Bailey v. State

• Decision Date: 09 July 1998
• Docket Number: No. CR,CR
• Parties: James Doyle BAILEY, Appellant, v. STATE of Arkansas, Appellee. 97-1442.
• Court: Arkansas Supreme Court

Page 239

972 S.W.2d 239

334 Ark. 43

James Doyle BAILEY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 97-1442.

Supreme Court of Arkansas.

July 9, 1998.

[334 Ark. 46] Louis A. Etoch, Helena, for Appellant.

Winston Bryant, Atty. Gen., Kelly S. Terry, Asst. Atty. Gen., Little Rock, for Appellee.

ARNOLD, Chief Justice.

The appellant, James Doyle Bailey, was convicted in Monroe County Circuit Court of resisting arrest, disorderly conduct, and public intoxication, and was ordered to pay fines totaling $625.00. Among Mr. Bailey's four arguments on appeal is his contention that the disorderly conduct statute, Ark.Code Ann. § 5-71-207 (Repl.1997), is unconstitutional as written and as applied to him under the First Amendment of the United States Constitution. Thus, our jurisdiction is pursuant to Ark. Sup.Ct. 1-2(b)(3) and (6) (1998). We find no merit to Mr. Bailey's allegations of error and affirm the trial court's judgment.

At approximately 12:30 a.m. on October 27, 1996, Mr. Bailey and his girlfriend, Brenda Brock, were involved in a one-vehicle accident near Mr. Bailey's apartment in Brinkley. Shortly after the accident, Brinkley Police Officer Bill Geater went to Mr. Bailey's residence to investigate a report of the wreck. He observed a damaged vehicle in the driveway and found Mr. Bailey sitting outside on the concrete steps leading up to the front porch of his apartment. Ms. Brock emerged from the residence at Officer Geater's request, but went back inside when Arkansas State Trooper Ricky Newton arrived. Officer Geater followed her inside and brought her back out. According to Officer Geater, "Mr. Bailey was cussing me at this time. He was on the front porch. He mainly called me MF or SB. I asked him to be quiet." In the meantime, Brinkley Police Officer Ed Randle had arrived. Officer Randle testified that, when he approached the steps, Mr. Bailey

stood up and grabbed me by the upper part of my arm, the biceps. Mr. Bailey said some profane things to me and told me to leave his friend alone. I told him to sit down and be quiet. He did sit down and be quiet.

Trooper Newton testified that the officers were tending to Ms. Brock when Mr. Bailey "starting getting belligerent." Mr. Bailey "first said something in the form of 'You all get the hell away from here and leave us alone.' " Trooper Newton, who observed that Mr. Bailey was intoxicated, responded by asking him to quiet down.

The officers took Ms. Brock to the street in front of Trooper Newton's patrol car to examine her. According to Officer Geater, Mr. Bailey remained on the porch, but "continu[ed] to use profanity at us. I told him several times to be quiet and let us conduct our investigation." Trooper Newton testified that Mr. Bailey stated at this point, "Fuck you, nigger, and fuck you, too." Officer Randle testified that Mr. Bailey became "very loud and profane with his language." It was Officer Geater instructed Mr. Bailey, who was sitting on the front steps, to stand up and put his hands on the banister. It was Officer Geater's intention to place handcuffs on Mr. Bailey and pat him down to check for weapons. However, Mr. Bailey, who continued to direct profanity at the officers, "stiffened up and decided he wasn't going to be cuffed." Trooper Newton, who was dealing with Ms. Brock, came over to assist Officer Geater. According to Trooper Newton, Mr. Bailey had his right arm "in firm control where Officer Geater could not budge it." Trooper Newton then put Mr. Bailey's left arm in an arm lock behind his back. When Officer Geater still could not get Mr. Bailey's right arm behind his back, Trooper Newton told Officer Geater that they needed to "take him to the ground." Officer Randle then came over, held Mr. Bailey from behind, and used his foot to take him off his feet as the other two officers held his arms.

Officer Geater's testimony that, after telling him "eight or ten times to quiet down," he walked up to Mr. Bailey and told him that he was under arrest for disorderly conduct and public intoxication.

All four men fell to the ground, and Mr. Bailey still continued to struggle. He began to swing at the officers with his arms. At times, he would put his arms underneath his chest so that the officers could not handcuff them. When the officers were still unable to handcuff Mr. Bailey, Trooper Newton instructed the other two officers to "roll off" so that he could spray him with pepper spray. Trooper Newton used the pepper spray, and Officer Randle sprayed Mr. Bailey with a chemical foam. Neither chemical had effect on Mr. Bailey, who simply "shook his head like that and looked at us and said fuck you and came off the ground again." After the officers put Mr. Bailey on the ground once more, he "was just flailing away with his arms." This time, Trooper Newton used his police baton to try to pry Mr. Bailey's right arm free so that it could be handcuffed. After Mr. Bailey's right arm was finally secured, he was still "flaying away with his left arm trying to get back up." After "a lot of wrestling and rolling around on the ground," according to Officer Geater, they were finally able to handcuff Mr. Bailey.

The struggle continued, however, even after the officers placed the handcuffs on Mr. Bailey. When they tried to place him in the patrol car, he stood outside the door and refused to get in the car. After Officers Geater and Randle physically placed Mr. Bailey in the car, he attempted to kick the officers. After being transported to the Brinkley Police Department, Mr. Bailey was interviewed. A videotape of the exchange depicts Mr. Bailey shouting profanities at the officers, using such words as "motherfucker," "asshole," and "nigger."

Mr. Bailey was charged by felony information with three counts of second-degree battery against a police officer, resisting arrest, interference with a law enforcement officer, disorderly conduct, and public intoxication. Prior to trial, the trial court dismissed two of the battery charges and the interference-with-a-law-enforcement-officer charge. Following a jury trial, the jury found Mr. Bailey not guilty of the remaining battery charge, but found him guilty of the resisting arrest, disorderly conduct, and public intoxication charges, for which the trial court imposed fines of $500.00, $75.00, and $50.00, respectively. He now appeals these convictions.

I. Sufficiency of the evidence--resisting arrest and public

intoxication

For his first allegation of error, Mr. Bailey essentially claims that the trial court should have directed a verdict on the resisting-arrest and public-intoxication charges because the State's evidence was insufficient to support these claims. We will review the State's evidence as it relates to each of these offenses under the following standards:

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of Lloyd v. State, 332 Ark. 1, 5, 962 S.W.2d 365 (1998); Green v. State, 330 Ark. 458, 466-7, 956 S.W.2d 849 (1997); McGehee v. State, 328 Ark. 404, 410, 943 S.W.2d 585 (1997).

fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

Mr. Bailey claims that his resisting-arrest conviction cannot stand because the State failed to prove that he used physical force against the officers. The resisting-arrest statute is found at Ark.Code Ann. § 5-54-103 (Repl.1997), and states in part that:

(a)(1) A person commits the offense of resisting arrest if he knowingly resists a person known by him to be a law enforcement officer effecting an arrest;

(2) "Resists", as used in this subsection, means using or threatening to use physical force or any other means that creates a substantial risk of physical injury to any person. (Emphasis added.)

According to the plain language of subsection (a)(2), the actual use of physical force is only one way to "resist" under the statute. This subsection also provides that a person can threaten to use physical force and thus satisfy the "resist" element. Thus, Mr. Bailey's contention that the State was required to prove that he actually used physical force is unpersuasive. While Mr. Bailey never punched or struck any of the officers, there was ample evidence indicating that he continuously struggled with them when they attempted to place handcuffs on him. He repeatedly swung at the officers and attempted to kick two of them even after he was finally handcuffed and placed in the patrol car. Under these circumstances, there was substantial evidence supporting Mr. Bailey's conviction of resisting arrest.

Regarding the public-intoxication charge, Mr. Bailey argues that the State failed to prove that he was intoxicated. Particularly, he asserts that the officers at the scene never administered or attempted to administer a test to confirm that he was intoxicated. The statute at issue, Ark.Code Ann. § 5-71-212 (Repl.1997), provides in relevant part that:

(a) A person commits the offense of public intoxication if he appears in a public place manifestly under the influence of alcohol or a controlled substance to the degree and under circumstances such that he is likely to endanger himself or other persons or property, or that he unreasonably annoys persons in his vicinity.

At trial, Mr. Bailey admitted that he had two drinks at a private club on the night of his arrest. Officer Geater testified that he...