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State v. David York
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 100
Docket:	Sag-98-521
on Briefs:	June 17, 1999
Decided:	June 30, 1999	




	[¶1] Defendant David York appeals from a judgment of conviction
entered in the Superior Court (Sagadahoc County, Delahanty, J.) on a jury
verdict finding him guilty of disorderly conduct in violation of 17-A M.R.S.A.
§ 501 (1983 & Supp. 1998).  On appeal, defendant contends that the
evidence was insufficient to support his conviction.  The State responds by
arguing that defendant's appeal is moot.  Finding that defendant's appeal is
not moot but is lacking in merit, we affirm the judgment.
	[¶2]  The jury would have been warranted in finding the following
facts:  Defendant approached Thomas Roche, a financial screening officer for
the court system, on September 10, 1997, in the West Bath District Court,
in connection with a request for a court-appointed attorney in a criminal
case.  Defendant, accompanied by his mother, was agitated when he first
entered the office.  Defendant's mother answered most of the questions
Roche asked, although Roche repeatedly requested that defendant answer
the questions himself.  Defendant left the interview to return to the
courtroom and inform the judge that he was not willing to deal with Roche. 
At the court's behest, defendant then returned to Roche's office and began
the procedure again.  After learning that defendant was neither employed
nor disabled, Roche informed him that he would have to complete a job
search.  Defendant then called Roche a "fucking asshole" in a very loud
	[¶3] Defendant left Roche's office and called the two court security
officers standing outside the office "fucking assholes" when they asked him
to leave the building.  As Roche attempted to walk past defendant in the hall
of the courthouse, defendant prepared to spit on Roche and Roche pushed
defendant's shoulder to turn him away.  Defendant then screamed for Roche
to be arrested for assaulting him.  Defendant was arrested by a court security
officer for disorderly conduct.
	[¶4] The jury found defendant guilty of disorderly conduct and the
court sentenced him to a jail term of ten days.  After a one-day stay of
execution to arrange for child care, defendant began and completed his
sentence before filing a timely notice of appeal.
	[¶5] As a preliminary matter, the State urges us to dismiss
defendant's appeal as moot, because he has voluntarily completed his
sentence.  Traditionally, we decline to decide issues "which by virtue of
valid and recognizable supervening circumstances have lost their
controversial vitality."  State v. Gleason, 404 A.2d 573, 578 (Me. 1979).  Our
rationale is that "courts should not give gratuitous advice and litigation
should be brought to a final conclusion."  State v. Snowman, 1997 ME 184,
¶ 5, 698 A.2d 1057, 1058.  "The test for mootness is whether sufficient
practical effects would flow from a retrial to justify the expenditure of
limited judicial resources."  State v. Jordan, 1998 ME 174, ¶ 10, 716 A.2d
1004, 1006.  On the other hand, "[a]n exception to the mootness rule exists
when relief is justified on the basis that sufficient collateral consequences
will result from that relief."  Id.
	[¶6] In State v. Haskell, 492 A.2d 1265 (Me. 1985), a criminal case
involving only a fine, we held that an appeal was moot because the defendant
paid his fine in full before filing a notice of appeal.  See id. at 1266.  In State
v. Lewis, 406 A.2d 886 (Me. 1979), when a defendant voluntarily paid a fine
after filing a notice of appeal, we held that the appeal was moot because
there was nothing upon which the appeal could operate.  See id. at 888.  In
State v. Snowman, we dismissed an appeal from the defendant's conviction
for disorderly conduct as moot because her fifteen-day sentence had been
suspended and she had completed her one-year term of probation at the
time the appeal was heard. We concluded that "prudential considerations of
finality and judicial economy prevail over a defendant's desire to clear her
record" and noted that "[w]hen drawing the line between these practical
values and clearing a defendant's record, we look to the actions of the
defendant."  Id.  at 1058.  Of particular note in Snowman was the fact that
pursuant to M.R. Crim. P. 38 the defendant's probationary term was
automatically stayed pending her appeal but she voluntarily requested that it
be reinstated.  See id.  In State v. Jordan, a case in which the defendant
involuntarily completed his sentence before retrial following a successful
appeal, we held that the original indictment retained "controversial vitality"
and was not moot.  See Jordan, 1998 ME 174, ¶ 13, 716 A.2d at 1007.  As
we noted in State v. Jordan, a defendant, as in the present case, who
involuntarily serves a sentence has an interest in avoiding the collateral
consequences of a conviction.   See id.
	[¶7] On the merits of his appeal, defendant contends that his
constitutional right to freedom of speech, protected by article 1, section 4,
of the Maine Constitution, and the first amendment of the United States
Constitution, was violated.  The statute defines disorderly conduct in part as
when a person:
[i]n a public or private place . . . knowingly accosts, insults,
taunts or challenges any person with offensive, derisive or
annoying words, or by gestures or other physical conduct,
which would in fact have a direct tendency to cause a violent
response by an ordinary person in the situation of the person
so accosted, insulted, taunted or challenged . . . .
17-A M.R.S.A. § 501(2) (1983).

	[¶8]  Defendant relies on State v. John W., 418 A.2d 1097 (Me.
1980), in which we noted that there is "a legitimate governmental interest
in preventing words 'which by their very utterance inflict injury or tend to
incite an immediate breach of the peace,' but language which is merely
distasteful cannot be punished."  Id. at 1102 (citation omitted).  As we
noted, the statutory definition of disorderly conduct "represents the
legislative definition of conduct coming within the fighting words area of
unprotected speech."  Id. at 1101.  Moreover, "[a]pplication of a criminal
statute must be restricted 'to a kind of speech that produces or is likely to
produce a clear and present danger of substantive evils that Maine
constitutionality may seek to prevent.'" Id. at 1102 (citing State v. Porter,
384 A.2d 429, 432 (1978)).  In testing the constitutionality of a conviction
under a Maine statute, "[a] court [must] make its own inquiry into the
imminence and magnitude of the danger said to flow from the particular
utterance and then to balance the character of the evil, as well as its
likelihood, against the need for free and unfettered expression." Id. (quoting
Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978)). 
	[¶9] In John W., we held that a juvenile defendant's abusive language
to the police was constitutionally protected.  See John W., 418 A.2d at 1108. 
We noted that "the police had accosted the juvenile and his sister and had
arrested his sister."  Id.  After concluding that, under such circumstances,
police officers "would not so readily respond violently" to provocative
speech, we upheld the juvenile's right to protest the arrest.  See id. at 1106. 
On the other hand, in State v. Griatzky, 587 A.2d 234 (Me. 1991), we held
that the defendant's speech and conduct constituted a clear and present
danger of an immediate breach of the peace when the defendant protested
the arrest of another without provocation in the presence of a large and
unruly group.  See id. at 238.  Moreover, in State v. Bushey, 425 A.2d 1343
(Me. 1981), we held that when a defendant grabbed a uniformed officer, his
physical conduct was not protected by the first amendment.  See id. at
	[¶10]  In this case, viewed objectively, defendant's words and
conduct would in fact have a direct tendency to cause a violent response by
an ordinary person.  Defendant's conduct included not just speech, but also
the physical acts of declining obstreperously to leave the building when
asked, accosting Roche, and attempting to spit on him.  Such conduct is not
constitutionally protected and is sufficient to support the conviction.
	The entry is:
				Judgment affirmed. 
Attorneys for State: Geoffrey Rushlau, Disrict Attorney F. Todd Lowell, Ast. Dist. Atty. P O Box 246 Bath, ME 04530 Attorney for defendant: Nathaniel Hussey, Esq. P O Box 411 Hallowell, ME 04347