June 21, 2011

Behavior Did Not Recklessly Create Risk of Public Inconvenience: State v Davis

Behavior Did Not Recklessly Create Risk of Public Inconvenience

State v Davis



DOCKET NO. A-5172-09T2

Submitted May 17, 2011 - Decided

Before Judges Carchman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-013.


Defendant Colleen A. Davis appeals her conviction on one count of disorderly conduct, contrary to N.J.S.A. 2C:33-2(a). We reverse.


We discern the following facts and procedural history from the record on appeal.

On December 14, 2007, at approximately 8:30 p.m., Officers Jason Lopez and Tiffany Dill of the Keansburg Police Department were in a patrol vehicle, with Lopez driving. Another officer requested them to locate Donald Neri, who was believed to be a passenger in an SUV driven by Davis, his girlfriend. Neri had been identified as a suspect with respect to a pending criminal-mischief investigation.

Lopez spotted Davis's SUV in a residential area, and proceeded to pull it over using his flashing lights and siren. At the time, he and Dill only observed Davis in the SUV, but they subsequently observed a child in the back seat. As Lopez was calling in the stop, Davis got out of her SUV and approached the patrol car. According to Lopez, Davis was "screaming, her hands were waving out. She seemed pretty upset. She was shouting profanities . . . ." According to Dill, Davis got out of her SUV and became "irate," and was "yelling, screaming, cursing" and came "running towards the front of [the] patrol vehicle."

After Dill succeeded in getting Davis to return to her SUV, both officers approached it. They told Davis that they were looking for Neri. According to Lopez, Davis became "more upset again," with "[h]er arms . . . going up and down." Lopez described her as "extremely upset, aggressively." She "continued to yell and curse . . . for another 30 seconds until other officers arrived." Dill testified that, once Davis returned to the SUV, she "was continuously still yelling, cursing, saying that we had absolutely no reason to pull her over."

Dill asked Davis to get out of the SUV because of the young child in the back. Despite Dill's efforts to calm Davis down, she continued "yelling and cursing and flailing her arms." After approximately a minute of that conduct, Dill placed Davis under arrest.

Both Lopez and Dill testified that there were residents in the area who witnessed the events described above. According to Lopez, people appeared to "com[e] outside because the commotion that Ms. Davis was creating was loud and people just came outside." Dill also testified that "[p]eople were coming out of their houses. They were stepping out onto the sidewalk." When asked on cross-examination whether "there were actually people there watching what was going on," Dill responded that "[t]hey were located in front of their houses . . . [or] standing in their doorway," and that there "were kids standing out on the sidewalk."

The municipal court trial was held on February 1, 2010, with Lopez and Dill as the only witnesses. After the State rested, Davis moved unsuccessfully for an acquittal. Davis then rested. After hearing summations, during which defense counsel pointed out discrepancies between the testimony given by Lopez and Dill and the report written by another officer, the municipal judge gave a detailed oral opinion, finding Davis guilty. He imposed a fine of $56, together with costs and the required assessments and penalties.

Davis appealed her conviction to the Law Division, which heard the matter de novo on the record on May 20, 2010. The Law Division judge found Davis guilty, explaining his decision as follows:

From the moment the police initiated their investigatory stop, defendant was foul-mouthed, uncooperative, and aggressive. This was not a situation where the defendant simply cursed at the officers or made a menacing gesture.

The credible evidence indicates that the defendant's language, demeanor, and body movements evidenced a response entirely disproportionate to the police stop and attempted inquiry, and taken together evidenced a person who was nearly out of control. Defendant had to be told repeatedly to return to her vehicle. Once in her vehicle, she continued shouting, flailing, and cursing despite repeated admonishments by the police to calm down, so that the reason for the stop could be explained to her.

. . . .

It is evident that [the municipal judge] found the consistent parts of the officers' testimony to be credible. The officers' testimony is not rendered incredible just because the police report did not contain every observation testified to in court. Further, [the judge] made his credibility findings with all of the above information available to him. This [c]ourt will, therefore, defer to [the judge's] findings with regard to the issue of credibility as he had the opportunity to observe the testimony and get a feel for the case, which this [c]ourt as the reviewing court cannot enjoy.

Finally, defendant contends that the [S]tate failed to show that defendant engaged in "tumultuous behavior" under the statute. "Tumultuous behavior" is not defined in the statute, and the Appellate Division has noted it is, "hard-pressed to ascertain its definitional parameters." State v. Stampone, 341 N.J. Super. 247, 254 (App. Div. 2001). "Tumult" is defined as "a disorderly agitation or milling about of a crowd usually with uproar and confusion of voices," or as a "violent agitation of mind or feelings." Merriam-Webster's Dictionary, 11th Edition (2005). In State v. Stampone, the Appellate Division found that slamming a car door so that it almost hit a police officer did not, by itself, constitute "tumultuous behavior" which could give rise to a disorderly persons charge.

As [the municipal judge] aptly observed, "When one is stopped by the police, one has several options. The options are to respond in a reasonable manner to the questions asked or to decline to respond. One can even speak disrespectfully in a normal voice, but when one raises one's voice, refuses to respond in a timely way to police instructions, flails one's arms, and hurls curses repeatedly at the police, the situation is one which is ripe for escalation, particularly if there are other people present who may be drawn into the melee."

Thus, the [c]ourt finds that the evidence in this matter supports a finding that defendant's behavior was, indeed, a "violent agitation of mind or feelings," which recklessly created a risk of "public inconvenience, annoyance or alarm." See N.J.S.A. 2C:33-2(a). As such, defendant's behavior meets the requirements of the statute, and the defendant was properly found guilty of improper behavior in violation of the statute.

The Law Division judge imposed the same sentence as the municipal judge. This appeal followed.


Davis raises the following issue on appeal:


The State argues that the conviction was supported by the record and that Davis's conduct violated N.J.S.A. 2C:33-2(a).

Our role in an appeal such as this one is limited, in that we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). The Law Division determination is de novo on the record from the municipal court, Rule 3:23-8(a), but the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the magistrate to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964). We are ordinarily limited to determining whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Nevertheless, our review of purely legal issues is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

The summons issued to Davis charged her with "knowingly and purposely" committing "the act of improper behavior specifically by being loud, uncooperative by not following police direction during an investigation of an assault that occurred," which was said to be in violation of N.J.S.A. 2C:33-2(a). We note, initially, that (1) the trial testimony referred to an investigation involving criminal mischief, rather than an assault, and (2) Davis was found guilty of engaging in "tumultuous behavior" and not of being "uncooperative by not following police direction during [the] investigation."

Subsection (a) of N.J.S.A. 2C:33-2 provides, in relevant part, as follows:

Disorderly conduct

a. Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he

(1) Engages in fighting or threatening, or in violent or tumultuous behavior; . . . .

. . . .

"Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.

In finding Davis guilty, the Law Division judge focused on "tumultuous behavior." Consequently, the State was obligated to prove beyond a reasonable doubt that Davis, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," engaged in "tumultuous behavior."

We do not address the issue of whether there was evidence in the record to support a finding that Davis actually acted "purposely" to cause "public inconvenience, annoyance or alarm" because the judge did not make a finding of purposeful conduct. Instead we turn to the issue of whether the record supports the judge's finding of reckless conduct.

N.J.S.A. 2C:2-2(b)(3) defines "recklessly" as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

[(Emphasis added).]

Davis was angry at the police officers and acting inappropriately, but we see no support in the record for a finding that she was "consciously disregard[ing] a substantial and unjustifiable risk that" her conduct would result in "public inconvenience, annoyance or alarm."

There was no evidence that there was "public inconvenience, annoyance or alarm." Although there was testimony by Lopez and Dill that members of the public had come out of their houses to observe what was going on, the municipal judge perceptively noted that there was "no way of knowing why they came out of their houses. They may have heard sirens, they may have seen the lights on the police vehicles. . . . We will never know one way or another."

There was no testimony that anyone complained to the police about Davis's conduct, and no member of the public testified. In fact the police did not interview any of the bystanders. There was also no testimony that any member of the public took Davis's side during the encounter or in any way menaced or interfered with the police officers. A conclusion that there was "public inconvenience, annoyance or alarm" or a realistic risk of such a condition would be based on pure speculation.

In State v. Stampone, 341 N.J. Super. 247, 254-55 (App. Div. 2001) (emphasis added), we addressed the meaning of "tumultuous behavior" as follows:

Defendant does not challenge the phrase "tumultuous behavior" as unconstitutionally vague or overly broad, although we are hard-pressed to ascertain its definitional parameters. The dictionary definition of tumult speaks in terms of a disorderly and violent movement, agitation or milling about of a crowd, usually with great uproar and confusion of voices, a noisy and turbulent popular uprising, a riot. Webster's Third New International Dictionary 2462 (1993). For present purposes, it is sufficient to find that on the facts here presented there was no tumultuous conduct as a matter of law.

Unlike the Law Division judge, we do not read Stampone as warranting a finding of "tumultuous behavior" when someone is angry at the police and engages in the conduct described by the police witnesses who testified at trial, even if they are flailing their arms and impassioned. Stampone speaks in terms of a turbulent crowd or a riot, not the excited, or even excessively offensive, conduct of one person acting alone. Davis was not part of an unruly crowd nor was she participating in a riot.

In short, although we defer to the Law Division judge's finding of fact, we conclude, as a matter of law, that Davis's actions, which took place over the period of a few minutes at most, did not "recklessly creat[e] a risk" of "public inconvenience, annoyance or alarm" and did not involve "tumultuous behavior." While Davis's conduct was inappropriate and intemperate, it was not criminal under N.J.S.A. 2C:33-2. Consequently, we reverse the conviction and dismiss the charges against Davis.


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