Colten v. Com.

Decision Date21 May 1971
Citation467 S.W.2d 374
PartiesLewis COLTEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtSupreme Court of Kentucky

Alvin L. Goldman, Lexington, for appellant.

John Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.

CULLEN, Commissioner.

Lewis Colten was convicted in the Fayette Quarterly Court of a violation of the Kentucky disorderly conduct statute, KRS 437.016, and was fined $10. He appealed to the Fayette Circuit Court where he was tried de novo (without a jury, it having been waived) and again was found guilty, but the fine was increased to $50. Colten appeals to this court from the circuit court judgment.

The circuit court found Colten guilty of violating paragraph (f) of KRS 437.016(1). That paragraph, with an introductory phrase designed to be read with it, is as follows:

'A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

'(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse * * *'

Colten's two leading contentions are (1) that the statute is unconstitutional and (2) that even if the statute be held constitutional the Commonwealth failed to prove the elements of the offense proscribed by the statute. We shall give consideration first to the question of the sufficiency of the proof, because to do so enables the opinion to be commenced with a full statement of the facts and because we think that the question of constitutionality should be considered in the light of the facts of this case, not in the abstract. In measuring the sufficiency of the proof we shall of course view the evidence most favorably to the Commonwealth, and in stating the facts we shall state only the Commonwealth's version where there was probative evidence to support that version. Pearson v. Commonwealth, 295 Ky. 616, 175 S.W.2d 33; United States v. Smith, 6 Cir., 399 S.W.2d 896.

On March 3, 1970, Mrs. Richard M. Nixon (the First Lady) was in Lexington, Kentucky, to make a public appearance. When the appearance was concluded she was driven to the local airport to make her departure from Lexington. A substantial crowd was in attendance at the airport. Among those present were Colten and some 15 to 20 other college students who had attended in a group for the purpose of conducting a demonstration to protest against the program which Mrs. Nixon had advocated and to show support for the group's gubernatorial candidate. Colten was a leader and spokesman for the group.

As Mrs. Nixon's plane was preparing to depart the group engaged in some form of demonstration on the law of the airport, which one of the Commonwealth's witnesses described as 'a whooping and hollering party.' The police who were present in strength by reason of the importance of the visitor and the crowd her presence had gathered, did not disturb the demonstration.

After Mrs. Nixon's plane had departed, the crowd at the airport began to leave. Colten's group got into their automobiles and formed a procession of some six to ten cars proceeding along the access road toward the main highway. A state police officer, John Miller, had observed that one of the first cars in the procession carried an expired Louisiana license plate, and he directed the driver, one Mendez, to pull his car off the road onto the right shoulder. When Mendez complied, Colten and the other members of the procession also pulled their cars off the road onto the shoulder. They all got out of their cars and Colten pursued inquiries as to the cause of the stopping of the Mendez car, while the others in the group, some 15 in number, stood around in the roadway.

Colten approached Officer Miller and asked why he had stopped the Mendez car. Miller told him that the car bore expired license plates, that he was not arresting Mendez but was giving him a citation, and that the car would be towed in to the city. Colten continued to endeavor to engage Miller in conversation, and to offer advice to Mendez, until Miller got into his patrol car with Mendez and rolled up the windows to shut out Colten's interference. Colten continued to remain in the area of the patrol car. His testimony was that he wanted to counsel Mendez as to a possible ground for relief from the citation and he wanted to arrange for passage to Lexington for Mendez and the latter's passengers. The evidence warranted the inference, however, that Colten's real intent was simply to aggravate, harass, annoy and inconvenience the police, for no purpose other than the pleasure of aggravation, harassment, annoyance and inconvenience. He had been told by Officer Miller the cause of the stopping of the Mendez car, that Mendez was not being arrested, but that the car would be towed in. The fact that the license plate was expired was obvious. There was no occasion for further discussion or advice. Arrangements could have been made promptly for passage for the passengers in the Mendez car, who were under no detention. A simple word to Mendez that someone would wait down the road for him would have taken care of passage for Mendez. Instead, Colten, a leader of a group who had no interest at all in remaining at the scene, by his continued presence encouraged and led the others to stay, blocking a traffic lane and causing inconvenience and annoyance to other travelers. The presence of the Colten group caused other police officers to stop. A state police captain asked the group four or five times to leave. Another officer twice asked Colten to leave. A third officer, Harlowe, three times asked Colten to leave. Each time Colten offered some excuse. Finally, after the third request was not complied with, Officer Harlowe arrested Colten for disorderly conduct.

Arguing the insufficiency of the evidence to establish a violation of the statute, counsel for Colten says first that there was no proof of a lawful order to disperse; no proof of any need or purpose for an order to disperse. In making this argument counsel treats the situation as if Colten were a lone individual causing no trouble, not blocking traffic, merely trying to be of help to his friends in the Mendez car. The evidence, however, presents an entirely different picture of the situation, with Colten as the leader of a group of some 15 persons who created inconvenience and annoyance by standing in the roadway, parking their cars so as to require police to stop their patrol cars on the roadway, forming an assembly for no purpose other than to aggravate, annoy, harass and inconvenience. Perhaps the inconvenience and annoyance were not great, but their extent was substantial when measured against the complete absence of any legitimate objective for the assembly.

Counsel next says that there was no proof of a refusal to disperse. We think the evidence, outlined above, fully warranted the inference that Colten's statements that he would leave after he had made arrangements for passage for the people in the Mendez car were simply disguised refusals to leave.

Counsel further says that there was no proof of an intent to cause public inconvenience or annoyance. As hereinbefore noted, we are of the opinion that the intent was clearly inferable from Colten's actions in continuing to remain at the scene, with his group, after any legitimate excause for so doing had ceased to exist. The group was in fact causing inconvenience and annoyance, and it is reasonable to infer that this was the sole intent.

We come now to the question of constitutionality of the statute. In our approach to that question we shall be concerned primarily with the statute as applied to the facts of this case, not as it might be applied in some imaginary or hypothetical situation. See O'Leary v. Commonwealth, Ky., 441 S.W.2d 150.

Appellant asserts that the statute is unconstitutional because of (1) overbreadth and (2) vagueness. Overbreadth is claimed to exist in that the statute employs means that stifle or chill the exercise of constitutionally protected freedoms when the end could be more narrowly achieved. See Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. Vagueness is asserted in that the statute is drawn in language so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. See Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322. It is our opinion, however, that the statute, reasonably construed, is not faulty in either of the claimed respects. Cf. O'Leary v. Commonwealth, Ky., 441 S.W.2d 150.

As reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right. We...

To continue reading

Request your trial
25 cases
  • Goguen v. Smith, 72-1204.
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 14, 1972
    ...unconstitutional since "`citizens who desire to obey the statute will have no difficulty in understanding it . . . .' Colten v. Commonwealth, 467 S.W.2d 374 at 378." Colten, supra 407 U.S. at 110, 92 S.Ct. at 1957. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 ......
  • State v. Indrisano
    • United States
    • Connecticut Supreme Court
    • April 5, 1994
    ...internal quotation marks omitted.) Colten v. Kentucky, supra, 407 U.S. at 108-109, 92 S.Ct. at 1956, quoting Colten v. Commonwealth, 467 S.W.2d 374, 377 (Ky.1971). The United States Supreme Court approved the Kentucky gloss on the statute and rejected the defendant's assertion that the stat......
  • City of Cincinnati v. Hoffman
    • United States
    • Ohio Supreme Court
    • July 19, 1972
    ...and annoyance. So the statute as applied here did not chill or stifle the exercise of any constitutional right.'' Neither did the court, in Colten, find the statute impermissibly vague or broad. The court '* * * The root of the vagueness doctrine is a rough idea of fairness. It is not a pri......
  • State v. Young
    • United States
    • Ohio Supreme Court
    • June 18, 1980
    ...' " * * * We believe that citizens who desire to obey the statute will have no difficulty in understanding it * * * " Colten v. Commonwealth, 467 S.W.2d 374, 378 (Ky. 1971).' " (Emphasis Appellees further assert that the statute in the instant cause is overbroad in its scope. The overbreadt......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT