Bousquet v. State

• Decision Date: 14 March 1977
• Docket Number: No. CR76-224,No. 2,CR76-224,2
• Citation: 261 Ark. 263,548 S.W.2d 125
• Parties: Mary BOUSQUET, Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 125

548 S.W.2d 125

261 Ark. 263

Mary BOUSQUET, Appellant, v. STATE of Arkansas, Appellee.

No. CR76-224.

Supreme Court of Arkansas, Division No. 2.

March 14, 1977.

Christopher C. Mercer, Jr., and James P. Massie, Little Rock, for appellant.

Bill Clinton, Atty. Gen., by Jackson Jones, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Mary Bousquet has appealed from her conviction of disorderly conduct and of interference with a law enforcement officer. She asserts one ground for reversal on each conviction. She contends that Ark.Stat.Ann. § 41-2908 (Crim.Code, 1976) defining disorderly conduct is unconstitutional as applied to her and that there is no factual support for finding her guilty of interference with a law enforcement officer. We disagree on both points and affirm.

Appellant was found guilty of violation of Ark.Stat.Ann. § 41-2908(c). The pertinent part of the statute defining the crime of disorderly conduct reads as follows:

(1) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

(c) in a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response;

Appellant first argues that the words she was said to have used were not "fighting words" in themselves and certainly were not under the circumstances. In considering the matter we must of course view the evidence in the light most favorable to the state.

Officer Keathley of the Little Rock Police department was employed, while off duty, as a security watchman at a Dillard department store on March 8, 1976, when he observed appellant, who appeared to him to be watching for someone. Later she started going up on an escalator and addressing him, said:

Are you going to follow me upstairs? . . . I'm talking to you you mother f______ pig!

Keathley testified that he then decided to arrest her, but she continued her tirade, saying:

Follow me outside you mother f______ and son-of-a-bitch.

Keathley followed her outside the store, exhibited his badge, identified himself as a police officer, informed appellant she was under arrest, grabbed her right arm, and was slapped by her. While he was taking her back into the store, according to the officer, she continued her epithets. Keathley said that he asked a saleslady to call the police station and, when she placed the call and handed him the telephone, he advised someone there that he needed a car. He said that he informed appellant she could use the telephone, but before he did so, she had grabbed him by the shirt, pushed him "against the collar" and again addressed him profanely. Keathley said that, after he told her that he would handcuff her unless she behaved, she "settled down" but had made other obscene statements and a crowd had begun to gather. A clerk in the store heard appellant curse the officer and saw that when the officer brought appellant through the store, his shirt was torn and he had a red print on his chest.

The words spoken were not materially different from those considered by us in Lucas v. State, 254 Ark. 584, 494 S.W.2d 705, vacated 416 U.S. 919, 94 S.Ct. 1917, 40 L.Ed.2d 227 (1974), reaffirmed when viewed in the light of Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), as Lucas v. State, 257 Ark. 726, 520 S.W.2d 224, appeal dismissed 423 U.S. 807, 96 S.Ct. 17, 46 L.Ed.2d 28 (1975). We held that this language met the "fighting words" test of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and that the statute there in question, Ark.Stat.Ann. § 41-1412 (Repl.1964), was constitutional in the light of Lewis v. City of New Orleans, supra. Again, in Hammond v. State, 255 Ark. 56, 498 S.W.2d 652, we held similar language met the Chaplinsky standard, saying that these words were likely to provoke an average person to retaliate and cause a breach of the peace. Cf. Hammond v. Adkisson, 8 Cir., 536 F. 237 (1976).

We take appellant's arguments to be addressed toward application of the theory expressed by the U.S. Court of Appeals for the Eighth Circuit in Hammond v. Adkisson, supra, that there must be a specific finding of fact that, under the circumstances existing, the words spoken by the accused were likely to incite violent retaliation from the person to whom the words were spoken. Although we do not completely agree with the position of the Eighth Circuit, (cf. Hammond v. State, supra) we do not find any basis for reversal in this case, even applying that theory.

The pertinent circumstances she states are her pregnancy of three months duration, her moving away from the officer, the person addressed was a police officer, and he was not aroused to immediate, violent anger. The alleged deficiency in the factfinding process is the failure of the trial court to instruct the jury that it was to take the circumstances of the utterance into consideration. As we view the law, it is not necessary that the person addressed must have reacted violently. Be that as it may, appellant is in no position to complain. This question was not raised in the trial court in any manner. The court defined the offense of disorderly conduct in the pertinent...