State v. MentionState v. Mention
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After a trial to the court, the defendant was found guilty of creating a public disturbance in violation of General Statutes § SSa-lSla1 and simple tres
The underlying facts are not in dispute. The defendant was standing with his friends in a busy passageway of the food court in the Chapel Square Mall in New Haven. The defendant was asked by a private security guard, employed by the mall, to move along. In response, the defendant verbally attacked the security guard using vile language. He assumed a posture appropriate for a search and arrest and challenged the security guard to arrest him. The director of security testified that the confrontation between the defendant and the security guard was loud enough to attract his attention from some distance. The director of security also asked the defendant to move along. The defendant responded by verbally attacking the director of security and challenging the director to arrest him. The security guard and the director of security testified that a crowd gathered as a result of the defendant’s con
The defendant’s claims logically fall into two distinct categories: those which address the charge of simple trespass and those which address the charge of creating a public disturbance.
I
The defendant raises three claims of error relating to his conviction for simple trespass: (1) that the Connecticut constitution requires a trial by jury for the crime of simple trespass; (2) that the simple trespass statute,
The defendant in this case was a business invitee. Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971). A business invitee is not required to make a purchase. The mere possibility that he will make a
“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt ‘does not require a court to “ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt.” ’ (Emphasis in original.) (Citation omitted.) Jackson v. Virginia, [443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)]. ‘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. See Johnson v. Louisiana, 406 U.S. [356, 362,
II
The defendant raises three claims of error relating to his conviction for creating a public disturbance: (1) that the state constitution requires a trial by jury for creating a public disturbance; (2) that words and conduct for which the defendant was convicted are protected speech under the state and federal constitutions;
The defendant’s first claim of error is that the trial court erred in denying him a jury trial on the charge of creating a public disturbance in violation of
The defendant’s second claim of error is that his speech and conduct at the time of his arrest were protected under the Connecticut and United States constitutions. We disagree.
According to the record, the defendant refused to move and responded “Go ahead, arrest me.” The defendant then spread his arms and legs and leaned against
Addressing this issue in State v. Beckenbach, 1 Conn. App. 669, 678, 476 A.2d 591 (1984), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985), we stated: “Fighting words, in constitutional parlance, are those which are inherently inflammatory; Street v. New York, 394 U.S. 576, 592, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969); and are directed at a particular individual or group. Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 29 L. Ed. 2d 284, reh. denied, 404 U.S. 876, 92 S. Ct. 26, 30 L. Ed. 2d 124 (1971). . . . They are ‘those which touch the raw nerves of one’s sense of dignity, decency, and personality and which, therefore, tend to trigger an immediate violent reaction.’ State v. Hoskins, [35 Conn. Sup. 587, 590, 401 A.2d 619 (1978).]”
In Beckenbach, the defendant made repeated vile verbal attacks on two Danbury police officers and a Western Connecticut State College security guard. The defendant continued his verbal attack on the police offi
More recently we found that an abusive verbal attack on police officers on a public street was not constitutionally protected speech. State v. Weber, 6 Conn. App. 407, 414-15, 505 A.2d 1266 (1986). Neither Beckenbach, supra, nor Weber, supra, articulates a requirement that “fighting words” be accompanied by an actual threat of physical force against a particular person, nor is such a requirement articulated by Chaplinsky v. New Hampshire, supra. To the contrary, “ ‘[rjesort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no questions under that instrument.’ ” Chaplinsky v. New Hampshire, supra, 572, quoting Cantrell v. Connecticut, 310 U.S. 296, 309-310, 60 S. Ct. 900, 84 L. Ed. 213 (1940). The United States Supreme Court has recently affirmed the “fighting words” exception to protected speech in Bose Corporation v. Consumers Union of the United States, 466 U.S. 485, 505, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984).
We find nothing in the record which distinguishes the facts of this case from Weber, supra, and Beckenbach, supra. In both of those cases the defendant verbally attacked particular individuals with vile language. In none of these cases was the defendant provoked or protesting his arrest. Nor was there any political content
We find that the absence of error on the issue of protected speech leaves little merit to the defendant’s final claim that there was insufficient evidence for the trial court’s judgment that the defendant was guilty of creating a public disturbance. The defendant’s claim that there was insufficient evidence to convict him for creating a public disturbance depends primarily on his argument that his speech and conduct were constitutionally protected. The defendant contends that his speech and conduct were not sufficiently provocative to constitute “fighting words.” He relies in part on Terminiello v. Chicago, 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 (1948); and State v. Anonymous (1976-9), 33 Conn. Sup. 93, 363 A.2d 772 (1976).
In Terminiello v. Chicago, the defendant gave a political speech. The United States Supreme Court found that speech protected because it contributed to the “free debate and free exchange of ideas . . . .” Id., 4. In State v. Anonymous (1976-9), supra, the defendant was selling “communist” propaganda in a parking lot. In the present case there was no political content to the defendant’s speech or his conduct. Rather, the defendant’s speech and conduct served no purpose other than to challenge the security guard and the director of security at the Chapel Square Mall.
The evidence presented in this case far exceeds the standard articulated by State v. Duhan, supra. The evidence demonstrated that every effort was made by the security officer and the director of security to avoid a confrontation with the defendant by asking him to move along. The defendant refused to move and challenged the security personnel both verbally and by his conduct. This confrontation occurred in a busy public location.
The record supports the trial court’s conclusion that the defendant was “either intentional or reckless,” State v. Duhan, supra, 356, in his conduct as required by
There is error in part, the judgment of conviction of simple trespass is set aside and the case is remanded with direction to render judgment for the defendant on the simple trespass count.
In this opinion the other judges concurred.
Notes
“(b) Creating a public disturbance shall be an infraction.”
“(b) Simple trespass shall be an infraction.”
The state concedes that there is insufficient evidence upon which to uphold the defendant’s conviction of simple trespass.