State v. Ellie May Morse, 219 A.3d 1309

Background

In Aug. 2014 police responded to a disturbance involving defendant’s teenage sons outside adjacent motels; officers followed the sons to the motel where defendant was staying.
Defendant loudly yelled and swore at officers, stepped in front of them to block entry, and then raised an arm as an officer tried to move past her.
An officer grabbed her arm, spun her, and attempted to handcuff her; she struggled and her cigarette contacted the officer’s forearm; she was arrested.
Defendant was tried by jury on simple assault (acquitted), disorderly conduct (convicted), and resisting arrest (convicted).
At the jury-charge conference defense counsel expressly agreed to an instruction that "tumultuous behavior" could be established by "statements and words" alone; the court gave that instruction.
On appeal defendant argued (1) disorderly conduct cannot rest on speech alone (invited error/waiver issue), and (2) the arrest lacked probable cause so the resisting-arrest conviction must be vacated as fruit of an illegal arrest.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant waived challenge to disorderly-conduct instruction	State argued defense counsel agreed to the "statements and words" instruction at trial, so defendant cannot now challenge it	Morse argued the statute criminalizes behavior, not speech, so conviction based on words alone is erroneous	Court held defendant waived the challenge under the invited-error doctrine because defense counsel endorsed the instruction at trial
Whether speech alone can constitute "tumultuous behavior" for disorderly conduct	State maintained the instruction as given was permitted and supported by testimony	Morse contended disorderly conduct requires more than protected speech; conviction was based entirely on statements	Court assumed for argument that defendant’s statutory reading might be correct but declined relief due to waiver
Whether officer had probable cause to arrest for disorderly conduct	State argued totality of circumstances (loud, boisterous swearing plus physical blocking and raising arm) provided probable cause	Morse argued arrest flowed from a charge that impermissibly rested on speech and thus lacked probable cause	Court held objectively there was probable cause based on loud, obstructive behavior, making the arrest lawful and upholding resisting-arrest conviction
Whether resisting-arrest conviction must fall if disorderly-conduct arrest was unlawful	State argued probable cause existed, so resisting-arrest valid	Morse argued resisting charge was fruit of an illegal arrest and must be vacated	Court rejected this; because arrest was lawful (probable cause), the resisting conviction stands

Key Cases Cited

State v. Longe, 743 A.2d 569 (1999) (invited-error doctrine bars appellate review where party induced the ruling)
United States v. Olano, 507 U.S. 725 (1993) (waiver and invited error principles)
State v. Amsden, 75 A.3d 612 (2013) (disorderly conduct conviction sustained for violent/chaotic physical acts)
State v. Lund, 475 A.2d 1055 (1984) (disorderly conduct for boisterous conduct that impeded officer and included physical resistance)
Illinois v. Gates, 462 U.S. 213 (1983) (probable cause is a practical, totality-of-the-circumstances inquiry)