State v. Allcock

State v. Allcock  (2002-504); 177 Vt. 467; 857 A.2d 287

2004 VT 52

[Filed 9-Jun-2004]



                                 ENTRY ORDER

                                 2004 VT 52

                      SUPREME COURT DOCKET NO. 2002-504

                             OCTOBER TERM, 2003

  State of Vermont                   }     APPEALED FROM:
                                     }
                                     }     District Court of Vermont,
       v.                            }     Unit No. 1, Windham Circuit
                                     }     
  Christina M. Allcock               }
                                     }     DOCKET NO. 289-2-02 Wmcr

                                           Trial Judge: Karen R. Carroll

       In the above-entitled cause, the Clerk will enter:

       ¶ 1     Defendant appeals from a conviction, based on a jury verdict,
  of disorderly conduct in violation of 13 V.S.A. § 1026(3).(FN1)  She
  contends that the evidence was insufficient to support a finding that her
  use of abusive or "fighting words" tended to incite an immediate breach of
  the peace.  We affirm.
  
       ¶ 2     The record evidence may be briefly summarized as follows. 
  On January 29, 2002, defendant entered Our Place, a food shelf located in
  Bellows Falls.  Upon entering, defendant asked an employee there if she
  could be served by someone other than Lisa Foster, explaining that she
  believed Foster had "crabs" and was sleeping with defendant's former
  husband.  The employee conveyed defendant's concerns to Foster, who, in
  turn, consulted with her supervisor, Jessi Wilkins.  Wilkins told Foster to
  return to work and invited defendant into a conference room.  There,
  according to Wilkins, defendant reiterated her objection to Foster, stating
  that she "did not want Lisa . . . to do her fucking food shelf."

       ¶ 3     Foster recalled that as defendant emerged from the
  conference room, "[s]he was calling me a bitch and telling me to go fuck
  myself, and her husband - gave her husband crabs, and fuck all of us, and
  then stormed out."  Wilkins recounted that, as she tried to get defendant
  to leave, defendant picked up books off the bookshelf and threw them across
  the room while continuously yelling "fuck you" at Wilkins and calling her a
  bitch.  Defendant also picked up a box of bread and threw it into the
  dining room, while "telling [Wilkins] to stick it up my ass and fuck
  myself."  Wilkins also testified that when she told defendant that she
  would be forced to call the police if defendant did not leave, defendant
  responded that she could "call the fucking police."  Other people who were
  at the food shelf premises to receive services reacted to the incident by
  leaving the building.

       ¶ 4     Foster recounted that she did not feel threatened by
  defendant, but was embarrassed by being "accus[ed] . . . of transmitting a
  venereal disease."  Wilkins also recalled that she did not fear for her
  physical safety, but felt that defendant did not use "appropriate language
  or behavior."

       ¶ 5     The jury returned a verdict of guilty on the charge of
  disorderly conduct.  Defendant subsequently moved to set aside the verdict
  on the ground that her language did not tend to incite an immediate breach
  of the peace.  The court denied the motion.  This appeal followed.

       ¶ 6     In State v. Read, 165 Vt. 141, 148, 680 A.2d 944, 948
  (1996), we limited the reach of the "abusive language" component of the
  disorderly conduct statute to "fighting words," i.e., spoken words which,
  when directed to another in a public place, " 'tend to incite an immediate
  breach of the peace.' "  Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).  In Cohen v. California, 403 U.S. 15, 20 (1971), the
  United States Supreme Court defined "fighting words" as "those personally
  abusive epithets which, when addressed to the ordinary citizen, are, as a
  matter of common knowledge, inherently likely to provoke violent reaction." 
  It is generally acknowledged that the emphasis in Chaplinsky, Cohen, and
  later Supreme Court decisions was thus on the nature of the words spoken,
  considered in light of the surrounding circumstances, and "not on the
  subjective response of the actual addressee."  State v. John W., 418 A.2d 1097, 1104 (Me. 1980); see also Gilles v. State, 531 N.E.2d 220, 222 (Ind.
  Ct. App. 1988) (test of fighting words exception is "whether, under an
  objective standard, the words were stated as a personal insult to the
  hearer in language inherently likely to provoke a violent reaction");
  Johnson v. Palange, 406 A.2d 360, 365 (R.I. 1979) (fighting words are those
  which, under "objective test . . . would cause an average person to
  fight"); City of Seattle v. Camby, 701 P.2d 499, 502 (Wash. 1985) (under
  objective test of fighting words, "addressee need not, in fact, be incited
  to breach the peace"); see also Read, 165 Vt. at 158, 680 A.2d  at 954
  (Morse, J., dissenting) ("The [fighting words] doctrine is limited to words
  likely to immediately provoke the individual listener to whom they are
  directed to start a fight.  An objective standard is required to determine
  that issue . . . .").

       ¶ 7     The thrust of defendant's claim on appeal is that the
  evidence was insufficient to establish that defendant's words tended to
  incite a breach of the peace because neither Foster nor Wilkins felt
  threatened and neither testified that she was personally angered or incited
  to violence.  As noted, however, fighting words are measured by an
  objective, not a subjective, standard.  Thus, "[f]act finders need not look
  to the subjective response of the actual addressee," but must consider the
  nature of the words viewed in the totality of the circumstances.  John W.,
  418 A.2d  at 1104.  

       ¶ 8     Here, the evidence showed that, as she left the conference
  room, defendant directed extremely vulgar and personally offensive insults
  at Foster and hurled several items around the room in a fit of anger. 
  There was also evidence that defendant's behavior alarmed other patrons of
  the food shelf to the point where they felt compelled to leave.  The
  evidence was thus sufficient to support a finding that an average person,
  in these circumstances, could have felt provoked to a violent reaction. 
  See Gilles, 531 N.E.2d  at 223 (personal insults insinuating, among other
  things, "sexually transmitted disease," were "inherently likely to provoke
  a violent reaction" and supported conviction of disorderly conduct); State
  v. McCarthy, 659 N.W.2d 808, 811 (Minn. Ct. App. 2003) (vulgar and
  offensive insulting words and conduct directed at individual that also
  aroused alarm in others sufficient to support disorderly conduct
  conviction).  Accordingly, we conclude that the evidence, viewed in a light
  most favorable to the judgment, see State v. White, 172 Vt. 493, 497, 782 A.2d 1187, 1190 (2001), was sufficient to support the verdict.

       ¶ 9     Despite the dissent's position that it does not intend to
  "continue to war with the holding" in Read, it is hard to see another
  result.  The thrust of the dissent's argument is that the intent element of
  the disorderly conduct statute - intent to cause public inconvenience or
  annoyance, or with such recklessness as to create the risk of public
  inconvenience or annoyance - is vague because it is not a specific intent
  crime.  Disregarding the plain language of statute, the dissent encourages
  us to "export" the Connecticut courts' "judicial gloss" on the intent
  element.  This gloss would require proof that a defendant had the
  "predominant intent . . . to cause inconvenience, annoyance, or harm."(FN2)
  This change does little to clarify the intent element and moreover,
  requires us to ignore the Legislature's plainly stated intent to
  criminalize recklessness in this context.  We must presume that the
  Legislature - as well as the Model Penal Code drafters (FN3) - chose the
  language of the statute carefully and intentionally. 
  
       ¶ 10     We also decline the dissent's urging to read the
  recklessness intent requirement to require a showing of "intent to provoke
  an immediate act of violence."  We cannot agree that the disorderly conduct
  statute as written is over broad if it criminalizes any conduct just short
  of that which prompts the hearer to an immediate violent reaction. 
  Certainly the very notion of prohibiting disorderly conduct is to permit
  the state to intervene before such abusive, aggressive behavior reaches the
  point of violence.  See State v. James M., 806 P.2d 1063, 1066 (N.M. Ct.
  App. 1990) (finding it unreasonable to impose a requirement that a police
  officer wait until the hearer actually violently reacted to defendant's
  speech before charging disorderly conduct).

       ¶ 11     Finally, the dissent suggests that in our holding today we
  overreach and unnecessarily "criminalize speech."  We find it hard to
  support the notion that criminalizing the rage of epithets and accusations
  of passing on a sexually-transmitted disease hurled by defendant at Foster
  constitutes the type of speech intended to be protected by the First
  Amendment.  There are certainly instances in which the profanity and
  insults used by defendant would be protected speech.  See e.g., John W.,
  418 A.2d  at 1108 (holding epithets directed at police officer, as a protest
  to arrest after officer refused to tell juveniles why they had been pulled
  over, were constitutionally protected speech); Ware v. City & County of
  Denver, 511 P.2d 475, 476 (Colo. 1973) (ruling defendant's saying "fuck
  you" during political speech at university was protected speech); In re
  Louise C., 3 P.3d 1004, 1006 (Ariz. Ct. App. 1999) (holding that juvenile's
  use of the "F" word in dispute with principal and another student over
  whether student had stolen her money did not constitute fighting words). 
  But that is not the case here. 

       ¶ 12     As the Supreme Court has made clear, it is not only the
  content of the speech that is important, but the context and circumstances
  in which the language was used that must also be examined.  F.C.C. v.
  Pacifica Found., 438 U.S. 726, 744-45 (1978).  This was not solely the use
  of one profane word spoken in an effort to register disagreement or
  protest.  It was an unprovoked, aggressive, and abusive tirade aimed
  personally at Foster in her workplace.  The object was not, as the dissent
  notes, to register her protest at being removed from Our Place without any
  food, but rather to injure, insult, and accuse Foster of sleeping with her
  ex-husband and spreading venereal disease.  Such behavior falls well
  outside free speech protection.  See In re S.J.N-K., 647 N.W.2d 707, 712
  (S.D. 2002) (holding that student's repeated yelling "fuck you" and use of
  accompanying obscene gestures amounted to an "ongoing aggression" that fell
  outside protected free speech); James M., 806 P.2d  at 1066-67 (ruling
  defendant's repeated yelling "fuck you" while flailing arms during an
  argument on a public sidewalk constituted unprotected speech and was
  punishable disorderly conduct). 

       Affirmed.

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       ¶ 13     DOOLEY, J., dissenting.  The difficulty that emerges when
  we redesign the elements of a crime to set them exactly at the line between
  constitutional and unconstitutional regulation is that the location of that
  line is more understandable to constitutional law scholars than to citizens
  accused of the crime.  I say this not to continue to war with the holding
  in State v. Read, 165 Vt. 141, 680 A.2d 944 (1996), a decision I did not
  join, but instead to urge my colleagues to exercise restraint, appropriate
  when we criminalize speech, in applying its newly designed crime. 

       ¶ 14     I cannot conclude that the majority has shown appropriate
  restraint in this decision.  As a first example, although defendant is
  charged with disorderly conduct by use of "abusive or obscene language," 13
  V.S.A. § 1026(3), both the majority and trial court rely, in part, on
  defendant's conduct in throwing books across the room and dropping a box of
  bread on the floor.  Indeed, the majority shows the importance of the
  conduct to its decision by citing State v. McCarthy, 659 N.W.2d 808 (Minn.
  Ct. App. 2003), as one of two examples of cases that have upheld
  application of a constitutionally-narrowed disorderly conduct statute to
  similar facts.  In McCarthy, the primary ground for finding that defendant,
  a parent attending his son's high school football game, engaged in
  disorderly conduct was that he placed his hands on the body of a referee
  whose call he disputed and refused to remove them.  In this case, the
  conduct, which does not approach that in McCarthy, is irrelevant to the
  charge.  If the conduct was directed at a person, and it somehow increased
  the chance of violent retaliation - the sole focus of the fighting words
  doctrine -  I would understand its relevance, but the facts show no such
  connection. 

       ¶ 15     My second concern arises from the mental element as found
  by the trial court.  In Read, the Court distinguished the United States
  Supreme Court decision in Gooding v. Wilson, 405 U.S. 518, 518-19 (1972),
  which struck down a Georgia statute that criminalized "abusive language,
  tending to cause a breach of the peace" because abusive language is much
  broader than fighting words, reasoning that the Vermont statute has "an
  explicit intent element." 165 Vt. at 148, 680 A.2d  at 948 (the mental
  element "is sufficient to save the statute from a vagueness or overbreadth
  challenge").  But Read did not define what that intent element must be. 
  Indeed, part of Justice's Morse's dissent was based on the fact that the
  majority left open that the mental element could be only that defendant
  "recklessly creat[ed] a risk of public inconvenience or annoyance," a
  mental element that could be shown in any case involving abusive language. 
  Id. at 159, 680 A.2d  at 955 (Morse, J., dissenting).  Thus, it is hardly
  surprising that the State charged exactly the mental element Justice Morse
  feared would be acceptable and that is easiest to meet - that defendant
  "recklessly created a risk of causing public inconvenience."  As a result,
  defendant was not charged with a specific intent crime, see State v.
  Tromble61 n.3, 807 A.2d 400, 404 (2002) (mem.) (where mental elements come
  from Model Penal Code categorizations, specific intent crimes are those
  that require knowing or purposeful action, rather than reckless action),
  and the mental element is more akin to negligence than to intent, see State
  v. Brooks, 163 Vt. 245, 251, 658 A.2d 22, 26-27 (1995) (difference between
  recklessness and negligence is one of degree).  Indeed, the recklessness
  element is not related to fighting words, but to public inconvenience, the
  language that theoretically was narrowed in Read.  In finding that the
  evidence was sufficient for a conviction, the trial court stressed that the
  mental element was recklessness.

       ¶ 16     I do not believe that we can square a mental element that
  does not involve specific intent with the constitutional limits as
  discussed in Read.(FN4)  The Court in Read made clear that under Chaplinsky
  v. New Hampshire a breach of the peace could be found from spoken words
  only if they "'tend to incite an immediate breach of the peace.'" Read, 165
  Vt. at 148, 680 A.2d  at 948 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572) (1942).  I cannot square the immediacy and certainty of this
  standard with a required mental element that does not go far beyond
  negligence.
  
       ¶ 17     Significantly, this is the conclusion of the courts in the
  one state with a relevant precedent relied upon in Read.(FN5)  See State v.
  Weber, 505 A.2d 1266, 1271 (Conn. App. Ct. 1986).  As reflected in Read,
  the court in Weber upheld the same statute as that before us against
  vagueness and overbreadth challenges because of the statutory intent
  requirement that could be met by reckless conduct.  Id.  Weber is not,
  however, the final word on the subject in Connecticut.  In State v.
  Indrisano, 640 A.2d 986, 994 (Conn. 1994) the Connecticut Supreme Court
  placed a judicial gloss over the intent element in the breach of the peace
  statute regulating conduct as follows:
  
            To paraphrase, in order to support a conviction for
       disorderly conduct, the defendant's predominant intent must
       be to cause inconvenience, annoyance or alarm, rather than to
       exercise his constitutional rights.

            Subsequently, in State v. Wolff, 678 A.2d 1369, 1389
       (Conn. 1996), the Court exported the same intent element into
       the breach of the peace statute involved in Weber, the same
       statute as is before us in this case.  Under Wolff, the
       intent element for that statute is:

            "[T]he predominant intent is to cause what a reasonable
       person operating under contemporary community standards would
       consider a disturbance to or impediment of a lawful activity,
       a deep feeling of vexation or provocation, or a feeling of
       anxiety prompted by threatened danger or harm.  In order to
       sustain a conviction for disorderly conduct, the state must
       begin by demonstrating that the defendant had such a state of
       mind."

  Id. (quoting Indrisano, 640 A.2d at 995).

       ¶ 18     Wolfftgoes in a direction urged by a number of
  commentators.  See T. Place, Offensive Speech and the Pennsylvania
  Disorderly Conduct Statute, 12 Temp. Pol. & Civ. Rts. L. Rev. 47, 77 (2002)
  (requiring a showing of "intent to provoke an immediate act of violence . .
  . would provide speakers with fair notice of the speech proscribed by the
  statute and finally resolve the constitutional concerns about the statute
  first raised more than twenty-five years ago"); Note, The Fighting Words
  Doctrine, 93 Colum. L. Rev. 1527, 1569-70 (1993) (by requiring
  intent-to-provoke-violence element, the jury would be focused on what the
  speaker intended to accomplish rather than a person's response to the
  speech).  I agree that we need to punish wrongful intent, rather than
  accepting as reasonable a violent response to speech not intended to
  provoke that action.

       ¶ 19     The trial court made no determination of the adequacy of
  the evidence to meet a specific intent element and stressed, by underlining
  the word, that only recklessness was required and that the recklessness
  related only to public inconvenience.  Indeed, based on the jury
  instructions, the only intent requirement required by the trial judge was
  that defendant's speech "consciously disregard[ed] ... a known substantial
  and unjustifiable risk that her conduct will result in a public
  inconvenience."  An "inconvenience" was defined as an "act which harasses,
  bothers, irritates or disturbs another person."  The very limited mental
  element was emphasized in the State's response to defendant's motion to set
  aside the verdict and was the basis for the trial court's denial of that
  motion.

       ¶ 20     I cannot imagine that the mental element relied upon by the
  trial court would not be met in every case in which fighting words are used
  by a defendant.  If that is an acceptable intent element, it draws
  seriously into question the Court's view in Read that the intent element
  answers any vagueness or overbreadth challenge.  We should hold that it is
  inadequate, and the trial court's decision based upon it must, at least, be
  reconsidered.

       ¶ 21     My third concern is directly related.  The concept of
  fighting words as a constitutionally-required limitation on the disorderly
  conduct statute barely entered this case.  The State charged that defendant
  was "a person who recklessly created a risk of causing public inconvenience
  by using abusive language in a public place."  Nothing in the charge
  suggested that the breadth of the criminal statute had been narrowed by
  Read.  Defendant made a motion to dismiss for lack of a prima facie case,
  citing Read and arguing that "[u]se of simple vulgarity in public" does not
  constitute fighting words.  The court denied the motion stating that
  defendant's behavior was not protected speech and she used abusive language
  coupled with actions of throwing books and food across the room.

       ¶ 22     Nor did the jury understand e narrowed-reach of the statute
  through the trial.  Before the evidence began, the trial judge charged them
  that the "essential elements" of disorderly conduct were that defendant:
  "recklessly ... created a risk of public inconvenience ... by using abusive
  language ... in a public place."  Only in the post-evidence charge did the
  trial judge reiterate the exact same elements and explained each one.  With
  respect to abusive language, she said:

       Fourth, the State must prove that the defendant used
       abusive language.  Abusive language can be defined as
       fighting words which tend to incite an immediate breach of
       the peace.

  The decision on appeal - to uphold the verdict - was based on the limited
  mental element, as discussed above, and that defendant's "language, coupled
  with her actions, incited an immediate breach of the peace."

       ¶ 23     I do not find adequate either the jury instructions (FN6) or
  the court's decision on the post-verdict motion.  In our recent
  jurisprudence we have not explicitly stated whether the trial court has
  discretion in deciding a motion to set aside the jury verdict and enter a
  judgment of acquittal.  State v. Rounds, 104 Vt. 442, 448-49, 160 A. 249,
  250 (1932) strongly suggests that the trial court has discretion in its
  decision and that our review of that decision is deferential.  If this is
  the standard, the trial court clearly abused its discretion in this case. 
  After repeating the element of the crime as abusiv3 language, the court
  suggested an optional definition as fighting words.  The holding of Read is
  not that fighting words are a synonym for "abusive language."  Indeed, the
  explicit holding of Gooding is that they are not synonyms.   After Read,
  the mandatory element of the offense is that defendant uttered fighting
  words, and the jury needed to be told that explicitly.  It was not. 
  Further, the short quote from Chaplinsky hardly conveyed that it is the
  expected violent reaction of the audience to the speech that makes speech
  fighting words, and the jury had to find that the violent reaction was
  likely in this case.
  
       ¶ 24     I have outlined above my difficulties with the decision
  with respect to the mental element of the offense and the relevance of
  defendant's actions, for which she was not charged.  Stripped of those
  aspects, the decision to uphold the verdict was that "her language . . .
  incited an immediate breach of the peace."  It is easy to see from the
  court's decision why defendant was misdirected into arguing here that the
  fact that those who heard defendant's words did not react violently to them
  showed that she did not commit the crime.  In fact, the trial court was
  clearly wrong; defendant's words did not "incite[] an immediate breach of
  the peace" as the trial court held.  As a result, it is impossible to
  determine if the trial court used the proper standard from Read to reach
  its decision.  Given the jury charge, I doubt she court used the proper
  standard.

       ¶ 25     Fourth, I am troubled by grounding a conviction for
  disorderly conduct primarily on the yelling of expletives.  As we held in
  Long v. L'Esperance, 166 Vt. 566, 573, 701 A.2d 1048, 1053-54 (1997),
  expletives are not obscene.  We ruled in Long that arresting a motorist
  under § 1026(c) solely because he uttered an expletive to the officer was a
  clear violation of the motorist's free speech rights such that the officer
  did not have judicial immunity.  Id. at 574-75, 701 A.2d  at 1054.  As other
  courts have emphasized, it is not enough that the words are so offensive,
  obscene or abusive that they arouse resentment in others; they must be such
  as to immediately incite a breach of the peace.  See In re Welfare of
  W.A.H., 642 N.W.2d 41, 47 (Minn. Ct. App. 2002).  Many decisions from other
  states involve similar fact situations where defendant yells expletives to
  others.  See B.E.S. v. State, 629 So. 2d 761, 765 (Ala. Ct. Crim. App.
  1993); State v. Suiter, 56 P.3d 775, 778 (Idaho 2002);  State v. Miller,
  673 N.E.2d 934, 937-38 (Ohio Ct. App. 1996).  I find it difficult to derive
  a bright line rule from these decisions, especially in light of changing
  behavior of citizens in using such language in their everyday speech. 
  Although we upheld the decision to convict a person who used expletives to
  a police officer in Read, the facts showed that defendant's behavior was
  overtly threatening and thus more lily to engender a violent response. 

       ¶ 26     Finally, while I agree that the test is not whether
  defendant's conduct actually provoked a violent reaction, circumstances are
  very important in these cases.  No case demonstrates this more than Gilles
  v. State, 531 N.E.2d 220 (Ind. Ct. App. 1989), the other major case relied
  upon by the majority.  In Gilles, defendant preached to a crowd of drunken
  revelers outside a party, calling them many expletives related to his claim
  that they were the scum of the earth and spreaders of AIDS.  The court
  rightfully found that the words were fighting words in that context.  See
  id. at 222-23. 

       ¶ 27     Here, defendant essentially threw out epithets to show her
  anger at being removed from the social agency without any food from the
  food shelf.  She did not obstruct the removal, and others who heard her
  words reacted only by leaving, not by confronting defendant.  No one was
  threatened, as in Read.  A number of cases that have held that the
  expletives used were not fighting words have relied upon the fact that they
  were stated as defendant was leaving the victim of the alleged abuse.  See,
  e.g., Brendle v. City of Houston, 759 So. 2d 1274, 1284 (Miss. Ct. App.
  2000); Commonwealth v. Hock, 728 A.2d 943, 946 (Pa. 1999).  That is the
  case here.

       ¶ 28     In summary, I cannot conclude that the trial court decided
  the motion to acquit under the correct standard, or that necessarily it
  should have been rejected.  Having chosen this path in Read, we must be
  very sure we are following it fully in compliance with the First Amendment
  constraints and are setting a predictable and understandable standard.  I
  cannot conclude that we are meeting that challenge and dissent from the
  affirmance of the conviction in this case.

       ¶ 29     I am authorized to state that Justice Johnson joins in this
  dissent.



                                        BY THE COURT:
  Dissenting:


  _________________________________     ______________________________________
  John A. Dooley, Associate Justice     Jeffrey L. Amestoy, Chief Justice

  _________________________________     ______________________________________
  Denise R. Johnson, Associate Justice  Marilyn S. Skoglund, Associate Justice

                                        ______________________________________
                                        Paul L. Reiber, Associate Justice

  ----------------------------------------------------------------------------
                                  Footnotes

  FN1.  13 V.S.A. § 1026 provides that: 

       A person who, with intent to cause public inconvenience, or annoyance
  or recklessly creating a risk thereof: 
       (1)  Engages in fighting or in violent, tumultuous or threatening
            behavior; or 
       (2)  Makes unreasonable noise; or 
       (3)  In a public place uses abusive or obscene language; or
       (4)  Without lawful authority, disturbs any lawful assembly or meeting
            of persons; or 
       (5)  Obstructs vehicular or pedestrian traffic, shall be imprisoned
            for not more than 60 days or fined not more than $500.00 or both.

  FN2.  We can find no cases in which other state courts have adopted
  Connecticut's judicial gloss on the intent element in this context.

  FN3.  See Model Penal Code § 250.2 (2002) and our discussion in Read, 165
  Vt. at 147-48, 680 A.2d  at 948. 

  FN4.  The majority has responded that the Legislature has carefully and
  intentionally chosen this language.  I do not disagree, but find that
  response beside the point.  The issue here, as it was in Read, is what
  elements the crime needs to withstand First Amendment challenge.  Read
  added an element not found in the statute, the presence of fighting words. 
  I believe a complementary intent element must be added.  

  FN5.  Read cited three main cases for its point that the intent element
  saves the statute from a vagueness or overbreadth challenge.  165 Vt. 141,
  149, 680 A.2d 944, 949 ( 1996).  The first, Colten v. Kentucky, 407 U.S. 104, 110 (1972), involved conduct, and not speech.  Moreover, it described
  the required intent as "the intent of causing inconvenience, annoyance, or
  alarm," id., omitting any reference to recklessness.  The second,
  Commonwealth v. Mastrangelo, 414 A.2d 54, 57-58 (Pa. 1980), involved a
  charge that defendant breached the peace by making "unreasonable noise," a
  very different charge from that presented here.  As discussed in the text,
  the one similar charge and statute is in State v. Weber, 505 A.2d 1266,
  1271 (Conn. App. Ct. 1986).

  FN6.  Defendant has not appealed the jury instructions.  It is unclear
  whether defense counsel objected to the jury instructions after they were
  delivered to the jury because the post-instruction bench conference was
  apparently not recorded.  Defense counsel did object to part of the
  instructions at a charge conference.  I raise the charge language because
  the trial court's view of the elements of the crime, as reflected in the
  instructions, throws doubt on the post-verdict motion decision that was
  appealed.