Gilles v. State
| Citation | 531 N.E.2d 220 |
| Decision Date | 06 December 1988 |
| Docket Number | No. 82A04-8804-CR-126,82A04-8804-CR-126 |
| Parties | James G. GILLES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
James G. Gilles, Evansville, pro se.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant James W. Gilles (Gilles), pro se, appeals his conviction for disorderly conduct, a class B misdemeanor. IND.CODE 35-45-1-3(2). 1
We affirm.
Gilles poses several issues. Rephrased, they are: 2
1. whether IC 35-45-1-3(2) as applied violates the free speech provisions of the state and federal constitutions; and
2. whether the evidence was sufficient to convict him.
On June 20, 1987, at 11:00 P.M. Gilles attempted to preach to a crowd of revellers at a "bierstube" on the grounds of the old courthouse in Evansville. The festival there included a band and alcoholic beverages. Gilles did not use amplification. He preached on the public sidewalk outside the entry to the party, preached when the band was not playing, and could be heard 25 to 30 feet from his position by 200 to 300 of the approximately 1,100 people present. Police testified Gilles addressed the crowd as "fuckers," "sinners," "whores," "queers," "drunkards," "AIDS people," and "scum of the earth," exhorted them to repent, and particularly directed some comments to four young men. Each of the three police officers testified Gilles was "loud and boisterous" and refused to stop when twice asked to do so. Some people took umbrage at Gilles's message and characterizations.
Gilles introduced into evidence and played his microcassette tape of the event. He denied using "the f-u-c-k word."
The State argued Gilles's speech was unprotected "public nuisance" speech, was loud and boisterous, and Gilles failed to stop making his noise when asked to do so. Gilles, represented by counsel below, argued he had been charged with making "unreasonable noise" and the noise he made was not unreasonable under the circumstances. Gilles argued loudness alone is not a violation of the statute. He argued he was merely exercising his right to free speech. Gilles argued the band and the crowd were louder than he was.
In rebuttal the State restated its argument Gilles's speech was unprotected public nuisance speech, was likely to produce imminent disorder, and listeners were ready to fight him.
Review of disorderly conduct convictions based upon speech require us to look at the charged events in light of constitutional protections afforded speech. E.g. Mesarosh v. State (1984), Ind.App., 459 N.E.2d 426; Cavazos v. State (1983), Ind.App., 455 N.E.2d 618. Our courts, with consistent regularity, note in appeals challenging the sufficiency of the evidence we do not reweigh the evidence or judge credibility of witnesses. We look only to the evidence, and reasonable inferences arising therefrom, most favorable to the State. From this we determine whether there is substantial evidence of probative value to support the verdict. Pearson v. State (1988), Ind., 523 N.E.2d 747, 749.
Gilles does not dispute the facts he acted knowingly or intentionally and refused to stop upon being asked to do so. In sum, Gilles argues his "noise" was not unreasonable in the circumstances of crowd noise and music and argues, because the noise was speech, the conviction cannot be sustained absent a showing of a "clear and present danger" the speech created a "substantial risk of provoking violence."
The State argues Gilles's speech constituted fighting words and nuisance speech, unprotected by the constitutions of the United States and the State of Indiana. The State argues the evidence showing Gilles was loudly shouting and yelling, could be heard by those at the party within a one-half block area, and could be clearly heard by police officers up to 35 feet from him shows Gilles noise was unreasonable in these circumstances. The State claims the crowd's talk and laughter and the band's music volume cannot justify or render Gilles's noise reasonable.
In another case involving this offense we said:
Despite the sweeping language of the First Amendment, the United States Supreme Court has held several categories of "speech" fall outside the ambit of its protection. These categories include: (a) obscenity, see generally Miller v. California, (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; (b) speech in circumstances where its time, place or manner of delivery unduly interferes with privacy of the home or a similar competing interest, sometimes called "nuisance" speech, see e.g. Kovacs v. Cooper, (1949) 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 and see generally Nowak, Rotunda, Young, Handbook on Constitutional Law 812-17 (1978); (c) speech advocating immediate violence or similar lawless action which is likely to follow, see generally Hess v. Indiana, (1973) 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303; Brandenburg v. Ohio, (1969) 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430; and (d) "fighting words," personally abusive language likely to provoke a violent reaction by listeners toward the speaker, see generally Chaplinsky v. New Hampshire, (1942) 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, discussed infra.
Mesarosh v. State (1984), Ind.App., 459 N.E.2d 426, 427-428. See also, Cavazos v. State (1983), Ind.App., 455 N.E.2d 618, 620-621. It is readily apparent under these facts Gilles used "fighting words" which are not protected by First Amendment prohibitions. As we previously noted, the thrust of the fighting words exception has become whether, under an objective standard, the words were stated as a personal insult to the hearer in language inherently likely to provoke a violent reaction.
The State argues reference to the crowd as "fuckers," "whores," "queers," and "AIDS people," and saying the people were condemned to hell qualify as fighting words. We agree. It argues comments specifically directed to four young men were also fighting words, directing us to testimony at R. 28-29.
Except for "the f-u-c-k word" Gilles acknowledged the words he used to address the crowd. The police officer testified he used that word and it is not within our purview to weigh evidence or assess witness credibility. Words and the context in which they are spoken determine whether the words fall within the category of "fighting words." To be fighting words the words must be spoken as a face-to-face personal insult. Mesarosh v. State (1984), Ind.App., 459 N.E.2d 426, 427-428. Gilles's words were directed to the persons of these hearers.
The words used were of a nature to provoke violent reaction. In terms generally considered some of the most offensive in our culture, Gilles placed his listeners in categories defined by sexual activity, sexual orientation, and sexually transmitted disease. This language was inherently likely to provoke a violent reaction. These were unprotected fighting words. Mesarosh, supra.
Gilles argues the State failed to prove he acted in a loud, boisterous or disorderly manner so as to disturb the quiet of a neighborhood or family. These were the elements of disorderly conduct as it was defined when the court discussed the offense in Whited v. State (1971), 256 Ind. 386, 269 N.E.2d 149. The elements of the offense with which Gilles was charged are found at I.C. 35-45-1-3(2), set out in footnote one. Gilles agrees he acted knowingly and intentionally. As noted earlier, Gilles acknowledges he refused to stop when twice asked to do so. Having reviewed the words used and having concluded they were unprotected fighting words, thus unreasonable, we find no merit to Gilles's argument the evidence was insufficient.
AFFIRMED.
Mindful of my obligation not to reweigh evidence, I have listened to and have been impressed by a microcassette entered into evidence and played at trial by Gilles which he contends recorded the entire incident leading to his arrest at the June 20, 1987 Freedom Festival/Bierstube. Gilles carried a tape recorder in plain view in his breast pocket and made a recording of the Bierstube incident. Although background music and noise makes listening difficult, I believe the following constitutes a fair transcription of the recording:
To continue reading
Request your trial
-
State v. Buhl
...be "provo[ked]" by this intrusive act and the insults contained in the posts.21 State v. Wolff, supra, 670; see also Gilles v. State, 531 N.E.2d 220, 223 (Ind. App. 1988) (insults insinuating, inter alia, that person had sexually transmitted disease were "inherently likely to provoke a viol......
-
Price v. State
...speech and upheld a conviction by applying the "fighting words" category. Similar results were reached in Gilles v. State (1988) 4th Dist. Ind.App., 531 N.E.2d 220, 222-23, trans. denied, cert. denied; Brittain v. State (1990) 1st Dist. Ind.App., 565 N.E.2d 757, 760-61, Brown v. State (1991......
-
People ex rel. R.C.
...and she "repeatedly yelled the base obscenities at the security officer in an aggressive manner"); cf . Gilles v. State , 531 N.E.2d 220, 221–23 (Ind. Ct. App. 1988) (holding that the defendant's loud and boisterous shouting at large group of people that they were "fuckers," "sinners," "who......
-
State v. Tracy
...the analysis of whether the words are "fighting words" beyond the protection of the First Amendment. Id. ¶ 6 (quoting Gilles v. State, 531 N.E.2d 220, 222 (Ind.Ct.App.1988) (words are "fighting" when, " ‘under an objective standard, the words were stated as a personal insult to the hearer i......