In re Jeremiah W., 3588.

• Decision Date: 06 January 2003
• Docket Number: No. 3588.,3588.
• Parties: In the Interest of JEREMIAH W., a minor under the age of seventeen years, Appellant.
• Court: South Carolina Court of Appeals

353 S.C. 90

576 S.E.2d 185

In the Interest of JEREMIAH W., a minor under the age of seventeen years, Appellant.

No. 3588.

Court of Appeals of South Carolina.

Heard October 10, 2002.

Decided January 6, 2003.

Rehearing Denied February 20, 2003.

Assistant Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Deputy Attorney General Harold M. Coombs, Jr., of Columbia; Edgar Lewis Clements, III, of Florence, for State of South Carolina.

HEARN, C.J.:

Jeremiah W. appeals his convictions for breach of the peace and threatening a public official, arguing the trial court erred in failing to grant his motions for directed verdict because (1) his arrest for breach of the peace was unlawful, and (2) he was entitled to resist the arrest so that his actions and comments following the arrest did not constitute a threat against a public official. We reverse.

FACTS

In June 2000, two uniformed police officers employed to provide off-duty security services at a Florence County apartment complex noticed Jeremiah, a fourteen year-old juvenile, walking toward the front of the complex. Officer Mickey Cooke testified that Officer Gloria Howard told him she thought Jeremiah had a trespassing warning against him. Officer Cooke then attempted to call Jeremiah over to his patrol car. He testified that Jeremiah responded by yelling profanity at him while continuing to walk. Cooke then exited his patrol car and approached Jeremiah. He stated that upon "intercepting" the juvenile, Jeremiah "turned around .... pulled his pants up. And he went `What?' in my face with his arms bowed out," while in the presence of adults and children outside the apartment complex. Cooke testified that he took this as an aggressive action; however, he acknowledged that Jeremiah's hands and arms were back, not forward. At that point, Officer Cooke placed Jeremiah under arrest for being loud, boisterous, and using profanity in public, in violation of S.C.Code Ann. § 16-17-530 (1976).

Officer Cooke then handcuffed Jeremiah and placed him in the backseat of his patrol car to transport him to the detention center. Cooke, however, did not seatbelt Jeremiah in the car. Cooke testified that while en route to the detention center he attempted to question Jeremiah concerning his identity and relatives whom he could call regarding Jeremiah's arrest. Jeremiah refused to give him any information, stating, "I ain't got to do what you say." Cooke then testified that Jeremiah became irate, began yelling profane remarks, and attempted to stick his head through the plexi-glass panel separating the back and front seats of the patrol car. Officer Cooke believed Jeremiah was puckering his lips as if he intended to spit on him. Officer Cooke then "cap-stunned" the backseat, spraying Jeremiah with a chemical agent. He closed the pled-glass window and proceeded to the detention center. He stated that Jeremiah then began to threaten him, stating he would "blow [his] `f____ing' head off." This led to the charge of threatening a public official in violation of S.C.Code Ann. § 16-3-1040 (1976).

Officer Howard testified similarly to Officer Cooke; however, she stated that she informed Officer Cooke another security officer had stopped Jeremiah the day before and advised her that Jeremiah was going to be placed on the "banned and barred list." She did not indicate to him, as Cooke testified, that Jeremiah was already on a list banning individuals from the property.

At trial, Jeremiah's attorney made a motion for a directed verdict at the conclusion of the State's case. The family court judge denied the motion. Jeremiah's attorney renewed the motion at the end of trial, which was also denied. The family court judge found Jeremiah guilty of both charges and committed him to the Department of Juvenile Justice for a period not to exceed his twenty-first birthday.

STANDARD OF REVIEW

In reviewing the refusal to grant a directed verdict in a criminal case, the evidence is viewed in the light most favorable to the State to determine whether there is any direct or substantial circumstantial evidence which reasonably tends to prove the guilt of the accused, or from which guilt may be fairly and logically deduced. State v. Pinckney, 339 S.C. 346, 349, 529 S.E.2d 526, 527 (2000). The court is concerned with the existence or nonexistence of evidence, not its weight. State v. Mitchell, 341 S.C. 406, 409, 535 S.E.2d 126, 127 (2000). Furthermore, the court should not refuse to grant the directed verdict motion when the evidence merely raises a suspicion that the accused is guilty. Id.

LAW/ANALYSIS

Jeremiah argues the trial court should have directed a verdict of acquittal on the charge of breach of the peace because his conduct did not constitute a breach of the peace. We agree.

The offense of breach of the peace is defined as "a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence, which includes any violation of any law enacted to preserve peace and good order." State v. Poinsett, 250 S.C. 293, 297, 157 S.E.2d 570, 571, 572 (1967). However, the crux of the offense, and "[w]hether [the] conduct constitutes a breach of the peace depends on the time, place, and nearness of other persons." State v. Peer, 320 S.C. 546, 552, 466 S.E.2d 375, 378 (Ct.App. 1996). While it is not necessary that the peace actually be broken in order to sustain a conviction for the offense of breach of the peace, there must be at least, "commission of an unlawful and unjustifiable act, tending with sufficient directness to breach the peace." Id.

Here, no actual breach of the peace occurred. While the State was not required to put up any witnesses who would specifically testify that Jeremiah's actions caused them "to become violent or think about becoming violent" in order to establish a breach of the peace, there must be some evidence that Jeremiah's actions/speech caused at least a minimal level of "nervousness, frustration, anxiety," anger, or other evidence that the peacefulness of the neighborhood had been breached. Id. at 549, 466 S.E.2d at 377 (stating residents' nervousness, anxiety and frustration which resulted in numerous calls to law enforcement in response to appellant's "booming music," was ample evidence for submission to the jury on breach of peace charge).

Here, the record reveals that the State did offer evidence of the effect of Jeremiah's conduct on the bystanders through the officers' testimony. Officer Cooke testified that when he walked over to Jeremiah there were several people outside standing on the sidewalk. He stated Jeremiah "was just in front of a bunch of people trying to make a show basically." He admitted that Jeremiah never addressed the crowd or asked them to do anything. Cooke estimated there were ten to fifteen people approximately 30 to 40 feet away. Significantly, the bystanders "came out to see what was going on.... [w]hen I got out of the car and started walking after him." The crowd never reacted in any way after he arrested Jeremiah. Officer Howard also estimated there were approximately ten people outside, comprised of adults and children. She testified that the crowd did not become involved in the incident between Jeremiah and Officer Cooke or react in any manner and stated "they were just watching." (emphasis added)

At most, the officers' testimony amounted to evidence of their own fear of a potential for a breach of the peace. See Texas v. Johnson, 491 U.S. 397, 408-09, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)

(rejecting state's argument that it need only prove a potential for breach of the peace to prove a violation, and instead requiring "careful consideration of the actual circumstances surrounding such expression, asking whether the expression `is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'") (citation omitted). The evidence, however, reveals that this fear was unwarranted.

Nor do we believe that the evidence supports an arrest for breach of the peace as a result of Jeremiah's alleged "bowing up" at Officer Cooke. "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." State v. Perkins, 306 S.C. 353, 355, 412 S.E.2d 385, 386 (1991) (citing City of Houston v. Hill, 482 U.S. 451, 462-63, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)). The United States Supreme Court has consistently recognized that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Hill, 482 U.S. at 461,107 S.Ct. 2502. "The State may not punish a person for voicing an objection to a police officer where no fighting words are used." State v. Pittman, 342 S.C. 545, 548, 537 S.E.2d 563, 565 (Ct.App.2000) (citation omitted). Fighting words are words which "by their very utterance inflict injury or tend to incite an immediate breach of the peace." Perkins, 306 S.C. at 354,412 S.E.2d at 386 (citations omitted). "As further noted by the Supreme Court, the `fighting words' exception may require narrow application in cases involving words addressed to a police officer `because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen.'" Id.

Officer Cooke's testimony explaining the incident is revealing. When questioned whether it was Jeremiah's responsibility to come over when he called to him, Cooke responded: "... [I]t was the loud and boisterous way he said it and using profanity in public, that's against the law .... That's all it takes." (emphasis added). He actually informed Jeremiah that he was "under arrest for breach of peace [sic] for being loud...