a reasonable

doubt. T.R.A.P. 13(e). We do no reweigh or re-evaluate the evidence and are

required to afford the State the strongest legitimate view of the proof contained

in the record as well as all reasonable and legitimate inferences which may be

drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of witnesses, the weight and value to be

given to the evidence, as well as factual issues raised by the evidence are

resolved by the trier of fact, not this Court. Cabbage, 571 S.W .2d 832, 835. A

guilty verdict rendered by the jury and approved by the trial judge accredits the

testimony of the witnesses for the State, and a presumption of guilt replaces the

presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

Although this case involved a bench trial, the findings of the trial judge who

conducted the proceedings carry the same weight as a jury verdict. State v. Tate,

615 S.W .2d 161, 162 (Tenn. Crim. App. 1981).

Disorderly conduct is defined as follows at Tennessee Code Annotated

Section 39-17-305:

(a) A person commits an offense who, in a public place and with intent to

cause public annoyance or alarm:

(1) Engages in fighting or in violent or threatening behavior;

(2) Refuses to obey an official order to disperse issued to maintain

public safety in dangerous proximity to a fire, hazard or other

emergency; or

(3) Creates a hazardous or physically offensive condition by any act

that serves no legitimate purpose.

(b) A person also violates this section who makes unreasonable noise

which prevents others from carrying on lawful activities.

(c) A violation of this section is a Class C misdemeanor.
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The State indicted Appellant in a three count indictment for violation of this

statute. The indictment alleged that Appellant with the requisite intent to cause

public annoyance did:

Count 1: “. . . engage in threatening behavior . . .”

Count 2: “ . . . create a physically offensive condition by acts that served

no legitimate purpose. . .”

Count 3: “. . . make unreasonable noise which prevented others from

carrying on lawful activities . . .”

This case is remarkably similar to the case of State v. Creasy, 885 S.W.2d

829 (Tenn. Crim. App. 1994). In that case, as well as the one sub judice, the

defendant claimed the use of obscenity directed at police officers cannot standing

alone form the basis of a disorderly conduct charge. Id. at 831. This Court found

that obscenity which does not amount to the use of “fighting words” is protected

speech under the federal and state constitutions and cannot therefore be

proscribed by the disorderly conduct statute. Id. However, the use of obscenity

coupled with physically threatening or violent behavior may form the basis of a

conviction for disorderly conduct. Id. at 832.

In the instant case, as in Creasy, the record reflects that Appellant not only

cursed the police officers, but actually struck Officer McDonald. Such behavior

is clearly sufficient to sustain a verdict of guilty to the charge of disorderly

conduct.

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

J. CURWOOD WITT, JR. JUDGE