Lundgren v. State, A99A0563.

• Decision Date: 03 June 1999
• Docket Number: No. A99A0563.,A99A0563.
• Citation: 238 Ga. App. 425,518 S.E.2d 908
• Parties: LUNDGREN v. The STATE.
• Court: Georgia Court of Appeals

518 S.E.2d 908

238 Ga. App. 425

LUNDGREN v. The STATE.

No. A99A0563.

Court of Appeals of Georgia.

June 3, 1999.

Lane & Crowe, Robert L. Crowe, Brunswick, for appellant.

Richard H. Taylor, Solicitor, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Clifford Lundgren appeals his conviction for disorderly conduct for which he received a year's probation and a $1,000 fine.

The underlying case arose while Lundgren was attending classes at the Federal Law Enforcement Training Center ("FLETC"). Late one Friday night after returning from an evening out, Lundgren became embroiled in a minor scuffle with three fellow students. Lundgren and the others were transported to a FLETC security office but were not placed under arrest. Although Lundgren declined an offer for medical treatment, EMT's were called anyway. While awaiting the arrival of the EMT's, notwithstanding his somewhat intoxicated condition, Lundgren acted respectfully toward the officers, repeatedly stated that it was all his fault, and apologized to the others. Despite holding his arm as though in pain, he continued to insist that he was okay.

When EMT Ginger Fernandes arrived, Lundgren again refused treatment. While sitting hunched over on a bench, Lundgren told her at least three times that he did not want any medical treatment. Unbeknownst to Lundgren, Fernandes wanted to obtain his name so that she could complete a refusal form. When Fernandes yet again asked for his name, he responded, "I don't think so." When she repeated that question, and was leaning directly over him, Lundgren mumbled, "You have nice tits." When she asked him, "What did you say?" he again mumbled, "You've got nice t—s." According to Fernandes, after she informed Lundgren, "You know, I don't appreciate that," he repeated the comment. Fernandes complained to a security officer that Lundgren was harassing her and that she wanted to press charges for sexual harassment.¹ Upon overhearing that news, Lundgren then said, "Oh, well, no, I said you had ugly t—s." According to the closest security officer standing just a few feet away, he did not hear Lundgren use any loud, boisterous or profane language. Nor did the evidence indicate that anyone other than Fernandes heard Lundgren's comments.

Fernandes testified that she informed the FLETC that she wanted an apology from Lundgren when he was sober. Lundgren, in fact, sent her a note and flowers, and telephoned her to apologize. She testified that Lundgren's "rude and unbecoming language" offended and "disgusted" her.

Lundgren explained that he meant no harm by his remark and intended it as a compliment. According to Lundgren, it was a "triggered response" to his noticing her breasts. He testified, "It was more or less that she was leaning over and all of a sudden I noticed, I went, gee and it just turned on [a] switch. I said something that in normal sobriety I never would have said, but in that particular moment in time, it just came out...." When he reversed his "compliment," he was "trying to make humor out of the whole situation."

A videotape captured the entire exchange. Although some of the conversation is inaudible, Lundgren's actions and demeanor do not exhibit an effort to provoke an immediate breach of peace. Nor does Fernandes appear to be outraged or incited. No yelling, no spectacle, no confrontation occurs. Nor does Lundgren address his apparently private remarks to others in the room. After this brief conversation, the video shows Fernandes calmly leaning on a counter, filling out some paperwork with her back to Lundgren who remains seated. Held:

In his sole enumeration of error, Lundgren contends that the trial court erred by denying his motion for directed verdict of acquittal. Lundgren was charged under subsection (a)(3) with disorderly conduct by: (1) without provocation, (2) using to another in such person's presence, (3) opprobrious or abusive words, which by their very utterance tend to incite an immediate breach of the peace.² OCGA § 16-11-39(a)(3). This subsection of the statute is designed to punish "fighting words" which by their very utterance tend to incite an immediate breach of peace. Rozier v. State, 140 Ga.App. 356, 231 S.E.2d 131 (1976). To ensure no abridgment of constitutional rights, the application of OCGA § 16-11-39's proscription on "fighting words" must necessarily be narrow and limited. Williamson v. State, 249 Ga. 851, 295 S.E.2d 305 (1982).

Here, at issue is whether Lundgren's vulgar comments also constituted language so opprobrious or inherently abusive as to be "fighting words" within the meaning of the law. Crolley v. State, 182 Ga.App. 2, 3-4, 354 S.E.2d 864 (1987); see Brooks v. State, 166 Ga.App. 704, 705-706, 305 S.E.2d 436 (1983) (gesturing at a police officer and yelling to a large crowd of 150 to 200 people that "cops are dogs," constituted "fighting words").

State law no longer criminalizes the use of unprovoked language threatening an immediate breach of peace, which is obscene, vulgar, or profane, that is directed to a person older than 14 years of age, unless such language also constitutes "fighting words." Crolley, 182 Ga.App. at 4,354 S.E.2d 864; see OCGA § 16-11-39(a)(4). The remarks at issue, although certainly rude, crude, and socially unacceptable, were not "sufficiently belligerent to incite an immediate breach of...