State v. Benjamin

• Decision Date: 17 January 2017
• Docket Number: A16-0104
• Parties: State of Minnesota, Respondent, v. Irene Bernice Benjamin, Appellant.
• Court: Minnesota Court of Appeals

State of Minnesota, Respondent, v. Irene Bernice Benjamin, Appellant.

A16-0104

STATE OF MINNESOTA IN COURT OF APPEALS

January 17, 2017

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Affirmed

Smith, John, Judge^*

Mille Lacs County District Court

File No. 48-CR-15-1422

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Joe Walsh, Mille Lacs County Attorney, Kali A. Gardner, Assistant County Attorney, Milaca, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean M. McGuire, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Smith, John, Judge.

UNPUBLISHED OPINION

SMITH, JOHN, Judge

We affirm Appellant Irene Bernice Benjamin's misdemeanor disorderly conduct conviction because her actions were not protected by the First Amendment and the district court did not commit reversible error when instructing the jury.

FACTS

Around 3:00 p.m. on Tuesday, June 30, 2015, Appellant Irene Bernice Benjamin entered the Mille Lacs Band Government Center, which housed tribal government agencies including the Mille Lacs Tribal Police Department and the offices of the band's Chief Executive and Solicitor General. Benjamin first went into the Chief Executive's Office to discuss her request to attend a hearing at a band-owned facility. Benjamin was "agitated" but interacting "normal[ly]" with C.G., an administrative assistant, in the Chief Executive's Office. Benjamin then went into the Solicitor General's Office, which was next door to the Chief Executive's Office and one floor above the police department.

While in the reception area of the Solicitor General's Office, Benjamin "shrieked" the name of Deputy Solicitor General D.P. D.P. emerged from a conference room and began to interact with Benjamin from the other side of the reception desk; Benjamin was agitated, speaking in a "sharp" voice about her request to attend the hearing. When D.P. repeatedly informed Benjamin that the Solicitor General's Office could not and would not authorize her attendance at the hearing, Benjamin became "increasingly agitated" and "increasingly hostile" toward D.P. She escalated to "cursing, yelling, . . . and screaming," and she leaned on the reception desk as she used her fists to bang the desk "violently."Benjamin was "inches" from D.P.'s face as she yelled at him, "essentially . . . chest-to-chest."

D.P. found Benjamin's actions "really disconcerting." He thought that Benjamin might strike him or otherwise "get violent," and although he was not concerned for his physical safety, he was worried about how the conflict with Benjamin might impact his relatively new employment at the Solicitor General's Office. D.P. attempted to call the police, but the call did not go through because D.P. did not know how to operate the office phone system. He felt "stuck" and did not know what to do, so he "stopped . . . reacting to what [Benjamin] was saying" and repeatedly told her to leave.

Meanwhile, C.G. heard from her work area in the Chief Executive's Office Benjamin's "[l]oud yelling" in the Solicitor General's Office. The yelling seemed "negative" and was "very loud," interfering with C.G.'s work and that of other people in the area. C.G. called the police because she felt that Benjamin was being "disruptive" to the government.

Officer Julian Walker responded to C.G.'s call by walking up the two flights of stairs from the police department to the Solicitor General's Office. Upon exiting the police department, Officer Walker heard "yelling and screaming." When he reached the Solicitor General's Office, he saw Benjamin "[y]elling" and "screaming" at D.P. "in close proximity [to] him." D.P. appeared "uncomfortable." Officer Walker arrested Benjamin and took her into custody.

Respondent State of Minnesota charged Benjamin with misdemeanor disorderly conduct under Minn. Stat. § 609.72, subd. 1(3) (2014), which criminalizes one's"engage[ment] in offensive, obscene, abusive, boisterous, or noisy conduct or [one's use of] offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others." A jury found Benjamin guilty as charged; the district court adjudicated Benjamin's guilt and sentenced her to six months' unsupervised probation.

Benjamin appeals.

DECISION

Benjamin first argues that her conviction must be reversed because her actions in the Solicitor General's Office were protected by the First Amendment. Although Benjamin may attempt to frame this argument as an as-applied overbreadth challenge to the disorderly-conduct statute, the state treats this argument as a challenge to the sufficiency of the evidence to support Benjamin's conviction of disorderly conduct. In substance, Benjamin argues that speech and expressive conduct may be criminalized only if they constitute "fighting words," that Benjamin's actions were limited to speech and expressive conduct that did not constitute "fighting words," and that Benjamin's actions therefore cannot support her disorderly-conduct conviction. Whether analyzed as an as-applied overbreadth challenge or as an evidentiary-sufficiency challenge, Benjamin's argument fails.

It is true that "[t]he Minnesota Supreme Court has ruled that a conviction of disorderly conduct cannot be predicated only on a person's words unless those words are 'fighting words,'" State v. McCarthy, 659 N.W.2d 808, 810-11 (Minn. App. 2003) (quoting In re Welfare of S.L.J., 263 N.W.2d 412, 419 (Minn. 1978)), defined as "words 'which by their very utterance inflict injury or tend to incite an immediate breach of the peace,'" Statev. Crawley, 819 N.W.2d 94, 104 n.9 (Minn. 2012) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 769 (1942)). In so ruling, the supreme court reasoned as follows:

[I]t is clear that, as written, § 609.72, subd. 1(3), is both overly broad and vague. Since the statute punishes words alone—"offensive, obscene, or abusive language"—, it must be declared unconstitutional as a violation of the First and Fourteenth Amendments unless it only proscribes the use of "fighting words." Section 609.72, subd. 1(3), however, punishes words that merely tend to "arouse alarm, anger, or resentment in others" rather than only words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Since the statute does not satisfy the definition of "fighting words," it is unconstitutional on its face.

Although § 609.72, subd. 1(3), clearly contemplates punishment for speech that is protected under the First and Fourteenth Amendments, we can uphold its constitutionality by construing it narrowly to refer only to "fighting words."

S.L.J., 263 N.W.2d at 418-19 (footnotes omitted) (quotation omitted).

As noted above, the disorderly-conduct statute criminalizes both the use of "offensive, obscene, or abusive language" and the "engage[ment] in offensive, obscene, abusive, boisterous, or noisy conduct." Minn. Stat. § 609.72, subd. 1(3). We have distinguished between the criminalization of "mere speech," S.L.J., 263 N.W.2d at 420, or "words alone," In re Welfare of T.L.S., 713 N.W.2d 877, 880 (Minn. App. 2006), and the criminalization of actions that include but are not limited to speech, as follows:

Although [under S.L.J.] the disorderly conduct statute prohibits only "fighting words" as applied to speech content, the disorderly shouting of otherwise protected speech or engaging in other boisterous or noisy conduct may still trigger punishment under the statute without offending the First Amendment. In that circumstance, it is not the speech itself thattriggers punishment; the statute may be applied to punish the manner of delivery of speech when the disorderly nature of the speech does not depend on its content.

T.L.S., 713 N.W.2d at 881 (quotation marks omitted); see also McCarthy, 659 N.W.2d at 811 ("In determining if [the defendant's] actions were sufficient to support a conviction of disorderly conduct, we view his words, coupled with his conduct and physical movements, and measure them as a package against the controlling statute." (quotation omitted)). Indeed, we have unequivocally stated that "the narrowing construction of S.L.J. does not apply to the conduct-based proscriptions in the disorderly conduct statute." State v. Hensel, 874 N.W.2d 245, 256 (Minn. App. 2016), review granted (Minn. Apr. 19, 2016).

But we have also stated that "[l]oud and even boisterous conduct is protected under Minnesota law, when that conduct is expressive and inextricably linked to a protected message." State v. Peter, 798 N.W.2d 552, 556 (Minn. App. 2011) (emphasis added) (quotation omitted). Persuasive authority also holds that the S.L.J. narrowing construction applies to "conduct . . . [that] is expressive and inextricably linked to [a] protected message." Baribeau v. City of Minneapolis, 596 F.3d 465, 477-78 (8th Cir. 2010); see State v. Eichers, 840 N.W.2d 210, 216 (Minn. App. 2013) ("Although not binding on Minnesota state courts, Eighth Circuit caselaw can be persuasive."), aff'd on other grounds, 853 N.W.2d 114 (Minn. 2014).

Symbolic or expressive conduct, like actual speech, is protected by the First Amendment. Virginia v. Black, 538 U.S. 343, 358, 123 S. Ct. 1536, 1547 (2003). But the notion of speech-delivery conduct with an "inextricable link" to a protected message appears to have originated in State v. Machholz, 574 N.W.2d 415 (Minn. 1998). That caseinvolved a criminal defendant's constitutional challenges to harassment charges that were based on the defendant's actions in riding a horse approximately four times through a crowd at a gay pride event in downtown Rochester; shouting anti-gay sentiments; and "sw[i]ng[ing] the horse's lead rope at an easel that held a sign announcing the event, knocking the easel over." Machholz, 574 N.W.2d at 417-18. The supreme court concluded that the harassment...