Opinion
No. 12–P–20.
2013-04-2
COMMONWEALTH v. OLOV O., a juvenile.
By the Court (GREEN, GRAHAM & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile appeals from an adjudication, after a jury trial, of delinquency based on a charge of disorderly conduct, G.L. c. 272, § 53. He argues that the evidence was insufficient to sustain an adjudication of disorderly conduct and that his motion for a required finding of not guilty should have been allowed. The evidence was sufficient, therefore, we affirm.
Background. The jury could have found the following facts. On November 10, 2010, the dean of students at Taconic High School, O'Connell, informed Pittsfield police Officer Thomas Barber, a school resource officer at that high school, that the juvenile, then a sixteen year old student, may have in his possession the school's stolen set of master keys. The juvenile was called into the dean's office. There O'Connell asked the juvenile whether he had the keys and the juvenile denied having them. He was then asked by O'Connell to empty his pockets, which he did. The keys were not in the juvenile's pockets and he returned to class. Within an hour of the juvenile's return to class, O'Connell received information that the juvenile had hidden the master keys in his wallet. O'Connell and Officer Barber removed the juvenile from his class and spoke with him in the hallway outside of the classroom. In the hallway, O'Connell asked the juvenile to see his wallet and the juvenile became irritated and yelled that he had already been searched and refused to be searched again. During this time, the juvenile used obscenities.
O'Connell asked the juvenile to calm down and requested that the juvenile go to the student personnel office, where issues of student discipline are handled. The juvenile responded by yelling more profanity. When asked by Officer Barber to calm down and stop cursing, the juvenile again responded with profanity. The juvenile, then on his way to the office, was cursing and yelling while walking down the hallway. When the juvenile arrived at the set of double doors at the end of the hallway, he slammed them into the walls as he opened them, making a “large, loud crashing sound.” After slamming the doors open, the juvenile continued cursing and yelling.
Officer Barber then approached the juvenile to arrest him. A struggle ensued when the juvenile resisted, and the juvenile shoved Officer Barber. At this time, O'Connell called the vice principal for assistance, who arrived and attempted to calm the juvenile. Officer Barber also called the police department to request additional assistance.
There were other classrooms along that hallway and classes were in session at the time of the incident. There was no evidence as to whether other teachers or students were in the hallway at that time.
Sufficiency of the Evidence. On review of the denial of a motion for required finding based on the argument that the Commonwealth's evidence was insufficient, we ask whether, viewing the evidence in the light more favorable to the Commonwealth, a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
To sustain a conviction of disorderly conduct based on the claim that the juvenile's behavior was “tumultuous,”
the Commonwealth must prove beyond a reasonable doubt that the juvenile, “with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, ... engages in fighting or threatening, or in violent or tumultuous behavior.” Commonwealth v. Zettel, 46 Mass.App.Ct. 471, 473 (1999), quoting from Commonwealth v. Feigenbaum, 404 Mass. 471, 474 (1989).
A conviction of disorderly conduct can also be based on the theory that the behavior “creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. ” Commonwealth v. Zettel, 46 Mass.App.Ct. 471, 474 (1999), quoting from Commonwealth v. Feigenbaum, 404 Mass. 471, 474 (1989). In this case, the Commonwealth proceeded at trial on the theory that the juvenile's behavior was “tumultuous.”
The juvenile argues that the Commonwealth's proof was insufficient because the Commonwealth failed to prove that his actions were “tumultuous” or that they were reasonably likely to affect the public.
The juvenile concedes that the hallway at Taconic High School is a public place.
“ ‘Tumultuous behavior’ is conduct which may be characterized as involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance.” Commonwealth v. Sinai, 47 Mass.App.Ct. 544, 548 (1999), citing Commonwealth v. A Juvenile, 368 Mass. 580, 597 (1975). The Commonwealth concedes, correctly so, that a conviction for tumultuous conduct cannot rest solely on the juvenile's inflammatory speech.
Here, however, the juvenile repeatedly yelled obscenities and caused such a great commotion in the hallway, slamming hallway doors and shoving Officer Barber in an attempt to resist arrest, that O'Connell and Officer Barber had to call for further assistance to subdue the juvenile.
“To be disorderly, within the sense of the statute, the conduct must disturb through acts other than speech; neither a provocative nor a foul mouth transgresses the statute.” Commonwealth v. Lopiano, 60 Mass.App.Ct. 723, 725 (2004), quoting from Commonwealth v. LePore, 40 Mass.App.Ct. 543, 546 (1996).
Also, there is no merit to the juvenile's argument that the Commonwealth did not prove that his actions were likely to affect the public because there was no evidence that any students or teachers were in the hall or that his conduct drew a crowd of onlookers. Given that the incident occurred in a hallway connected to classrooms where classes were in session, it reasonably can be inferred that it could have been seen or heard by anyone in that area of the high school. See Commonwealth v. Mulvey, 57 Mass.App.Ct. 579, 583 (2003) (public requirement of disorderly conduct is satisfied even if disturbance occurs in a secluded environment, “but only if members of the public are likely to be affected”). See also Commonwealth v. Bacigalupo, 455 Mass. 485, 489 (2009) (citation omitted) (“In viewing the evidence, the inferences we draw need only be ‘reasonable and possible,’ not necessary”).
Adjudication of delinquency affirmed.