County Criminal Court: CRIMINAL LAW- Evidence- DISORDERLY CONDUCT-the only evidence presented was that appellant yelled, cussed or used abusive language-no evidence that the words used were “fighting words” or words that would tend to incite an immediate breach of the peace- the state failed to present any evidence that appellant engaged in any physical conduct toward the alleged victim-no other evidence that appellant breached the peace or otherwise incited others to act. Evidence insufficient to support the disorderly conduct conviction . Order reversed.  McKenna v. State, 052887CFAES (Fla.6h Cir. App. Ct. April 12, 2007).

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

LAURY ANN MCKENNA,

Appellant,

v.

STATE OF FLORIDA, Case No: 052887CFAES

Appellee. Lower No: 0407134MMAWS

________________________/

Appeal from Pasco County Court

County Judge Debra Roberts

Frank D.L. Winstead, Esq.,

for Appellant

Michael J. Harris, Esq. A.S.A.

for Appellee

ORDER AND OPINION

On October 1, 2004, appellant was charged with disorderly conduct, a second degree misdemeanor, in violation of section 877.03, Florida Statutes. A non jury trial was held, and at the conclusion of all of the evidence and closing arguments, the trial court found appellant guilty as charged. Appellant sought timely appellate review. This Court reverses the decision of the trial court.

At trial, the state introduced three witnesses who testified that appellant McKenna yelled or screamed at Brittany Holacik, a fifteen year old neighbor across the street. The evidence adduced at trial was that Holacik was playing basketball on her driveway with friends. At some point, the ball landed on appellant’s property, and she began to yell ‘abusive language’ at Holacik, from across the street, yelling such things as “fat pig…you fat little girl” and fat bitch.” Although there was testimony that the appellant ran out into her own driveway while yelling and flailing her arms, with Holacik a couple of feet away; there was no evidence that appellant ever left her property or did anything physical to Holacik. In fact, Holacik testified that appellant stayed on her property during the incident; about ten feet away from her. When asked if she was moving at all or doing anything, Holacik explained she was “just like standing out there screaming.” Holacik testified that after about twenty to thirty minutes she “just gave up” and went inside because appellant would not stop yelling. She was not afraid of appellant but just wanted her to stop screaming and yelling and calling her mean names.

Both Holacik and her mother, Kaman, testified that about five or six neighbors came out of their homes while appellant was yelling; however, Kaman testified that she did not talk with the neighbors who came out and she did not know whether they were disturbed or not. The only evidence presented was that “they saw what was going on…heard all the yelling and screaming and then they beelined it back into their house and closed the door.” The investigating officer, Deputy Nobles, testified that he spoke with neighbors during the investigation but there were no witnesses to the incident or anyone who had any relevant testimony.

Appellant made a motion for judgment of acquittal after the close of all the evidence. After argument, the court denied the motion, finding that appellant did, in fact, say something to Holacik and the state proved its case beyond a reasonable doubt. The court went on to state “{Holacik} says she couldn’t even play basketball because {the defendant was} carrying on so much. That’s a breach of the peace.” The court found appellant guilty of disorderly conduct. This court finds the trial court erred.

Florida Statute 877.03 provides:

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, …

As argued by appellant, the Florida Supreme Court, in State v. Saunders, 339 So. 2d 641 (Fla. 1976), narrowed the scope of the conduct that may be punished under section 877.03, concluding that the statute applies only to “words which ‘by their very utterance …inflict injury or tend to incite an immediate breach of the peace’ …or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others.” Id. (quoting White v. State, 330 So. 2d 3, 7 (Fla. 1976)). Absent one of these two circumstances, section 877.03 “should not be read to proscribe the use of language in any fashion whatsoever.” Id. Thus, words alone cannot constitute disorderly conduct unless they are “fighting words” or “words like shouts of ‘fire’ in a crowded theatre.” Id.

In Barry v. State, 934 So. 2d 656 (Fla. 2d DCA 2006), the Second District Court of Appeal reversed a disorderly conduct conviction. The Court noted that “[c]onsidering the statute as limited by Saunders, it is clear that speech alone will not generally support a conviction for disorderly conduct.” In this case, the only evidence presented by the State was that appellant yelled, cussed or used abusive language. No evidence was presented that the words used by appellant were “fighting words” or words that would tend to incite an immediate breach of the peace. Similarly, although the Court in Barry noted that protected speech can be rendered unprotected by a defendant’s additional physical actions, the state failed to present any evidence that appellant engaged in any physical conduct toward the alleged victim, Holacik. In fact, the evidence reflects the opposite is true. Specifically, Holacik acknowledged appellant was not doing anything physical and, in fact, did not leave her own property. Moreover, Holacik was not afraid and continued to play basketball while appellant was yelling. Lastly, there was no other evidence that appellant breached the peace or otherwise incited others to act. At most, the state proved some neighbors came out of their homes because they were curious. However, curiosity alone is not enough. As the Second District noted in Barry,

. . . the mere fact that other people come outside or stop to watch what is going on is insufficient to support a conviction for disorderly conduct. Instead, there must be some evidence that the crowd is actually responding to the defendant’s words in some way that threatens to breach the peace.

(citations omitted).

Moreover, the state’s evidence reflects that Holaciks’s mother, Kaman, testified that she did not know whether or not these neighbors were disturbed; and Deputy Noble testified the neighbors were interviewed and there were no witnesses to the incident or anyone who had any relevant testimony. Thus, this court finds the evidence insufficient to support the disorderly conduct conviction. See C.P. v. State, 644 So. 2d 600 (Fla. 2d DCA 1994)(evidence insufficient to support disorderly conduct conviction where defendant’s language did not constitute fighting words and was protected by First Amendment and there was no evidence that public was disturbed or that defendant’s words incited immediate breach of the peace.)

Therefore, it is,

ORDERED AND ADJUDGED that the decision of the trial court is REVERSED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of March, 2007.

________________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

____________________

Daniel D. Diskey

Circuit Judge

______________________

Stanley R. Mills

Circuit Judge

Copies furnished to:

Judge Debra Roberts

Frank D.L. Winstead, Esq.

Michael Harris, Esq. A.S.A.