COMMONWEALTH of Kentucky, Appellant, v. Christine JONES, Appellee.
No. 93-SC-356-DG.
Supreme Court of Kentucky.
April 21, 1994.
As Modified on Denial of Rehearing Sept. 1, 1994.*
David A. Friedman, General Counsel, American Civil Liberties Union of Kentucky, R. Gary Lowen, ACLU Cooperating Atty., Lowen & Norris, Louisville, for appellee.
REYNOLDS, Justice.
The Court of Appeals reversed a Jefferson Circuit Court order which affirmed a district court judgment of conviction of disorderly conduct. We reverse, as this is not solely a content of speech case.
Appellee was in attendance at the 1991 Pegasus Parade. It was Derby Week in Louisville, Kentucky, and General Schwarzkopf was performing as the Grand Marshal of the event. City Police Officer Phillips received a complaint from a mother, who was accompanied by four infant children, regarding appellee shouting obscenities at the military components of the parade. The officer investigated and then told appellee that such language was impermissible and to move out of the red-lined “safety zone” designated
525.060 Disorderly conduct
(1) A person is guilty of disorderly conduct when in a public place and with intent to cause public inconvenience, annoyance or alarm, or wantonly creating a risk thereof, he:
(a) Engages in fighting or in violent, tumultuous or threatening behavior; or
(b) Makes unreasonable noise; or
(c) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard or other emergency; or
(d) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.
(2) Disorderly conduct is a Class B misdemeanor.
Commentary to subsection (1)(b) prohibits unreasonable noise. “Reasonable” in this context depends upon the time, place, nature and purpose of the noise. “Unreasonable” was preferred over “loud” because loud noises may be appropriate in some places and on some occasions.
The rule of appellate review of a criminal conviction has long been that the verdict of a jury must be sustained if there is substantial evidence to support it, taking the view most favorable to the Commonwealth. Colten v. Commonwealth, Ky., 467 S.W.2d 374 (1971), aff‘d., 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); Little v. Commonwealth, 209 Ky. 475, 158 S.W.2d 955 (1941); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). As explained by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979):
But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” ... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the fact-finder‘s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law.
“The ... [reviewing] court does not have authority to consider matters on appeal de novo. The ... court acting as an appellate court cannot reevaluate the evidence or substitute its judgment as to the credibility of a witness for that of the trial court and the jury.” Commonwealth v. Bivins, Ky., 740 S.W.2d 954, 956 (1987). There was sufficient evidence before the jury for a determination of “unreasonable noise” as Officer Phillips testified as to appellee‘s volume of speech being greater than a normal speaking voice.
We also consider Jones‘s conviction in light of
The evidence adduced at trial was sufficient to submit this case to the jury as to a violation of either or both of the statutory subsections, and to denote that a criminalization of speech did not occur. Such evidence, to a jury, was sufficient to substantiate that Jones‘s speech served no legitimate purpose and that such “action” resulted in the creation of the “hazardous or physically offensive condition.” The content of the noise, however distasteful, is not punishable. Some of the key elements may be public inconvenience, alarm or annoyance. As the parties concede, the constitutionality of the statute is not at issue for, on its face, it rises to meet constitutional measurements. Herein, there is a distinguishing difference from the case of Musselman v. Commonwealth, Ky., 705 S.W.2d 476 (1986).
The opinion of the Court of Appeals is reversed and the Jefferson District Court judgment is affirmed.
STEPHENS, C.J., and LAMBERT, LEIBSON, SPAIN and WINTERSHEIMER, JJ., concur.
STUMBO, J., dissents by separate opinion.
STUMBO, Justice, dissenting.
I must dissent. I would affirm the decision of the Court of Appeals. As noted in the commentary to
The majority opinion notes that appellant was convicted under either subsection (b) or (d) of
The commentary specifically notes that the term “[u]nreasonable was preferred over loud because loud noises may be appropriate in some places and on some occasions.”
Subsection (1)(d) prohibits the creation of “a hazardous or physically offensive condition by any act that serves no legitimate purpose.” I simply cannot envision how yelling at a parade could conceivably create either, unless the content of what is yelled is considered. As the majority correctly noted, “[t]he
I would affirm.
* Stephens, C.J., Lambert, Leibson, Reynolds and Spain, JJ., concur. Wintersheimer, J., would further modify the opinion by deleting the word “content” in column 1, line 6 of p. 546. Stumbo, J., would grant the petition.
LEIBSON, J., joins in this opinion.