                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia


SHAWN CHRISTOPHER STEWART
                                         MEMORANDUM OPINION * BY
v.        Record No. 0248-96-3          JUDGE SAM W. COLEMAN III
                                             MARCH 4, 1997
COMMONWEALTH OF VIRGINIA and
 CITY OF LEXINGTON


           FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
                   George E. Honts, III, Judge
          (Robert B. Armstrong, on brief), for
          appellant.

          (James S. Gilmore, III, Attorney General;
          John K. Byrum, Jr., Assistant Attorney
          General, on brief), for appellees.



     The appellant, Shawn Christopher Stewart, was convicted by a

jury of using abusive language, disorderly conduct, and assault

and battery.   He contends on appeal that either the curse and

abuse conviction or the disorderly conduct conviction is barred

by Lexington City Code § 15-16.1 because both arose from the same

course of action.   He further asserts that the evidence is

insufficient to support the disorderly conduct conviction.

Finding no error, we affirm the decision of the trial court.

     Viewing the evidence in the light most favorable to the

Commonwealth, as we must on appeal, a Lexington police officer,

who was responding to an unrelated 911 call, encountered the

appellant on a public street.    The appellant was belligerent, he
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
cursed the police officer and said "you can't tell me what to do

. . . I am not going to go anywhere and if you come to the

corner, I am going to kick your f-----g ass."    When the officer

attempted to arrest the appellant for cursing and using abusive

language, the appellant resisted arrest and ran.    The officer

pursued, and when the appellant reached his home he brandished a

stick and threatened to hit the officer with it.    The officer

testified that he told the appellant that he was "not mad at

[him] at this time, but that if you hit me with that stick you

are going to piss me off."   The officer testified that during the

confrontation he remained "calm, cool, and collected . . . [and]

at no time did he feel that he was in danger."
     Disorderly conduct was not a crime at common law and "is not

punishable as a separate and distinct crime unless made so by

statute or ordinance . . . ."     Lewis v. Commonwealth, 184 Va. 69,

72, 34 S.E.2d 389, 390 (1945).    Section 15-16.1 of the Lexington

City Code provides:
          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 building, or
          while in or on a public conveyance or public
          place, engages in conduct having a direct
          tendency to cause acts of violence by the
          persons at whom, individually, such conduct
          is directed; provided, that such conduct
          shall not be deemed to include the utterance
          or display of any words or to include conduct
          otherwise made punishable under this Code
           . . . .1
     1
        The language in Lexington Code § 15-16.1 is similar to
the language in Virginia Code § 18.2-415.



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Disorderly conduct, as defined in the statute, encompasses a

broad range of offending behavior, which has as its common

denominator conduct having a direct tendency to cause acts of

violence.      Although a more general definition has not been

articulated, the concept of what behavior constitutes disorderly

conduct is generally understood.        "[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.

     Appellant contends that his conviction for disorderly

conduct must be set aside because Lexington City Code § 15-16.1

and his conviction for curse and abuse preclude his being

convicted "for conduct otherwise made punishable under this
          2
title."       While Lexington City Code § 15-16.1 excludes "conduct

otherwise made punishable under [the] Code," "the choice of

offenses for which a criminal defendant will be charged is within

the discretion of the Commonwealth's Attorney."        Kauffmann v.

Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279, 284 (1989).

     2
        Code § 18.2-415 contains identical language excluding
"conduct otherwise made punishable under this title." Also, Code
§ 19.2-294 contains similar language barring conviction under
multiple statutes based on the same act.



                                  - 3 -
"Two crimes, even though similar because committed by the same

criminal agent during a continuing course of action against the

same victims, are not committed by the same act if not

simultaneously committed."    Henry v. Commonwealth, 21 Va. App.

141, 146, 462 S.E.2d 578, 581 (1995) (interpreting the double

jeopardy clause); see also Martin v. Commonwealth, 221 Va. 720,

273 S.E.2d 778 (1981) (same); Jones v. Commonwealth, 218 Va. 757,

240 S.E.2d 658, cert. denied, 435 U.S. 909 (1978) (interpreting

Code § 19.2-294).   "The test of whether there are separate acts

sustaining several offenses 'is whether the same evidence is

required to sustain them.'"    Treu v. Commonwealth, 12 Va. App.

996, 997, 406 S.E.2d 676, 677 (1991) (quoting Estes v.

Commonwealth, 212 Va. 23, 24, 181 S.E.2d 622, 624 (1971))

(interpreting Code § 19.2-294).

     Here, the appellant's convictions were based on separate

acts with different evidence supporting each conviction.    The

conviction for curse and abuse was proven by the appellant's

language, his vulgar profanity, and the abusive manner that he

directed it toward the officer.   The disorderly conduct

conviction was proven by the manner in which the appellant

belligerently confronted the officer in a public place,

challenged him, and after cursing and abusing the officer, fled,

armed himself with a stick which he brandished and used to

threaten the officer -- all of which tended to threaten a breach

of the peace.   The same act or acts were not the basis to prove a



                                - 4 -
violation of both statutes.




                              - 5 -
                                II.

     The appellant contends that the evidence is insufficient to

support the disorderly conduct conviction.   Relying upon the

arresting officer's testimony that he was not angered or

frightened by the appellant's actions, the appellant argues that

the Commonwealth failed to prove that his words and actions had a

tendency to cause violence.

     Whether this particular arresting officer felt threatened or

frightened or intimidated so as to cause a breach of the peace is

not controlling.   Although the officer's subjective feelings are

a factor to be considered, the test is an objective one -- would

the defendant's conduct 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,

prohibiting use of abusive language); Burgess v. City of Virginia

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).

     The appellant's belligerent threatening conduct was

sufficient to support the trial court's decision that his actions

were likely to provoke or incite a breach of the peace.    See Ford

v. City of Newport News, 23 Va. App. 127, 144, 474 S.E.2d 848,

851 (1996); Keyes v. City of Virginia Beach, 16 Va. App. 198,

200, 428 S.E.2d 766, 768 (1993).   The appellant's threats to the

officer, both by words and with the stick, had a "tendency to



                               - 6 -
cause acts of violence" and involved more than the mere utterance

of abusive language.   The appellant's argument that the evidence

failed to prove that these actions tended to cause acts of

violence because the officer testified they did not anger him or

put him in fear of danger has no merit.   The appellant's actions,

cursing and threatening the officer, would have provoked a

reasonable person to violence.    Therefore, the evidence is

sufficient to support the conviction for disorderly conduct.
     For the foregoing reasons, we affirm the decision of the

trial court.

                                                          Affirmed.




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