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COURT OF APPEALS DECISION DATED AND RELEASED September 7, 1995 |
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.
95-1247-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES B. JOHNSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for La Crosse County:
PETER G. PAPPAS, Judge. Affirmed.
GARTZKE, P.J. James Johnson appeals from a judgment of
conviction for bail jumping, § 946.49(1)(a), Stats., a misdemeanor.[1] The sole issue is whether the evidence was
sufficient to establish that Johnson had committed the underlying offense of
disorderly conduct, § 947.01, Stats.,
which provides
Whoever,
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 is
guilty of a Class B misdemeanor.
Because Johnson was
found guilty following a jury trial, the question is whether the evidence,
viewed in the light most favorable to his conviction, is so lacking in
probative value and force that as a matter of law no reasonable fact finder
could have found him guilty beyond a reasonable doubt. State v. Poellinger, 153
Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990).
On August 15, 1994, a La
Crosse Police Department cadet, a civilian employee, was driving a squad car
and giving parking tickets. She saw
Johnson and a female standing in the middle of the street. Johnson gave the employee "the
finger." A block later the
employee stopped at the roadside because she saw small children whom she
usually talked to. She saw Johnson
coming across the parking lot toward her.
She then looked down in her car to see if she had plastic badges to give
the children, and when she looked up she saw Johnson standing on the corner
within a few feet of the children. He
again gave the employee the "middle finger."
After Johnson walked
away from the children, the employee confronted him and asked if he had a
problem. He responded, "You are a
fucking pig and I hate fucking pigs."
Johnson said that he had had a confrontation with the police a few
nights earlier and then asked if this was going to be another Rodney King
beating, and began to talk about Rodney King.
Thinking that Johnson was acting strangely, the employee called for
assistance.
A short time later
police officers arrived. The employee
questioned Johnson and saw he was nervous and paranoid. At that time a woman walked by with her
husband and two small children. Johnson
reached out and grabbed the woman by the arm and screamed at her. The woman and her husband and children then
walked hurriedly away. Two nurses later
walked by and Johnson turned and hollered at them. They too hurried away.
At this point Johnson
went to the middle of the street and began screaming. The officers tried to get him back on the curb for his own safety
but he continued screaming for somebody to please come and witness "this
fucking beating." The officers
gradually approached him, and grabbed Johnson by the arms. Once grabbed, Johnson did not resist.
Johnson argues that
because § 947.01(1), Stats.,
is aimed at "substantial intrusions which offend the normal sensibilities
of average persons or which constitute significantly abusive or disturbing
demeanor in the eyes of reasonable persons ...." State v. Givens, 28 Wis.2d 101, 122, 135 N.W.2d
780, 787 (1965), the evidence is insufficient to establish the underlying
offense of disorderly conduct. He notes
that a defendant's conduct when yelling at the police officers does not necessarily
constitute disorderly conduct. State
v. Becker, 51 Wis.2d 659, 665, 188 N.W.2d 449, 452 (1971), and that a
person may direct opprobrious and obscene words at the police without guilt of
disorderly conduct attaching. See
Lewis v. New Orleans, 415 U.S. 130 (1974).
The precedents on which
Johnson relies would be on point had his conduct been directed at, and solely
in the presence of, the police and the La Crosse employee. However, he reached out and grabbed a woman
by the arm and screamed at her in the presence of her husband and two small children. Johnson also turned and hollered at two
nurses. Moreover, while giving a cadet
"the finger" is not in itself disorderly conduct, doing so in the
presence of children is another matter.
Children should not be subjected to that universal symbol of contempt
and sexual content.
The evidence was such
that a reasonable jury could conclude beyond a reasonable doubt that Johnson's
conduct was violent when directed at the woman passerby, and unreasonably loud
when directed at the woman passerby, her family and the two nurses. His conduct was offensive to the normal
sensibilities of average persons. The
jury could infer from the reactions of the couple with the children and the two
nurses that persons of normal sensibilities were in fact offended. We do not base our decision on what Johnson
said and gestured to the police cadet.
We base our decision on what he did and how he spoke to others present.
By the Court.--Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.