SCOVT vacates and dismisses charge of disorderly conduct.

State v. Treyez L. McEachin, 2019 VT 37 [filed 5/24/2019]

ROBINSON, J. Defendant Treyez McEachin was convicted of three charges pursuant to a conditional plea that preserved his right to appeal the denial of his motion to suppress and dismiss. Defendant was charged with disorderly conduct based on fighting or violent, tumultuous, or threatening behavior, as well as resisting arrest and simple assault on a police officer. He argues that because his conduct in walking toward a police officer was not disorderly, the disorderly-conduct charge should be dismissed. He contends that because the officer then wrongfully prolonged their encounter, all evidence of his subsequent conduct, including his assault of the officer well after he was taken into custody, should be suppressed, and the assault charge should be dismissed. We agree that the disorderly-conduct charge should be dismissed, and accordingly reverse the denial of the motion to dismiss that charge. We affirm the denial of the motion to suppress the evidence underlying the assault charge, and affirm that conviction.

A person commits the offense of disorderly conduct by “engag[ing] in fighting or in violent, tumultuous, or threatening behavior” with an “intent to cause public inconvenience or annoyance, or recklessly creat[ing] a risk thereof.” 13 V.S.A. § 1026(a)(1). The disorderly-conduct statute identifies four other bases for a disorderly-conduct charge that are not applicable here. See 13 V.S.A. § 1026(a)(2)-(5). 

On New Year’s Eve in 2016, four police officers were on foot patrol in Burlington when they received a report that a man was spitting on the window of a local bar. They went to investigate and found defendant outside the establishment.  The officers asked defendant to leave and he did, but. minutes later defendant came walking down the sidewalk back toward the bar. Officer Hodges testified that defendant “changed his trajectory so he was walking directly towards me.” He said defendant “was looking away from me . . . as if he was trying to . . . make it appear that he [wa]s not watching where he was going.” Defendant came within four feet of Officer Hodges, and Officer Hodges put his arm out and pushed defendant back. Defendant began yelling profanities. 

We conclude that the evidence, taken in the light most favorable to the State, does not tend to show beyond a reasonable doubt that defendant , by walking toward Officer Hodges, committed the offense of disorderly conduct through fighting or violent, tumultuous, or threatening behavior, Accordingly we reverse the trial court’s denial of defendant’s motion to dismiss.

We reject defendant’s argument that because the trial court found that the officers unlawfully prolonged their encounter with him by ordering him not to walk by the bar, it should have suppressed all subsequent evidence, including the evidence that he kicked a police officer later that evening, for which he has been charged with simple assault on a law-enforcement officer. We conclude that defendant’s action in kicking the officer is causally distinct from the officers’ actions in ordering him around the bar, and thus suppression is not warranted.

Defendant’s conviction of disorderly conduct is vacated and his motion to dismiss the disorderly-conduct charge is granted. Defendant’s conviction for resisting arrest is vacated and the charge is dismissed. The denial of defendant’s motion to suppress as it relates to the acts underlying the assault charge, and his conviction on that charge, are affirmed.