State v. Barth, 20050015

Decision Date15 July 2005
Docket NumberNo. 20050015,20050015
Citation702 NW 2d 1,2005 ND 134
PartiesState of North Dakota, Plaintiff and Appellee v. Dale Barth, Defendant and Appellant.
CourtNorth Dakota Supreme Court
Opinion of the Court by Maring, Justice.

Maring, Justice.

[¶1] Dale Barth appeals from criminal judgments entered on a jury verdict convicting him of disorderly conduct, preventing arrest or other discharge of duties, and attempted simple assault. We affirm.


[¶2] On July 20, 2004, David Bueligen cut hay on land he had orally agreed to rent from Fanny Kobs. On July 22, 2004, Dale Barth and his father, Otto Barth, who also rented certain tracts of land from Kobs, entered the land and began raking the hay cut by David Bueligen. When Kobs witnessed the Barths raking the hay, she approached Dale Barth and told him she was going to call David Bueligen. Dale Barth responded, requesting that Kobs also call the sheriff. Kobs proceeded to telephone the Bueligens and asked them to come to the land. David Bueligen and his father, Roger Bueligen, arrived at the land. David Bueligen and Dale Barth argued over who owned the hay. The Bueligens then left the area and proceeded to Kobs' house.

[¶3] Approximately ten minutes later, Sheriff David Hilliard arrived. After a heated exchange with Dale Barth, Sheriff Hilliard went to Kobs' house to discuss the situation with the Bueligens and Kobs. Sheriff Hilliard and the Bueligens then returned to the hayfield. At this point, David Bueligen attempted to remove his machinery from the land. However, Otto Barth blocked the approach with a tractor. Dale Barth demanded David Bueligen pay $250 before he would allow him to pass. Sheriff Hilliard asked the Barths "four, five" times to move their tractor so David Bueligen could remove his machinery. Barth refused. Sheriff Hilliard then ordered Dale Barth off Kobs' property. Dale Barth refused, began yelling obscenities, made obscene gestures, and allegedly attempted to hit Sheriff Hilliard. Sheriff Hilliard, with the assistance of Officer Schmitz, wrestled Dale Barth to the ground, handcuffed, and arrested him.

[¶4] On July 23, 2004, Dale Barth was charged with disorderly conduct under N.D.C.C. § 12.1-31-01, preventing arrest or discharge of other duties under N.D.C.C. § 12.1-08-02, and attempted simple assault under N.D.C.C. §§ 12.1-06-01 and 12.1-17-01. On January 6, 2005, a jury found Barth guilty of all charges.

[¶5] Barth appeals the criminal judgments.


[¶6] On appeal, Barth argues the arrest was an unlawful violation of his First Amendment right to free speech under the United States Constitution. Barth also argues there was insufficient evidence to support the convictions, and the State failed to meet its burden of proof with respect to each of the charges. The State argues Barth's threatening conduct and use of profane and threatening language is not constitutionally protected speech. Consequently, Barth's arrest and subsequent conviction were justified. The State further argues the consistent and corroborated testimony of several witnesses was sufficient to prove Barth committed the offenses.

[¶7] The State must prove each element of a criminal offense beyond a reasonable doubt. State v. Kurle, 390 N.W.2d 48, 49 (N.D. 1986). On appeal, we look for competent and substantial evidence from which the jury could reasonably conclude that each essential element of the offense had been proven. City of Bismarck v. Schoppert, 469 N.W.2d 808, 812 (N.D. 1991). This Court does not weigh conflicting evidence, or judge the credibility of witnesses; instead, we look only to the evidence most favorable to the verdict and the reasonable inferences to determine if substantial evidence exists to support a conviction. Id.

[¶8] We use particular caution when reviewing claims of constitutionally protected activity. City of Fargo v. Brennan, 543 N.W.2d 240, 243 (N.D. 1996). "When Free Speech arguments are made, the reviewing court must independently scrutinize the record to see if the charged conduct is protected." Id. (citing Houston v. Hill, 482 U.S. 451, 458 n.6 (1987)). A reviewing court has a constitutional duty to independently examine the entire record to ensure the judgment does not constitute a forbidden intrusion on free expression. Id.


[¶9] Barth argues the arrest was unlawful because his expression during the July 22, 2004, incident was protected by the right to free speech under the First Amendment to the United States Constitution. We disagree.

[¶10] Barth was charged with disorderly conduct in violation of N.D.C.C. § 12.1-31-01, which provides:

1. An individual is guilty of a class B misdemeanor if, with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual's behavior, the individual:
a. Engages in fighting, or in violent, tumultuous, or threatening behavior;
b. Makes unreasonable noise;
. . . .
2. This section does not apply to constitutionally protected activity. If an individual claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

Subsection 2, N.D.C.C. § 12.1-31-01, specifically directs a court to decide the validity of claims of constitutionally protected activity and, if the claims are valid, to exclude the evidence. While not explicitly stated in N.D.C.C. § 12.1-31-01(2), a motion in limine would be an appropriate method to advance a "constitutionally protected activity" argument in order to keep inadmissible evidence from the hearing of the jury. In this case, a motion in limine was not made requesting the trial court examine certain offered evidence to determine whether any or all of Barth's conduct was constitutionally protected activity. Barth, instead, made a Rule 29, N.D.R.Crim.P., motion for judgment of acquittal arguing the evidence was insufficient to sustain a conviction of disorderly conduct. While not an improper motion, a more effective motion to raise the issue of constitutionally protected activity would be a motion in limine to exclude the evidence.

[¶11] In making his free speech argument, Barth contends he was arrested for "verbally, and by way of a gesture, opposing or challenging a police action." He further asserts "no threat of violence to the officer or any attempt to strike the officer" or "profanity or gestures directed toward anyone" other than Sheriff Hilliard occurred. Barth asserts his situation is analogous to and supported by this Court's decision in City of Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991).

[¶12] In Schoppert, the defendant was convicted of disorderly conduct under a city ordinance for making an obscene gesture and directing obscenities toward two police officers. Schoppert appealed, arguing a jury instruction allowing the jury to convict him if it found the "obscene language . . . by its very utterance or gesture inflicts injury . . . is guilty of disorderly conduct" allowed the jury to convict him for constitutionally protected conduct. Id. at 810. We agreed and reversed, holding "injuring the feelings of the officers" with obscene language and gestures, without other threatening behavior, is an unconstitutional ground for a criminal conviction. Id. at 812.

[¶13] The instant case is distinguishable from Schoppert. In Schoppert, the profanity and vulgar expressions were directed at police officers without a breach of peace or otherwise threatening behavior. Id. at 809. Here, witnesses testified that Barth's behavior went far beyond the conduct exhibited in Schoppert. David Bueligen testified that just before the arrest, Barth gave Sheriff Hilliard "the finger" five or six inches from his face, "put up his fist and said, 'C'mon you son of a bitch.'" Next, according to David Bueligen, Sheriff Hilliard asked Barth to calm down or he would arrest him. Sheriff Hilliard then grabbed Barth's "arm and threw him to the ground while [Barth] swung at him once or two times for sure, scruffed him alongside the face." Roger Bueligen testified Barth "gave [Sheriff Hilliard] the finger . . . and threatened to swing at him. And sheriff asked him a couple times if he didn't cool down he would have to put him under arrest. And he said FU and try it or whatever." Roger Bueligen further testified that, when Sheriff Hilliard tried to arrest Dale Barth, "he stepped back a step or so and then he put his arm back like, come on, come at me, like he was going to swing at him." Sheriff Hilliard testified that Barth was very angry, using profanity, and, after twice being told to calm down and threatened with arrest, Barth responded by walking up to him, putting his middle finger up approximately six inches from his face, and saying, "Fuck you. You can join my church." Next, according to Sheriff Hilliard, he twice told Barth, "Dale, you need to calm down. If you keep this up, I'm going to arrest you for disorderly conduct." Barth then "stuck his middle finger up in my face again" and repeated the "church" comment. Sheriff Hilliard testified he then told Barth, "Dale, I'm going to place you under arrest." Barth then put up both his fists and said "C'mon," and "swung, and he grazed the side of [the sheriff's] face." Sheriff Hilliard then wrestled Barth to the ground and Barth "was swearing at [the sheriff] the whole time, using profanity" and "he was trying to kick [the sheriff]." Sheriff Hilliard testified he arrested Barth for "the actions that [Barth] did to [him], by the profanity he was using, by putting his finger in [the sheriff's] face, and the profanity being used towards David and Roger [Bueligen] and pointing...

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