Robinson v. State, No. 49A02-9108-CR-357

Docket NºNo. 49A02-9108-CR-357
Citation588 N.E.2d 533
Case DateMarch 17, 1992
CourtCourt of Appeals of Indiana

Page 533

588 N.E.2d 533
Roy G. ROBINSON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A02-9108-CR-357.
Court of Appeals of Indiana,
Second District.
March 17, 1992.
Transfer Denied May 11, 1992.

Page 534

William F. Thoms, Jr., Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

BUCHANAN, Judge.

CASE SUMMARY

Appellant-defendant Roy Robinson (Robinson) appeals his conviction for disorderly conduct, a class B misdemeanor, 1 claiming that the evidence was insufficient to support his conviction.

We affirm.

FACTS

The facts most favorable to the judgment reveal that at approximately 7:40 p.m. on June 12, 1990, Indianapolis Police Officer Ronald Mills (Mills) was dispatched to a Preston Safeway parking lot in Indianapolis because of citizen complaints that an individual was selling merchandise from his car which was parked in the lot. Mills approached the group of people who had gathered in the lot. He noticed Robinson, who was seated in the car, and asked what he was doing. Robinson immediately became belligerent, accused Mills of harassing him, and told him to "get the fuck away." Record at 24. Mills told Robinson to get out of the car and Robinson again told Mills to "get the fuck away." Robinson continued to shout, screaming that the investigation was "bullshit," and that Mills was a "lying mother-fucker." 2 Record at 24. Mills then told Robinson three or four more times to be quiet, but when he refused, Mills arrested him.

Robinson was charged with criminal trespass and disorderly conduct. After a bench trial, Robinson was acquitted of criminal trespass and convicted of disorderly conduct.

ISSUE 3

Whether the speech for which Robinson was convicted is protected by the first amendment of the United States Constitution?

DECISION

PARTIES' CONTENTIONS--Robinson contends that his speech directed at Mills enjoyed first amendment protection.

The State responds that the conviction for disorderly conduct is supported by sufficient evidence because the words Robinson screamed at Mills were obscenities and "fighting words" which are not constitutionally protected.

Page 535

CONCLUSION--Robinson's conviction for disorderly conduct was supported by sufficient evidence.

The statute under which Robinson was charged provides as follows:

"A person who recklessly, knowingly, or intentionally:

(2) makes unreasonable noise and continues to do so after being asked to stop ...

commits disorderly conduct, a Class B misdemeanor."

IC 35-45-1-3.

When this court reviews disorderly conduct convictions based on speech, we must look at the charged events in light of the constitutional protections afforded speech. Brown v. State (1991), Ind.App., 576 N.E.2d 605; Brittain v. State (1990), Ind.App., 565 N.E.2d 757; 4 Gilles v. State (1988), Ind.App., 531 N.E.2d 220, cert. denied, 493 U.S. 939, 110 S.Ct. 337, 107 L.Ed.2d 325. In Brittain, this court determined that spoken words generally fall within the First Amendment's guarantee of freedom of speech; however, several categories of speech fall outside of this constitutional protection:

" 'These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' ' "

Brittain at 760-61, quoting Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 571, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031 (citations and footnotes omitted), (emphasis supplied); see also Mesarosh v. State (1984), Ind.App., 459 N.E.2d 426. Additionally, " 'personal epithets and verbal abuse (which may or may not contain vulgarities or obscenities) do not enjoy constitutional protection, and ... engaging in such activity may under certain circumstances constitute disorderly conduct.' " Brittain, supra. at 761 quoting Stults v. State (1975), 166 Ind.App. 461, 469, 336 N.E.2d 669, 674.

The record before us reflects that on two occasions Robinson screamed at Mills "to get the fuck away." Record at 24. Robinson also told Mills that the investigation was "bullshit" and he shouted at him calling Mills a "lying mother-fucker." Record at 24.

The use of such repugnant verbiage used under these conditions may not technically constitute "obscene" language because these words were not "in some significant way, erotic," Cohen v. California (1971), 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284, or dealt "with sex in a manner appealing to prurient interest." Roth v. U.S. (1957), 354 U.S. 476, 487, 77 S.Ct. 1304, 1310, 1...

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5 practice notes
  • Price v. State, No. 49A02-9109-CR-378
    • United States
    • Indiana Court of Appeals of Indiana
    • September 14, 1992
    ...565 N.E.2d 757, 760-61, Brown v. State (1991) 3d Dist. Ind.App., 576 N.E.2d 605, 606-07, and Robinson v. State (1992) 2d Dist. Ind.App., 588 N.E.2d 533; (Hess category analysis recognized and various epithets held to be fighting words). See also Gamble v. State (1992) 2d Dist. Ind.App., 591......
  • B.E.S. v. State, CR-92-253
    • United States
    • Alabama Court of Criminal Appeals
    • July 9, 1993
    ...S.Ct. at 770 (1942 holding that "the appellations 'damned racketeer' and 'damned Fascist' " were fighting words) with Robinson v. State, 588 N.E.2d 533, 536 (Ind.App.1992) (Shields, J., dissenting) (1992 dissent arguing that words "motherfuckers" and "fuckers," "in present common usage, [re......
  • R.I.T. v. State, CR-94-1603
    • United States
    • Alabama Court of Criminal Appeals
    • December 29, 1995
    ...S.Ct. at 770 (1942 holding that 'the appellations "damned racketeer" and "damned Fascist" ' were fighting words) with Robinson v. State, 588 N.E.2d 533, 536 (Ind.App.1992) (Shields, J., dissenting) (1992 dissent arguing that words 'motherfuckers' and 'fuckers,' 'in present common usage, [re......
  • Gamble v. State, No. 35A02-9111-CR-506
    • United States
    • Indiana Court of Appeals of Indiana
    • May 4, 1992
    ...Gamble's language to constitute fighting words undeserving of constitutional protection. See also Robinson v. State (1992), Ind.App., 588 N.E.2d 533; Mesarosh v. State (1984), Ind.App., 459 N.E.2d 426; Stults v. State (1975), 166 Ind.App. 461, 336 N.E.2d 669. The evidence also demonstrates ......
  • Request a trial to view additional results
5 cases
  • Price v. State, No. 49A02-9109-CR-378
    • United States
    • Indiana Court of Appeals of Indiana
    • September 14, 1992
    ...565 N.E.2d 757, 760-61, Brown v. State (1991) 3d Dist. Ind.App., 576 N.E.2d 605, 606-07, and Robinson v. State (1992) 2d Dist. Ind.App., 588 N.E.2d 533; (Hess category analysis recognized and various epithets held to be fighting words). See also Gamble v. State (1992) 2d Dist. Ind.App., 591......
  • B.E.S. v. State, CR-92-253
    • United States
    • Alabama Court of Criminal Appeals
    • July 9, 1993
    ...S.Ct. at 770 (1942 holding that "the appellations 'damned racketeer' and 'damned Fascist' " were fighting words) with Robinson v. State, 588 N.E.2d 533, 536 (Ind.App.1992) (Shields, J., dissenting) (1992 dissent arguing that words "motherfuckers" and "fuckers," "in present common usage, [re......
  • R.I.T. v. State, CR-94-1603
    • United States
    • Alabama Court of Criminal Appeals
    • December 29, 1995
    ...S.Ct. at 770 (1942 holding that 'the appellations "damned racketeer" and "damned Fascist" ' were fighting words) with Robinson v. State, 588 N.E.2d 533, 536 (Ind.App.1992) (Shields, J., dissenting) (1992 dissent arguing that words 'motherfuckers' and 'fuckers,' 'in present common usage, [re......
  • Gamble v. State, No. 35A02-9111-CR-506
    • United States
    • Indiana Court of Appeals of Indiana
    • May 4, 1992
    ...Gamble's language to constitute fighting words undeserving of constitutional protection. See also Robinson v. State (1992), Ind.App., 588 N.E.2d 533; Mesarosh v. State (1984), Ind.App., 459 N.E.2d 426; Stults v. State (1975), 166 Ind.App. 461, 336 N.E.2d 669. The evidence also demonstrates ......
  • Request a trial to view additional results

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