Hershfield v. Com.

• Decision Date: 05 May 1992
• Docket Number: No. 1360-90-2,1360-90-2
• Citation: 14 Va.App. 381,417 S.E.2d 876
• Parties: Charles HERSHFIELD v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 876

417 S.E.2d 876

14 Va.App. 381

Charles HERSHFIELD v. COMMONWEALTH of Virginia.

Record No. 1360-90-2.

Court of Appeals of Virginia.

May 5, 1992.

Charles Hershfield, pro se.

Mary Sue Terry, Atty. Gen., Robert Q. Harris, Asst. Atty. Gen., on brief, for appellee. Appellee submitting on brief.

Present: KOONTZ, C.J., and BENTON and DUFF, JJ.

KOONTZ, Chief Judge.

In a bench trial, Charles Hershfield was convicted of using abusive language in violation of Code § 18.2-416. He was sentenced to ten days in jail and a fine of $250. The jail sentence and $200 of the fine were suspended upon the condition that Hershfield keep the peace and be of good behavior for twelve months. On appeal, Hershfield contends that the evidence was insufficient to prove that he violated Code § 18.2-416. He also contends that he was denied his right to a jury trial as provided by Article I, § 8 of the Virginia Constitution, because the record does not show the consent of the defendant, the Commonwealth, or the trial court in the waiver of a jury trial. Because we find that the evidence was insufficient to support Hershfield's conviction under the abusive language statute, we do not reach the issue of whether he was unconstitutionally denied a jury trial.

The facts are not in dispute. Hershfield and Mary Walker were neighbors on Horton Street in Colonial Beach, Virginia. On April 2, 1990, Walker and her sister-in-law, who lived next door, were talking outside of Walker's home. The two noticed Hershfield, who lived two houses away from Walker's house, standing in his yard looking at them. Walker testified that she was facing Hershfield and her sister-in-law had her back to the defendant; no one else was in the area. Walker saw Hershfield make a motion with his hand which she described as "giving me the finger," and heard him say, "go f___ yourself."

When Hershfield made the comment and the hand gesture, he was standing fifty-five to sixty feet away from Walker and was separated from her by a chain-link fence. Walker then walked over to her sister-in-law's property and asked Hershfield why he was harassing her, but he refused to speak to her. Hershfield's conviction was based upon the testimony of Walker, who was the only witness to testify at trial.

Code § 18.2-416 provides:

If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a Class 3 misdemeanor.

In Mercer v. Winston, the Virginia Supreme Court considered a challenge to the constitutionality of Virginia's abusive language statute. 214 Va. 281, 199 S.E.2d 724 (1973) (interpreting former Code § 18.1-255), cert. denied, 416 U.S. 988, 94 S.Ct. 2393, 40 L.Ed.2d 765 (1974)). Relying upon Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the Court found that the statute did not impair freedom of expression when applied to "fighting words." Mercer, 214 Va. at 284, 199 S.E.2d at 726. Thus, application of the statute is limited "to words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." Id. With this narrow construction, the statute is neither unconstitutionally vague nor overbroad. Id.

A conviction under Code § 18.2-416 must be supported by evidence that abusive language is spoken to or about another in his presence or hearing and under circumstances reasonably calculated to provoke a breach of peace. Assuming, without deciding, that the language Hershfield used is prohibited by the statute, we must next consider whether that language was spoken in Walker's presence or hearing and under circumstances likely to provoke a breach of the peace. ¹

Viewing the evidence in the light most favorable to the Commonwealth, Josephs v. Commonwealth, 10 Va.App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc), the record reflects that some neighborhood enmity had developed between Hershfield and the local government concerning the way Hershfield maintained his home. Walker's brother was on the town council. Walker testified that she was standing fifty-five to sixty feet away from Hershfield when she heard the comments. The evidence shows that the parties were separated by the front yard of Walker's sister-in-law's house, a distance of fifty-five to sixty feet, and a chain-link fence.

The requirement that the abusive language be spoken in the presence or hearing of another contemplates a face-to-face encounter. As the Virginia Supreme Court stated, the statute "is aimed at preventing personal, face-to-face, abusive and insulting language likely to provoke a violent reaction and retaliation." Mercer, 214 Va. at 284, 199 S.E.2d at 726; see also Chaplinsky, 315 U.S. at 573, 62 S.Ct. at 770 (statute does no more than prohibit "face-to-face" words likely to incite a breach of peace). The fact that the parties were separated by a distance of fifty-five to sixty feet and by a fence establishes as a matter of law that the language was not spoken "face-to-face." Moreover, these circumstances also establish that the words were not reasonably likely to provoke an "immediate" violent response or retaliation. Specifically, distance and the barriers between Hershfield and Walker precluded "an immediate.... violent reaction" by Walker. See Mercer, 214 Va. at 284, 199 S.E.2d at 726.

The trial court found that the statements were made in Walker's presence as required by Code § 18.2-416 because Walker saw Hershfield's hand gesture and heard what he said. While Walker may, in fact, have heard the remarks, abusive words even if heard by another, must be spoken "face-to-face," as contemplated by Mercer. In other words, although the abusive language may have been uttered in the "presence" of another in the sense that the alleged victim could see and hear the offender, that fact does not establish that the encounter was "face-to-face." Therefore, to the extent that Code § 18.2-416 proscribes abusive language literally uttered within the "presence or hearing" of another when the parties are not "face-to-face," it is inconsistent with Mercer and, therefore, unconstitutional. ²

The facts at issue in the present case are markedly different from those presented in Mercer and Chaplinsky. Mercer involved a public disturbance with racial overtones that "approached near riot proportions." 214 Va. at 282, n. 1, 199 S.E.2d at 724-25, n. 1. Mercer was convicted under Virginia's abusive language statute for uttering the following language to a police officer: "you white son of a bitch", "you honky pig," "you white mother f[____]r," "white bastard" and "pig." Id. There was no evidence of any appreciable distance or barrier that would have prevented an immediate violent response.

In Chaplinsky, the defendant was convicted under New Hampshire's fighting words statute for saying to the City Marshal "You are a God damned racketeer" and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." 315 U.S. at 569, 62 S.Ct. at 768. Chaplinsky, a Jehovah's witness, was distributing literature on a city street. When Chaplinsky began denouncing all religion as a racket, a crowd that had gathered became restless and a disturbance resulted. Chaplinsky was being taken to the police station when he uttered these statements to the City Marshal. The United States Supreme Court found that these words, spoken "face-to-face," were plainly likely to cause a breach of the peace. Id. at 573, 62 S.Ct. at 770. Here, in the context of a private incident between two neighbors separated by a front yard and a fence, the language was not uttered in a "face-to-face" confrontation.

Our holding here is not inconsistent with Burgess v. City of Va. Beach, 9 Va.App. 163, 385 S.E.2d 59 (1989). In Burgess, the defendant stuck his head out of his moving vehicle and yelled, "F___ cops," as he drove by a street corner where police were attempting to control a large crowd. 9 Va.App. at 165, 385 S.E.2d at 60. Burgess was convicted of using abusive language in violation of Virginia Beach City Code § 23-12, which parallels the language of Code § 18.2-416. Although we recognized that Mercer requires a face-to-face confrontation, the case was not decided on those grounds. Rather, Burgess involved the issue of whether a police officer would be held to a higher standard of restraint than the ordinary citizen. Without addressing Burgess's contention that his conduct did not amount to a direct confrontation under Mercer, we held that the fact that the abusive language was addressed to a police officer was of no consequence. Thus, in Burgess, we did not decide whether the face-to-face requirement had been met. 9 Va.App. at 167, 385 S.E.2d at 61.

For these reasons, the judgment of the trial court is reversed and the charge against Hershfield is dismissed.

Reversed and dismissed.

BENTON, Judge, concurring.

Decisions from the United States Supreme Court post-Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), have made it clear that legislatures may not criminalize on a per se basis the use of vulgar or offensive words. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). In order for statutes such as Code § 18.2-416 to be valid, they may punish only those words that fall within a " 'narrowly limited [class] of speech' ... 'which by their very utterance inflict injury or tend to incite an immediate breach of the peace.' " Gooding, 405 U.S. at 522, 92 S.Ct. at 1106 (quoting Chaplinsky, 315 U.S. at 571-72, 62 S.Ct. at 769). Those words have come to be known as "fighting words." Gooding, 405 U.S. at 522, 92 S.Ct. at 1106. In Gooding, the accused was convicted under ...