Person v. State
| Decision Date | 12 November 1992 |
| Docket Number | No. A92A1972,A92A1972 |
| Parties | PERSON v. The STATE. |
| Court | Georgia Court of Appeals |
L. Scott McLarty, Athens, for appellant.
Harry N. Gordon, Dist. Atty., Richard Dickson, Asst. Dist. Atty., for appellee.
Defendant was tried before a jury in the Superior Court of Clarke County, Georgia and convicted of using opprobrious and abusive words in violation of OCGA § 16-11-39(1). This appeal followed the denial of defendant's motion for new trial. Held:
1. Defendant challenges the sufficiency of the evidence, arguing she did not use "fighting words" within the meaning of OCGA § 16-11-39(1).
Any person who, "[w]ithout provocation, uses to or of another, in his presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in his presence, naturally tend to provoke violent resentment, that is, words commonly called 'fighting words' [is guilty of a misdemeanor]." OCGA § 16-11-39(1). This Code subsection is limited in application to words that " 'have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.' " Gooding v. Wilson, 405 U.S. 518, 524, 92 S.Ct. 1103, 31 L.Ed.2d 408. In applying this standard, "[t]he circumstances surrounding the words can be crucial, for only against the background of surrounding events can a judgment be made whether these words had 'a direct tendency to cause acts of violence[.]' " Lamar v. Banks, 684 F.2d 714, 719 (11th Cir.). See State v. Klinakis, 206 Ga.App. 318, 322(1d), 425 S.E.2d 665.
In the case sub judice, Officer Randy Moore of the Clarke County Police Department testified that after stopping defendant for driving a motor vehicle with an expired tag she accused him of carrying out his official duties in a racially discriminatory manner. Officer Moore also testified that defendant "continually [kept] getting up in [his] face and cussing [him,]" profanely threatening that she was not going to allow the officer to carry out his official duties, i.e., arresting her for driving without a driver's license. More specifically, Officer Moore testified that defendant screamed in his face, " 'I'm not going to any g___d___n jail and I'm not wearing any mother-f______g handcuffs.' " The officer explained that he did not threaten, intimidate or otherwise provoke defendant during the encounter; that defendant used profane language from the outset of the encounter and that he called other law enforcement officers for assistance because defendant's abusive language and threatening demeanor indicated that her arrest would not be peaceful. Officer Moore testified that defendant violently resisted arrest after other law enforcement officers arrived; that it took three officers to subdue defendant and that even after restraint defendant continued to behave abominably, caving-in a patrol car door with her foot, "screaming, kicking at the back of [Officer Moore's] head, threatening to blow [the officer's] head off ..." and spitting thick mucus at the officer. This evidence is sufficient to authorize the jury's finding that defendant is guilty, beyond a reasonable doubt, of using "fighting words" in the presence of Officer Moore in violation of OCGA § 16-11-39(1). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Evans v. State, 188 Ga.App. 347(1), 373 S.E.2d 52. "See in this regard Johnson v. State, 143 Ga.App. 826, 240 S.E.2d 207 (1977), where [it was] held that appellant's loud and abusive use of obscene and insulting language to a policeman, thereby attracting a crowd of people, constituted 'fighting words.' " Brooks v. State, 166 Ga.App. 704, 705, 305 S.E.2d 436.
2. In her second enumeration, defendant contends the trial court erred in denying her motion to dismiss for selective and discriminatory prosecution, arguing that the
At a hearing on defendant's motion for selective and discriminatory prosecution, the State's attorney stipulated that black persons comprise 25 percent of the population in Clarke County, Georgia and that there are about "twice as many arrests of blacks as there are whites for obstruction and related charges in [Clarke County] historically." Further, Lawson McGhee Sullivan (a white female) testified that she was a passenger in defendant's car before defendant's arrest; that she (Sullivan) employed profane language throughout defendant's encounter with law enforcement officers and that she was not arrested or charged with any offense as a result of her vulgar language in the presence of the law enforcement officers. This evidence does not provide a basis to support defendant's claim for selective prosecution.
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