IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 3, 2002 Session
STATE OF TENNESSEE v. KRISTOPHER ROBERTS
Direct Appeal from the Juvenile Court for Tipton County
No. 5401 Joseph H. Walker, Judge
No. W2001-01702-COA-R3-JV - Filed August 6, 2002
This case involves a juvenile’s appeal from an adjudication of delinquency. The jury found that the
juvenile was guilty of disorderly conduct as a result of his actions at the Tipton County School Board
building. The jury also found the juvenile guilty of assault and resisting arrest due to his actions in
the Juvenile Court of Tipton County. We affirm the jury’s verdict.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; and
Remanded
DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., and
ALAN E. HIGHERS, J., joined.
C. Michael Robbins, Memphis, Tennessee, for the appellant, Kristopher Roberts.
Paul G. Summers, Attorney General and Reporter and Mark E. Davidson, Assistant Attorney
General, for the appellee, State of Tennessee.
OPINION
Kristopher Roberts was a student in the Tipton County Alternative School. Mr. Roberts and
his mother, Judy Sexton, were concerned about some of his school credits. As a result, Mr. Roberts
and Ms. Sexton went to the Tipton County School Board building to meet with Russell Lindsey, the
supervisor of the alternative school. This meeting was unscheduled, causing Mr. Roberts and his
mother to wait about forty-five minutes to see Mr. Lindsey.
When Mr. Roberts and Ms. Sexton met with Mr. Lindsey, the atmosphere was tense. Mr.
Lindsey determined that he could not provide Mr. Roberts and Ms. Sexton the information they
sought, because he did not deal with curriculum matters. Consequently, Mr. Lindsey directed Mr.
Roberts and Ms. Sexton to Morris Jones, the administrator in charge of curriculum matters.
From that point, the conversation escalated into a more heated discussion. Mr. Roberts and
Ms. Sexton decided to leave, and Mr. Roberts said to Mr. Lindsey, “I’ll take care of you.” Mr.
Lindsey asked what he meant, and Mr. Roberts replied, “You interpret it anyway you want to take
it.” Mr. Lindsey interpreted the statement as a threat and told his assistant to call 911.
Mr. Roberts and his mother then proceeded to leave the building. As he was leaving, Mr.
Roberts told Mr. Lindsey to “come on outside.” While Mr. Roberts was outside the building, he
made physical gestures which Mr. Lindsey interpreted “as an invitation to come outside.” Mr.
Lindsey remained inside the building. Thereafter, the police arrived, and Mr. Roberts left the
property.
As a result of this incident, Mr. Lindsey signed a petition charging Mr. Roberts with assault.
Mr. Roberts appeared before the Tipton County Juvenile Court on February 8, 2001 to answer to this
charge. In disposing of the case, the court had to determine if Mr. Roberts was in compliance with
his school program. The court found that Mr. Roberts was not in compliance with the program, so
the court continued the case for thirty days.
While speaking to Mr. Roberts, Judge Peeler, the trial judge, noted that Mr. Roberts was
“clutching his fist” and “gritting his teeth,” leading the court to conclude that he was “very angry.”
Mr. Roberts also made physical gestures that the judge interpreted as “how dare you or what an
idiot.” The judge felt that this reaction was inappropriate and contentious.
In order to “get his attention,” Judge Peeler told Mr. Roberts to have a seat in an area of
benches inside the courtroom. Mr. Roberts walked in the direction of the benches, but he held his
arms out and made facial gestures. Mr. Roberts arrived at the benches, but failed to sit down. An
officer asked Mr. Roberts to sit, and when he did not comply, the judge ordered the officer to take
Mr. Roberts out of the court room and into a holding cell. The officer took Mr. Roberts’s arm, and
Mr. Roberts reacted violently. Mr. Roberts struck the officer, causing four other officers to respond.
An officer was injured in the ensuing scuffle, but the five officers were finally able to subdue Mr.
Roberts.
After this hearing, Mr. Roberts was charged with three additional petitions. These were
charges of aggravated assault, resisting arrest, and unruly behavior.1 Following a mental health
evaluation of Mr. Roberts, the juvenile court found him to be a delinquent child. The court entered
guilty verdicts on the charges of disorderly conduct, assault, and resisting arrest. The court dismissed
the unruly behavior petition.
Mr. Roberts appealed the verdict to the Tipton County Circuit Court. A jury found Mr.
Roberts guilty of the charges of disorderly conduct, assault, and resisting arrest. Mr. Roberts appeals
this decision. The issues, as stated by Mr. Roberts, are as follows:
1
The agg ravated assault ch arge was later am end ed to assault.
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I. Is the evidence sufficient to support the adjudication of delinquency based
upon the offense of disorderly conduct?
II. Did the trial court err in its order overruling the motion for judgment of
acquittal by punishing the respondent for his exercise of protected
constitutional rights?
III. Did the trial court err by refusing to grant the respondent’s request for a
cautionary instruction to the jury to disregard objectionable remarks
volunteered by Judge Peeler during his direct examination?
In his first issue, Mr. Roberts contends that the evidence was insufficient to support a
conviction on the charge of disorderly conduct. The disorderly conduct charge and subsequent
conviction stemmed from the incident at the Tipton County School Board involving Mr. Lindsey.2
At trial, the State alleged that Mr. Roberts engaged in threatening behavior in violation of section
39-17-305(a)(1) of the Tennessee Code. Pursuant to this section, “[a] person commits an offense
who, in a public place and with intent to cause public annoyance or alarm: (1) Engages in fighting
or in violent or threatening behavior.” Tenn. Code Ann. § 39-17-305(a)(1) (1997). Mr. Roberts
asserts that the evidence was insufficient to support this charge.
When a defendant challenges the sufficiency of the evidence, an appellate court's standard
of review is whether, after considering the evidence in the light most favorable to the state, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 324, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Duncan,
698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). In determining the sufficiency of the
evidence, this Court should not re-weigh or re-evaluate the evidence. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for those
drawn by the trier of fact from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999);
Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning the credibility of the
witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence
are resolved by the trier of fact. Liakas, 286 S.W.2d at 859. This Court must afford the prevailing
party the strongest legitimate view of the evidence contained in the record, as well as all reasonable
inferences which may be drawn from the evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992). Because a verdict of guilt against a defendant removes the presumption of innocence and
raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the
evidence was legally insufficient to sustain a guilty verdict. Id.
Mere verbal epithets, unless the epithets can be considered “fighting words,” cannot by
themselves support a conviction under Tennessee’s disorderly conduct statute. State v. Creasy, 885
S.W.2d 829, 831 (Tenn. Crim. App. 1994). “Fighting words” are “those which by their very
2
Mr. Roberts w as initially charged with assault, how ever, the juven ile cou rt later found him guilty of the lesser
charge o f disorderly condu ct.
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utterance inflict injury or tend to incite an immediate breach of the peace.” Id. (quoting Chaplinsky
v. New Hampshire, 315 U.S. 568, 572 (1942); Garvey v. State, 537 S.W.2d 709, 710 (Tenn. Crim
App. 1975)). Verbal epithets accompanied by some physically threatening behavior, however, will
support a conviction under our disorderly conduct statute. Id. at 831-32.
A direct threat of harm will also support a conviction under our statute. State v. Milsaps, No.
03C01-9409-CR-00313, 1996 Tenn. Crim. App. LEXIS 419, at *4 (Tenn. Crim. App. July 17, 1996)
(no perm. app. filed). This is in contrast to insulting or obscene words that do not rise to the level
of “fighting words.” A direct threat of harm is more than an insult, it is “threatening behavior” as
contemplated by our statute.
In this case, Mr. Roberts made statements to Mr. Lindsey that, when viewed in the light most
favorable to the State, could have been found to be threatening behavior by a rational trier of fact
beyond reasonable doubt. Mr. Roberts’s statements were not mere epithets or insults; they were
threatening in nature and support a finding of threatening behavior. Further, Mr. Lindsey’s testimony
supports this finding. Mr. Lindsey stated that he “felt apprehensive” and took Mr. Roberts’s
statements as threats. Mr. Lindsey’s perception of the matter was further illustrated by his decision
to direct his assistant to place an emergency call to the police. Finally, Mr. Roberts made threatening
gestures to Mr. Lindsey soon after he challenged Mr. Lindsey to “come on outside.” Accordingly,
we affirm the jury’s verdict on the disorderly conduct charge.
Mr. Roberts’s next issue regards the incident that occurred in the Tipton County Juvenile
Court. As a result of Mr. Roberts’s altercation with the five officers, the jury convicted him of
assault and resisting arrest.
On appeal, Mr. Roberts contends that his actions before the court were protected speech,
guaranteed by the First Amendment of the United States Constitution and Article I, Section 19 of
the Tennessee Constitution. Mr. Roberts also contends that the court violated his right to be free
from an unreasonable seizure. In short, Mr. Roberts maintains that Judge Peeler had no basis to
order him to sit in the area of benches and further, had no reason to instruct the officer to take him
to a holding cell.
Mr. Roberts argues that the court’s actions were arbitrary and oppressive. It follows,
according to Mr. Roberts, that he had the right to resist the court’s arbitrary and oppressive actions.
In support of his argument, Mr. Roberts cites Article I, Section 2 of the Tennessee Constitution
which condemns the doctrine of nonresistance by stating as follows: “That government being
instituted for the common benefit, the doctrine of non-resistance against arbitrary power and
oppression is absurd, slavish, and destructive of the good and happiness of mankind.”
As Mr. Roberts contends that the Tennessee Constitution protects his actions, he argues that
section 39-16-602(b) is unconstitutional, because it abolishes his right to resist an unlawful arrest.
Section 39-16-602 of the Tennessee Code states as follows:
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(a) It is an offense for a person to intentionally prevent or obstruct anyone known to
the person to be a law enforcement officer, or anyone acting in a law enforcement
officer’s presence and at such officer’s direction, from effecting a stop, frisk, halt,
arrest or search of any person, including the defendant, by using force against the law
enforcement officer or another.
(b) Except as provided in § 39-11-611, it is no defense to prosecution under
this section that the stop, frisk, halt, arrest or search was unlawful. . . .3
Tenn. Code Ann. § 39-16-602 (Supp. 2001).
The trial court is vested with “a deep responsibility for the orderly and dignified conduct of
courtroom proceedings.” State v. Land, 34 S.W.3d 516, 528 (Tenn. Crim. App. 2000). To this end,
the Tennessee Code states that “[e]very court has the power to . . . [e]nforce order in its immediate
presence, or as near thereto as is necessary to prevent interruption, disturbance, or hindrance to its
proceedings . . . . Tenn. Code Ann. § 16-1-102(1) (1994). One mechanism courts use to maintain
orderly proceedings is the power to punish conduct as contempt. See, e.g., Black v. Blount, 938
S.W.2d 394, 397 (Tenn. 1996). Courts have the discretion to punish for the contempt of court in
certain delineated situations. Tenn. Code Ann. § 29-9-102 (2000). For instance, courts can use
contempt powers to punish “[t]he wilful misbehavior of any person in the presence of the court, or
so near thereto as to obstruct the administration of justice.” Id. at § 29-9-102(1).
In this case, the proof establishes that Mr. Roberts acted in a contentious and disruptive
manner before the court. The proof further establishes that Mr. Roberts failed to follow the court’s
orders. The court had the right and the responsibility to punish this conduct. The fact that the court
did not hold Mr. Roberts in contempt is of no effect.4 The court’s use of its power to punish for
contempt is discretionary and further, the court’s chosen manner of discipline in this case was
reasonable.
The court did not act arbitrarily in ordering Mr. Roberts to sit in the area of benches when
Mr. Roberts made inappropriate gestures before the court. Further, once Mr. Roberts failed to
comply with the court’s order, the court did not act arbitrarily when it instructed the officer to take
Mr. Roberts to the holding cell. Accordingly, there is no need to address Mr. Roberts’s
constitutional concerns regarding section 39-16-602(b) of the Tennessee Code in this case. It is well-
settled in Tennessee that courts will only decide a constitutional question when it is absolutely
necessary in order to properly resolve the case. DeLaney v. Thompson, 982 S.W.2d 857, 858 (Tenn.
1998). We affirm the jury’s decision to find Mr. Roberts guilty of assault and resisting arrest.
3
Section 3 9-11-611(e) of th e Tenne ssee C ode provides a limited right of se lf defense to an arrest.
4
Judge Peeler stated that he did not hold M r. Robe rts in contem pt becau se “we had m uch m ore seriou s charge s”
and because “[t]here wasn’t any reason to heap coals on the fire.”
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In Mr. Roberts’s final issue, he contends that court erred by failing to instruct the jury to
disregard certain remarks offered by Judge Peeler during his direct examination. In Judge Peeler’s
testimony, he stated that he did not like Mr. Roberts’s home school study program. Judge Peeler
further stated that Mr. Roberts “was borderline being put out of that program for not complying with
the rules.” Mr. Roberts objected to this testimony, and the court sustained the objection. When Mr.
Roberts asked the court to “instruct the jury to disregard the remark about the bad report or
whatever,” the court refused. Mr. Roberts maintains that the court erred in failing to instruct the jury
to disregard those comments.
The trial court has a great deal of discretion in making its evidentiary decisions. White v.
Vanderbilt University, 21 S.W.3d 215, 222 (Tenn. Ct. App. 1999); Tire Shredders, Inc. v. ERM-
North Central, 15 S.W.3d 849, 859 (Tenn. Ct. App. 1999). In refusing to instruct the jury as Mr.
Roberts requested, the court did not abuse that discretion. The jury had already heard testimony
regarding Mr. Roberts’s lack of compliance with the compulsory attendance law. Mr. Roberts failed
to object to this testimony. Therefore, the jury already knew that Mr. Roberts was in court originally
to address matters regarding his lack of compliance with attendance laws.
Additionally, even if we were to determine that the court erred by refusing to issue a curative
instruction to the jury, the error would be harmless. The record contains ample evidence in support
of the jury’s findings; moreover, any effect of this comment is speculative at best. Accordingly,
we do not find that the court’s refusal to issue a curative instruction more probably than not affected
the judgment of the jury or prejudiced the judicial process. Tenn. R. App. P. 36(b); See, e.g., State
v. Speck, 944 S.W.2d 598, 602 (Tenn. 1997). This issue is without merit.
We affirm the decision of the trial court. Costs of this appeal are taxed to the Appellant,
Kristopher Roberts, for which execution may issue if necessary.
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DAVID R. FARMER, JUDGE
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