This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0356
State of Minnesota,
Respondent,
vs.
Jeffrey Kevin Nelson,
Appellant.
Filed December 22, 2014
Affirmed
Hooten, Judge
Chisago County District Court
File No. 13-CR-13-107
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Janet Reiter, Chisago County Attorney, Ryan M. Flynn, Assistant County Attorney,
Megan E. Kelly, Certified Student Attorney, Center City, Minnesota (for respondent)
Barrie Schumack, Eagan, Minnesota; and
Nadia Wood, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
On appeal from his conviction for disorderly conduct, appellant argues that the
evidence was insufficient to sustain the conviction. We affirm.
FACTS
On February 2, 2013, appellant Jeffrey Nelson entered a liquor store and had an
altercation with the clerk working behind the cash register. In connection with this
incident, police issued Nelson a citation for disorderly conduct under Minn. Stat.
§ 609.72, subd. 1(3) (2012), and the state later charged Nelson with criminal trespass in
addition to disorderly conduct. After Nelson’s pretrial motion to dismiss for lack of
probable cause was denied, a bench trial was held on September 19, 2013.
At trial, the clerk testified that he had had previous confrontations with Nelson,
and had witnessed “heated exchanges” between Nelson and the clerk’s wife. The clerk
said that Nelson had been to the liquor store before when the clerk was working, and
Nelson would have recognized him from their previous encounters. The clerk further
testified that when Nelson entered the liquor store on February 2, 2013, he “proceeded to
cuss and swear,” calling the clerk a “f--king a--hole” and a “piece of sh-t” in the presence
of 10 to 15 liquor store customers. The clerk indicated that he found these statements
offensive, particularly because he was at work and Nelson was yelling so loudly that the
other customers could hear him. Although the clerk told Nelson that he needed to leave,
Nelson “continued to cuss and swear,” and refused to leave until the clerk told him he
was calling the police. As Nelson left the liquor store, he declared that he would be
waiting outside for the police.
Nelson testified to a somewhat different version of events. Nelson stated that as
soon as he walked into the liquor store, the clerk immediately confronted him and asked
what he was doing there. Nelson asked what was on sale, to which the clerk responded,
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“There’s nothing until Monday. You need to get out of here.” As Nelson turned to leave,
the clerk again told him that he needed to leave and that he was calling the police. As
Nelson walked out the door, he called the clerk either “a piece of sh-t” or a “worthless
piece of sh-t,” but testified that he never called the clerk a “f--king a--hole.” Nelson
acknowledged that he was once previously ordered by a court not to come into contact
with the clerk, but denied that he entered the store that day to confront the clerk.
Sergeant Pouti testified that he arrived at the liquor store after hearing a radio
report regarding a “customer harassing an employee or causing a disturbance at the liquor
store.” Upon his arrival, he noted that Nelson was standing outside the store with an
adult female, who was later identified as the clerk’s aunt. They both advised Sergeant
Pouti that Nelson called the clerk a “piece of sh-t” while he was in the store. At trial, the
clerk’s aunt confirmed that she heard Nelson say, “You’re a worthless piece of sh-t” to
the clerk. She further testified that she did not hear Nelson use the word “f--king” when
speaking with the clerk.
The district court found Nelson guilty of disorderly conduct. The district court
summarized the witnesses’ testimony, and “d[id] not find [Nelsons’s] testimony credible
regarding his version of events.” Based on its finding that Nelson called the clerk a “f--
king a--hole” and a “piece of sh-t” or “worthless piece of sh-t,” the district court
concluded that, as “a matter of common knowledge,” these were “fighting words” that
“clearly . . . constitute personally offensive epithets that are likely to provoke a violent
reaction or incite an immediate breach of peace by the person to whom such words are
addressed.” The district court found Nelson’s conduct akin to the defendant in City of
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Little Falls v. Witucki, 295 N.W.2d 243 (Minn. 1980), in which the supreme court upheld
a disorderly conduct conviction for use of fighting words.
Nelson made a post-verdict motion for judgment of acquittal, which was
subsequently denied by the district court. At sentencing, Nelson was ordered to pay a
$120 fine with an $80 surcharge. This appeal followed.
DECISION
I.
Nelson first argues that his speech is protected by the First Amendment, and
cannot be punished as “fighting words” without violating the federal and Minnesota
constitutions. Nelson asserts that the “archaic ‘fighting words’ doctrine has not been
used [by the United States Supreme Court] to uphold a conviction since World War II
[and] should not be resuscitated to do so here.” While citing a string of cases in which
the United States Supreme Court has vacated convictions for punishing protected speech,
he cites no authority providing that speech deemed to be “fighting words” is protected
under the First Amendment. In fact, the Supreme Court recently cited the “fighting
words” doctrine in Chaplinsky as providing one of the few “historic and traditional
categories” of speech that can be restricted based on content. United States v. Alvarez,
132 S. Ct. 2357, 2544 (2012) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.
Ct. 766 (1942)). The Minnesota Supreme Court has explicitly held that the disorderly
conduct statute can punish speech in accordance with the First Amendment if applied
only to “fighting words.” In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978). As
seen in the cases below, Minnesota courts have continued to apply this doctrine to narrow
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the reach of the disorderly conduct statute in light of First Amendment concerns. The
“fighting words” category of unprotected speech remains good law and is appropriate for
application in this case.
II.
Nelson primarily contends that the evidence was insufficient to support his
conviction of disorderly conduct because his speech did not constitute fighting words.
Disorderly conduct charges are “closely scrutinized” on appeal. In re Welfare of M.A.H.,
572 N.W.2d 752, 757 (Minn. App. 1997) (quotation omitted). First Amendment
challenges to disorderly conduct adjudications are analyzed under a “hybrid” framework:
“This court will review the evidence in the light most favorable to the state and then
determine, as a matter of law, whether the defendant’s language under that set of
circumstances falls outside the protection of the First Amendment.” M.A.H., 572 N.W.2d
at 757. We defer to the district court as the “exclusive judge of witness credibility,” and
we “assume[] the factfinder believed the evidence supporting the state’s case and
disbelieved contrary evidence.” State v. Super, 781 N.W.2d 390, 396 (Minn. App. 2010),
review denied (Minn. June 29, 2010).
Minn. Stat. § 609.72, subd. 1(3) defines disorderly conduct to include an
individual who:
[K]nowing, or having reasonable grounds to know that it will,
or will tend to, alarm, anger, or disturb others or provoke an
assault or breach of the peace . . . :
(3) engages in offensive, obscene, abusive, boisterous, or
noisy conduct or in offensive, obscene, or abusive language
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tending reasonably to arouse alarm, anger or resentment in
others.
The Minnesota Supreme Court has narrowed the reach of the “offensive, obscene, or
abusive language” portion of the statute by limiting its reach to “fighting words” as
defined by the United States Supreme Court. S.L.J., 263 N.W.2d at 419. The fighting
words doctrine prohibits two categories of utterances: incitement of group violence, and
personal insults. M.A.H., 572 N.W.2d at 756. The first category of fighting words is
speech meant to “intentionally provoke a given group to a hostile reaction,” and “would
tend to incite an immediate breach of peace.” Id. at 756 (quotations omitted); see also
State v. Lynch, 392 N.W.2d 700, 704 (Minn. App. 1986) (upholding conviction when
defendant’s speech incited a club-brandishing crowd). The second category is “insults
personally directed at an individual.” M.A.H., 572 N.W.2d at 756. These insults must
“have an immediate tendency to provoke retaliatory violence or tumultuous conduct by
those to whom such words are addressed.” S.L.J., 263 N.W.2d at 419 (quotation
omitted). Whether a defendant’s speech rises to the level of fighting words depends on
the specific facts and circumstances of the case. Lynch, 392 N.W.2d at 704.
This case involves the second category of fighting words. Viewed in the light
most favorable to the state, the evidence shows that Nelson was “loud, very loud” and
“yelling” at the clerk inside the liquor store, calling him a “f--king a--hole” and a “piece
of sh-t” in the presence of 10 to 15 customers in the store. The clerk found these
statements “personally . . . offensive,” especially because he was at work at the time and
was concerned about getting Nelson out of the store so “the other customers [wouldn’t]
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hav[e] to deal with that.” The clerk testified on cross-examination that the other
customers “looked confused” due to Nelson’s words to the clerk. After being asked to
leave the liquor store, Nelson refused to leave but instead “continued to cuss and swear”
at the clerk. Nelson only left after the clerk picked up the telephone and announced he
would call the police. Further, this was not a confrontation between strangers—the clerk
had “many run-ins” with Nelson in the past, and had seen “heated exchanges” before
between his wife and Nelson.
We agree with the district court that the present case is similar to Witucki. In that
case, the defendant’s vulgar language and name-calling at an on-duty bartender was held
to be fighting words punishable under the disorderly conduct statute. Witucki, 295
N.W.2d at 244, 246. The bartender in Witucki was especially bothered by the obscenities
directed at her because she was the only employee on duty and had no way to leave the
situation. Id. at 244. Nelson’s profanities were likewise “directed at and . . . intended to
be about a person,” namely the clerk. Id. at 245 (quotation omitted). Nelson “directly
insult[ed] and intimidate[ed] an innocent person.” See id. Further, the clerk “was
essentially a captive audience” because he was the only employee on duty and could not
leave the liquor store. Id. Under similar circumstances, the Witucki court ruled that “the
abusive language hurled by defendant at [the victim] could readily be found by a jury to
be inherently likely to incite violence.” Id. While the clerk did not retaliate by escalating
the confrontation into a physical assault, that does not foreclose our fighting words
conclusion. As we recognized in Witucki, the fact that the clerk “exercised responsible
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and mature forebearance in not retaliating cannot be relied upon by defendant to escape
responsibility for his own actions.” Id. at 246.
Moreover, we can distinguish fighting words cases involving obscenities spoken
to law enforcement from speech directed at ordinary citizens like the store clerk. See,
e.g., S.L.J., 263 N.W.2d at 415; In re Welfare of T.L.S., 713 N.W.2d 877, 879 (Minn.
App. 2006). A police officer, unlike a store clerk, is trained to deal with unruly citizens.
“[O]fficers expect to deal with abusive behavior on a regular basis,” and may be targets
of disorderly conduct only when “subjected to . . . indignities that go far beyond what any
other citizen might reasonably be expected to endure.” M.A.H., 572 N.W.2d at 758
(quotation omitted). A store clerk at his place of work should not be expected to tolerate
the same level of abuse as a trained police officer who often deals with intoxicated or
mentally ill persons.
We conclude that Nelson’s speech constituted fighting words because his language
was “inherently likely to provoke violent reaction” from the clerk. S.L.J., 263 N.W.2d at
419 (quotation omitted). Nelson’s speech falls outside the ambit of First Amendment
protection, and therefore the district court did not err in finding him guilty of disorderly
conduct under Minn. Stat. § 609.72, subd. 1(3).
III.
Even if Nelson’s speech did not constitute fighting words, the record provides
sufficient evidence to support Nelson’s disorderly conduct conviction based on his
conduct alone. “[O]ffensive, obscene, abusive, boisterous, or noisy conduct” that a
person knows would “tend[] reasonably to arouse alarm, anger, or resentment in others,”
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is punishable as disorderly conduct. Minn. Stat. § 609.72, subd. 1(3). Even if there is no
showing that a defendant used fighting words, the defendant’s conduct, including his or
her manner of speech separate from its content, may violate the statute. T.L.S., 713
N.W.2d at 879, 880–81 (finding probable cause to arrest juvenile defendant for disorderly
conduct when defendant was “shrieking” obscenities so loudly that it was “disruptive to
the running of the school”); see also McCarthy, 659 N.W.2d at 811 (upholding
conviction when defendant interrupted football game, put his hands on referee, and
refused to leave when asked); State v. Klimek, 398 N.W.2d 41, 43 (Minn. App. 1986)
(upholding conviction because defendant followed the victim to her car and proceeded to
shake his fist at her in a threatening manner); State v. Ackerman, 380 N.W.2d 922, 926
(Minn. App. 1986) (upholding conviction when defendant was “yelling and swearing” as
to alarm others and fought with officers when they arrived).
Here, Nelson yelled obscenities that offended the clerk and were heard by the
other customers at the liquor store. Nelson also refused to leave, even though the clerk,
with whom he had had prior confrontations, repeatedly asked him to do so, and then only
left when the clerk sought police assistance. Based upon this record, we conclude that
Nelson’s conduct was “boisterous[] or noisy” and “tend[ed] reasonably to arouse alarm,
anger, or resentment in others” within the meaning of section 609.72, subdivision 1.
Apart from whether Nelson’s speech constituted “fighting words,” there was sufficient
evidence regarding his conduct to support his disorderly conduct conviction.
Affirmed.
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