*1 Utah, Plaintiff and STATE
Respondent, RICHARDS, Larry W. Appellant. Utah. Aug. 1989. Johnson, Legal A. Defender’s
Candice Office, City, Lake for defendant Salt appellant. Yocom, County Atty., E. Salt Lake
David Deputy County Atty., Salt Spikes, John N. respondent. City, plaintiff Lake BENCH, GARFF and Before JJ.
OPINION
GARFF, Judge: appellant, Larry Defendant and finding ards, appeals from a *2 police of interference with a Zina at that time. Zina testified that she arrest, making officer a lawful and disor- spoke through to open Bankhead win- derly conduct. dow, and told him that everything was alright. Both hearing officers denied this At p.m. about 10:15 on June comment. wife, Zina, neigh- went to her bors’, Stewarts’, the mobile home to use After spoke Richards Plotnik, to he be- telephone, stating having that she was gan to close the Plotnik, door. however, with husband. Both Mr. put his foot inside the doorway prevent and Mrs. testified that Stewart Zina was the door from closing. crying upset, and and had told them that Richards on LSD and that she was Testimony differs as to what occurred brother, afraid. Zina called Richards’s testified that Richards next. Both officers Brent, requested and that he come over. prevent his shoved Plotnik in the chest to The Stewarts asked Zina if she wished to entry further into the house. Witnesses police, call the she declined. testified that no such action for Richards later, About fifteen minutes Brent and Richards did not occurred and that strike brother, Bart, another arrived and accom- any way. Plotnik panied Zina back to her mobile home next room, pushed way Plotnik his into the later, father, door. A minutes Zina’s informed Richards that he was under ar- Deleon, time, argu- arrived. At that rest, electronically signalled and for his progress ment inwas between the brothers dog to enter the trailer. Bankhead en- accusing mobile Richards tered the trailer to assist having Brent of an affair with Zina. Stew- art, who remained in his house next again Bankhead told Richards that he Deleon, house, and who went Richards’s was under arrest. As Bankhead attempted testified that could hear raised voices arrest, to effect struggle ensued. shouting. but no attempted escape from Bank- Stewart asked Deleon if he grip by should call head’s pulling away his hands police. Deleon maybe answered that tensing grabbed his arms. He then a door he should. police. Stewart then called the knob an effort being to avoid hand- strike, cuffed. he did not threat- approximately At p.m., 11:26 uni- two en, or During melee, hit the officer. Valley police formed West Plotnik dog barking snapping. Even- Bankhead, arrived. Bankhead was in a tually, Richards, the officers subdued patrol police car and Plotnik in a ser- trailer, him, him out of shackled dog vice truck. The officers talked to transported jail. him to briefly, confirming Stewart that Stewart was concerned about Zina’s welfare. unlawfully police officer, As approached interfering the two officers trail- er, they arrest, heard raised voices inside and saw a officer a lawful arguing. They three men engaging described the in disorderly A jury men as off.” Neither concluded that Richards did not assault however, pushing, of the men Plotnik, but convicted him of shoving, fighting. with a lawful and disorderly arrest duct.
Plotnik knocked on the door of the trail- er. Richards answered the door. Plotnik (1) Richards raises appeal: two issues on responding told Richards that he was to a lawful, (2) was his warrantless arrest call, family fight and that he wanted to see was there sufficient evidence to find him responded Mrs. Richards. Richards guilty of disorderly conduct? problem was not a his wife was fine. The officers We review the described evidence of a response stressed, ards’s agitated, and verdict and all inferences that can be tense. Plotnik light testified that he did not see therefrom in the drawn most favor- Tolman, Richards, prevent in an effort to the verdict. State able to pushed Plotnik, entry, allegedly (Utah Ct.App.1989); See also him place caused Richards under arrest. (Utah Booker, 77-7-2(1) (1982)provides Petree, 1985) (quoting State v. may make an arrest 1983). such We reverse a warrant for a offense com without “only is so lack- when presence. attempted mitted or his *3 per- ing that a reasonable and insubstantial jury argues acquitted ards that because have that verdict son could not reached officer, assaulting of a ar beyond a reasonable doubt.” State v. and, therefore, rest he was was unlawful (Utah 1987) Walker, 191, 192 However, justified resisting in 555, (quoting State v. Isaacson significant we note that there is a differ (Utah 1985)). 557 quantum ence of between the evidence re
quired
required
for
conviction
probable
for
constitute sufficient
cause
A
INTERFERENCE WITH
arrest.
PEACE OFFICER
rulings
court’s
the dif-
The
...
illustrate
in
Plotnik and Bankhead were re
ference
and latitude allowed
standards
in
passing upon
distinct issues
complaint,
sponding to a domestic violence
in
probable
guilt.
a
cause
Guilt
dangerous,
potentially
vol
one of the most
proved
criminal
must be
a
case
confronting police.
situations
atile arrest
by
reasonable doubt and
evidence
upset, crying, and
reportedly
Zina
in
long experience
fined to that which
her husband
had
afraid of
because
crystal-
common-law tradition ... has
evening
that
had
earlier
into
consistent
lized
rules
using
allegedly been
LSD. After
he had
if
with that standard....
argument, he left. When he
the earlier
applica-
to be made
those standards were
later, Zina went to the Stewarts
returned
determining probable cause for
ble in
help.
for
She
her brother-in-law
call
seizure ...
arrest or for search and
to leave with her
testified that she wanted
in
the situations which
indeed would be
children,
afraid that there would
but was
protecting
charged
fight
over the children
law,
enforcing the
public
in
could
interest
her
them. The
ards
not let
take
would
toward that end.
action
take effective
arrival,
a con
police, upon their
Brinegar
(quoting
Ayala, 762 P.2d at
taking place, inside the trailer
frontation
States,
69 S.Ct.
U.S.
v. United
brothers,
Richards and his
between
(1949)).
verted as CONDUCT DISORDERLY alright, Bank- everything was both head disor they did not Plotnik testified that head and derly conduct, of Utah Code a violation Under make this statement. hear her 76-9-102(l)(b)(i) (1978): Ann. § circumstances, exigent Plotnik was these entering home. See in conduct justified A 77-7-2(3) (1982); State Ann. Code Utah § McIntire, P.2d Ct. (b) intending
v. or Ayala, or App.1989); State creating a risk thereof: (Utah Ct.App.1988). 1111-12 (i) engages fighting violent, (l) violent, m in engages fighting He or He or in tumultuous, behavior; tumultuous, or threatening behavior;
The evidence indicated that incident (iii) place He makes unreasonable noises evening took late hours place private which can be heard in a testimony residential area. There was public place. voices inside defendant’s trailer were “bois- terous,” and that three males inside the After a careful examination the entire “moving trailer could seen their arms” record, must conclude that the elements we off.” One witness testified alleged present. of this crime are not The that he could hear speaking someone loud- complains behavior of which State ly, “standing and could see two males nose place the confines of Richards’s home. witnesses, including testimony to nose.” There also All the two *4 that, although they “freaking out,” stated defendant appeared could hear voices and angry brothers were each other. going a confrontation on in the I believe the evidence “tumultu- indicates enough conversation was never loud to be ous or behavior” sufficient to understood and could not outside be classi- support charged. the offense “Where We, fied as “unreasonable noise.” there- evidence, including there is reasonable fore, conclude that there is no it, inferences that can from be drawn from any substance that would allow a reason- findings of all the elements of the person guilty able to find defendant crime can made a reasonable disorderly conduct. doubt, inquiry complete our is and we will We affirm Richards’s conviction for in- Gardner, sustain the verdict.” terfering peace with a a 101 Utah Adv.Rep. 3, (1989). would, I lawful arrest but reverse his conviction for therefore, affirm defendant’s conviction of disorderly conduct. We remand to the trial disorderly conduct. resentencing court accordance with opinion. J., concurs.
BENCH, Judge (concurring and dissenting): NEWSOM, Guymon
I concur the affirmance Billie defendant’s Richard McKe Newsom, Klein, conviction of a Stacy Newsom Ted Newsom, from the reversal of dy dissent defen- and Robert New Maurine som, dant’s conviction of I as heirs of the estate Ted New believe there is sufficient evidence som, Deceased, Appel Plaintiffs person would allow a reasonable find lants, defendant charged with, Defendant was and con- SERVICE, INC., GOLD CROSS dba Gold conduct, of, disorderly victed a violation of Cross Ambulance and Gold Cross Am 76-9-102(l)(b)(i) (1978). Service, bulance and Re require This subsection does not spondent. public place incident occur in a or that it noise,” implied by involve “unreasonable opinion. The merely the main subsection of Utah. provides of disorder- Aug. 31, 1989. ly conduct (b) Intending
creating a risk thereof: