This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of the Welfare of:


Filed July 6, 1999


Randall, Judge

St. Louis County District Court

File No. J9-98-651106

Fred Friedman, Chief Public Defender, Joanne Piper-Maurer, Assistant Public Defender, Sixth Judicial District, 1400 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant L.O.W.)

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Duluth, MN 55802; and

Charles P. Schumacher, Assistant St. Louis County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, MN 55802 (for respondent)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.



Appellant challenges his petty-offender adjudication for disorderly conduct. He asserts that the district court applied the wrong standard of proof and that the evidence was insufficient to support his adjudication. We reverse.


On July 10, 1998, Duluth police were called to a disturbance in the Central Hillside neighborhood. Officers received conflicting reports of the incident. One report indicated that three men were chasing members of the LaPrairie family. Another report indicated that members of the LaPrairie family were chasing the men.

Officer Barry Midthun, a responding officer, noticed a group gathering down an alley and began following two males. The males, one of whom was later identified as appellant L.O.W., were heading in the direction of the LaPrairie home, which was approximately a block away. As Midthun followed in his squad car, he observed L.O.W.'s companion pick up a long stick with nails in it. Midthun and another officer used their squad cars to block the alley and stopped L.O.W. and his companion. When the officers started questioning L.O.W., he began yelling and using profanity as he insisted that members of the LaPrairie family had chased him through a park. During the altercation, over 20 other individuals gathered in the area, and approximately ten squad cars arrived. Midthun testified that Lieutenant Thomas Ehle approached L.O.W. and informed him that if he used profanity again, he would be arrested for disorderly conduct. According to Midthun, L.O.W.

threw his hands up in the air, put [them] on [the] squad and [said], "You might as well f---in' arrest me," or something of that nature, "because you're not f---in' doing anything."

Officers then arrested L.O.W. for disorderly conduct in violation of a Duluth ordinance.

After a hearing on November 9, 1998, the district court determined that L.O.W. violated the ordinance and adjudicated him a petty offender. The district court ordered him to pay a $100 fine or perform an equivalent amount of community service and placed him on probation until he paid the fine or completed the community service.



L.O.W. first argues that the district court applied the wrong standard of proof. He insists that instead of applying the "beyond-a-reasonable-doubt" standard, the court applied a "totality-of-the-circumstances" standard.

The beyond-a-reasonable-doubt standard of proof applies in juvenile delinquency adjudication proceedings. See In re Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 1075 (1970) (holding constitutional protection of proof beyond reasonable doubt applies to delinquency adjudication proceeding). This case involves a petty-offender adjudication, not a delinquency adjudication; but the standard remains the same, proof beyond a reasonable doubt. See Minn. Stat. § 260.015, subds. 5 (defining delinquent child), 21(b) (1998) (defining juvenile petty offense).

Unlike a delinquency adjudication, a petty-offender adjudication does not have the potential of resulting in an out-of-home placement.[1] See Minn. Stat. §§ 260.185 (1998) (listing possible dispositions for juveniles adjudicated delinquent); 260.195, subd. 3 (1998) (listing possible dispositions for juveniles adjudicated petty offenders). We note that the same is true for adults. An adult conviction for a petty misdemeanor, like a juvenile petty offender adjudication, is not punishable by incarceration. See Minn. Stat. § 609.02, subd. 4a (1998) (defining petty misdemeanor as offense which does not constitute a crime and for which a fine of not more than $200 may be imposed). The standard of proof in a case charging an adult with a petty offense, as in all criminal offenses, is proof beyond a reasonable doubt. Minn. R. Crim. P. 23.05, subd. 3. Analogously, we will apply the same standard of proof to juvenile petty-offender adjudications. We conclude the district court applied the proper standard.

There is no support for L.O.W.'s contention that the district court's statement that it was basing its decision on the "totality of the circumstances" equates to a conclusion that the court did not apply the beyond-a-reasonable-doubt standard of proof. L.O.W. points to State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998), in support of his assertion. The court's discussion in Walker is unrelated to the proposition L.O.W. asserts. The court in Walker explained the probable cause doctrine and stated that probable cause "'[is] not [a] "finely-tuned standard," comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence.'" Id. at 766 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661 (1996) (citations omitted)) (alteration in original). The court went on to determine that under the totality of the circumstances, police lacked probable cause to arrest the defendant. Id. at 769. Contrary to L.O.W.'s argument, Walker does not stand for the proposition that the court does not find guilt beyond a reasonable doubt by applying a totality-of-the-circumstances test. Cf. State v. Munoz, 385 N.W.2d 373, 377 (Minn. App. 1986) (holding totality of circumstances indicated state met burden of proving defendant's guilt beyond reasonable doubt).

Although the district court's decision does not specifically state that the court concluded L.O.W. was guilty "beyond a reasonable doubt," there is no requirement that the court make this precise statement in its written order. On appeal we will consider the sufficiency of the evidence and determine whether, in light of the proper burden of proof, the district court could reasonably have found L.O.W. guilty. See In re Welfare of D.A.H., 360 N.W.2d 676, 677 (Minn. App. 1985) (stating adjudication will be affirmed if district court could reasonably have found juvenile guilty in light of presumption of innocence and state's burden of proving guilt beyond reasonable doubt). We affirm the district court on the issue of the correct standard of proof.


L.O.W. next argues that the state did not prove beyond a reasonable doubt that his conduct was disorderly and argues that the state failed to prove that his conduct influenced or affected others. We agree with L.O.W. on this issue, and, thus, reverse the district court.

The Duluth ordinance prohibiting disorderly conduct states in pertinent part:

(b) No person within any public or private place shall take part in or incite or encourage any brawling, shouting, dancing, or noise production, which unreasonably disturbs others lawfully in the vicinity; * * *

(d) No person shall engage in offensive, obscene or abusive language, or in boisterous or noisy conduct tending reasonably to arouse alarm, anger or resentment in another.

Duluth, Minn., Legislative Code § 34-6 (1997). Minnesota Statutes similarly define disorderly conduct:

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, which is a misdemeanor: * * *

(3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offense, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Minn. Stat. § 609.72, subd. 1(3) (1998). Because Duluth's ordinance and the statute are substantially similar, we will construe the ordinance in the same manner that Minn. Stat. § 609.72, subd. 1(3), has been construed. See City of Little Falls v. Witucki, 295 N.W.2d 243, 245 (Minn. 1980) (stating lower court properly construed city ordinance in manner similar to construction of state statute).

In In re Welfare of S.L.J., 263 N.W.2d 412, 419 (Minn. 1978), a seminal case of Justice Rogosheske examining the issue of words as disorderly conduct, the supreme court concluded that subdivision 1(3) of the disorderly-conduct statute is unconstitutional on its face. Rather than striking down the statute, however, the court narrowly construed it to prohibit only "fighting words." Id. "Fighting words" are "'personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction'" and those words "'which by their very utterance inflict injury or tend to incite an immediate breach of the peace.'" Id. at 418 (quoting Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 1785 (1971); Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S. Ct. 970, 972 (1974) (other quotations omitted)). The court noted that the specific circumstances of each case are important in determining whether words constitute "fighting words." Id. at 419; see also In re Welfare of M.A.H., 572 N.W.2d 752, 757 (Minn. App. 1997) ("[A] defendant's words are considered as a 'package' in combination with conduct and physical movements, viewed in light of the surrounding circumstances." (citations omitted)).

Here, the district court properly recognized that "[t]he mere use of profanity or vulgarity in the presence of or directed toward a police officer" does not amount to "an immediate incitement to violence" and does not constitute disorderly conduct. But then the court went on to conclude that although the content of L.O.W.'s speech did not constitute disorderly conduct, his overall "course of conduct during his encounter with the police" did amount to disorderly conduct.

To find L.O.W. guilty of disorderly conduct, his statements must have constituted "fighting words." See S.L.J., 263 N.W.2d at 419 (construing disorderly-conduct statute as prohibiting only fighting words). The district court could properly consider L.O.W.'s words in combination with his actions and the surrounding circumstances. See M.A.H., 572 N.W.2d at 757 (stating "words are considered as a 'package' in combination with conduct and physical movements, viewed in light of the surrounding circumstances" (citations omitted)). But based on all of the circumstances, L.O.W.'s statements were not likely to cause a violent reaction or instigate an immediate breach of the peace. See S.L.J., 263 N.W.2d at 418 (defining "fighting words" as those which are "inherently likely to provoke violent reaction" or those "which by their very utterance inflict injury or tend to incite an immediate breach of the peace" (quotations omitted)).

There is no evidence that members of the crowd were carrying weapons or engaging in, or threatening to engage in, any violence. Lieutenant Ehle testified only that L.O.W. and his companion "were probably inciting other people." (Emphasis added.) We are not sure what "probably inciting" means. We can only look at the evidence in the record. See State v. Lynch, 392 N.W.2d 700, 702 (Minn. App. 1986) (upholding disorderly conduct conviction where crowd brandishing clubs and there was specific testimony that defendant's words were inciting crowd). It is conceded that L.O.W. did not fight with police or make any threats. See State v. Ackerman, 380 N.W.2d 922, 924, 926 (Minn. App. 1986) (upholding disorderly conduct conviction where defendant fought with, yelled at, and threatened officers). Although his companion carried a stick, L.O.W. did not. Instead of fighting officers, L.O.W. put his hands on a squad car and let police arrest him.

Most importantly, the evidence is conclusive that L.O.W. was arrested for his use of profanity, and not his conduct. Officer Midthun and Lieutenant Ehle testified unequivocally that before arresting L.O.W., Ehle threatened L.O.W. that if L.O.W. used profanity again, officers would arrest him. Then, according to Officer Midthun, L.O.W. put his hands on a squad car and stated, "'You might as well f---in' arrest me,' or something of that nature, 'because you're not f---in' doing anything.'" The officers then immediately arrested L.O.W. There is nothing in the record to indicate anything other than that if L.O.W. had not sworn one more time, he would not have been arrested.

L.O.W.'s statements did not constitute fighting words. The evidence is clear that L.O.W. was arrested for daring to mutter one more line of profanity after the investigating officers told him to stop swearing. This evidence is insufficient to support an adjudication for disorderly conduct.


[1] The one exception to this rule is that after a third petty-offense adjudication for alcohol or controlled substances, a juvenile may be ordered to participate in an inpatient chemical dependency treatment program. Minn. Stat. § 260.195, subd. 4 (1998).