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COURT OF
APPEALS DECISION DATED AND
RELEASED October
24, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0760
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF ROCK,
Plaintiff-Respondent,
v.
JOY DeRONE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Rock County: J. RICHARD LONG, Judge.
Reversed.
EICH,
C.J.[1] Joy DeRone appeals from a judgment finding
her guilty of disorderly conduct in violation of a Rock County ordinance. She claims the evidence was insufficient to
support the finding. We agree and
reverse the judgment.
The
ordinance adopts § 947.01, Stats.,
which provides that the offense is committed by one who, "in a public or
private place, engages in violent, abusive, indecent, profane, boisterous,
unreasonably loud or otherwise disorderly conduct under circumstances in which
the conduct tends to cause or provoke a disturbance ...." The trial court found DeRone guilty of
violating the ordinance.
In
ordinance cases, the County is required to prove by clear, satisfactory and
convincing evidence that the defendant has committed the offense. City of Milwaukee v. Christopher,
45 Wis.2d 188, 191, 172 N.W.2d 695, 697 (1969). And, as the County points out, "`unless the findings of the
trial court are against the great weight and clear preponderance of the
evidence[2]
they will not be set aside on appeal even though contrary findings might have
been made with evidence in their support.'" Id. (quoted source omitted; footnote added). To meet this test, however, the trial
court's findings "`must at least be supported by evidence sufficient to
meet the burden of proof.'" Id.
(quoted source omitted).
This
case arose from Nicholas DeRone's complaint that late one evening while he and
a companion were installing Christmas lights in front of their house in Beloit,
DeRone drove by, rolled down her car window and yelled: "Nicholas, you
bastard!" Both Nicholas and his
companion testified at trial that this occurred.
Despite
that testimony, DeRone argues that the trial court could not determine, under
the applicable burden of proof, that she yelled the insult because the
testimony of both her and her daughter established that, although she drove by
Nicholas's home on the day in question, the yelling incident never occurred.
In
situations such as this, where the evidence is in conflict, the trial court,
not this court, "is the ultimate arbiter of the credibility of the
witnesses." Cogswell v.
Robertshaw Controls Co., 87 Wis.2d 243, 249-50, 274 N.W.2d 647, 650
(1979). On this record, we may not
interfere with the trial court's finding that DeRone in fact called the insult
to Nicholas.
DeRone
contends, however, that even if the court's finding in this regard passes
scrutiny, there was no evidence that her conduct was "disorderly" as
required by the ordinance. She points
out that there was no evidence that others heard the shout, or that either
Nicholas or his companion "were in any way disturbed by the
incident." There is no question
that DeRone used abusive language against Nicholas within the meaning of the
ordinance, but she is correct in her assertion that, in the absence of evidence
that it was uttered "under circumstances [tending] to cause or provoke a
disturbance," § 947.01, Stats.,
the finding of guilt cannot stand.
The
County refers us to two cases which it says support affirmance of the trial
court's decision in this case. Both are
readily distinguishable.
The
first, Lane v. Collins, 29 Wis.2d 66, 138 N.W.2d 264 (1965), was
a false imprisonment action against a police officer whom the plaintiff claimed
had improperly arrested him for violation of a disorderly conduct ordinance
corresponding to § 947.01(1), Stats. Lane was arrested when he called the officer
who stopped him for a traffic violation a "son-of-a-bitch." Id. at 70-71, 138 N.W.2d at
266-67. The court recognized the
underlying purpose of the provisions of the ordinance proscribing abusive
language: "such language tends to provoke retaliatory conduct on the part
of the person to whom it is addressed [and] that amounts to a breach of the
peace." Id. at
71-72, 138 N.W.2d at 267 (footnote omitted).
The court said:
Calling another person a "son-of-a-bitch"
under charged circumstances might well constitute abusive language which is
likely to have that result. The fact
that the abusive language is directed to a policeman ... and is not overheard
by others does not prevent it from being a violation of [the] statute or
ordinance.
Id. at 72, 138 N.W.2d at 267 (footnote omitted).
The
ordinance in Lane, however, contained a separate section
punishing the use of "profane ... or obscene language in any public place
within the hearing of other persons."
Id. at 71, 138 N.W.2d at 267. There was no requirement—as there is in the ordinance in question
here—that the offensive conduct occur "under circumstances in which the
conduct tends to cause or provoke a disturbance."
The
other case, Milwaukee v. Christopher, 45 Wis.2d 188, 172 N.W.2d
695 (1969), is similarly unavailing, and for similar reasons. Milwaukee's disorderly conduct ordinance
provided at that time:
"Any person
who shall be found intoxicated ... or who shall make use of any vulgar
or obscene language, ... or who shall engage in any violent, abusive,
loud, boisterous, vulgar, lewd, wanton, obscene, or otherwise disorderly
conduct tending to create or provoke a breach of the peace ... shall
forfeit a penalty...."
Christopher, 45 Wis.2d at 189, 172 N.W.2d at 696 (last emphasis added) (quoted
source omitted). The defendant,
considered by a police officer to be intoxicated, was being removed from a
tavern when he "swore and mouthed obscenities" at the officer. He was charged with violation of the
ordinance. Id. at 193,
172 N.W.2d at 698.
The
supreme court, while concluding that the evidence was insufficient to support a
finding that the defendant was intoxicated, held that it was sufficient to
support a finding that he "was guilty of disorderly conduct by reason of
the abusive, vulgar and obscene language he used." Id. at 196, 172 N.W.2d at
700. However, the Christopher
ordinance's use of the disjunctive "or" limits the
"tending to create or provoke a breach of the peace" language to
those persons who engage in violent, abusive or otherwise disorderly
conduct. Unlike the ordinance at issue
here, the separate provision in the Milwaukee ordinance penalizing the use of
vulgar or obscene language is not restricted by any requirement that such acts
must also tend to provoke a breach of the peace.
The
only evidence on this point that the County can point to is testimony that, as
a result of DeRone's yelling, Nicholas's companion later discussed the incident
with him, telling him they did not have to tolerate it, and that Nicholas
eventually reported the incident to the police. Even under the deferential standards applicable to our review of
the evidence in cases such as this, we consider that testimony to be
insufficient to support a finding that DeRone's conduct tended to cause or
provoke a disturbance within the meaning of the Rock County ordinance. She was, as the County states, subject to a
restraining order prohibiting her from having any contact with Nicholas, but we
do not see that fact as aiding the county's argument. Whatever sanctions may flow from her violation of the restraining
order, the County failed to prove that her shout constituted disorderly conduct
as defined in the ordinance.
By
the Court.—Judgment reversed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] The "great weight and clear preponderance
of the evidence" standard has been rephrased to state that we will not
reverse a trial court's factual findings unless they are clearly
erroneous. See Noll v
Dimiceli's, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct. App.
1983). The two concepts are the same,
however. Id.