IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON DECEMB ER SESSION, 1997 FILED January 29, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9701-CR-00042 ) Cecil Crowson, Jr. Appellate C ourt Clerk Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT FRANK E. BRADFORD, ) JUDGE ) Appe llant. ) (Direct Appe al-Disorde rly Conduc t)

FOR THE APPELLANT: FOR THE APPELLEE: EDWARD THOMPSON JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter Shelb y Cou nty Pu blic De fende r’s Office CLINTON J. MORGAN Memphis, TN 38103 Assistant Attorney General James Robertson Parkway Nashville, TN 37243 WILLIAM L. GIBBONS District Attorney General

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION Appe llant, Frank E. Bradford, was convicted of the o ffense of diso rderly conduct in violation of Tennessee Code Annotated Section 39-17-305. He was sentenced to serve thirty days in the Sh elby C ounty Corre ctiona l Cente r. In this appea l he allege s that the e vidence is insufficient to suppo rt the verdict.

After a review of the reco rd we find there is su fficient evidence to sup port the verdic t and we affirm the ju dgme nt of the trial co urt.

FACTUAL BACKGROUND On May 16, 199 5, Memp his Police Officer G regory Quinn and his partner Officer Tracy McDonald were on patrol in Jefferson Davis Park located in downtown Memphis. Around 5:00 p.m. Quin n and McD onald observed appellant lying on a park bench with a bottle of beer and a backpack. The officers advised Appe llant he could not drink in the park and that he had to leave. Appellant responded with an ob scenity and the officers informe d him h e was u nder arre st. As Officer McDonald attempted to handcuff Appellant, he punched her in the chest. Quinn grabb ed Ap pellan t while McD onald sprayed him with pepper sp ray.

Appe llant wa s finally h andc uffed a nd tran sporte d to jail.

The beer b ottle Appellant had been holding had been opened and part of the contents we re missing. Althou gh Ap pellan t sme lled of a lcoho l the offic ers did not think he w as drun k. Officer Quinn stated that although the park was op en to the public at th e time A ppellant w as app roache d by the o fficers, there is a city ordinance which prohibits drinking in the park.

-2- SUFFICIENCY OF THE EVIDENCE When an accused challenges the sufficiency of the convicting evidence, this Court must review the record to determine if the proof adduced at the trial is sufficient to support the findings by the trier of fact o f guilt be yond a reaso nable doubt. T.R.A.P. 13(e). We do no reweigh o r re-evaluate the evide nce and a re required to afford the State the strongest legitimate view of the proof contained in the rec ord as well as all reasonable and legitimate inferences which may be drawn therefrom . State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

Questions concerning the credibility of witnesses, the weight and value to be given to the evidence , as well as factual issue s raised by the evid ence are resolved by the trier of fact, not this C ourt. Cabbage, 571 S.W .2d 832 , 835. A guilty verdict rendered by the jury and approved by the trial judge accredits the testimony of the witnesses for the State, and a presumption of guilt replaces the presumption of innocen ce. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 197 3).

Although this case involved a bench trial, the findings of the trial judge who conducted the proceedings carry the same weight as a jury verdict. State v. Tate, S.W .2d 161, 162 (Tenn. Crim . App. 1981 ).

Disorderly conduct is defined as follows at Tennessee Code Annotated Section 39-17-305: (a) A pers on co mm its an o ffense who, in a pub lic place an d with inten t to cause public annoyance or alarm: (1) Engag es in fighting or in violent or threa tening beha vior; (2) Refuses to obey an official order to disperse issued to ma intain public safety in dangerous proximity to a fire, hazard or other emergency; or (3) Creates a hazardous or physic ally offensive condition by any act that serves no legitimate purpose. (b) A person also violates this section who makes unreasonable nois e which prevents others from carrying on lawful activities. (c) A violation of this section is a C lass C misd emean or. -3- The State in dicted Appe llant in a three c ount in dictm ent for v iolation of this statute. The indictment alleged that Appellant with the requisite intent to cause public annoyance did: Coun t 1: “. . . engag e in threate ning be havior . . .”

Count 2: “ . . . create a physically offensive condition by acts that served no legitim ate purp ose. . .”

Count 3: “. . . make unreasonable noise which prevented others from carrying o n lawful ac tivities . . .”

This case is rem arkab ly similar to the case of State v. Creasy, 885 S.W.2d 829 (Tenn. Crim. App. 1994). In that case, as well as the one sub judice, the defendant claimed the use of obscenity directed at police officers cannot standing alone form the basis of a disord erly cond uct charg e. Id. at 831. This C ourt found that obsce nity which does not amount to the use of “fighting words” is protected speech under the federal and state constitutions and cannot therefore be proscribed by the d isorde rly condu ct statute. Id. Howe ver, the us e of obsc enity coupled with phys ically threate ning or viole nt beha vior may fo rm the b asis of a conviction for disorde rly condu ct. Id. at 832.

In the instant case, as in Creasy, the record re flects that Ap pellan t not on ly cursed the police officers, but actually struck Officer McDonald. Such behavior is clearly sufficient to sustain a verd ict of gu ilty to the c harge of diso rderly condu ct.

Accordingly, the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

-4- CONCUR:

___________________________________ JOE B. JONES, PRESIDING JUDGE

___________________________________ J. CURWOOD WITT, JR. JUDGE

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