This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Jeffrey John Hubbard,
Sherburne County District Court
File No. TX9910230
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, 13880 Highway Ten, Elk River, MN 55330-4601 (for respondent)
Charles L. Hawkins, Suite 2890, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Hanson, Presiding Judge, Crippen, Judge, and Harten, Judge.
Appellant Jeffrey Hubbard challenges his disorderly conduct conviction as a violation of the First Amendment of the United States Constitution. Because we find the First Amendment does not protect appellant’s conduct, we affirm.
While traveling along a rural highway after dark, during the evening hours in September 1999, appellant flashed a sexually suggestive sign to a 23-year-old female driver who was alone in her vehicle. He repeatedly drove past her, flashed the sign, slowed to let her pass, and sped up to show her the sign again. The driver became quite upset and called the police on her cell phone. That evening, police cited appellant for disorderly conduct.
Appellant waived his right to a jury trial and submitted the case on stipulated facts. The court found that appellant “engaged in offensive, obscene and abusive conduct and language when displaying the sign[,] * * * conduct [that] reasonably aroused, alarmed and angered Complainant.” The court concluded that appellant’s “words were ‘fighting words’” and found that appellant “knew, or had reasonable grounds to know, that his conduct would tend to alarm, anger and disturb others.” The court noted that appellant’s words and actions together removed his conduct from the First Amendment’s protection: “[I]t is the predatory manner in which he chose to pursue the Complainant that satisfies the requirements of the statute.” The court then found appellant guilty of disorderly conduct and sentenced him.
The standard of review involves a dual approach: This court must first review the evidence in a light most favorable to the state and then decide as a matter of law whether the speech is protected by the First Amendment. In re Welfare of M.A.H., 572 N.W.2d 752, 757 (Minn. App. 1997).
Appellant was charged and convicted of disorderly conduct. The statute provides:
Whoever does any of the following in a public or private place, * * * knowing, 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, is guilty of disorderly conduct * * * :
* * * *
(3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.
Minn. Stat. § 609.72, subd. 1 (2000). Because of First Amendment concerns, this statute has been narrowly construed to include only “fighting words” and not words that are merely vulgar, offensive, or insulting. In re Welfare of S. L. J., 263 N.W.2d 412, 418 (Minn. 1978). Fighting words are “those words ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’” State v. Machholz, 574 N.W.2d 415, 421 (Minn. 1998) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 769 (1942)). “Words that merely tend to arouse alarm, anger, or resentment in others are not fighting words.” State v. Klimek, 398 N.W.2d 41, 43 (Minn. App. 1986) (quotation omitted). “The focus is properly on the nature of the words and the circumstances in which they were spoken * * * .” City of Little Falls v. Witucki, 295 N.W.2d 243, 246 (Minn. 1980).
Appellant suggests that his conduct merely aroused anger or alarm. His predatory conduct did indeed arouse alarm and anger but also it also tended to incite a breach of the peace but for the inability of the complainant to protect herself as the trial court concluded. If a stereotypically robust male were approached with a sexually provocative sign and was not permitted to avoid repeated confrontations, a breach of the peace would be more evident. The fact that the complainant did not respond violently does not defeat a fighting-words classification. In fact, the Minnesota Supreme Court has stated that an actual violent response or breach of the peace is not required. See id. (“The fact that the addressee and object of the fighting words exercised responsible and mature forbearance in not retaliating cannot be relied upon by defendant to escape responsibility for his own actions.”).
Moreover, as the trial court noted, the constitution does not guarantee a right to intimidate and insult a single, captive person. In Witucki, a large male customer threatened a small female bartender. Id. at 244. The court found that the defendant was not “merely expressing a controversial political opinion in a vulgar way” but that “he was directly insulting and intimidating an innocent person.” Id. at 245. The court also found that the victim “was essentially a captive audience” because “she had to tend the bar.” Id.
Appellant contends the complainant was not a captive audience because she could have elected not to look at the sign. This is absurd, given the fact appellant made it impossible for her to ignore the sign by approaching her repeatedly. Appellant further suggests that her failure to ignore the sign would constitute inattentive driving, an argument that erroneously overlooks the need of all motorists to be aware of surrounding traffic.
 No formal complaint was issued in this case and the citation states a violation of “609.72(1).” In fact, the case was tried and appellant did not dispute that the case arises under Minn. Stat. § 609.72, subd. 1(3) (2000), a result that might come about by determining that “(1)” meant subdivision one or by amending the citation to conform to the evidence.
 Not incidentally, the same conduct may have violated a different statute that prohibits harassment. See Minn. Stat. § 609.749, subds. 1(1), 2(a)(2) (2000).
 We confine our discussion to the proposition explored by the trial court and the parties, and do not determine whether the conduct would be unprotected under the first prong of the fighting-words test as words that “by their very utterance inflict injury.”