Appeal from the Superior Court of the District of Columbia. (Hon. Nicholas S. Nunzio, Trial Judge).
Before Wagner, Chief Judge, Terry, Associate Judge, and Kern, Senior Judge.
The opinion of the court was delivered by: Wagner
WAGNER, Chief Judge: Appellant, Hamid Chemalali, was convicted following a bench trial of disorderly conduct under D.C. Code § 22-1121 (1) (1989). The information charged that Chemalali, "under circumstances such that a breach of the peace might be occasioned thereby act in a manner as to annoy, disturb, interfere with, obstruct and be offensive to others by acting loud and boisterous, kicking at citizens in violation of Section 22-1121 (1) of the District of Columbia Code." He argues on appeal that his conduct did not constitute a crime under the law of the District of Columbia and that his First Amendment rights were violated in that the conduct leading to his arrest and conviction consisted "almost entirely of speech." We conclude that the evidence was sufficient to prove the crime charged and that the conduct for which appellant was arrested and convicted did not implicate his First Amendment rights.
According to the testimony of Harold Cunningham, a Metropolitan Police officer, the circumstances which occasioned appellant's arrest occurred as follows. Officer Cunningham was engaged in a traffic stop in the 3100 block of M Street, N.W. on November 17, 1993 when a citizen stopped him to report a disturbance across the street and to request assistance before things "got worse." The officer looked across the street and saw appellant and another man walking behind a group of people at whom they were hitting and kicking. Appellant's hitting and swinging motions came within inches of the people, and the officer saw a couple of them look back. The officer called out to appellant and his companion, crossed the street to defuse the situation, and warned them to calm down or they would be arrested for disorderly conduct. Appellant and his companion, who appeared to have consumed alcoholic beverages, began to curse loudly at the officer and at the citizen who had reported them. Among the comments that appellant yelled were "F[--] you. I know my rights. I can walk. This is a public street." Officer Cunningham told the men to leave the area, but they refused. Appellant and his companion became louder, more excited, and more abusive toward the officer, and they shouted profanities at the officer and at the complaining citizen, who by this time had crossed the street at the officer's behest. The officer called for backup police assistance.
Officer Cunningham testified that people were beginning to come out of the bars in the area and that a bouncer from one of the establishments started over to assist him. According to Officer Cunningham, appellant was "poking his finger and hollering at the other citizens . . . that were coming out." A crowd began to form, and appellant was poking his finger at the crowd and saying, "You see what's going on. You see what's going on. This is LA all over again." The officer testified that he was concerned about the crowd forming, as it was his experience that such circumstances might lead to fights erupting among the crowd. After other officers arrived, the police arrested appellant and his companion for disorderly conduct. *fn1
First, appellant argues essentially that the evidence was insufficient to support his conviction under D.C. Code § 22-1121 (1). In determining a claim of evidentiary insufficiency, this court views the evidence in the light most favorable to the government, recognizing that it is within the province of the fact finder to weigh the evidence, to determine the credibility of the witnesses, and to draw reasonable inferences from the evidence. Leonard v. United States, 602 A.2d 1112, 1114 (D.C. 1992) (citations omitted); In re A.B., 556 A.2d 645, 649 n.8 (D.C. 1989). Viewed against that standard, the evidence was adequate to support the conviction.
The statute under which appellant was convicted provides in pertinent part as follows:
Whoever, with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby: (1) Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others . . . shall be fined not more than $250 or imprisoned not more than 90 days, or both.
D.C. Code § 22-1121 (1). Appellant contends that there was no evidence that his conduct actually annoyed, disturbed, interfered with, obstructed, or offended anyone as required by the statute. The trial court, crediting the officer's testimony, found otherwise. Specifically, the trial court found that appellant was kicking and jabbing at individuals on the street and that his conduct disturbed those people. *fn2 The court also determined that appellant's offensive shouting disturbed people present other than the officer. *fn3 We are bound by the trial court's factual findings unless clearly erroneous or not supported by substantial evidence." Holston v. United States, 633 A.2d 378, 386 n.10 (D.C. 1993) (citations omitted); accord, Johnson v. United States, 616 A.2d 1216, 1234 (D.C. 1992). This court must defer to the trial court's determinations of credibility. Id. The trial court's findings are supported by the record; therefore, we accept them.
Appellant's conduct, as found specially by the court, constituted disorderly conduct within the meaning of the statute. It is apparent that kicking and jabbing at pedestrians on the street are offensive actions which would tend to disturb, annoy and interfere with those individuals, as the trial court found. *fn4 Such conduct is of the type which is likely to provoke the person against whom it is directed, such that a breach of the peace might occur. Thus, it falls within the prohibition of D.C. Code § 22-1121 (1).
Proof of actual or impending breach of the peace is not required for conviction under the disorderly conduct statute. Rodgers, supra note 2, 290 A.2d at 396; Scott v. District of Columbia, 184 A.2d 849, 851 (D.C. 1962). It is only required that the alleged conduct occur "under circumstances such that a breach of peace may be occasioned thereby." Rockwell v. District of Columbia, 172 A.2d 549, 552 (D.C. 1961). The police need not await an outbreak of violence before attempting to control the situation by making a disorderly conduct arrest. Gueory v. District of Columbia, 408 A.2d 967, 970 (D.C. 1979); Rodgers, 290 A.2d at 400. We are satisfied that appellant's arrest and conviction fell within the strictures of these principles.
However, appellant contends that he was not cited and arrested for kicking, swinging, and poking his fingers at citizens, and therefore, this conduct cannot be relied upon to sustain his conviction under D.C. Code § 22-1121 (1). This claim is belied factually by the record. In response to defense counsel's question concerning whether he had arrested appellant essentially for continuing to argue about the incident, the officer testified that it was not just for arguing, but for appellant yelling profanities, drawing people out of the bars, and all the other matters which he had mentioned in his testimony. The other matters about which the officer had testified previously involved appellant kicking and swinging at the people as they walked along the street and later poking his finger at citizens who formed the crowd. The charging information also contains the specific reference to "kicking at citizens." Additionally, Officer Cunningham's police report, about which defense counsel had him testify, in ...