                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                                 January 5, 2011 Session

             STATE OF TENNESSEE v. TEDDY RAY MITCHELL

              Appeal by Permission from the Court of Criminal Appeals
                         Circuit Court for Hamblen County
                    No. 06CR464      John F. Dugger, Jr., Judge


                 No. E2008-02672-SC-R11-CD - Filed March 31, 2011


The defendant was convicted of disorderly conduct and sentenced to thirty days in jail, to be
served on probation. On direct appeal, the Court of Criminal Appeals reversed, holding that
the evidence was insufficient. This Court granted the State permission to appeal in order to
consider the admissibility of a racially derogatory term, to review the sufficiency of the
evidence, and to determine whether the conviction violated the constitutional right to free
speech. Because the disputed testimony was properly admitted, the evidence was sufficient
to support a conviction for disorderly conduct, and there was no violation of the right to free
speech, the Court of Criminal Appeals is reversed. The judgment of conviction and sentence
is reinstated.

     Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed

G ARY R. W ADE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,
J ANICE M. H OLDER, and W ILLIAM C. K OCH, JR., JJ., joined. S HARON G. L EE, J., filed a
separate opinion concurring in part and dissenting in part.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Asst. Attorney
General; C. Berkeley Bell, District Attorney General; Victor Vaughn, Asst. District Attorney
General, for the appellant, State of Tennessee.

Darren V. Berg, James Charles Wright, and Robert Deno Cole, Knoxville, Tennessee, for the
appellee, Teddy Ray Mitchell.

                                     OPINION
                                   Background
      A rally was scheduled at 2:00 p.m. on June 24, 2006, at the Hamblen County
Courthouse grounds in Morristown by a group attempting to raise public awareness of the
effects of illegal immigration. Organizers promoted the event with a pamphlet that extended
a general invitation to attend the rally, “[b]ring your family, wave the American flag proudly,
and display signage that educates.”

       Lieutenant Chris Weisgarber, a training officer with the Morristown Police
Department, was placed in charge of the planning and coordination of security for the rally.
Because he had received information that between three and five hundred members of an
Hispanic organization, having views on the immigration issue that were in conflict with the
organizers of the event, also planned to attend, Officer Weisgarber, with the assistance of the
Hamblen County Sheriff’s Department and the Tennessee Highway Patrol, arranged a
security force of between seventy-five and ninety law enforcement officers in an effort to
avoid possible confrontations between the two groups. Some officers were stationed on the
roofs of buildings, a number of squad cars were present, designated parking areas were
established, and the perimeter of the rally area was marked with temporary orange fencing.
At a checkpoint established by the police, attendants were screened and searched in order to
assure that no weapons were present. The security plan permitted the American flag, but did
not permit flagpoles of any size to be carried into the demonstration area for fear that they
might either contain a hidden weapon or be used as a weapon. A single flagpole displaying
the American flag was placed near the speaker stand, which was separated from those in
attendance by a fence and several officers.

       The course of the events that led to the arrest of Teddy Ray Mitchell (the
“Defendant”) for disorderly conduct was reflected not only by testimony at the Defendant’s
November 3, 2007 trial, but also by two digital video recordings made exhibits at the trial,
one taken with a camera placed by the Tennessee Highway Patrol (“THP video”) on an upper
floor of the courthouse (lasting one minute, forty-four seconds) and another taken from a
different angle by a spectator (lasting one minute, thirty-eight seconds). Both video
recordings were submitted as exhibits and were used in cross-examination of officers.

        The THP video depicts only a portion of the event, beginning with the Defendant
walking toward the rally after parking his vehicle, and the filming is partially obscured by
a hedge and orange plastic fencing. Although the Defendant can be heard speaking or
shouting, little is intelligible. The officers cannot be heard. The Defendant is arrested
shortly after his arrival. The second video recording, which was not in a fixed position,
begins shortly after the Defendant’s arrival at the checkpoint. The audio portion is
marginally better than the THP recording. Neither video recording used time-stamping to
reference specific portions of the video.

       At trial, Andre Kyle, a patrol officer with the Morristown Police Department, testified
that he had received instructions in advance of the rally to prohibit parking along the

                                              -2-
sidewalk near the front of the courthouse. When the Defendant attempted to park his vehicle
in that area, Officer Kyle, an African-American, informed him that he would need to park
in another location. In response, the Defendant said, “There’s no nigger going to tell me
where I can and can’t park.” Officer Kyle then sought assistance from Matt Stuart, also of
the Morristown Police Department. After Officer Stuart also instructed the Defendant that
he could not park his vehicle in that location, the Defendant reacted angrily and “sped off.”
According to Officer Kyle, the Defendant parked his vehicle nearby in another prohibited
area, but at that point no officer was there to direct him to move; the Defendant then “made
a b[ee]-line toward the [entrance] gate.” As he did so, Officers Kyle and Stuart warned
officers at the entrance that the Defendant was “mad.” When the Defendant arrived at the
entrance, Officer Kyle overheard another officer inform him that he could take his flag into
the rally area but not the flagpole, which had a pointed metal eagle at the top. He recalled
that the Defendant responded by loudly yelling, among other things, “I’m an American. You
can’t – you mean to tell me I can’t bring a flag . . . .” At this point, Officer Kyle heard
Officer Stuart, who had received a radio communication from another officer, inform the
Defendant that he was under arrest. According to Officer Kyle, the Defendant “resisted and
started fighting, pok[ing] another officer,” Troy Wallen, with the flagpole as he did so.
Officer Kyle stated that the Defendant shook the flagpole up and down as he struggled with
the officers before “they fell into the bushes.” Eventually, Officer Kyle was able to handcuff
the Defendant. Officer Kyle was cross-examined with one of the videotapes of the
confrontation. During the cross-examination, excerpts of the videotape were shown to
Officer Kyle. The videotape was started and stopped, and the record reflects neither which
videotape was used nor which portions of the videotape were used in cross-examination.
Officer Kyle acknowledged that in addition to the flagpole and flag, the Defendant carried
a soft drink, a poster, and a lawn chair to the entrance.

        Officer Stuart, a fifteen-year veteran with the Department, testified that he was first
alerted to the Defendant who, while still inside his car and some distance away, began to
“scream” and “holler.” In an effort to assist Officer Kyle, Officer Stuart explained to the
Defendant that the area was restricted and that the Chief of Police had established the parking
rules for the event. The officer recalled that the Defendant, in response, made derogatory
remarks about the Chief, but moved his vehicle. He described the Defendant as cursing,
“real belligerent,” and “irate.” After seeing the Defendant park in another “no parking” area,
Officer Stuart notified Detective Chris Blair, who was at the front entrance, of the
Defendant’s objectionable demeanor and the possibility of “problems.” According to Officer
Stuart, the Defendant continued at “a fast pace” toward the entrance and was visibly upset.
At the checkpoint, he informed the Defendant that the rules established to ensure safety at
the event precluded the use of flagpoles in the rally area. The Defendant objected, stating
he would not comply with the rule. Acting in response to the radio communication, Officer
Stuart informed the Defendant that he was under arrest and initiated the process of taking the

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Defendant into custody.

        On cross-examination, Officer Stuart acknowledged that Tom Lowe, a Hamblen
County Commissioner who had been invited to speak at the event, had been allowed to place
a flagpole displaying the American flag near the speaker’s stand. Officer Stuart was cross-
examined with excerpts of both videotapes, but the record does not indicate whether portions
or all of the videotapes were used in the cross-examination. Officer Stuart explained that the
Defendant’s words, in contrast to the others present, could be heard on the tape because he
was “talking loud.” The officer described his own speaking tone as “normal” when he
informed the Defendant that he was under arrest. Officer Stuart admitted that he could not
make out the Defendant cursing on the videotape.

       Officer David Hancock, who had been assigned to the checkpoint at the front entrance
of the courthouse but was not involved in the arrest, first noticed the Defendant when he
walked briskly past an officer who had tried to stop him. Officer Hancock testified that the
Defendant, despite the presence of the officers at the entrance, “wasn’t paying attention to
anything except what was head on . . . [and] was not paying any attention to us.” Although
Officer Hancock heard the Defendant shouting, he neither heard the Defendant curse nor saw
him fight with the arresting officers.

       Detective Blair was stationed at the main gate at the front of the courthouse. He used
a metal detection wand to assure that no weapons came into the event site. As Detective
Blair was informing a man and woman that they could not take a pocket knife into the
courtyard, his attention was drawn to the Defendant, who was speaking in a loud voice. He
recalled that even though he tapped the Defendant on the shoulder and informed him that the
flagpole was not permitted, the Defendant ignored his presence. Before the Defendant was
placed under arrest, however, Detective Blair had turned his attention back to the couple with
the pocket knife. He did not hear any cursing by the Defendant. Detective Blair was shown
portions of both videotapes on cross-examination. The portions of the videotape used in his
cross-examination are not referenced in the record. Detective Blair, however, could not
identify any portion of the videotape in which the Defendant used the flagpole to either fight
or threaten the officers present at any time before the arrest was initiated.

       Officer Tony Wallen, who had searched the grounds for explosives prior to the event,
also had a metal detection wand at the front entrance in order to check for weapons. He
confirmed that the officers had been specifically directed to prohibit flagpoles, sign sticks,
and blunt or sharp objects. When the Defendant, who, the officer said, also had a sign in his
possession supported by a stick, began to angrily “rant and rave” “about not being able to
bring his flag” into the rally area, Officer Wallen recalled that he explained to the Defendant
“more than once” that only the pole was prohibited, not the flag. According to Officer

                                              -4-
Wallen, as the Defendant continued to object vociferously, he shook the pole up and down,
making contact with Officer Wallen “two or three times.” The officer stated that he grabbed
the end of the pole to prevent it from striking anybody and to keep it from falling to the
ground. He testified that the Defendant cursed and loudly demanded to know whether
Mexican flags were permitted. Officer Wallen, who had previously seen the videos, was also
cross-examined by the use of portions of the THP videotape that were not identified in the
record. He could not identify on the tape specifically when the Defendant cursed and
acknowledged that he had control of the flag and had not yet been “poked” when the
Defendant was placed under arrest by Officer Stuart.

       Officer Frank Lane, a detective with the Hamblen County Sheriff’s Department,
worked part-time as a patrolman with the Morristown Police Department at the time of this
incident. While standing near the entrance of the rally area, his attention was drawn to the
Defendant because he had become “loud and irate.” Officer Lane recalled that when he saw
the Defendant offer resistance to the arrest, he attempted to apply a taser, explaining that his
“drive stun” imposed pain but did not incapacitate. He did not know whether he had been
successful in making contact with the Defendant. Officer Lane was also cross-examined by
the use of portions of a videotape. The record does not indicate which videotape was used
or what portions were displayed during the cross-examination. Officer Lane was unable to
identify the portion of the videotape in which he attempted to use his taser on the Defendant.

        Lieutenant Weisgarber, who also served as a SWAT team commander and a general
departmental instructor, testified that he had planned security for the rally and coordinated
the officers participating in the event. He instructed the officers not to allow metal objects,
lawn chairs, flagpoles, or anything that could be used as a weapon inside the fenced area.
He was standing near the courthouse, some distance away from the Defendant, when his
attention was drawn to loud screaming and yelling near the front entrance – “loud over
everything else that was going on.” Almost immediately, he sent a radio message “to get
[the] person out of there” who was creating the scene. When Weisgarber arrived at the
checkpoint, the Defendant was being handcuffed by the other officers. On cross-
examination, he stated that the reason he told the officers to “get him out of there” was that
there were many people present and it was “alarming other individuals.”

       Patricia Stephens, an organizer of the rally, testified for the defense. She stated that
the purpose of the rally was to educate people about the cost of illegal immigration. Flyers
had been distributed in order to promote attendance. She stated that when she arrived at the
courthouse, she found “unbelievable” the number of law enforcement personnel present. She
recalled that the Defendant approached the front entrance of the rally area carrying a sign,
a lawn chair, and a flag attached to a flagpole. She explained that when she entered the
marked area, officers required her to remove the sticks from the several small flags in her

                                              -5-
possession and put them in her car; she was upset that no one could enter with a flag on a
pole or even on “a little tiny stick.” While acknowledging that the Defendant appeared angry
and raised his voice at the officers, she did not hear any cursing and did not see the
Defendant either push an officer or shake his flag at an officer. Ms. Stephens, who wore a
larger flag to the event that was draped around her shoulders, never heard any of the officers
inform the Defendant that he was under arrest. In her opinion, the Defendant did not resist
the arrest.

       Commissioner Lowe, a pharmacist by profession, testified that he had planned to talk
at the rally about health issues related to immigration. He assisted the organizers by
contacting the county mayor for permission to use the courthouse lawn as the site of the
demonstration. Commissioner Lowe described the courthouse lawn as “completely cordoned
off,” without any access to parking. He stated that numerous law enforcement vehicles were
present and that in addition to the police, the sheriff’s department, the highway patrol, and
a SWAT team in full body armor attended the rally. Commissioner Lowe testified that a
“half-track,” looking much like a tank, was also parked near the site, and that there were
three “snipers” on the rooftops.

        Commissioner Lowe’s wife, Audrey Lowe, also helped organize the rally. She
testified that she was positioned near the front entrance and had a good view of the
confrontation between the Defendant and the officers. She stated that the Defendant neither
used obscene language nor fought the officers with his flagpole. She did not see any officer
get struck by the pole. She claimed that she overheard the Defendant tell officers, “Don’t let
my flag touch the ground.”

        On rebuttal by the State, Lieutenant Weisgarber acknowledged that a large number
of officers were present at the rally. He explained that he expected “both sides” of the
immigration issue to be in attendance and also pointed out that it was routine for the highway
patrol to be involved in demonstrations of this nature.

                                      Verdict and Appeal
       The Defendant was tried on charges of disorderly conduct and resisting arrest. At the
conclusion of its deliberations, the jury found the Defendant guilty of disorderly conduct and
imposed a fine of twenty-five dollars. The Defendant was acquitted of resisting arrest. At
the sentencing hearing, the Defendant requested and was granted judicial diversion.
Afterward, he appealed, alleging error by the admission of his statement to Officer Kyle,
challenging the sufficiency of the evidence, and arguing that his conviction violated
constitutional protections of free speech. The Court of Criminal Appeals dismissed the
appeal, pointing out that an appeal of right exists only when there is a final judgment of
conviction, Tennessee Rule of Appellate Procedure 3(b), and that the grant of judicial

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diversion did not involve a conviction. State v. Mitchell, No. E2007-02807-CCA-R3-CD,
2008 WL 3539724, at *2 (Tenn. Crim. App. Aug. 14, 2008); accord State v. Norris, 47
S.W.3d 457, 463 (Tenn. Crim. App. 2000) (holding that under Tennessee Code Annotated
section 40-35-313(a)(1)(A) (1997), a trial court may not impose judicial diversion except
with the consent of the defendant); see also Tenn. Code Ann. § 40-35-313(a)(1)(A) (2010).

        After the dismissal of the appeal, the Defendant filed a motion in the trial court to
withdraw his application for judicial diversion. The trial court granted the motion and
entered a judgment of conviction, sentencing the Defendant to thirty days of jail confinement.
In the second appeal, the Court of Criminal Appeals set aside the conviction for disorderly
conduct, holding that the video recordings of the incident conflicted with much of the
officer’s testimony in significant ways. State v. Mitchell, No. E2008-02672-CCA-R3-CD,
2010 WL 1241577, at *5 (Tenn. Crim. App. Mar. 31, 2010). While acknowledging that the
video recordings established that the Defendant was belligerent and speaking with a raised
voice in his interactions with the officers, the Court of Criminal Appeals concluded that there
were no verbal threats made by the Defendant to the officers and that there was no indication
in the video that Officer Wallen had been struck in the chest by the flagpole. Id. Judge
Norma McGee Ogle dissented, observing that the video recordings of the incident were not
inconsistent with the officer’s testimony that the end of the flagpole had come into contact
with Officer Wallen, “albeit briefly,” during the confrontation. Id. at *6 (Ogle, J.,
dissenting).

       This Court granted the application by the State for permission to appeal to consider
(1) whether the trial court erred by the admission of potentially prejudicial evidence; (2) the
sufficiency of the evidence in the context of the physical facts rule; and (3) whether the
words expressed by the Defendant were protected by the right to free speech.

                                       Analysis
                                           I.
      The Defendant first argues that the trial court erred by allowing into evidence the
statement he made to Officer Kyle while he was attempting to park his vehicle. The
Defendant submits that the evidence was not relevant to the charged offenses and should
have been excluded because of the danger of unfair prejudice.

         As noted, the Defendant was charged with both disorderly conduct and resisting
arrest. The disorderly conduct statute states that “[a] person commits [the] offense [of
disorderly conduct] who, in a public place and with intent to cause public annoyance or alarm
. . . [e]ngages in fighting or in violent or threatening behavior[.]” Tenn. Code Ann. 39-17-
305(a)(1) (2003); see also T.P.I. – Crim. 30.13 (6th ed. 2006). The law prohibiting resisting
arrest provides that “[i]t is an offense for a person to intentionally prevent or obstruct anyone

                                               -7-
known to the person to be a law enforcement officer . . . from effecting a[n] . . . arrest . . . of
any person, including the defendant, by using force against the law enforcement officer or
another.” Tenn. Code Ann. § 39-16-602(a) (2003); see also T.P.I. – Crim. 27.04 (6th ed.
2006).

        “[E]vidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence” qualifies as relevant. Tenn. R. Evid. 401. While irrelevant
evidence should be excluded, relevant evidence is generally admissible unless prohibited by
the state and federal constitutions, other rules of evidence, or “other rules or laws of general
application in the courts of Tennessee.” Tenn. R. Evid. 402. Tennessee Rule of Evidence
403, however, provides that relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of the unfair prejudice.” In State v. Banks, 564
S.W.2d 947, 951 (Tenn. 1978), this Court quoted with approval a definition of unfair
prejudice: “An undue tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.” (internal quotations omitted). While the word
“substantially” is not defined by either our rule or the corresponding federal rule, this
terminology has been construed to place a “heavy burden on the party seeking to exclude the
evidence.” State v. James, 81 S.W.3d 751, 757 (Tenn. 2002). The exclusion of relevant
evidence under our rule has been described as “an extraordinary remedy that should be used
sparingly.” White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999). When
addressing this issue, trial courts must be respectful of the function of the jury. See 22
Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5220
(1978). Rule 403 decisions fall within the discretionary authority of the trial court and will
not be overturned absent an abuse of discretion. Cf. Banks, 564 S.W.2d at 952.

       In this instance, the Defendant filed a motion in limine to exclude his comments to
Officer Kyle, who had not included the word “nigger” in his original police report and who
explained that he had chosen to substitute the term “black boy” in the report rather than the
more derogatory word the Defendant had actually used. The trial court overruled the motion,
holding that the evidence was reflective of the Defendant’s state of mind.

       In our view, the trial court acted within the bounds of its discretionary authority. The
term “nigger” is offensive and thus prejudicial. Nevertheless, the use of that word is also
probative as to the charge of disorderly conduct. The Defendant reacted angrily after being
told not to park in a prohibited area, directly challenging the authority of the African-
American officer. A white officer was called upon to intervene and to confirm the no-
parking restriction before the Defendant agreed to leave. The Defendant “sped off” to park
in another prohibited, but unsupervised, area before exiting his vehicle and, apparently still
angry, making a “bee-line” to the checkpoint at the front entrance, where the confrontation

                                                -8-
took place. From the proof, the jury could have easily inferred that Officers Kyle and Stuart
had continual eye contact with the Defendant during the entire course of events, which, by
all appearances, transpired within a matter of minutes.

        Disorderly conduct is not necessarily a single act or deed. There is a nexus between
the Defendant’s initial conduct toward Officer Kyle and his confrontation with the police
stationed at the checkpoint. The use of the offensive term is particularly probative of
whether the Defendant “[e]ngage[d] in fighting or in violent or threatening behavior” “with
intent to cause public annoyance or alarm” during the short interval leading to his arrest. The
trial court did not, therefore, abuse its discretionary authority by admitting the evidence. See
Neil P. Cohen et al., Tennessee Law of Evidence § 4.03(8) at 4-67 (5th ed. 2005).

                                              II.
       After considering the trial testimony, seeing the video tapes, and receiving the trial
court’s instructions,1 the jury concluded that the Defendant had, “in a public place and with
intent to cause public annoyance or alarm . . . [e]ngage[d] in fighting or in violent or
threatening behavior[.]” Tenn. Code Ann. § 39-17-305(a)(1). The Court of Criminal
Appeals, however, concluded that the video recordings “belie[d] the officers’ testimony in
very significant ways” and were “void of any actions . . . that could be deemed physically
threatening.” Mitchell, 2010 WL 1241577, at *5.2

        Initially, when the sufficiency of the evidence is at issue, well-established principles
apply. On appeal, “the State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 S.W.3d
514, 521 (Tenn. 2007). “The credibility of the witnesses, the weight to be given their
testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as
the trier of fact.” State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). When the sufficiency of the evidence
is challenged, the relevant question is whether, after reviewing the evidence in the light most
favorable to the State, “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Tenn. R. App. P. 13(e). “Because a verdict of guilt removes the presumption of
innocence and raises a presumption of guilt, the criminal defendant bears the burden on

        1
        Because the instructions the trial court made to the jury were not made a part of the record, this
Court must presume that they were proper. See Tillery v. State, 565 S.W.2d 509, 511 (Tenn. Crim. App.
1978).
        2
          After so holding, the majority on the panel, of course, found it unnecessary to address either the
constitutionality of the statute’s application to the Defendant’s conduct or the admissibility of the
Defendant’s comment to the African-American police officer.

                                                    -9-
appeal of showing that the evidence was legally insufficient to sustain a guilty verdict.” State
v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

        In the absence of direct evidence, a criminal offense may be established exclusively
by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable
v. State, 313 S.W.2d 451, 456-58 (Tenn. 1958). Ultimately, however, “[t]he jury decides the
weight to be given to circumstantial evidence, and ‘[t]he inferences to be drawn from such
evidence, and[, moreover,] the extent to which the circumstances are consistent with guilt
and inconsistent with innocence, are questions primarily for the jury.’” State v. Rice, 184
S.W.3d 646, 662 (Tenn. 2006) (quoting Marable, 313 S.W.2d at 457). On appeal, the court
may not substitute its inferences for those drawn by the trier of fact in circumstantial
evidence cases. State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010); Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956). The standard of review “‘is the same whether the conviction
is based upon direct or circumstantial evidence,’” or a combination of both. Hanson, 279
S.W.3d at 275 (quoting State v. Sutton, 166 S.W.3d 686, 689 (Tenn. 2005)); State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999); see also State v. Dorantes,
__ S.W.3d __, 2011 WL 208306, at *7 (Tenn. 2011).

        The Court of Criminal Appeals found that the events captured by the video cameras
so conflicted with portions of the officers’ testimony that a conviction for disorderly conduct
was not warranted. For example, the court pointed out that the video recordings did “not
show the Defendant shaking the flag[pole] up and down and striking Officer Wallen in the
chest . . . two or three times, or at all” as indicated by Officer Kyle, and that the videos are
“void of any actions . . . that could be deemed physically threatening.” Mitchell, 2010 WL
1241577, at *5. Further, the majority opinion observed that there was “no testimony that the
officers felt threatened by the Defendant.” Id. In her dissent, Judge Ogle, in reference to the
video recordings, pointed out that the Defendant, having already demonstrated his anger after
being directed away from a prohibited parking area by officers Kyle and Stuart, “proceeded
at a ‘fast pace,’ visibly upset, toward the entry gate where the officers were gathered.” Id.
at *6 (Ogle, J., dissenting). She observed that when directed to remove the flag from its pole,
the Defendant “ranted” and “raved,” “loudly taunting the officers to get the attention of other
rally attendees, getting into [their] faces.” Id.

       From its extensive discussion of the videotape and conclusion that the videotape
“belies the testimony in very significant ways,” id. at *5 (majority opinion), the Court of
Criminal Appeals appears to have reweighed the evidence and concluded that the videotape
was necessarily more reliable than the testimony of the witnesses testifying on behalf of the
State. It is of course, the role of the jury to determine the credibility of the witnesses and to
resolve the conflicts in the evidence. Here, the jury, properly instructed on the statutory
elements of the crime, saw the witnesses, heard their testimony firsthand, and also saw the

                                              -10-
videotapes. The evidence is sufficient when, even if by a small margin, a rational jury could
unanimously conclude from all of the evidence, direct and circumstantial, that the Defendant,
“in a public place with the intent to cause public annoyance or alarm . . . [e]ngage[d] in . .
. threatening behavior.” Tenn. Code Ann. § 39-17-305(a)(1).

        It is undisputed that the rally was held in a public place. Considering the issue in the
light most favorable to the State, as we are required to do, the rally attracted individuals
supporting each side of the issue of illegal immigration. The jury heard testimony that the
Defendant, over a short interval of time, disregarded the parking restrictions for the rally and
rudely challenged the authority of Officer Kyle, an African-American. The Defendant used
an inflammatory term in reference to Officer Kyle. A white officer had to intervene. The
Defendant reacted angrily and made intemperate, disparaging remarks not only to Officer
Kyle, but others as well. After parking in an unguarded no-parking area, the Defendant
rushed toward the security checkpoint. All of this took place before the Defendant appeared
on either video. The Defendant was not amenable to stopping at the checkpoint. When one
officer blocked his path, the Defendant stepped toward Officer Stuart and loudly questioned
the propriety of the precautions established for the event. The Defendant’s behavior attracted
the attention of several spectators on hand, at least one of whom turned his camera to record
a video of the Defendant’s behavior at the checkpoint. Lieutenant Weisgarber, who was in
charge of planning and coordinating security at the rally was so concerned about the behavior
of the Defendant that he directed the officers at the checkpoint “to get him out of there.”

       As stated, the jury was entitled to resolve any differences in the testimony, assess the
credibility of the witnesses, and draw inferences from all of the evidence as to the behavior
of the Defendant. State v. Campbell, 245 S.W.3d at 335. Considering the evidence in the
light most favorable to the State, the jury could have determined that the Defendant, while
in a public place, intended to cause public annoyance or alarm by engaging in violent or
threatening behavior. The evidence, therefore, is sufficient to support the conviction of the
Defendant.

                                             III.
       The Defendant also asserts that his conviction violates the Due Process Clause of the
Fourteenth Amendment to the United States Constitution because First Amendment
protections entitled the Defendant to vociferously challenge police authority3 so long as he


        3
         The First Amendment to the United States Constitution prohibits any law “abridging the freedom
of speech,” U.S. Const. amend. I, while the Tennessee Constitution acknowledges that “[t]he free
communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely
speak, write, and print on any subject, being responsible for the abuse of that liberty.” Tenn. Const. art. I,
                                                                                               (continued...)

                                                    -11-
refrained from the use of “fighting” words, as defined in the landmark case of Chaplinsky
v. New Hampshire, 315 U.S. 568 (1942).4 The State, relying on its brief filed with the Court
of Criminal Appeals, submits that the language of the disorderly conduct statute applies only
when interpreted to proscribe words or conduct not protected by the federal or state
constitutions and that the Defendant’s behavior was unprotected.

       While acknowledging there is no constitutional abridgement so long as a statute does
no more than prohibit face to face words “‘likely to provoke the average person to retaliation,
and thereby cause a breach of the peace,’” Texas v. Johnson, 491 U.S. 397, 409 (1989)
(quoting Chaplinsky, 315 U.S. at 574), the Defendant maintains that his words to the police
officers fell below that threshold. Cf. Virginia v. Black, 538 U.S. 343, 359-60 (2003)
(observing that a state’s prohibition of “true threats” serves as a protection against the “fear
of violence” and the “disruption that fear endangers”). Further, he argues that this court


        3
          (...continued)
§ 19. The Tennessee provision has been “construed to have a scope at least as broad as that afforded” the
freedoms of speech and of the press by the First Amendment. Leech v. Am. Booksellers Assoc., 582 S.W.2d
738, 745 (Tenn. 1979). Further, because the Due Process Clause of the Fourteenth Amendment of the United
States Constitution extends the protections of the First Amendment to state and local government, any
infringement by a state or local government violates the First Amendment rather than the Fourteenth. U.S.
Const. amend XIV; see also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996) (citing cases).
First Amendment protections are expansive. Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997). In order
to be permissible, any regulation of free speech “must serve an important and substantial public interest,
wholly divorced from the suppression of free speech,” and the restrictions “must be no greater than is
essential to the furtherance of that interest.” H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444,
452 (Tenn. 1979) (citing United States v. O’Brien, 391 U.S. 367 (1968)).
        4
          In Chaplinsky, a defendant who had cursed a municipal officer, calling him a “[g–]damned
racketeer” and “damned fascist” in a public place, was convicted of violating a state statute. Id. at 574.
While upholding the validity of the statute, on its face and as applied, the Supreme Court made the following
observation:

        Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it
        is well understood that the right of free speech is not absolute at all times and under all
        circumstances. There are certain well-defined and narrowly limited classes of speech, the
        prevention and punishment of which has never been thought to raise any Constitutional
        problem. These include the lewd and obscene, the profane, the libelous, and the insulting
        or “fighting” words – those which by their very utterance inflict injury or tend to incite an
        immediate breach of the peace. It has been well observed that such utterances are no
        essential part of any exposition of ideas, and are of such slight social value as a step to truth
        that any benefit that may be derived from them is clearly outweighed by the social interest
        in order and morality.

Id. at 571-72 (emphasis added) (footnotes omitted).

                                                      -12-
should subscribe to a concurring opinion authored by Justice Powell in Lewis v. City of New
Orleans, 408 U.S. 913 (1972) (Powell, J., concurring), who wrote that police officers should
be more tolerant of “fighting” words than the average citizen and held to “a higher degree
of restraint.”5 Finally, the Defendant relies in great measure on the per curiam opinion by
the United States Supreme Court in Norwell v. City of Cincinnati, 414 U.S. 14 (1973), as
support for his argument that his conviction should be reversed on First Amendment grounds.
In Norwell, a sixty-nine year old defendant was walking from his place of employment at a
liquor store to his residence, when an officer, who had been notified of a suspicious person
in the neighborhood, asked whether he lived in the area. Id. at 15. The defendant turned to
walk away without answering, and the officer persisted. When the defendant eventually said,
“I don’t tell you people anything,” he was then arrested and later convicted under an
ordinance prohibiting “noisy, boisterous, rude, insulting, or disorderly” conduct “with the
intent to . . . annoy.” Id. at 14. The Court reversed, holding that “[r]egardless of what the
motivation may have been behind the expression in this case, it is clear that there was no
abusive language or fighting words.” Id. at 16.

        First and foremost, “[i]n evaluating the constitutionality of a statute, we begin with


        5
          See State v. Creasy, 885 S.W.2d 829, 831-32 (Tenn. Crim. App. 1994) (holding that the defendant’s
curses of an officer, although “profane and insulting,” were not adjudged “fighting” words because the
officer was held to a higher standard, but affirming a conviction for disorderly conduct because the defendant
had also displayed offensive body language – “physically position[ing] himself between the officer and the
car that he was ticketing” – and the officer “had called for back-up”); see also State v. Scott, C.C.A. No. 17,
1989 WL 22736, at *1-2 (Tenn. Crim. App. Mar. 16, 1989) (reversing disorderly conduct conviction where
the defendant, after being urged by a sheriff to “calm down,” called the sheriff “a fat son of a bitch,” because
the conduct consisted entirely of verbal abuse and there was no threat of physical assault or any indication
that members of the crowd were incited by the conduct); Garvey v. State, 537 S.W.2d 709, 711 (Tenn. Crim.
App. 1975) (reversing a disorderly conduct conviction for shouting “sooey” to an officer walking toward City
Hall by the application of the “average person” test established in Chaplinsky).

        In State v. Read, 680 A.2d 944 (Vt. 1996), the Vermont Supreme Court observed that

        [t]he fact that police officers . . . are trained to deal calmly and authoritatively with
        disorderly persons does not guarantee that police officers are immune from reacting
        instinctively in the face of an abusive tirade. . . . While police officers are experienced at
        handling unruly persons, the corollary is that police officers are obligated to confront such
        persons frequently. We may rightly expect that a police officer will act in accordance with
        his or her training or disciplinary rules. But to fashion from this expectation a judicial rule
        that relieves a person from the reach of a criminal statute solely because the victim is a
        police officer is to invite the use of abusive language toward police officers. We do not
        believe that such a rule is sound in practice or in principle.

Id. at 950 (emphasis added).

                                                     -13-
the presumption that the act . . . is constitutional.” State v. Pickett, 211 S.W.3d 696, 700
(Tenn. 2007). “Our charge is to uphold the constitutionality whenever possible.” Waters v.
Farr, 291 S.W.3d 873, 882 (Tenn. 2009). Further, this Court has the constitutional authority
to construe our disorderly conduct statute so that there is no prohibition of speech except for
those expressions not subject to protection. Posadas de P.R. Assoc. v. Tourism Co. of P.R.,
478 U.S. 328, 339 (1986); New York v. Ferber, 458 U.S. 747, 769 n.24 (1982) (“When a
federal court is dealing with a federal statute . . . , it should . . . construe the statute to avoid
constitutional problems, if the statute is subject to such a limiting construction. . . . A state
court is also free to deal with a state statute in the same way. If the invalid reach of the law
is cured, there is no longer reason for proscribing the statute’s application to unprotected
conduct . . . . [A] state-court decision that has construed the statute . . . is binding . . . .”).
Speech integral to criminal conduct is not protected. See United States v. Stevens, ___ U.S.
___, 130 S. Ct. 1577 (2010); see also Giboney v. Empire Storage and Ice Co., 336 U.S. 490,
498 (1949).

       As indicated, the jury, instructed as to the applicable law, found that the Defendant’s
aggressive conduct and his loud and rude behavior violated the terms of the statute. There
is proof, direct and circumstantial, of each and every element of the crime of disorderly
conduct. Further, while words and also conduct expressive of an idea may qualify as
protected “speech,” the threatening behavior demonstrated by the Defendant does not, in our
view, fall within either category.6 Under these circumstances, the First Amendment and

        6
           “Although the [United States Supreme] Court has long accepted the premise that certain
‘expressive’ acts are entitled to First Amendment protection, . . . not all activity with an expressive
component will be afforded First Amendment protection.” 5 Ronald D. Rotunda & John E. Nowak, Treatise
on Constitutional Law § 20.49(a), at 540-41 (4th ed. 2008). We disagree with the dissent’s assertion that the
words and conduct for which the Defendant was arrested constituted a matter of public concern. “Deciding
whether speech is of public or private concern requires us to examine the ‘content, form, and context’ of that
speech, ‘as revealed by the whole record.’” Snyder v. Phelps, ___ S. Ct. ___, 2011 WL 709517, at *6 (2011)
(quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (opinion of Powell,
J.)). Although the activities taking place inside the anti-immigration rally, including “display[ing] signage
that educates,” may very well have risen to the level of speech addressing an issue of public concern, the
propriety of those activities is not before this Court. None of the Defendant’s belligerent and threatening
statements and actions made towards the police when seeking to enter the rally involved an issue of public
concern. They are not, therefore, entitled to the type of “special protection” discussed by the United States
Supreme Court in Snyder. See 2011 WL 709517, at *5.

        Moreover, even assuming that the Defendant’s words and actions were protected, his choice of where
and when to express himself is “not beyond the Government’s regulatory reach – it is ‘subject to reasonable
time, place, or manner restrictions’ that are consistent with the standards announced in this Court’s
precedents.” Snyder, 2011 WL 709517, at *8 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 293 (1984)). In United States v. O’Brien, the Court, observing that the governmental interest sufficiently
                                                                                                (continued...)

                                                     -14-
article I, section 9 protections under our federal and state constitutions are not implicated.

                                       Conclusion
       The Defendant’s reference to an African-American officer as “nigger” was properly
admitted into evidence. The Defendant’s use of that term, his refusal to obey the officer’s
directive to remove his vehicle from a no-parking area until a white officer intervened, his
angry response, and his loud and belligerent confrontation of the officers at the rally area
checkpoint qualified as threatening behavior designed to annoy or alarm in a public place.
Moreover, the Defendant’s conduct is not entitled to the protections of free speech. For these
reasons, the judgment of the Court of Criminal Appeals is reversed and the conviction and
sentence is reinstated. Costs are adjudged against the Defendant, Teddy Ray Mitchell, for
which execution may issue if necessary.




                                                            _________________________________
                                                            GARY R. WADE, JUSTICE




        6
          (...continued)
justified the regulations of expressed conduct, upheld a statute prohibiting the burning of a draft card,
applying a four-part test:

        A government regulation is sufficiently justified if it is within the constitutional power of
        the Government; if it furthers an important or substantial governmental interest; if the
        governmental interest is unrelated to the suppression of free expression; and if the incidental
        restriction on alleged First Amendment freedoms is no greater than is essential to the
        furtherance of that interest.

391 U.S. 367, 377 (1968). The limitations placed on the rally participants in general, and the Defendant
specifically, including prohibiting him from parkng in a restricted area and bringing a flagpole into the rally,
were reasonable restrictions on protected speech, particularly considering the government’s belief that a large
group of citizens with views in opposition to the rally participants also planned to attend.

                                                     -15-
