City of Bismarck v. Nassif, Cr. N

• Decision Date: 20 December 1989
• Docket Number: Cr. N
• Citation: 449 N.W.2d 789
• Parties: The CITY OF BISMARCK, Plaintiff and Appellee, v. Gabriel NASSIF, Defendant and Appellant. o. 890044.
• Court: North Dakota Supreme Court

Page 789

449 N.W.2d 789

The CITY OF BISMARCK, Plaintiff and Appellee, v. Gabriel NASSIF, Defendant and Appellant.

Cr. No. 890044.

Supreme Court of North Dakota.

Dec. 20, 1989.

Michael Ray Hoffman (argued), Bismarck, for defendant and appellant.

Paul H. Fraase (argued), Asst. City Atty., Bismarck, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

Gabriel Nassif was charged in municipal court with the offense of disorderly conduct in violation of City of Bismarck Ordinance 6-05-01. He requested a jury trial in county court. On January 20, 1989, Nassif was convicted of the offense by a jury in Burleigh County Court. He was sentenced to seven days, suspended for one year, subject to the condition that he have no further criminal violations, and fined $300, with $150 of the fine being suspended. He has appealed to this Court. We affirm in part, reverse in part, and remand for further proceedings.

On the morning of April 10, 1988, Nassif reported to the Bismarck police that his car had been vandalized. Later that evening, at approximately 6:10 p.m., Nassif telephoned the Bismarck Police Department on 911 in relation to the same incident. As a result of the telephone call, Officers Houghton, Anderberg, and Blazek were sent to Nassif's residence. The officers were informed that Nassif was upset that the police were not doing anything about his complaint, that he had threatened to take the law into his own hands, and that he had a gun.

When the officers arrived at Nassif's residence, Nassif was still in telephone contact with Lieutenant Ringuette of the Bismarck Police Department. Lieutenant Ringuette told Nassif to go outside to talk to the police officers. Nassif testified that he looked out his back window and saw three officers, two with guns drawn.

Nassif exited his house, whereupon he confronted the police officers. Officers Houghton and Anderberg testified that Nassif was upset, shouting, loud, and aggressive. Officer Blazek testified that the longer they talked to Nassif the more agitated he became. Officer Houghton told Nassif that if there was nothing they could do for him, they were going to leave. At this point, several people had gathered around Nassif's home.

Finally, Officer Houghton said that they would be leaving. He testified that Nassif then said "you fucking son of a bitch, I'm going to go back into the house and get my shotgun and blow you bastards away." Officer Anderberg then grabbed Nassif, handcuffed him, and placed him under arrest for disorderly conduct. Officers Houghton and Anderberg testified that they felt threatened and were concerned for their safety.

By amended complaint, Nassif was charged with disorderly conduct in violation of Bismarck City Ordinance 6-05-01. The complaint charged that on April 10, 1988:

"the said defendant did willfully and unlawfully with intent to harass, annoy or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed or alarmed by his behavior in public place used abusive or obscene language or made obscene gesture On January 20, 1989, a jury of six found Nassif guilty. On appeal, Nassif raises the following issues:

which language or gesture by its very utterance or gesture inflicts injury or tends to incite immediate breach of peace, to-wit: Used offensive and obscene language and threatened to do bodily harm to officers, or--in the alternative, engaged in fighting, violent tumultuous or threatening behavior, to-wit: Indicated to police officers that he had a gun and was going inside to get it to blow them away."

I.

"IS CITY OF BISMARCK ORDINANCE Sec. 6-05-01(1) AND (3) UNCONSTITUTIONALLY OVERBROAD AND VAGUE ON ITS FACE IN THAT IT INFRINGES ON THE RIGHT OF FREE SPEECH PROTECTED BY THE FIRST AMENDMENT?"

II.

"IS THE EVIDENCE INSUFFICIENT IN THAT THE LANGUAGE USED BY DEFENDANT DID NOT CONSTITUTE 'FIGHTING WORDS'?"

III.

"IS THE EVIDENCE INSUFFICIENT TO SHOW THAT DEFENDANT USED THE LANGUAGE IN A PUBLIC PLACE?"

IV.

"DID THE THE TRIAL COURT ERR BY FAILING TO GIVE DEFENDANT'S REQUESTED JURY INSTRUCTION ON ENTRAPMENT?"

V.

"DID THE TRIAL COURT ERR BY NOT INQUIRING INTO DEFENDANT'S WAIVER OF HIS DEFENSE OF LACK OF CRIMINAL RESPONSIBILITY TO DETERMINE WHETHER IT WAS COMPETENTLY, INTELLIGENTLY AND VOLUNTARILY MADE?"

I. CONSTITUTIONALITY

Nassif was charged, in the alternative, with subsections 1 and 3 of Bismarck City Ordinance 6-05-01. Those subsections read as follows:

"6-05-01. Disorderly Conduct. A person is guilty of an offense if, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by his behavior, that person:

1. Engages in fighting, or in violent, tumultuous or threatening behavior;

* * * * * *

3. In a public place, uses abusive or obscene language, or makes an obscene gesture, which language or gesture by its very utterance or gesture inflicts injury or tends to incite an immediate breach of the peace."

On appeal, Nassif asserts that subsection 1 of the ordinance is susceptible of application to constitutionally protected speech, and thus overbroad and unconstitutional. Before this Court will address an issue on appeal, even a constitutional issue, that issue must have been sufficiently raised in the court below. See City of Grand Forks v. Cameron, 435 N.W.2d 700 (N.D.1989). During oral argument, Nassif's counsel contended that the constitutionality of section 1 of the ordinance was properly raised by Nassif's trial counsel during a discussion in chambers. The colloquy follows:

"MR. HIGGINS: I would make a further motion for judgment of acquittal on the charge as relates to the language on the grounds that the Statute is overbroad and trespasses on the First Amendment, the right of free expression. The language of the State Statute is vague. It talks about, as I recall, abusive language. No indications to its specific abuse which annoys someone.

"MR. FRAASE: The City would reject, or oppose the motion. We are talking about obscene and abusive. Perhaps some people have difficulty with the term obscene, but I doubt that anyone would have a problem with what abusive means. And the officers communicated that they were annoyed and alarmed by the tone of the language, the context of the language, and the concern or threat that was implied to them through the use of the context.

"THE COURT: The motion is denied."

As that colloquy relates only to subsection 3 of the ordinance, the facial validity of subsection 1 of the ordinance was not raised in the trial court, and, accordingly, we will not address it. An issue not raised in the trial court is generally not reviewable by this Court unless the issue constitutes "obvious error" under Rule 52(b), N.D.R.Crim.P. State v. Raywalt, 436 N.W.2d 234, 239 (N.D.1989); Cameron, supra at 702; State v. Kopp, 419 N.W.2d 169 (N.D.1988).

As to the constitutionality of subsection 3 of the ordinance, Nassif concedes that the language "tends to incite an immediate breach of the peace" limits that subsection's application to "fighting words," which are not constitutionally protected. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (category of speech that has been held unprotected by the First Amendment is that of "fighting words," which have been defined as those words that "tend to incite an immediate breach of the peace.")

Nassif contends, however, that subsection 3 is in conflict with state law and thus invalid. Nassif bases this assertion on the fact that the state statute prohibiting disorderly conduct, section 12.1-31-01(3), N.D.C.C., ¹ does not contain sufficient protective language. Nassif argues:

"The question is then, 'Does the ordinance supersede state law?' If so, then the language is invalid and the offense is to be construed to be consistent with the definition of that offense set forth in state law. City of Bismarck ordinance Sec. 6-01-2.... See also N.D.C.C. Sec. 12.1-01-05. The ordinance appears to be in conflict with the state statute because it prohibits conduct different than that which is prohibited by the state statute. See City of Grand Forks v. Cameron, 435 N.W.2d 700 (N.D.1989). And without the limiting language, the ordinance which attempts to prohibit abusive or obscene language generally suffers from the same disability as the state statute--it is overbroad in that it is susceptible of application to protected speech."

Section 12.1-01-05, N.D.C.C., ² provides that a city ordinance may not supersede an offense defined by state law. City of Grand Forks v. Cameron, supra at 702. Bismarck City Ordinance section 6-01-02 also provides that "the language in conflict with or contrary to state law shall be invalid and the offense containing such language shall be construed to be consistent with the definition of that offense set forth in state law." Thus, the question is whether or not the city ordinance with language different from the state statute, which language immunizes it from unconstitutional virus, because of that variance in language, "Courts will construe statutes so as to harmonize their provisions with the Constitution if it is possible to do so, to the end that they may be sustained." Syllabus paragraph 2, Tang v. Ping, 209 N.W.2d 624 (N.D.1973).

must be considered to have superseded the statute. We think not, as a state statute must be construed whenever possible to be constitutional. We construe the state statute to prohibit the same offense and limit it to that offense. Tang v. Ping, 209 N.W.2d 624 (N.D.1973). In Tang we said:

We have recently dealt with such an issue in City of Grand Forks v. Cameron, supra. In Cameron, the defendant was convicted of violating section 9-0205 of the Grand Forks City Code, which reads:

" 'Every person who willfully delays or obstructs a public officer in the discharge or attempt to discharge any duty of his office, shall upon conviction thereof, be punished as...