December 4, 2013
State of North Dakota, Plaintiff and Appellee
Kary Gene Kling, Defendant and Appellant
The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date
Appeal from the District Court of Divide County, Northwest Judicial District, the Honorable Joshua B. Rustad, Judge.
Elizabeth L. Pendlay, State's Attorney, Crosby, N.D., for plaintiff and appellee.
Erin M. Conroy, Bottineau, N.D., for defendant and appellant.
Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Mary Muehlen Maring, Carol Ronning Kapsner.
[¶1] Kary Kling appealed from a criminal judgment entered after a jury found him guilty of disorderly conduct. On appeal, Kling argues the evidence was insufficient to sustain his conviction and his conviction was based on speech protected by the First Amendment of the United States Constitution. We conclude Kling's speech was not constitutionally protected under the circumstances and there was sufficient evidence to sustain his conviction. We affirm the judgment under N.D.R.App.P. 35.1(a)(3) and (7).
See In re A.R., 2010 ND 84, ¶ ¶ 9, 12, 781 N.W.2d 644 (fighting words are not protected speech and conduct accompanying speech should be considered);
State v. Bornhoeft, 2009 ND 138, ¶ 11, 770 N.W.2d 270 (a violation of the disorderly conduct statute does not depend only on the content of the speech, but on the behavior and circumstances).
[¶2] Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Mary Muehlen Maring, Carol Ronning Kapsner.