Opinion
No. 108,617.
2013-03-8
In the Matter of J.K.P., DOB:XX/XX/2000.
Appeal from Atchison District Court; Robert J. Bednar, Judge. Robert D. Campbell, of Campbell Law Office, P.A., of Atchison, for appellant. Patrick E. Henderson, assistant county attorney, Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Robert J. Bednar, Judge.
Robert D. Campbell, of Campbell Law Office, P.A., of Atchison, for appellant. Patrick E. Henderson, assistant county attorney, Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
J.K.P. appeals his juvenile adjudication of disorderly conduct. J . K.P.'s primary claim on appeal is that there was insufficient evidence to support his adjudication. Finding there was sufficient evidence, we affirm the district court's judgment.
On May 31, 2012, Officer Brian Johnson of the Atchison Police Department responded to a report of a fight in progress at the Terrace Hills apartment complex in Atchison. When Johnson arrived at the scene, Officer Jack Laurie was already there, speaking with Z .C, a 14–year–old who lived in the complex. Z.C. told Laurie that another boy had thrown rocks at him and called him a “nigger.” Johnson heard Z.C. say that the other boy—an 11–year–old—was named J.K.P. Johnson knew J.K.P., so he and Sergeant Kory Webb went to J.K.P.'s apartment to talk with him. J.K.P. and his mother were in the apartment and, when asked, J.K.P. stated that he had been in a fight. J.K.P. told Johnson that he had called the other children niggers and that they had thrown rocks at each other, but he did not say who had started the fight. Johnson later testified that he repeatedly asked J.K.P. if he had been hit, tackled, or hurt in any way during the fight, and J.K.P. said that he had not been physically touched in the fight.
Johnson and Webb left the apartment but then discovered that Z.C. and his mother wanted to press charges, so Johnson went back to the apartment and arrested J.K.P. After Johnson took J.K.P. to the police department, issued a juvenile referral, and released him, J.K .P. gave a statement. In the statement, J.K.P. said that he had gone outside that day and Z.C. and I.D., an 11–year–old who also lived in the apartment complex, were staring at him. J.K.P. asked what they were looking at and the children traded insults. At that point, J.K .P. stated that I.D. threw a rock at him and J.K.P. in turn threw a rock at I.D. J.K.P. stated that he ran from the boys, but I.D. followed him. When J.K.P. asked I.D. what he was doing, I.D. said he was “coming after” J.K.P. According to the statement, I.D, chased J.K.P., at various times grabbing, tackling, and throwing a stick at him. J.K.P. stated that I.D. chased him until J.K.P.'s mother arrived and told him to stop. J.K.P. admitted calling I.D. a nigger, but stated he did so after I.D. called him a nigger.
On June 7, 2012, the State filed a complaint alleging that J.K.P. had engaged in disorderly conduct in violation of K.S.A.2011 Supp. 21–6203. J.K.P. entered a plea of not guilty, and the bench trial occurred on July 26, 2012. Z.C. testified first, stating that on the day in question he and I.D. were playing catch with J.C., Z.C.'s little brother, when J.K.P. came outside and began throwing rocks at them, yelling at them, and calling them niggers. Z.C, J.C., and I.D. are all African–American; J.K.P. is white. Z.C. testified that J.K .P.'s language evoked resentment in him; Z.C. maintained that J.K.P. initiated the yelling between the boys and that J.K.P. chased I.D.
I.D. testified next. He stated that on the day in question, he was playing catch with Z.C. when J.K.P. ran past, looking upset. When I.D. asked what was wrong, J.K.P. said to leave him alone. After some people came looking for J.K.P., I.D. and Z.C. found him down the street and tried to convince him to go home. I.D. testified that at this point, J.K.P. called him a nigger twice. J.K .P.'s mother then arrived and I.D. went home. I.D. stated that being called a nigger made him angry, that he considered it an offensive word, and that J.K.P. had called him a nigger once before. I.D. admitted on cross-examination that he had previously called J.K.P, names but stated that the worst he had said was that J.K.P. was stupid. I.D. denied throwing rocks at J.K.P.
Officer Johnson also testified for the State, relating his interview of J.K.P. at the apartment complex and J.K.P.'s statement at the police station after his arrest. After Johnson's testimony, J.K.P. moved for a directed verdict, claiming that the State was arguing that using the word nigger is per se disorderly conduct and asserting that J.K.P.'s speech was protected by the First Amendment. The district court denied the motion.
T.P., J.K.P.'s mother, testified on his behalf. T.P. testified that although I.D. and J.K.P. had been friends, she had seen I.D. picking on J.K.P. prior to the day in question. Specifically, she testified that I.D. had battered J.K.P. in March, leaving him bruised and afraid. T.P. testified that on the morning in question, J.K.P. ran out of their apartment upset after she washed his mouth out with soap when he threatened suicide. T.P. testified that when she caught up with J.K.P., she saw I.D. chasing him. I.D. had a stick in his hand and both boys seemed upset. T.P. also testified that when J.K.P. talked with the police, she heard him tell the police that I.D. chased and tackled him. T.P. testified that although she heard J.K.P. admit to the police that he called I.D. a nigger, she had never heard J.K.P. use the word. She testified, however, that she considered it an offensive word, a word that would reasonably arouse anger or resentment in others, and a word she would expect to instigate a fight or a breach of the peace.
Finally, J.K.P. testified, stating that after he ran outside that morning, he and I.D. traded insults, after which I.D. threw a rock at him and he threw a rock at I.D. J.K.P. testified that he ran away, but I.D. chased him, grabbed him by the arm, tackled him, and threw a stick at him. After I.D, tackled him, J.K.P. called I.D. a nigger. J.K.P. testified that he only used the word nigger once that day and that it was the first time he had ever used the word. J .K.P also stated that he did not know what the word nigger meant but found out after he said it that it tends to make people very upset. He stated that he had heard it used at a park about a month before the incident with I.D. and it did not cause “that much reaction.” J.K.P. testified that he said the word to try to get I.D. to go away, and then testified that he called I.D. a nigger because I.D. called him a nigger first.
After hearing the evidence, the district court adjudicated J.K.P. a juvenile offender for having committed the offense of disorderly conduct. J.K.P. timely appealed.
On appeal, J.K.P. initially argues that the district court erred in finding that his use of the word nigger was a per se violation of the disorderly conduct statute. But as the State points out, the district court made no such finding. The district judge ruled:
“ The Court is not adopting a per se violation.
“However, the Court is finding that the exchange of words by [J .K.P.] directed at the people who testified in this case, that he did use language or words—and did engage in noisy conduct—tending to reasonably arouse anger or resentment.”
“Words that are chosen in one context may not be offensive to another person, but used in another context may be extremely offensive to another person.
“ That is where the Court is not adopting the per se violation of this.
“But the Court believes that the State has met its burden beyond a reasonable doubt and adjudicates the youth a juvenile offender having committed the offense of disorderly conduct.” (Emphasis added.)
Thus, although the issue of whether J.K.P.'s words were fighting words is relevant, any argument by J.K.P. on appeal regarding a finding of a per se violation is moot, as there was no such finding by the district court. J.K.P.'s primary argument on appeal is that the State provided insufficient evidence to support the adjudication of disorderly conduct. A challenge to the sufficiency of the evidence requires examination of whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, an appellate court is convinced that a rational factfinder could have found the juvenile guilty beyond a reasonable doubt. In re B.M.B., 264 Kan. 417, 433, 955 P.2d 1302 (1998). When applying this standard of review, an appellate court does not reweigh evidence. See State v. J.H., 40 Kan.App.2d 643, 645, 197 P.3d 467 (2007).
J.K.P. was adjudicated guilty of disorderly conduct in violation of K.S.A.2011 Supp. 21–6203. The statute states in relevant part:
“(a) Disorderly conduct is one or more of the following acts that the person knows or should know will alarm, anger or disturb others or provoke an assault or other breach of the peace:
....
(3) using fighting words or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.
....
“(c) As used in this section, ‘fighting words' means words that by their very utterance inflict injury or tend to incite the listener to an immediate breach of the peace.”
J.K.P. argues that the State did not present sufficient evidence to show that the word nigger falls into the category of fighting words. J.K.P. contends that there was no evidence that the word tends to inflict injury by its very utterance. However, Z.C. testified that hearing the word caused resentment in him, and I.D. testified that being called a nigger made him angry and that he considered it an offensive word. Furthermore, as the Supreme Court of North Carolina has stated: “No fact is more generally known than that a white man who calls a black man a ‘nigger’ within his hearing will hurt and anger the black man and often provoke him to confront the white man and retaliate.” In re Spivey, 345 N.C. 404, 414, 480 S.E.2d 693 (1997).
J.K.P. also argues that there was no evidence that either boy was incited to commit an immediate breach of the peace. But J.K.P. provides no legal authority to support his argument that such a showing is required. To the contrary, in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the United States Supreme Court stated that fighting words “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (Emphasis added.) The Chaplinsky Court required only the likelihood of incitement of an immediate breach of the peace, not an actual breach of the peace. 315 U.S. at 573.
J.K.P. also asserts that the meaning of the word nigger may change depending on the context, complaining that the State did not present any evidence of what the word meant here. The district court agreed that context was important, noting that “[w]ords that are chosen in one context may not be offensive to [one] person, but used in another context may be extremely offensive to another person .” Indeed, our Supreme Court has long recognized the importance of context in determining whether disorderly conduct has occurred. See State v. Stroble, 169 Kan. 167, 170, 217 P.2d 1073 (1950) (determination of whether disorderly conduct occurred requires courts to examine all surrounding facts and circumstances).
Here, J.K.P. called Z.C. and I.D. niggers. Although the boys' accounts did not match precisely, it is apparent that J.K.P. was upset on the day in question and that there was tension between the boys. J.K.P. testified that the boys insulted each other and threw rocks at each other prior to the name-calling. Z.C. testified that the word made him feel resentful; I.D. testified that it made him angry. Considering the context in which the racial slur was uttered, there was sufficient evidence for a rational factfinder to conclude that the slur was a fighting word.
J.K.P. also cites to City of Wichita v. Hughes, 12 Kan.App.2d 621, 752 P.2d 1086 (1988), in which this court found unconstitutional a city ordinance against disorderly conduct. In Hughes, the defendant yelled racial slurs and profanities in a pharmacy and at police who responded to a complaint by a pharmacy owner. 12 Kan.App.2d at 621–23. The defendant was convicted of disorderly conduct in violation of a city ordinance which stated: “Any person in the city who willfully disturbs the peace and quiet of any person, family or neighborhood is guilty of a misdemeanor.” 12 Kan.App.2d at 623. This court ultimately found the ordinance unconstitutionally vague and overbroad and reversed the conviction. 12 Kan.App.2d at 625.
Hughes is clearly distinguishable from the present case as the city ordinance examined in that case is different from the language of K.S.A.2011 Supp. 21–6203(a)(3). The only issue in Hughes was whether the city ordinance was unconstitutionally vague and overbroad. Hughes does not stand for the proposition, as J.K.P. argues, that mere name-calling between private persons is protected speech.
Finally, even if the word nigger is a fighting word, J.K.P. contends that the State did not provide sufficient evidence that he knew or should have known saying the word would alarm, anger, or disturb others or provoke an assault or other breach of the peace. Although J.K.P. testified that he did not know what the word “nigger” meant at the time he said it to I.D., intent may be inferred from circumstantial evidence. See State v. McWilliams, 295 Kan. 92, 97, 283 P.3d 187 (2012) (holding that the district court, as factfinder, could reasonably infer from certain evidence that claims for payment demonstrated intent to commit Medicaid fraud).
Here, J.K.P. gave conflicting testimony about whether he understood the meaning of the word nigger. J.K.P. testified that, although he knew by the time of trial that it was not a complimentary word, he did not know it was an upsetting word when he called I.D. a nigger. When asked why he used the word, he stated first that he did not know, then that he “was trying to tell [I.D.] like to go away.” J.K.P. later testified that he did not think that calling I.D. a nigger would make him go away, but that he had said the word because I.D. said it to him first.
On the other hand, J.K.P. clearly used the word in a tense and antagonistic situation while the boys were yelling and throwing rocks at each other. Although J.K.P. stated that he had never used the word before the day in question, I.D. testified that J.K.P, had called him a nigger on one prior occasion. I.D. also testified that J.K.P. called him a nigger twice on May 31, 2012, J.K.P.'s mother testified regarding the offensive nature of the word, stating that she found the word offensive and that it is a word she would expect to incite a fight or breach of the peace.
This court generally will not reweigh the evidence or the credibility of the witnesses. See J.H., 40 Kan.App.2d at 645. Considering the pervasive understanding of the offensive and disturbing nature of the word nigger and the conflicting testimony regarding J.K.P.'s intent behind saying the word, there was sufficient evidence for the district court to find that J.K.P. knew or should have known that calling the other boys a nigger would alarm, anger, or disturb them or provoke an assault or other breach of the peace. Viewing the evidence in the light most favorable to the State, we conclude there was sufficient evidence to support J.K.P.'s adjudication of disorderly conduct.
Affirmed.