                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          MAR 4 2003
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 02-6262
 v.                                                (D.C. No. 02-CR-15-C)
                                                     (W.D. Oklahoma)
 ROBERT W. RONE,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before EBEL, HENRY and HARTZ, Circuit Judges.


      Robert W. Rone appeals his conviction for violating 38 C.F.R.

§ 1.218(a)(5), which prohibits the use of “loud, abusive, or otherwise improper

language” in facilities controlled by the Department of Veterans Affairs (“VA”).

He argues that the evidence admitted against him at trial was insufficient to

support the conviction. We AFFIRM his conviction.


      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
      On April 2, 2001, the defendant was transported against his will to a

Veteran’s Administration Medical Center in an ambulance. He arrived on a

gurney and in four-point restraints. (Tr. at 33.) When he was brought into the

emergency room, the defendant began yelling loudly at the nurses and using

profanity. (Id. at 34, 56, 58, 71.) The defendant threatened one of the nurses and

disturbed other patients by yelling at them. (Id. at 8, 37, 39.) A police officer

was called and instructed the defendant that if he did not calm down the officer

would issue him a citation. (Id. 35, 71.) The defendant periodically calmed

down, but continued to be verbally abusive to the staff and patients in the

emergency room between these calmer periods. (Id. 35, 52.) Because of his

disruptive behavior, the defendant remained in restraints while he was in the

emergency room. (Id. 74.) Eventually, the defendant was admitted into the

intensive care unit, and the following day he was issued a citation for disorderly

conduct by the officer who had spoken to him the night before. (Id. at 74–75.)

      On June 26, 2001, the government filed a one-count Information charging

the defendant with “caus[ing] a disturbance by using loud, abusive and other

improper language” in violation of 38 C.F.R. § 1.218(a)(5). The defendant pled

not guilty and the case was tried without a jury before a Magistrate Judge in the

United States District Court for the Western District of Oklahoma. After hearing

the evidence in the case, the Magistrate Judge found the defendant guilty, ordered


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a Presentence Investigation Report, and after considering the report, sentenced the

defendant to six month’s probation, a $500.00 fine, and a $10.00 special

assessment. The defendant appealed that conviction to the district court. The

district court affirmed the conviction, and the defendant timely filed a notice of

appeal with this Court.

      The defendant argues that the evidence introduced against him was

insufficient to establish two elements of the charged offense. First, he argues that

the evidence failed to prove that his behavior in the emergency room caused a

disturbance. Second, he claims that the evidence did not prove that his actions

were done knowingly.

      We review de novo claims that the evidence was insufficient to support a

conviction. United States v. Voss, 82 F.3d 1521, 1524–25 (10th Cir. 1996).

When reviewing sufficiency of the evidence, we first “must view all of the

evidence, direct and circumstantial, as well as all reasonable inferences drawn

therefrom, in the light most favorable the government.” United States v. Owen,

15 F.3d 1528, 1532 (10th Cir. 1994) (internal quotation marks omitted). Then,

“[w]e must decide whether, in light of the evidence presented, a rational trier of

fact could have found the elements of the offense established beyond a reasonable

doubt.” Id.




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      The regulation under which the defendant was charged states:

      Disturbances. Conduct on property which creates loud or unusual
      noise; which unreasonably obstructs the usual use of entrances,
      foyers, lobbies, corridors, offices, elevators, stairways, or parking
      lots; which otherwise impedes or disrupts the performance of official
      duties by Government employees; which prevents one from obtaining
      medical or other services provided on the property in a timely
      manner; or the use of loud, abusive, or otherwise improper language;
      or unwarranted loitering, sleeping, or assembly is prohibited.

38 C.F.R. § 1.218(a)(5) (emphasis added).

      The defendant’s first argument is that in order to be convicted of violating

§ 1.218(a)(5) the evidence must show that his loud or abusive language “create[d]

a ‘disturbance’ that impede[d] the normal operation of a service or operation of

the facility.” (Aplt. B. at 7.) His reading of the regulation is incorrect. The

district court correctly explained the regulation when it said that “[t]he regulation

clearly employs the disjunctive ‘or’ when setting out the actions which constitute

a violation. Thus, a finding that [the defendant] either used loud and abusive

language or impeded or disrupted a government employee’s performance standing

alone would support the Magistrate Judge’s finding.” Order of July 30, 2002, at

3. The government only had to establish at trial that the defendant used “loud” or

“abusive” language while in the VA hospital, not any particular effect resulting

from the use of such language. After reviewing the record, we are convinced that

the government established the loud and abusive character of the defendant’s

language beyond a reasonable doubt with credible testimony from witnesses who

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observed and were the targets of the defendant’s behavior. (Tr. at 8, 34, 37, 39,

56, 58, 71.)

       The defendant cites to United States v. McKinney, No. 00-3228, 2001 WL

565745 (10th Cir. May 25, 2001), in support of his view that a conviction under

the regulation requires both the use of loud or abusive language and a disruption

caused by that language. At issue in that case was a Kansas statute that made it

unlawful for a person to use “offensive, obscene, or abusive language or engaging

in any noisy conduct” when the person knows “or has probable cause to believe

that such acts will alarm, anger or disturb others or provoke an assault or other

breach of the peace . . . .” Id. at *1 n.1. By its express terms, the statute in

McKinney required a weighing of not just the character of the words spoken, but

also their effect, or likely effect, on listeners.

       In contrast, the regulation at issue in the instant case does not speak about

the effect of the language used. It simply prohibits the use of loud or abusive

language regardless of the effect it may have on those nearby. The defendant is

correct that this reading of the regulation “relieves the government of [the]

burden to prove that the conduct was ‘disorderly’ or ‘disruptive’ in some form.”

But this seems to be precisely the point. The regulation reflects a reasonable

policy judgment that “loud, abusive, or otherwise improper language” is so likely

to be disruptive on VA premises that the mere fact of its use should be a


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misdemeanor violation. In drafting the Kansas statute at issue in McKinney, the

Kansas legislature made a different policy judgment—requiring some inquiry into

the effect of the prohibited behavior—but that judgment by the Kansas

legislature, expressed as it is in words different from those used in the regulation

before us, is not relevant to this case.

      The defendant’s second argument is that the government introduced

insufficient evidence to prove that he knowingly used loud or abusive language in

the emergency room. 1 (Aplt. B. at 9–10.) The defendant claims that “his physical

and mental states were impaired” because, prior to being taken to the hospital, he

had accidentally overdosed when taking prescription headache medicine. (Aplt.

B. at 3, 10.)

      The record contains sufficient evidence such that, when considered in the

light most favorable to the government, a rational trier of fact could have found

beyond a reasonable doubt that the defendant knowingly used loud and abusive

language. Witnesses who observed the defendant’s behavior both before and after

he was brought into the emergency room testified that he was alert and aware of

his surroundings, (Tr. at 19, 51), and that he could understand questions being




      1
        Neither party contests the fact that the defendant’s knowledge of his
behavior was one of the elements of the offense that the government had to
establish at trial.

                                           -6-
asked of him and give appropriate answers. (Tr. at 103–04.) The defendant also

recognized individuals at the VA hospital whom he had met before. (Tr. at 73.)

      It is not implausible that, as the defendant tried to argue below, the

defendant was unaware of his actions because he was suffering from the effects of

an overdose of prescription medication. (Tr. at 136–37.) However, “the

[Magistrate Judge], as fact finder, has discretion to resolve all conflicting

testimony, weigh the evidence, and draw inferences from the basic facts to the

ultimate facts.” United States v. Anderson, 189 F.3d 1201, 1205 (10th Cir. 1999)

(internal quotation marks omitted) (quoting United States v. Valadez-Gallegos,

162 F.3d 1256, 1262 (10th Cir. 1998)). The testimony by several witnesses

supports the finding by the Magistrate Judge the that the defendant was, beyond a

reasonable doubt, conscious and aware of actions at the hospital.

      Because we view the evidence in the light most favorable to the

government, and because the evidence supporting the Magistrate Judge’s

conclusion that the defendant acted knowingly is substantial and raises more than

“a suspicion of guilt,” see id., we conclude there was sufficient evidence to

establish this element of the offense.

      For the reasons stated, we AFFIRM the conviction.

                                         ENTERED FOR THE COURT

                                         David M. Ebel
                                         Circuit Judge

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