State v. Kling , 845 N.W.2d 639 ( 2013 )

Filed 12/4/13 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2013 ND 223

State of North Dakota, Plaintiff and Appellee

v.

Kary Gene Kling, Defendant and Appellant

No. 20130103

Appeal from the District Court of Divide County, Northwest Judicial District, the Honorable Joshua B. Rustad, Judge.

AFFIRMED.

Per Curiam.

Elizabeth L. Pendlay, State’s Attorney, P.O. Box 289, Crosby, N.D. 58730-

0289, for plaintiff and appellee.

Erin M. Conroy, P.O. Box 137, Bottineau, N.D. 58318, for defendant and appellant.

State v. Kling

No. 20130103

Per Curiam.

[¶1] Kary Kling appealed from a criminal judgment entered after a jury found him guilty of disorderly conduct.  On appeal, Kling argues the evidence was insufficient to sustain his conviction and his conviction was based on speech protected by the First Amendment of the United States Constitution.  We conclude Kling’s speech was not constitutionally protected under the circumstances and there was sufficient evidence to sustain his conviction.  We affirm the judgment under N.D.R.App.P. 35.1(a)(3) and (7).   See In re A.R. , 2010 ND 84, ¶¶ 9, 12, 781 N.W.2d 644 (fighting words are not protected speech and conduct accompanying speech should be considered); State v. Bornhoeft , 2009 ND 138, ¶ 11, 770 N.W.2d 270 (a violation of the disorderly conduct statute does not depend only on the content of the speech, but on the behavior and circumstances).

[¶2] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

Daniel J. Crothers

Mary Muehlen Maring

Carol Ronning Kapsner