COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
SHAWN CHRISTOPHER STEWART
MEMORANDUM OPINION * BY
v. Record No. 0248-96-3 JUDGE SAM W. COLEMAN III
MARCH 4, 1997
COMMONWEALTH OF VIRGINIA and
CITY OF LEXINGTON
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
(Robert B. Armstrong, on brief), for
appellant.
(James S. Gilmore, III, Attorney General;
John K. Byrum, Jr., Assistant Attorney
General, on brief), for appellees.
The appellant, Shawn Christopher Stewart, was convicted by a
jury of using abusive language, disorderly conduct, and assault
and battery. He contends on appeal that either the curse and
abuse conviction or the disorderly conduct conviction is barred
by Lexington City Code § 15-16.1 because both arose from the same
course of action. He further asserts that the evidence is
insufficient to support the disorderly conduct conviction.
Finding no error, we affirm the decision of the trial court.
Viewing the evidence in the light most favorable to the
Commonwealth, as we must on appeal, a Lexington police officer,
who was responding to an unrelated 911 call, encountered the
appellant on a public street. The appellant was belligerent, he
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
cursed the police officer and said "you can't tell me what to do
. . . I am not going to go anywhere and if you come to the
corner, I am going to kick your f-----g ass." When the officer
attempted to arrest the appellant for cursing and using abusive
language, the appellant resisted arrest and ran. The officer
pursued, and when the appellant reached his home he brandished a
stick and threatened to hit the officer with it. The officer
testified that he told the appellant that he was "not mad at
[him] at this time, but that if you hit me with that stick you
are going to piss me off." The officer testified that during the
confrontation he remained "calm, cool, and collected . . . [and]
at no time did he feel that he was in danger."
Disorderly conduct was not a crime at common law and "is not
punishable as a separate and distinct crime unless made so by
statute or ordinance . . . ." Lewis v. Commonwealth, 184 Va. 69,
72, 34 S.E.2d 389, 390 (1945). Section 15-16.1 of the Lexington
City Code provides:
A person is guilty of disorderly conduct if,
with the intent to cause public
inconvenience, annoyance or alarm, or
recklessly creating a risk thereof, he: (a)
In any street, highway or public building, or
while in or on a public conveyance or public
place, engages in conduct having a direct
tendency to cause acts of violence by the
persons at whom, individually, such conduct
is directed; provided, that such conduct
shall not be deemed to include the utterance
or display of any words or to include conduct
otherwise made punishable under this Code
. . . .1
1
The language in Lexington Code § 15-16.1 is similar to
the language in Virginia Code § 18.2-415.
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Disorderly conduct, as defined in the statute, encompasses a
broad range of offending behavior, which has as its common
denominator conduct having a direct tendency to cause acts of
violence. Although a more general definition has not been
articulated, the concept of what behavior constitutes disorderly
conduct is generally understood. "[W]hether a particular act is
disorderly conduct depends largely on the facts in the particular
case, and in the determination of such question not only the
nature of the particular act should be considered but also the
time and place of its occurrence as well as all the surrounding
circumstances." Collins v. City of Norfolk, 186 Va. 1, 5, 41
S.E.2d 448, 450 (1947).
I.
Appellant contends that his conviction for disorderly
conduct must be set aside because Lexington City Code § 15-16.1
and his conviction for curse and abuse preclude his being
convicted "for conduct otherwise made punishable under this
2
title." While Lexington City Code § 15-16.1 excludes "conduct
otherwise made punishable under [the] Code," "the choice of
offenses for which a criminal defendant will be charged is within
the discretion of the Commonwealth's Attorney." Kauffmann v.
Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279, 284 (1989).
2
Code § 18.2-415 contains identical language excluding
"conduct otherwise made punishable under this title." Also, Code
§ 19.2-294 contains similar language barring conviction under
multiple statutes based on the same act.
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"Two crimes, even though similar because committed by the same
criminal agent during a continuing course of action against the
same victims, are not committed by the same act if not
simultaneously committed." Henry v. Commonwealth, 21 Va. App.
141, 146, 462 S.E.2d 578, 581 (1995) (interpreting the double
jeopardy clause); see also Martin v. Commonwealth, 221 Va. 720,
273 S.E.2d 778 (1981) (same); Jones v. Commonwealth, 218 Va. 757,
240 S.E.2d 658, cert. denied, 435 U.S. 909 (1978) (interpreting
Code § 19.2-294). "The test of whether there are separate acts
sustaining several offenses 'is whether the same evidence is
required to sustain them.'" Treu v. Commonwealth, 12 Va. App.
996, 997, 406 S.E.2d 676, 677 (1991) (quoting Estes v.
Commonwealth, 212 Va. 23, 24, 181 S.E.2d 622, 624 (1971))
(interpreting Code § 19.2-294).
Here, the appellant's convictions were based on separate
acts with different evidence supporting each conviction. The
conviction for curse and abuse was proven by the appellant's
language, his vulgar profanity, and the abusive manner that he
directed it toward the officer. The disorderly conduct
conviction was proven by the manner in which the appellant
belligerently confronted the officer in a public place,
challenged him, and after cursing and abusing the officer, fled,
armed himself with a stick which he brandished and used to
threaten the officer -- all of which tended to threaten a breach
of the peace. The same act or acts were not the basis to prove a
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violation of both statutes.
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II.
The appellant contends that the evidence is insufficient to
support the disorderly conduct conviction. Relying upon the
arresting officer's testimony that he was not angered or
frightened by the appellant's actions, the appellant argues that
the Commonwealth failed to prove that his words and actions had a
tendency to cause violence.
Whether this particular arresting officer felt threatened or
frightened or intimidated so as to cause a breach of the peace is
not controlling. Although the officer's subjective feelings are
a factor to be considered, the test is an objective one -- would
the defendant's conduct provoke a reasonable person to violence.
See Mercer v. Winston, 214 Va. 281, 284, 199 S.E.2d 724, 726
(1973) (interpreting former Code § 18.1-255, now Code § 18.2-416,
prohibiting use of abusive language); Burgess v. City of Virginia
Beach, 9 Va. App. 163, 167-68, 385 S.E.2d 59, 61 (1989) (holding
that police officers are not subject to a higher standard of
restraint).
The appellant's belligerent threatening conduct was
sufficient to support the trial court's decision that his actions
were likely to provoke or incite a breach of the peace. See Ford
v. City of Newport News, 23 Va. App. 127, 144, 474 S.E.2d 848,
851 (1996); Keyes v. City of Virginia Beach, 16 Va. App. 198,
200, 428 S.E.2d 766, 768 (1993). The appellant's threats to the
officer, both by words and with the stick, had a "tendency to
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cause acts of violence" and involved more than the mere utterance
of abusive language. The appellant's argument that the evidence
failed to prove that these actions tended to cause acts of
violence because the officer testified they did not anger him or
put him in fear of danger has no merit. The appellant's actions,
cursing and threatening the officer, would have provoked a
reasonable person to violence. Therefore, the evidence is
sufficient to support the conviction for disorderly conduct.
For the foregoing reasons, we affirm the decision of the
trial court.
Affirmed.
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