                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0356

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Jeffrey Kevin Nelson,
                                        Appellant.

                                Filed December 22, 2014
                                       Affirmed
                                     Hooten, Judge

                              Chisago County District Court
                                 File No. 13-CR-13-107

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Janet Reiter, Chisago County Attorney, Ryan M. Flynn, Assistant County Attorney,
Megan E. Kelly, Certified Student Attorney, Center City, Minnesota (for respondent)

Barrie Schumack, Eagan, Minnesota; and

Nadia Wood, St. Paul, Minnesota (for appellant)

         Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Kirk,

Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

         On appeal from his conviction for disorderly conduct, appellant argues that the

evidence was insufficient to sustain the conviction. We affirm.
                                         FACTS

       On February 2, 2013, appellant Jeffrey Nelson entered a liquor store and had an

altercation with the clerk working behind the cash register. In connection with this

incident, police issued Nelson a citation for disorderly conduct under Minn. Stat.

§ 609.72, subd. 1(3) (2012), and the state later charged Nelson with criminal trespass in

addition to disorderly conduct. After Nelson’s pretrial motion to dismiss for lack of

probable cause was denied, a bench trial was held on September 19, 2013.

       At trial, the clerk testified that he had had previous confrontations with Nelson,

and had witnessed “heated exchanges” between Nelson and the clerk’s wife. The clerk

said that Nelson had been to the liquor store before when the clerk was working, and

Nelson would have recognized him from their previous encounters. The clerk further

testified that when Nelson entered the liquor store on February 2, 2013, he “proceeded to

cuss and swear,” calling the clerk a “f--king a--hole” and a “piece of sh-t” in the presence

of 10 to 15 liquor store customers. The clerk indicated that he found these statements

offensive, particularly because he was at work and Nelson was yelling so loudly that the

other customers could hear him. Although the clerk told Nelson that he needed to leave,

Nelson “continued to cuss and swear,” and refused to leave until the clerk told him he

was calling the police. As Nelson left the liquor store, he declared that he would be

waiting outside for the police.

       Nelson testified to a somewhat different version of events. Nelson stated that as

soon as he walked into the liquor store, the clerk immediately confronted him and asked

what he was doing there. Nelson asked what was on sale, to which the clerk responded,


                                             2
“There’s nothing until Monday. You need to get out of here.” As Nelson turned to leave,

the clerk again told him that he needed to leave and that he was calling the police. As

Nelson walked out the door, he called the clerk either “a piece of sh-t” or a “worthless

piece of sh-t,” but testified that he never called the clerk a “f--king a--hole.” Nelson

acknowledged that he was once previously ordered by a court not to come into contact

with the clerk, but denied that he entered the store that day to confront the clerk.

       Sergeant Pouti testified that he arrived at the liquor store after hearing a radio

report regarding a “customer harassing an employee or causing a disturbance at the liquor

store.” Upon his arrival, he noted that Nelson was standing outside the store with an

adult female, who was later identified as the clerk’s aunt. They both advised Sergeant

Pouti that Nelson called the clerk a “piece of sh-t” while he was in the store. At trial, the

clerk’s aunt confirmed that she heard Nelson say, “You’re a worthless piece of sh-t” to

the clerk. She further testified that she did not hear Nelson use the word “f--king” when

speaking with the clerk.

       The district court found Nelson guilty of disorderly conduct. The district court

summarized the witnesses’ testimony, and “d[id] not find [Nelsons’s] testimony credible

regarding his version of events.” Based on its finding that Nelson called the clerk a “f--

king a--hole” and a “piece of sh-t” or “worthless piece of sh-t,” the district court

concluded that, as “a matter of common knowledge,” these were “fighting words” that

“clearly . . . constitute personally offensive epithets that are likely to provoke a violent

reaction or incite an immediate breach of peace by the person to whom such words are

addressed.” The district court found Nelson’s conduct akin to the defendant in City of


                                              3
Little Falls v. Witucki, 295 N.W.2d 243 (Minn. 1980), in which the supreme court upheld

a disorderly conduct conviction for use of fighting words.

      Nelson made a post-verdict motion for judgment of acquittal, which was

subsequently denied by the district court. At sentencing, Nelson was ordered to pay a

$120 fine with an $80 surcharge. This appeal followed.

                                    DECISION

                                            I.

      Nelson first argues that his speech is protected by the First Amendment, and

cannot be punished as “fighting words” without violating the federal and Minnesota

constitutions. Nelson asserts that the “archaic ‘fighting words’ doctrine has not been

used [by the United States Supreme Court] to uphold a conviction since World War II

[and] should not be resuscitated to do so here.” While citing a string of cases in which

the United States Supreme Court has vacated convictions for punishing protected speech,

he cites no authority providing that speech deemed to be “fighting words” is protected

under the First Amendment. In fact, the Supreme Court recently cited the “fighting

words” doctrine in Chaplinsky as providing one of the few “historic and traditional

categories” of speech that can be restricted based on content. United States v. Alvarez,

132 S. Ct. 2357, 2544 (2012) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.

Ct. 766 (1942)). The Minnesota Supreme Court has explicitly held that the disorderly

conduct statute can punish speech in accordance with the First Amendment if applied

only to “fighting words.” In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978). As

seen in the cases below, Minnesota courts have continued to apply this doctrine to narrow


                                            4
the reach of the disorderly conduct statute in light of First Amendment concerns. The

“fighting words” category of unprotected speech remains good law and is appropriate for

application in this case.

                                            II.

       Nelson primarily contends that the evidence was insufficient to support his

conviction of disorderly conduct because his speech did not constitute fighting words.

Disorderly conduct charges are “closely scrutinized” on appeal. In re Welfare of M.A.H.,

572 N.W.2d 752, 757 (Minn. App. 1997) (quotation omitted).              First Amendment

challenges to disorderly conduct adjudications are analyzed under a “hybrid” framework:

“This court will review the evidence in the light most favorable to the state and then

determine, as a matter of law, whether the defendant’s language under that set of

circumstances falls outside the protection of the First Amendment.” M.A.H., 572 N.W.2d

at 757. We defer to the district court as the “exclusive judge of witness credibility,” and

we “assume[] the factfinder believed the evidence supporting the state’s case and

disbelieved contrary evidence.” State v. Super, 781 N.W.2d 390, 396 (Minn. App. 2010),

review denied (Minn. June 29, 2010).

       Minn. Stat. § 609.72, subd. 1(3) defines disorderly conduct to include an

individual who:

              [K]nowing, or having reasonable grounds to know that it will,
              or will tend to, alarm, anger, or disturb others or provoke an
              assault or breach of the peace . . . :

              (3) engages in offensive, obscene, abusive, boisterous, or
              noisy conduct or in offensive, obscene, or abusive language



                                            5
              tending reasonably to arouse alarm, anger or resentment in
              others.

The Minnesota Supreme Court has narrowed the reach of the “offensive, obscene, or

abusive language” portion of the statute by limiting its reach to “fighting words” as

defined by the United States Supreme Court. S.L.J., 263 N.W.2d at 419. The fighting

words doctrine prohibits two categories of utterances: incitement of group violence, and

personal insults. M.A.H., 572 N.W.2d at 756. The first category of fighting words is

speech meant to “intentionally provoke a given group to a hostile reaction,” and “would

tend to incite an immediate breach of peace.” Id. at 756 (quotations omitted); see also

State v. Lynch, 392 N.W.2d 700, 704 (Minn. App. 1986) (upholding conviction when

defendant’s speech incited a club-brandishing crowd). The second category is “insults

personally directed at an individual.” M.A.H., 572 N.W.2d at 756. These insults must

“have an immediate tendency to provoke retaliatory violence or tumultuous conduct by

those to whom such words are addressed.”          S.L.J., 263 N.W.2d at 419 (quotation

omitted). Whether a defendant’s speech rises to the level of fighting words depends on

the specific facts and circumstances of the case. Lynch, 392 N.W.2d at 704.

       This case involves the second category of fighting words. Viewed in the light

most favorable to the state, the evidence shows that Nelson was “loud, very loud” and

“yelling” at the clerk inside the liquor store, calling him a “f--king a--hole” and a “piece

of sh-t” in the presence of 10 to 15 customers in the store. The clerk found these

statements “personally . . . offensive,” especially because he was at work at the time and

was concerned about getting Nelson out of the store so “the other customers [wouldn’t]



                                             6
hav[e] to deal with that.”     The clerk testified on cross-examination that the other

customers “looked confused” due to Nelson’s words to the clerk. After being asked to

leave the liquor store, Nelson refused to leave but instead “continued to cuss and swear”

at the clerk. Nelson only left after the clerk picked up the telephone and announced he

would call the police. Further, this was not a confrontation between strangers—the clerk

had “many run-ins” with Nelson in the past, and had seen “heated exchanges” before

between his wife and Nelson.

       We agree with the district court that the present case is similar to Witucki. In that

case, the defendant’s vulgar language and name-calling at an on-duty bartender was held

to be fighting words punishable under the disorderly conduct statute.          Witucki, 295

N.W.2d at 244, 246. The bartender in Witucki was especially bothered by the obscenities

directed at her because she was the only employee on duty and had no way to leave the

situation. Id. at 244. Nelson’s profanities were likewise “directed at and . . . intended to

be about a person,” namely the clerk. Id. at 245 (quotation omitted). Nelson “directly

insult[ed] and intimidate[ed] an innocent person.”       See id.   Further, the clerk “was

essentially a captive audience” because he was the only employee on duty and could not

leave the liquor store. Id. Under similar circumstances, the Witucki court ruled that “the

abusive language hurled by defendant at [the victim] could readily be found by a jury to

be inherently likely to incite violence.” Id. While the clerk did not retaliate by escalating

the confrontation into a physical assault, that does not foreclose our fighting words

conclusion. As we recognized in Witucki, the fact that the clerk “exercised responsible




                                             7
and mature forebearance in not retaliating cannot be relied upon by defendant to escape

responsibility for his own actions.” Id. at 246.

       Moreover, we can distinguish fighting words cases involving obscenities spoken

to law enforcement from speech directed at ordinary citizens like the store clerk. See,

e.g., S.L.J., 263 N.W.2d at 415; In re Welfare of T.L.S., 713 N.W.2d 877, 879 (Minn.

App. 2006). A police officer, unlike a store clerk, is trained to deal with unruly citizens.

“[O]fficers expect to deal with abusive behavior on a regular basis,” and may be targets

of disorderly conduct only when “subjected to . . . indignities that go far beyond what any

other citizen might reasonably be expected to endure.” M.A.H., 572 N.W.2d at 758

(quotation omitted). A store clerk at his place of work should not be expected to tolerate

the same level of abuse as a trained police officer who often deals with intoxicated or

mentally ill persons.

       We conclude that Nelson’s speech constituted fighting words because his language

was “inherently likely to provoke violent reaction” from the clerk. S.L.J., 263 N.W.2d at

419 (quotation omitted). Nelson’s speech falls outside the ambit of First Amendment

protection, and therefore the district court did not err in finding him guilty of disorderly

conduct under Minn. Stat. § 609.72, subd. 1(3).

                                            III.

       Even if Nelson’s speech did not constitute fighting words, the record provides

sufficient evidence to support Nelson’s disorderly conduct conviction based on his

conduct alone. “[O]ffensive, obscene, abusive, boisterous, or noisy conduct” that a

person knows would “tend[] reasonably to arouse alarm, anger, or resentment in others,”


                                             8
is punishable as disorderly conduct. Minn. Stat. § 609.72, subd. 1(3). Even if there is no

showing that a defendant used fighting words, the defendant’s conduct, including his or

her manner of speech separate from its content, may violate the statute. T.L.S., 713

N.W.2d at 879, 880–81 (finding probable cause to arrest juvenile defendant for disorderly

conduct when defendant was “shrieking” obscenities so loudly that it was “disruptive to

the running of the school”); see also McCarthy, 659 N.W.2d at 811 (upholding

conviction when defendant interrupted football game, put his hands on referee, and

refused to leave when asked); State v. Klimek, 398 N.W.2d 41, 43 (Minn. App. 1986)

(upholding conviction because defendant followed the victim to her car and proceeded to

shake his fist at her in a threatening manner); State v. Ackerman, 380 N.W.2d 922, 926

(Minn. App. 1986) (upholding conviction when defendant was “yelling and swearing” as

to alarm others and fought with officers when they arrived).

      Here, Nelson yelled obscenities that offended the clerk and were heard by the

other customers at the liquor store. Nelson also refused to leave, even though the clerk,

with whom he had had prior confrontations, repeatedly asked him to do so, and then only

left when the clerk sought police assistance. Based upon this record, we conclude that

Nelson’s conduct was “boisterous[] or noisy” and “tend[ed] reasonably to arouse alarm,

anger, or resentment in others” within the meaning of section 609.72, subdivision 1.

Apart from whether Nelson’s speech constituted “fighting words,” there was sufficient

evidence regarding his conduct to support his disorderly conduct conviction.

      Affirmed.




                                            9
