This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Robert Irwin Greenberg,
Filed June 20, 2000
Ramsey County District Court
File No. KX-99-936
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Clayton M. Robinson, St. Paul City Attorney, Jessica S. McConaughey, Assistant City Attorney, 15 West Kellogg Blvd., Room 500, St. Paul, MN 55102 (for respondent)
Michael J. Majeski, Suite M, Blair Arcade West, 400 Selby Avenue, St. Paul, MN 55102-4520 (for appellant)
Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.
Appellant challenges his convictions and sentence for intimidating a legislator and disorderly conduct, arguing that the evidence was insufficient to support the convictions and that the convictions and a condition of his probation violated his First Amendment rights. Because there is sufficient evidence to support the jury’s verdicts and no abuse of judicial discretion in the conditions of probation, we affirm.
Appellant Robert Greenberg, a self-styled activist, decided to publicize his campaign to stop the rerouting of Highway 55 by thrusting a cream pie into the face of Senator Carol Flynn, Chair of the Transportation Policy Committee. He purchased a pie, concealed it in a computer case, dressed in a suit, went to the state capitol building, waited outside the senate chambers for Senator Flynn, and pressed the pie into her face in the presence of 20 to 25 people, shouting, “Stop cultural genocide, stop the reroute of Highway 55.” Senator Flynn was scheduled to attend two hearings later that day, but because of the incident, she was unable to do so.
Following a jury trial, appellant was acquitted of assault but convicted of disturbing the legislature or intimidating a member and of disorderly conduct. His motion for a new trial or a judgment of acquittal was denied and he was sentenced to 365 days in jail and $3,000 for disturbing the legislature, execution stayed for two years on condition that he serve 60 days, perform 150 hours of community service, have no contact with the senator, stay away from the legislature until July 2, 2000, and pay the senator’s out-of-pocket costs incurred as a result of appellant’s acts.
Appellant contests the sufficiency of the evidence to support the verdict and the constitutionality of the verdict and of the probation condition that he stay away from the legislature.
D E C I S I O N
1. Sufficiency of the Evidence
In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).
To convict appellant of disturbing the legislature or intimidating one of its members, the state had to prove that appellant prevented a member from attending a session or committee meeting or from voting and that appellant’s act was intentional. Minn. Stat. § 3.151 (3) (1998). Senator Flynn testified that she was unable to attend two committee meetings later that day because appellant had hit her with a pie. Appellant testified on direct examination that he deliberately launched the pie at Senator Flynn’s face to create a spectacle. On cross-examination he admitted that he intentionally and willfully pushed the pie into her face.
Appellant claims he did not intend to interfere with the operation of the legislature or intimidate one of its members and argues that this absence of intent precludes his conviction. But appellant did not need to intend interference or intimidation; he needed only to intend the act. See Minn. Stat. § 609.02, subd. 9 (1998) (“’Intentionally’ means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result.”) Appellant testified that he intended to hit Senator Flynn with a pie. That testimony was sufficient to support his conviction for intimidating a member of the legislature.
Similarly, to convict appellant of disorderly conduct, the state had to prove that he engaged in offensive, abusive, boisterous or noisy conduct tending reasonably to arouse alarm or resentment in others and that he had reason to know his conduct would alarm or disturb others. Minn. Stat. § 609.72, subd. 1(2) (1998). Senator Flynn testified that she was terrified and shaken as a result of being hit with the pie; appellant testified that he wanted to create a media spectacle by hitting her with the pie.
The evidence supports the jury’s verdict on both counts.
2. Constitutionality of the Conviction
We interpret the standard of review applicable to a claim that First Amendment defects render the evidence insufficient to sustain a disorderly conduct adjudication, as here, to be a hybrid: 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.
In re M.A.H., 572 N.W.2d 752,757 (Minn. App. 1997).
Appellant argues that the First Amendment protects as free speech his act of pushing a pie into Senator Flynn’s face. He relies on M.A.H., which extended First Amendment protection to shouted obscenities because they did not rise to the level of “fighting words” or incitement. Id. at 759. But M.A.H. is readily distinguishable: it involved only words, not conduct. It was appellant’s act in pushing the pie into Flynn’s face, not his concurrent statement, that led to his conviction. “A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.” Wisconsin v. Mitchell, 508 U.S. 476, 484, 113 S. Ct. 2194, 2199 (1993); see also Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S. Ct. 3244, 3255 (1984) (holding that “like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such [discriminatory] practices are entitled to no constitutional protection.”); United States v. Bellrichard, 62 F.3d 1046, 1050 (8th Cir. 1995) (holding that the First Amendment does not protect even threats of force or violence).
Appellant did not merely threaten violence; he undertook it, and any communicative impact of his act was eclipsed by the harm he produced. His conviction did not violate his First Amendment rights.
3. Constitutionality of the Probation Condition
Appellant also argues that the district court violated his First Amendment rights by imposing as a condition of his probation that he stay away from the legislature for one year. “The discretion of the trial court in establishing conditions of probation is reviewed carefully * * * when the conditions restrict fundamental rights.” State v. Friberg, 435 N.W.2d 509, 516 (Minn. 1989) (citing United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975)). But the constitutional rights of probationers are “subject to limitations from which ordinary persons are free.” Id.
Friberg upheld a probation condition requiring convicted trespassers to stay 500 feet from the property on which they had trespassed. Id. at 517. The condition was evaluated in terms of the purpose sought to be served by probation, the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers, and the legitimate needs of law enforcement. Id. at 516 (citations omitted). The 500-foot restriction served the purpose of probation by preventing repeat offenses, did not prohibit participation in lawful protests, and protected others from intrusions and harassment. Id. Analogously, the requirement that appellant stay away from the legislature for one year will prevent his participation in repeat offenses, will permit appellant to lawfully protest the rerouting of Highway 55, and will protect Senator Flynn and other legislators from harassment. See also Welsh v. Johnson, 508 N.W.2d 212, 215 (Minn. App. 1993) (upholding a temporary restraining order that “does not in any way impede [the defendant’s] ability to speak to his beliefs about abortion”). Moreover, appellant has many alternative means of communicating with any member of the legislature.
The district court did not abuse its discretion in imposing this condition on appellant’s probation.