         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                          DECEMB ER SESSION, 1997            FILED
                                                           January 29, 1998
STATE OF TENNESSEE,               )    C.C.A. NO. 02C01-9701-CR-00042
                                  )                       Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
      Appellee,                   )
                                  )
                                  )    SHELBY COUNTY
VS.                               )
                                  )    HON. CHRIS CRAFT
FRANK E. BRADFORD,                )    JUDGE
                                  )
      Appe llant.                 )    (Direct Appe al-Disorde rly Conduc t)



FOR THE APPELLANT:                     FOR THE APPELLEE:

EDWARD THOMPSON                        JOHN KNOX WALKUP
Assistant Public Defender              Attorney General and Reporter
Shelb y Cou nty Pu blic De fende r’s
Office                                 CLINTON J. MORGAN
Memphis, TN 38103                      Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37243

                                       WILLIAM L. GIBBONS
                                       District Attorney General




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION

       Appe llant, Frank E. Bradford, was convicted of the o ffense of diso rderly

conduct in violation of Tennessee Code Annotated Section 39-17-305. He was

sentenced to serve thirty days in the Sh elby C ounty Corre ctiona l Cente r. In this

appea l he allege s that the e vidence is insufficient to suppo rt the verdict.



       After a review of the reco rd we find there is su fficient evidence to sup port

the verdic t and we affirm the ju dgme nt of the trial co urt.



                             FACTUAL BACKGROUND

       On May 16, 199 5, Memp his Police Officer G regory Quinn and his partner

Officer Tracy McDonald were on patrol in Jefferson Davis Park located in

downtown Memphis. Around 5:00 p.m. Quin n and McD onald observed appellant

lying on a park bench with a bottle of beer and a backpack. The officers advised

Appe llant he could not drink in the park and that he had to leave. Appellant

responded with an ob scenity and the officers informe d him h e was u nder arre st.

As Officer McDonald attempted to handcuff Appellant, he punched her in the

chest. Quinn grabb ed Ap pellan t while McD onald sprayed him with pepper sp ray.

Appe llant wa s finally h andc uffed a nd tran sporte d to jail.



       The beer b ottle Appellant had been holding had been opened and part of

the contents we re missing. Althou gh Ap pellan t sme lled of a lcoho l the offic ers did

not think he w as drun k. Officer Quinn stated that although the park was op en to

the public at th e time A ppellant w as app roache d by the o fficers, there is a city

ordinance which prohibits drinking in the park.


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                       SUFFICIENCY OF THE EVIDENCE

      When an accused challenges the sufficiency of the convicting evidence,

this Court must review the record to determine if the proof adduced at the trial is

sufficient to support the findings by the trier of fact o f guilt be yond a reaso nable

doubt. T.R.A.P. 13(e). We do no reweigh o r re-evaluate the evide nce and a re

required to afford the State the strongest legitimate view of the proof contained

in the rec ord as well as all reasonable and legitimate inferences which may be

drawn therefrom .     State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

Questions concerning the credibility of witnesses, the weight and value to be

given to the evidence , as well as factual issue s raised by the evid ence are

resolved by the trier of fact, not this C ourt. Cabbage, 571 S.W .2d 832 , 835. A

guilty verdict rendered by the jury and approved by the trial judge accredits the

testimony of the witnesses for the State, and a presumption of guilt replaces the

presumption of innocen ce. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 197 3).

Although this case involved a bench trial, the findings of the trial judge who

conducted the proceedings carry the same weight as a jury verdict. State v. Tate,

615 S.W .2d 161, 162 (Tenn. Crim . App. 1981 ).



      Disorderly conduct is defined as follows at Tennessee Code Annotated

Section 39-17-305:

      (a) A pers on co mm its an o ffense who, in a pub lic place an d with inten t to
      cause public annoyance or alarm:
             (1) Engag es in fighting or in violent or threa tening beha vior;
             (2) Refuses to obey an official order to disperse issued to ma intain
             public safety in dangerous proximity to a fire, hazard or other
             emergency; or
             (3) Creates a hazardous or physic ally offensive condition by any act
             that serves no legitimate purpose.
      (b) A person also violates this section who makes unreasonable nois e
      which prevents others from carrying on lawful activities.
      (c) A violation of this section is a C lass C misd emean or.

                                          -3-
      The State in dicted Appe llant in a three c ount in dictm ent for v iolation of this

statute. The indictment alleged that Appellant with the requisite intent to cause

public annoyance did:

      Coun t 1: “. . . engag e in threate ning be havior . . .”
      Count 2: “ . . . create a physically offensive condition by acts that served
      no legitim ate purp ose. . .”
      Count 3: “. . . make unreasonable noise which prevented others from
      carrying o n lawful ac tivities . . .”

      This case is rem arkab ly similar to the case of State v. Creasy, 885 S.W.2d

829 (Tenn. Crim. App. 1994). In that case, as well as the one sub judice, the

defendant claimed the use of obscenity directed at police officers cannot standing

alone form the basis of a disord erly cond uct charg e. Id. at 831. This C ourt found

that obsce nity which does not amount to the use of “fighting words” is protected

speech under the federal and state constitutions and cannot therefore be

proscribed by the d isorde rly condu ct statute. Id. Howe ver, the us e of obsc enity

coupled with phys ically threate ning or viole nt beha vior may fo rm the b asis of a

conviction for disorde rly condu ct. Id. at 832.



      In the instant case, as in Creasy, the record re flects that Ap pellan t not on ly

cursed the police officers, but actually struck Officer McDonald. Such behavior

is clearly sufficient to sustain a verd ict of gu ilty to the c harge of diso rderly

condu ct.



      Accordingly, the judgment of the trial court is affirmed.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE




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CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
J. CURWOOD WITT, JR. JUDGE




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