                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Kelsey
Argued at Chesapeake, Virginia


ROBCHEL WILLIAMS
                                           MEMORANDUM OPINION * BY
v.   Record No. 0127-02-1                   JUDGE ROBERT P. FRANK
                                              NOVEMBER 19, 2002
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Dean W. Sword, Jr., Judge

          Sonya A. Weaver for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Robchel Williams (appellant) was convicted in a bench trial

of disorderly conduct, a misdemeanor, in violation of Code

§ 18.2-415.   On appeal, he challenges the sufficiency of the

evidence to support this conviction.   Finding no error, we affirm

his conviction.

     When considering the sufficiency questions on appeal in a

criminal case, we view the evidence in the light most favorable

to the Commonwealth, considering all reasonable inferences

fairly deducible therefrom.   Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).    The conclusions of

the fact finder on issues of witness credibility may be


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
disturbed only if we find the witness' testimony was "inherently

incredible, or so contrary to human experience as to render it

unworthy of belief."    Fisher v. Commonwealth, 228 Va. 296, 299,

321 S.E.2d 202, 204 (1984).

     Appellant first contends the situs of the offense, Walgreen's

Drug Store, was not a "public place," as required by Code

§ 18.2-415. 1   Appellant contends that, since no witness explicitly

stated the store was "open to the public," the Commonwealth did

not prove this element of the offense.      We disagree. 2

     The Supreme Court has discussed the term, "public place," in

the context of an earlier disorderly conduct statute:

            Webster's International Dictionary, 2d Ed.,
            defines "place" as "a portion of space
            occupied by a body;" "any particular spot or
            locality." The same authority defines
            "public" as "open to the knowledge or view
            of all; generally seen, known, or heard;
            without privacy, concealment, etc."



     1
         Code § 18.2-415 states, in part:

            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, 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 person or persons at whom, individually,
            such conduct is directed . . . .
     2
       The parties submitted a statement of facts rather than a
transcript, pursuant to Rule 5A:8(c).


                                - 2 -
           *      *        *      *      *      *       *

          Bouvier's Law Dictionary defines "public
          place" as "any place so situated that what
          passes there can be seen by any considerable
          number of persons, if they happen to look."

          While the statute is penal and must be
          construed strictly against the Commonwealth,
          the dominant purpose of its enactment was to
          preserve peace and good order.

           *      *        *      *      *      *       *

          A person violates the statute if, while
          physically present in the highway, his
          conduct is such as tends to corrupt public
          morals or to outrage the sense of decency of
          others who may not be in the highway but may
          be within sight or hearing of the
          perpetrator. Such person is equally guilty
          if, while not physically present in the
          highway, he sets in motion an agency that
          tends to corrupt public morals or outrage
          the sense of decency of others using the
          highway in a peaceful and lawful manner. In
          either event, the crime has been committed
          in a highway or other public place. In the
          first instance, the perpetrator was
          physically present in the highway when he
          committed the criminal acts or uttered the
          words. In the second instance, he was not
          physically present in the highway but his
          acts or words were seen or heard by others
          lawfully using the highway. The statute
          prohibits disorderly behavior in public.

Hackney v. Commonwealth, 186 Va. 888, 891-92, 45 S.E.2d 241,

242-43 (1947) (discussing former Code § 4533(a) (repealed)).

     Here, appellant's offensive conduct was observed by

Walgreen's customers.    Detective L. Cox testified the store was

"open for business."    People in the Walgreen's were having

prescriptions filled.   The incident and its situs were "open to



                                - 3 -
the knowledge or view of all . . . without privacy, concealment,

etc."       Id. at 892, 45 S.E.2d at 242-43.   The store was a "public

place" for the purposes of Code § 18.2-415.

        Appellant next contends the evidence did not prove his

conduct had a "direct tendency to cause acts of violence," as

required by Code § 18.2-415.      He contends, since no one actually

reacted violently to his statements, 3 he was not guilty of

disorderly conduct.      Appellant misreads the statute.

        The statute requires that a defendant's conduct have a

"direct tendency to cause acts of violence," not that the

conduct, in fact, causes acts of violence.       The standard is an

objective one, i.e., whether the conduct in question "would

cause a reasonable [person] to respond with physical force or

violence."       Ford v. City of Newport News, 23 Va. App. 137, 144,

474 S.E.2d 848, 851 (1996).      The statute, like the "fighting

words" statute, serves to prevent conduct that is "likely to

provoke a violent reaction and retaliation."        Mercer v. Winston,

214 Va. 281, 284, 199 S.E.2d 724, 726 (1973) (discussing Code

§ 18.2-255).




        3
       We are not asked to address the portion of Code § 18.2-415
that states:

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

                                   - 4 -
      Detective Cox testified, when he arrived at Walgreen's, he

heard appellant tell the store manager that he would "kick his

ass" and that "he would come back and f--- him up."     However,

appellant did not attempt to strike the manager.   On

cross-examination, Cox admitted appellant's words did not

provoke or incite anyone into action.

      Appellant cites Ford, 23 Va. App. 137, 474 S.E.2d 848, to

support his position.   However, that case is distinguishable on

its facts.   Ford used offensive, but not threatening, language.

Id. at 144, 474 S.E.2d at 851.    While Ford threw "his arms about

in the air," he made no threatening gestures.    Id.    This Court

found Ford's conduct had no "direct tendency to cause violence."

Id.   His words, while offensive and loud, were "'verbal

criticism and challenge directed at police officers,'" not

threats of violence.    Id. at 143, 474 S.E.2d at 851 (quoting

City of Houston v. Hill, 482 U.S. 451, 461 (1987)).

      Here, Walgreen's manager had just fired him, so appellant

was upset.   He admitted that he then confronted the manager,

threatening to "kick his ass" and to return "and f--- him up."

Unlike in Ford, appellant did not criticize the manager nor did

he simply use offensive language.    He threatened physical harm.

Appellant also refused to speak to the officer when he arrived.

Eventually, Officer Cox had to physically remove appellant from

the store.   Appellant "would not submit to being arrested."     He

did not become calm until placed in the police vehicle.

                                 - 5 -
     The trial court, as fact finder, determined appellant's

threatening language constituted disorderly conduct under Code

§ 18.2-415.   The evidence supports this finding.    The manager

did not need to testify he was moved to violence.    A reasonable

person, under these facts, would likely respond to appellant's

conduct with violence.   We affirm the conviction.

                                                           Affirmed.




                               - 6 -
Benton, J., concurring.

     Several matters are not at issue in this appeal.   The

officer "testified that he placed [Robchel Williams] under

arrest for his conduct inside [the store] and not for any

behavior that occurred when he tried to arrest [Williams]."    In

addition, the statement of facts indicates Williams contended

that the evidence failed to prove his "actions or words [in the

store] had a direct tendency to cause acts of violence."

Williams did not contend at trial he was convicted for uttering

words protected by the First Amendment.   Because the latter

issue is not before us, I concur in the opinion.




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