                                               Tuesday      20th

          March, 2001.


Steven Joseph Jolinski,                                     Appellant,

against      Record No. 2083-99-3
             Circuit Court No. CR99011269

Commonwealth of Virginia,                                   Appellee.


                          Upon a Rehearing En Banc

      Before Chief Judge Fitzpatrick, Judges Benton, Willis,
    Elder, Bray, Annunziata, Bumgardner, Frank, Humphreys and
                             Clements*

          S. Jane Chittom, Appellate Counsel (Elwood
          Earl Sanders, Jr., Appellate Defender;
          Public Defender Commission, on brief), for
          appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


          By unpublished opinion, a divided panel of this Court

affirmed the appellant's conviction in charge CR99011269.   Jolinski

v. Commonwealth, Record No. 2083-99-3 (Va. Ct. App. June 20, 2000).

We stayed the mandate of that decision and granted rehearing en banc.

          Upon a rehearing en banc, the stay of the mandate is

lifted, and the judgment of the trial court is affirmed in accordance

with the majority panel opinion.

          Judges Benton, Elder and Annunziata dissent for the reasons

set forth in the panel dissent.
          The Commonwealth shall recover of the appellant the costs

in this Court, which costs shall include an additional fee of $200

for services rendered by the Public Defender on the rehearing portion

of this appeal, in addition to counsel's necessary direct

out-of-pocket expenses, and the costs in the trial court.   This

amount shall be added to the costs due the Commonwealth in the

June 20, 2000 mandate.

          This order shall be certified to the trial court.



     * Judge Agee did not participate in the consideration or decision
of this case.

                           A Copy,

                                Teste:

                                          Cynthia L. McCoy, Clerk

                                By:

                                          Deputy Clerk




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                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia


STEVEN JOSEPH JOLINSKI
                                             MEMORANDUM OPINION * BY
v.   Record No. 2083-99-3                 JUDGE RUDOLPH BUMGARDNER, III
                                                  JUNE 20, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                       Richard S. Miller, Judge

          S. Jane Chittom, Appellate Counsel (Elwood Earl
          Sanders, Jr., Appellate Defender; Public Defender
          Commission, on brief), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief), for
          appellee.


     Steven Joseph Jolinski challenges the sufficiency of the

evidence supporting his conviction for disorderly conduct in

violation of Code § 18.2-415. 1    Finding no error, we affirm.

     We view the evidence in the light most favorable to the

Commonwealth and grant to it all reasonable inferences fairly

deducible from it.   See Archer v. Commonwealth, 26 Va. App. 1, 11,


     * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     1
       "A person is guilty of disorderly conduct if, with the intent
to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he . . . engages in conduct having a direct
tendency to cause acts of violence by the person or persons at whom,
individually, such conduct is directed" in a public place. Code §
18.2-415(A).


                                  - 3 -
492 S.E.2d 826, 831 (1997).   Off-duty police officer B.P. Balmer was

working as a uniformed security guard for Cattle Annie's, a bar and

restaurant, during its annual band festival.   Balmer was responsible

for patrolling the streets surrounding the bar and monitoring the

"traffic and the flow of people in and out."   Balmer was across the

street from the bar when another security guard approached him,

pointed to the defendant, and stated that he had been ejected for

"some sort of ABC violation."

       The defendant approached Balmer and asked, "[w]ho can I talk

to?"   Balmer asked what he needed, and while the defendant looked at

the officers, he began cursing and yelling.    He yelled, "I don't

understand what the fuck is going on," and indicated that he had been

kicked off the property, had traveled a long way, was with his

friends, and didn't understand why they were "doing this to him."

The defendant took out his wallet and asked Balmer, "[w]hat do I have

to pay you to let me back in?"    Balmer asked if he was offering a

bribe.    The defendant responded, "Hell, yeah, whatever the fuck I

have to do to get back in."

       Balmer advised the defendant that he would be arrested for the

way he was acting.   The defendant "started waving his arms around and

yelling" as a crowd gathered.    Based on his experience as a police

officer, Balmer felt the defendant "might have been ready to want to

fight."   He felt the defendant's "general demeanor" and behavior was

"activity consistent with somebody being ready to be combative."

Balmer arrested the defendant who resisted by struggling and cursing.

                                 - 4 -
     The defendant testified he was not upset and that it was Balmer

who was argumentative and would not let him get a word in edgewise.

The defendant said he was trying to leave freely and voluntarily but

acknowledged he approached Balmer to find out how to get back inside

the bar.   The defendant denied swearing or offering a bribe to regain

entrance to the bar and claimed he was cooperative the entire time.

     The trial court found that the defendant's "conduct in waving

his arms and gesturing was done recklessly and did create a risk that

the persons at whom it was directed, that is, the police officers and

anybody else in the area, might have caused acts of violence by those

persons as set forth in Subsection A of [Code § 18.2-415]."   It

convicted him of disorderly conduct. The defendant argues the

evidence was insufficient to show that his conduct had the tendency

to cause Balmer to act violently because none of his abusive language

was directed at Balmer and he made no lunging moves toward anyone.

     In Keyes v. City of Virginia Beach, 16 Va. App. 198, 428 S.E.2d

766 (1993), an officer stopped Keyes in her babysitter's driveway at

10:45 p.m. for a traffic infraction.   Keyes told the officer she was

running late, was in a hurry, that her husband was a military

policeman, and asked him to "just cut her a break."   Id. at 199, 428

S.E.2d at 767.   The officer permitted her to inform her babysitter

that she would be delayed a few minutes.   When the defendant returned

to the police car, she asked what the officer was doing.   When he

replied that he was still issuing a summons, she stated that she was



                               - 5 -
going to get her child and started walking fast to the house.     The

officer ordered her to return to the cruiser.

       Keyes "put her hands down . . . balled her fists . . .

straightened up" and "just started screaming" at the officer.     The

officer told her that he would arrest her for disorderly conduct if

she did not calm down.    The defendant said, "you ain't going to do

nothing to me," and demanded the presence of a "real policeman,"

"screaming the entire time."     Id.   The officer arrested her because

he believed she "was going to fight."     An officer, who arrived to

assist, testified the defendant was screaming, "very boisterous," and

causing a big commotion.     Id. at 200, 428 S.E.2d at 767.

       In affirming Keyes's convictions, this Court ruled that "[s]uch

willful, intemperate and provocative conduct, in response to proper

law enforcement activity, audible for several blocks and visible from

a public street, clearly evinced the intent or recklessness

contemplated" by the disorderly conduct ordinance.      Id. at 200, 428

S.E.2d at 768.   Because the officer "reasonably 'felt as though [he]

was going to have to fight' to subdue defendant, her behavior had 'a

direct tendency to cause acts of violence by the person . . . at whom

[it was] directed.'"     Id. (citation omitted).

       In this case, Balmer was working security at a bar, lawfully

performing his duties to keep the peace when the defendant approached

him.   The defendant was upset about being ejected from the bar.    The

defendant got louder and abusive, and attracted a crowd.      When the

officer warned the defendant he would be arrested for that behavior,

                                 - 6 -
the defendant started waving his arms around and continued yelling.

Believing that the defendant was in the beginning stages of combative

behavior and that he wanted to fight, the officer arrested the

defendant.   It was reasonable to infer from those facts that the

defendant was not going to stop causing a scene until he was

permitted to re-enter the premises, which he was not entitled to do.

     The defendant relies on Ford v. City of Newport News, 23 Va.

App. 137, 474 S.E.2d 848 (1996).    In Ford, an officer asked a man

pushing a bicycle to come over.    The defendant complied and became

loud and boisterous, and waved his arms in the air.   "Although the

defendant was loud, profane and uncivil, the officers had no basis to

conclude, on these facts, that they would be required to use physical

force to restrain the defendant in order to carry out their duties."

Id. at 145, 474 S.E.2d at 852 (citation omitted).

     The difference between Ford and Keyes is whether the officers

had reason to conclude they would need to use physical force.    In

Ford he did not; in Keyes he did.    In this case, the abusive language

was similar to that in Ford, but it was coupled with evidence that

the defendant had reached the initial stages of combative behavior

and wanted to fight.   That additional fact brings it within the

holding of Keyes.

     "'[T]he question as to whether a particular act is disorderly

conduct depends largely on the facts in the particular case, and in

the determination of such question not only the nature of the

particular act should be considered but also the time and place of

                               - 7 -
its occurrence as well as all the surrounding circumstances.'"

Collins v. City of Norfolk, 186 Va. 1, 5, 41 S.E.2d 448, 450 (1947)

(quoting 27 C.J.S. 278).   The trial court found that the defendant's

conduct was directed at both Balmer and the crowd and that the

conduct created a risk of violence by them.   The evidence supported

those findings, and it was reasonable for Balmer to believe that the

defendant was not going to cease this behavior until he regained

entrance into the bar, engaged in a fight, or was arrested.     The

statute proscribes this type of conduct and permitted the arrest

before any outbreak of violence.   Accordingly, we affirm the

conviction for disorderly conduct.

                                                                Affirmed.




                               - 8 -
Elder, J., dissenting.

     I would hold the outcome of this case is controlled by Ford v.

City of Newport News, 23 Va. App. 137, 143, 474 S.E.2d 848, 850-51

(1996), and is distinguishable from Keyes v. City of Virginia Beach,

16 Va. App. 198, 428 S.E.2d 766 (1993), relied on by the majority to

affirm appellant's conviction.    As a result, I would conclude the

evidence is insufficient to support appellant's disorderly conduct

conviction and would reverse.    Therefore, I respectfully dissent.

     Code § 18.2-415 provides in relevant part as follows:

               A person is guilty of disorderly conduct if,
          with the intent to cause public inconvenience,
          annoyance or alarm, or recklessly creating a risk
          thereof, he:
               A. In any street, highway, . . . or public
          place engages in conduct having a direct tendency
          to cause acts of violence by the person or
          persons at whom, individually, such conduct is
          directed;

          *      *       *       *       *     *      *

               However, the conduct prohibited under
          subdivision A . . . shall not be deemed to
          include the utterance or display of any words or
          to include conduct otherwise made punishable
          under this title.

     "The requirement that the defendant's actions or behavior . . .

must have a 'direct tendency to cause acts of violence' is dictated

by concern for First Amendment free speech protections."     Ford, 23

Va. App. at 143, 474 S.E.2d at 850-51.

          [T]he First Amendment protects a significant
          amount of verbal criticism and challenge directed
          at police officers. "Speech is often provocative
          and challenging. . . . [But it] is nevertheless
          protected against censorship or punishment,

                                 - 9 -
          unless shown likely to produce a clear and
          present danger of a serious substantive evil that
          rises far above public inconvenience, annoyance
          or unrest."

Id. at 143, 474 S.E.2d at 851 (quoting City of Houston v. Hill, 482

U.S. 451, 461, 107 S. Ct. 2502, 2509, 96 L. Ed. 2d 398 (1987)

(quoting Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S. Ct.

894, 896, 93 L. Ed. 1131 (1949))).

     Whether the acts have a tendency to cause violence in the person

or persons at whom they were directed requires an objective analysis-

-whether the conduct of the accused would provoke a reasonable person

to violence.    See Mercer v. Winston, 214 Va. 281, 284, 199 S.E.2d

724, 726 (1973) (interpreting former Code § 18.1-255, now Code

§ 18.2-416, which prohibits the use of abusive language); Burgess v.

City of Va. Beach, 9 Va. App. 163, 167-68, 385 S.E.2d 59, 61 (1989)

(holding that police officers are not subject to a higher standard of

restraint).    "[W]hether a particular act is disorderly conduct

depends largely on the facts in the particular case, and in the

determination of such question not only the nature of the particular

act should be considered but also the time and place of its

occurrence as well as all the surrounding circumstances."     Collins v.

City of Norfolk, 186 Va. 1, 5, 41 S.E.2d 448, 450 (1947).

     I would hold the outcome of this case is controlled by our

ruling in Ford, 23 Va. App. 137, 474 S.E.2d 848.    Here, as in Ford,

the evidence was insufficient as a matter of law to establish that

appellant's conduct, excluding his statements as we must under the


                               - 10 -
statute, had a direct tendency to cause violence by the people at

whom it was directed.

        Ford involved a consensual encounter between two uniformed

police officers and a bicyclist, which occurred at about 9:00 p.m. in

a "known high crime area."       Id. at 141-42, 474 S.E.2d at 850.   When

the officers asked the bicyclist "to come over to [them]," he

"immediately became loud, angry, and uncooperative."       Id. at 141, 474

S.E.2d at 850.    He cursed at the officers, saying, "I'm tired of this

shit.    The cops in Hampton do the same shit, and I'm not going to put

up with it anymore."      Id.   The defendant also "threw 'his arms about

in the air.'"     Id.   His actions were "so loud and boisterous" that

nearby apartment dwellers and officers in a training class heard the

commotion and offered assistance to the two officers.       Id.   Appellant

did not cease his behavior and was arrested for disorderly conduct.

See id.

        In reversing Ford's conviction, we held as follows:

                  Officer Nowak did not have reason to believe
             that the defendant's conduct would provoke a
             violent response from the person or persons at
             whom such conduct was directed, which is a
             requisite element of [disorderly conduct]. The
             words uttered by the defendant, however offensive
             or rude, do not establish disorderly conduct.
             Although Officer Nowak testified that the
             defendant "[threw] his arms about in the air" and
             was "loud and boisterous," he made no threatening
             remarks, uttered no words that would reasonably
             incite a breach of the peace, [and] made no
             threatening movements toward the officers. While
             the defendant's remarks lacked civility and were
             impolite, loud, and persistent protestations
             about his treatment, his act of throwing his arms
             in the air could in no reasonable way cause or

                                  - 11 -
          incite the officers to violence. There is simply
          no evidence in the record to support a reasonable
          belief that the defendant's conduct would cause a
          reasonable officer to respond with physical force
          or violence or that the officers considered the
          defendant's throwing his arms in the air to be an
          assault.

Id. at 144, 474 S.E.2d at 851.

     Here, like in Ford, appellant's words may have been offensive or

rude, but they did not establish disorderly conduct.   Although

appellant waved his arms in the air and Balmer thought "he might have

been ready to want to fight," Balmer admitted that appellant "didn't

actually make any assaulting movements toward" Balmer or anyone else

and did not threaten any of the officers or even call them names.

Although appellant's actions may have begun to draw a crowd, no

evidence establishes that appellant threatened the crowd or directed

his anger at them, and the mere presence of others at the scene did

not convert appellant's behavior into disorderly conduct.   The

accused in Ford was so loud that nearby apartment dwellers and police

officers in a training class responded and offered assistance to the

two officers on the scene, indicating their implicit belief that

Ford's conduct may have posed some sort of threat, but we

nevertheless held the evidence was insufficient to find Ford guilty

of disorderly conduct.   Finally, in appellant's case, the trial court

held merely that appellant's conduct "might have caused acts of

violence" (emphasis added) by those at whom it was directed, whereas

the statute requires proof that the conduct had "a direct tendency to

cause acts of violence" by those at whom it was directed.   Code

                              - 12 -
§ 18.2-415 (emphasis added).    Under the circumstances in appellant's

case, I would hold the trial court erred in convicting appellant of

disorderly conduct.

      Unlike the majority, I would hold this case is distinguishable

from, rather than controlled by, our ruling in Keyes, 16 Va. App.

198, 428 S.E.2d 766.   In Keyes, a police officer stopped the accused

for a traffic infraction, and she attempted to leave his police car

before he had finished writing the ticket.       See id. at 199, 428

S.E.2d at 767.   When he ordered her back to the car, she "balled her

fists[,] . . . straightened up" and "started screaming at [him]."

Id.   When he warned her that he would arrest her for disorderly

conduct if she did not calm down, she continued to scream, saying

"you ain't going to do nothing to me."     Id.   The arresting officer

testified that he thought the accused "was going to fight," and he

placed her under arrest for disorderly conduct.       Id.   In affirming

the conviction, we emphasized that the accused refused to cooperate

with an officer engaged in the lawful performance of his duties--

issuing a traffic summons.     See id. at 200, 428 S.E.2d at 768.      We

found reasonable the officer's belief, based on his description of

the accused's behavior, that he thought he was "going to have to

fight" to subdue her, thereby establishing that her behavior had "a

direct tendency to cause acts of violence by the person . . . at whom

[it was] directed."    Id.

      Here, in contrast to Keyes, Officer Balmer was engaged in a

consensual encounter with appellant when appellant became disruptive,

                                - 13 -
an encounter from which Balmer could have attempted to remove himself

without abdicating his duty.   Appellant made no assaultive moves

toward Balmer or anyone else, and Balmer testified merely that he

"felt like [appellant] was going to get in the beginning phases of

getting into a combative nature" and "might have been ready to want

to fight."   Unlike the officer in Keyes, Balmer did not testify that

he thought he was going to have to fight appellant.   Balmer was not

compelled by duty to continue the encounter with appellant.   Under

the facts set out above, I believe the evidence was insufficient as a

matter of law to establish that appellant's conduct had a direct

tendency to cause violence by the people at whom it was directed.

     For these reasons, I would find Ford controlling and Keyes

distinguishable.   Because I believe the evidence failed to establish

that appellant's conduct had a direct tendency to cause violence by

Officer Balmer or anyone else at the scene, I would reverse and

dismiss appellant's conviction.




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