Davenport v. State , 184 Ga. App. 214 ( 1987 )

Birdsong, Chief Judge.

Renita Davenport was convicted of abusive and obscene language. See OCGA § 16-11-39. She was sentenced to twelve months suspended upon the payment of a $150 fine. She brings this appeal enumerating as the sole error the denial of her motion for a directed verdict of acquittal. Held:

In substance Ms. Davenport does not dispute the sufficiency of the evidence to show she uttered abusive and obscene language in a dispute with a security guard in a K-Mart store. In fact, the evidence is compelling that she did in fact use opprobrious language. In its accusation, the State alleged that Ms. Davenport used such language to and of the security officer. It is clear that Ms. Davenport did not use opprobrious language or epithets concerning the officer but it equally is clear that by her language and actions to him she invoked violence against herself and provoked passions in bystanders.

We first recognize that there are well defined and narrowly limited classes of speech which may be prevented and punished if used and if punished raise no constitutional problem. Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (62 SC 766, 86 LE 1031). One such class of speech pertains to insulting or fighting words, those by which their very utterance tend to incite an immediate breach of the peace. In determining if words uttered are such as to incite an immediate breach of the peace, it is not necessary that the State prove the effect of the words upon a particular individual; that is, whether the individual to whom the words were addressed or in whose presence the words were spoken was incited to hostile action. OCGA § 16-11-39 (1) makes no distinction between the types of persons to whom the words are uttered. Moreover, the fact that the addressee admits he is used to hearing this type of language is not a defense. Bolden v. State, 148 Ga. App. 315, 316 (2) (251 SE2d 165). Applying these tests to the case sub judice, the words used were likely to and did provoke violence and raised hostility in the minds of other customers in the store. This reaction meets the test required to sustain a conclusion the words were indeed “fighting” words. See Johnson v. State, 143 Ga. App. 826 (240 SE2d 207). See also Brooks v. State, 166 Ga. App. 704, 705 (305 SE2d 436).

The fact that the accusation was phrased in the conjunctive and the trial court charged in the language of the statute does not necessarily create confusion in the mind of the jury nor allow conviction of a crime not charged. See Minter v. State, 170 Ga. App. 801, 802 (318 SE2d 226). The accusation charged Ms. Davenport with using “fighting” words to the security officer, proved such words caused a disturbance and that there was no adequate provocation for the use of those words. The fact that the accusation also expressed in the language of the statute that Ms. Davenport spoke such words “of’ him, did not harm appellant on grounds there was no evidence to support the commission of the offense in that manner but there was evidence to support the allegation of fighting words to the officer. See Laboon v. State, 84 Ga. App. 784 (4) (67 SE2d 149). We are not faced in this case with the situation of a particular and limited form of a crime being alleged but the charge of the court allows a jury to consider the evidence to convict of a crime not charged. See Walker v. State, 146 Ga. App. 237 (246 SE2d 206). Nor are we faced with the situation as in Dinnan v. State, 253 Ga. 334 (320 SE2d 180) where the charge of the court authorized the conviction of provoking language without regard as to location or circumstances in which the language occurred.

The grant of motion for directed verdict of acquittal is proper only in those cases where there is no conflict of fact and the evidence demands a verdict of not guilty. There is no ground or basis for such a verdict in this case. See Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436); Clark v. State, 180 Ga. App. 280, 281 (1) (348 SE2d 916). Though the evidence was in conflict, the evidence in support of the conviction was sufficient to enable a rational trier of fact to find guilt of provoking words beyond reasonable doubt. Jackson v. Virginia, 433 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Deen, P. J., and Pope, J., concur. Deen, P. J., also concurs specially.