State v. Allcock (2002-504); 177 Vt. 467; 857 A.2d 287
2004 VT 52
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
¶ 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).
¶ 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
¶ 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
¶ 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
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
¶ 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
¶ 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 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
¶ 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
¶ 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
BY THE COURT:
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
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
(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