Johnson v. State

SAM BIRD, Judge.

Chon Lonell Johnson was convicted in Little Rock Municipal Court of misdemeanor terroristic threatening, resisting arrest, disorderly conduct, and public intoxication. He appealed to circuit court and was convicted of failure to submit to arrest and disorderly conduct, for which he was given probation and fines. On appeal he argues that the evidence was insufficient to support the conviction of disorderly conduct. "We affirm.

Two Jacksonville police officers testified at the trial. Officer Mark Swagerty testified that he was patrolling May Í, 1998, about 11:30 p.m., when he saw Johnson standing on the corner. As the police car approached him, Johnson became more and more nervous, started pacing, and looking back at the patrol unit. When the police car stopped and Swagerty asked Johnson’s name, he said Johnson yelled, “Why are you f_harassing me?” Officer Swagerty said he did not know Johnson but he had heard of him, and for that reason he called for backup. Swagerty said Johnson smelled of alcohol and was standing in the roadway shouting, cursing, and gesturing in a violent manner.

Officer Thomas Mayberry testified that he knew Johnson and, when he arrived, he immediately began to try to talk Johnson down, hoping to calm him. He said Johnson was flailing his arms around, yelling, and cursing. At one point Johnson took an aggressive stance toward Officer Swagerty, stripped off his shirt, and clenched his fists. Officer Mayberry said he maintained his distance from Johnson because of his prior experiences with him. Two other officers were called to assist.

Mayberry said he was still trying to talk Johnson down, with little success, when Johnson began walking toward a house. Johnson was told to come back to the street, but he kept going. The officers followed, and as soon as Mayberry got close enough, he sprayed Johnson with pepper spray. Johnson then wrapped his arms around a post on the porch, and it took all four officers and hitting Johnson in particularly fleshy-tissue pressure-control spots to make him loosen his grip. The officers finally got Johnson on the ground and handcuffed him.

Johnson testified that he had been visiting his aunt when he got a page from his girlfriend who told him she was stranded on Valentine Road. He said that he had called a taxi, and that when Officer Swagerty first encountered him, he was simply waiting outside his aunt’s house for the taxi. Johnson denied that he was violent, unruly, cursing, belligerent, or that he had tried to flee. He insisted that he spoke calmly to the officers and explained to them that he had an emergency situation with his daughter (earlier he had said his girlfriend) and that he was trying to" get to her and help her. During cross-examination, he admitted that he had been convicted during the past ten years of aggravated assault on a police officer.

Johnson’s great-aunt testified that it was her house to which Johnson had retreated, that he had been visiting her when he was paged, and that he had immediately called a taxi. She testified that Johnson is partially paralyzed from a previous gunshot wound, and that she tried to get the officers to stop hitting him and let her talk to him, but they would not. They told her to go back inside the house.

The trial court found Johnson guilty of disorderly conduct for cursing the officers in a public place, standing in the street shouting, flailing his arms around, cursing, and yelling, and stripping off his shirt and making a fist while taking an aggressive stance against Officer Swagerty. Arkansas Code Annotated section 5-71-207 (Repl. 1997) provides in pertinent part:

(a) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk thereof, he:

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

(2) Makes unreasonable or excessive noise; or

(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response or....

On appeal, Johnson argues that the evidence was insufficient to support his conviction for disorderly conduct. We find that the evidence is sufficient to support the conviction, and we affirm.

When the sufficiency of the evidence is being challenged on appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence that tends to support the verdict. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997); Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). The evidence, whether direct or circumstantial, must be of sufficient force that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). We do not weigh the evidence on one side against the other; we simply determine whether the evidence in support of the verdict is substantial. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Neither do we pass on the credibility of witnesses. That duty is left to the trier of fact. Mann v. State, 291 Ark. 4, 722 S.W.2d 268 (1987).

The dissenting opinion strains in its attempt to suggest that the trial court’s only basis for finding Johnson guilty on the charge of disorderly conduct was that Johnson cursed the police officers. This suggestion is simply not supported by the record. While it is true that Mayberry testified that the “cursing out loud in the street was the basis of this disorderly conduct charge,” in determining Johnson’s innocence or guilt on that charge, the court was not obligated to limit its inquiry to only the evidence that, in Officer Mayberry’s opinion, was sufficient to charge Johnson with that offense. It is clear from the record that Johnson’s crude inquiry to Officer Swagerty during their initial encounter was only a small part of the conduct on Johnson’s part that the court considered in determining whether Johnson had committed disorderly conduct. Officer Mayberry testified that when he arrived on the scene, Johnson was “flailing his arms around, yelling, cursing,...” and that while he tried to talk to Johnson in an effort to calm him down, Johnson took off his shirt and clenched his fists, action that he recognized as “preassaultive cues” on Johnson’s part. All of this conduct by Johnson can be fairly characterized as conduct that is prohibited by Ark. Code Ann. § 5-71-207 (a)(1), (2), and (3).

When the evidence is considered in the light most favorable to the State, as we are required to do, the officers’ testimony supports the trial court’s finding that Johnson violated sections one, two, and three, of the disorderly conduct statute, because he engaged in threatening or tumultuous behavior, because he made unreasonable or excessive noise, and because he, in a public place, used abusive or obscene language in a manner likely to provoke a violent or disorderly response.

Affirmed.

KOONCE and STROUD, JJ., agree. Robbins, C.J., concurs. Neal and Griffen, JJ., dissent.