State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0223

State of Minnesota,
Respondent,

vs.

David Paul Peterson,
Appellant,

Filed February 12, 2018
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-16-16020

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Heather Robertson, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Mary Moriarty, Henn epin County Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A Hennepin County jury found David Paul Peter son guilty of disorderly conduct
based on evidence that he punched and screamed at his roommate. We conclude that the
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evidence is sufficient to support the conviction and that the prosecutor did not plainly
misstate the applicable law in closing argument. Therefore, we affirm.
FACTS
Peterson was arrested during the evening of June 15, 2016, after he quarreled with
his roommate, D .M., about the payment of their bills. The state charged him with three
offenses: (1) domestic assault by causing fear, in violation of Minn. Stat. § 609.2242,
subd. 1(1) (2014); (2) domestic assault by inflicting bodily harm, in violation of Minn. Stat.
§ 609.2242, subd. 1(2) (2014); and (3) disorderly conduct, in violation of Minneapolis,
Minn., Code of Ordinances (M.C.O.) § 385.90.
The case was tried on two days in January 2017. The state called two witnesses:
D.M. and Officer Payne, who responded to D.M.’s report.
D.M. testified as follows: H e and Peterson became friends after meeting at a
homeless shelter. They began sharing a home in February 2016. They regularly disagreed
about how to divide their bills. One such disagreement occurred on June 15, 2016.
Peterson became angry because he believed that D.M. had not paid his share of a utility
bill. They argue d until D.M. retreated to his bedroom. Peterson later burst into the
bedroom and hit D.M. numerous times on his head and face . While doing so, Peterson
screamed at D.M. and threatened to cause him physical harm in a way that no one would
notice. D.M. testified that he was fearful for his life and that Peterson was out of control.
Peterson’s blows bent D.M.’s glasses and caused bruises and scrapes on his face . D.M.
left the residence out of fear , walked down the street, and called the police to report the
incident. D.M. also called a friend and asked him to take photographs of his injuries. The
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photographs were introduced into evidence as exhibits. The photographs show two raised
bumps on D.M.’s face and a cut on the side of his face. The photographs also show that
D.M.’s glasses were bent.
Officer Payne testified as follows: He responded to D.M.’s report and met him a
block away from D.M.’s home. D.M. appeared to be shaken up when the officer first
encountered him. Officer Payne saw that D.M. had a cut on his left cheek and an injury
near his eye. D.M. said that Peterson had threatened to take him out and that no one would
know about it. The officer went to D.M.’s home. Peterson denied engaging in a physical
altercation but admitted to yelling at D.M.
Peterson testified in his defense as follows: H e and D.M. previously had argued
about bills and had met with a mediator in March 2016. On June 15, 2016, he told D.M.
that he would no longer pay more than his share of the bills and that D.M. would be
responsible for his own share in the future . D.M. stormed off to his bedroom and stayed
there for approximately 45 minutes before telling Peterson that he was going for a walk
and that they would talk about the bills when he returned. Peterson waited for an hour
before taking his service dog on a walk. When he returned, squad cars were parked outside,
and police arrested him. Peterson testified that he and D.M. had a verbal argument but not
a physical altercation.
In closing argument, the prosecutor urged the jury to find Peterson guilty of the third
charge for the following reasons:
As to the disorderly conduct charge, the defendant
engaged in conduct which disturbed the peace of another.
Well, according to the defendant’s own words, he ye lled at
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Mr. D.M., and Mr. D.M. left the house. Cops were called.
Three squad cars. Multiple police officers walking around
their neighborhood investigating an assault. That’s not a
typical evening. Mr. D.M.’s peace was disturbed.

Peterson did not object to this part of the prosecutor’s closing argument.
The district court instructed the jury on the elements of disorderly conduct as
follows:
First, the defendant engaged in, attempted to engage in
or threatened to engage in fighting, brawling, tumultuous
conduct, act of violence, or other conduct which disturbs the
peace and quiet of another.

Second, that the conduct disturbed the peace and quiet
of another.

Third, the conduct did not take place at a sporting event.

Fourth, the defendant’s conduct took place on or about
June 15 in the City of Minneapolis, in Minnesota.

The jury found Peterson not guilty of the two assault charges and guilty of disorderly
conduct. The district court imposed a sentence of 90 days in a workhouse but stayed
execution and placed Peterson on unsupervised probation. Peterson appeals.
D E C I S I O N
I. Sufficiency of the Evidence
Peterson argues that the evidence is insufficient to support his conviction of
disorderly conduct.
When reviewing whether there is sufficient evidence to support a conviction, this
court undertakes “a painstaking analysis of the record to determine whether the evidence,
when viewed in th e light most favorable to the conviction, was sufficient” to support the
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conviction. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). We
assume that “the jury believed the state’ s witnesses and disbelieved any evidence to the
contrary.” State v. Caldwell, 803 N.W.2d 373, 384 (Minn. 2011) (quotation omitted). We
“will not disturb the verdict if the jury, acting with due regard for the presumption of
innocence and the requirement of proof beyond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the charged offense.” Ortega, 813 N.W.2d at
100.
Peterson was found guilty of violating a city ordinance that provides:
No person, in any public or private place, shall engage in, or
prepare, attempt, offer or threaten to engage in, or assist or
conspire with another to engage in, or congregate because of,
any riot, fight, brawl, tumultuous conduct, act of violence, or
any other conduct which disturbs the peace and quiet of another
save for participating in a recognized athletic contest.

M.C.O. § 385.90. There is no reasonable dispute that the evidence satisfies the
requirements of the ordinance. D.M. testified that Peterson hit him on his head and his
face numerous times while screaming at him and threatening to cause him physical harm.
As a result, D.M. sustained bruises and scrapes to his face. As stated above, we assume
that the jury belie ved the state’s witnesses. See Caldwell, 803 N.W.2d at 384. Given
D.M.’s testimony, a jury could reasonably conclude that Peterson “engage[d] in . . . [a] riot,
fight, brawl, tumultuous conduct, act of violence, or . . . other conduct which disturbs the
peace and quiet of another.” See M.C.O. § 385.90.
In his appellate brief, Peterson admits that “the state . . . provided evidence that
Peterson engaged in assaultive conduct.” Nonetheless, Peterson argues that the evidence
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is insufficient as a matter of law. Peterson contends that the state’s theory of the case was
that Peterson violated the ordinance by engaging in non-physical, verbal conduct and that
a conviction based solely on such evidence would violate Peterson’s First Amendment
right to free speech.
Peterson’s argument is flawed because it is based on the incorrect premise that our
appellate review is limited to the evidence that the prosecutor mentioned during closing
argument. Peterson cites no authority for the proposition that the scope of our review must
be limited to the evidence identified by a prosecutor in closing argument. To the contrary,
our duty on appellate review is to determine whether the evidence introduced during trial
is sufficient, and we are obligated to review the entire evidentiary record, not just the
evidence that a prosecutor chooses to highlight in closing argument. As stated above, we
conduct “a painstaking analysis of the record to determine whether the evide nce, when
viewed in the light most favorable to the conviction, was sufficient” to support the
conviction. See Ortega, 813 N.W.2d at 100. More specifically, we “examine the entire
record to determine whether there is sufficient evidence to support the co nviction.” State
v. Dominguez, 663 N.W.2d 563, 566 (Minn. App. 2003) (emphasis added). We have done
so, and we easily conclude that the evidence in the record is sufficient to satisfy the
elements of the offense.
Thus, the evidence is sufficient to suppo rt Peterson’s conviction of disorderly
conduct.
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II. Claim of Prosecutorial Misconduct
Peterson also argues that the prosecutor engaged in misconduct by misstating the
applicable law in closing statement. Peterson argues that the prosecutor implied that the
jury could find Peterson guilty based solely on his non-physical, verbal conduct, which
Peterson contends would be a violation of his First Amendment right to free speech.
Peterson did not object to the prosecutor’s closing argument on this ground .
Accordingly, “we apply a modified plain-error test.” State v. Carridine, 812 N.W.2d 130,
146 (Minn. 2012). To prevail under the modified plain-error test, Peterson first must
establish that there is an error and that the error is plain. State v. Ramey, 721 N.W.2d 294,
302 (Minn. 2006). An error is plain if it “contravenes case law, a rule, or a standard of
conduct.” Id. If Peterson were to satisfy that burden, the state would need to show that the
error did not affect his substantial rights, i.e., that “there is no reasonable likelihood that
the absence of the misconduct in question would have had a significant effect on the verdict
of the jury.” Id. (quotations omitted).
To establish that the prosecutor misstated the law, Peterson cites this court’s opinion
in State, City of Minneapolis v. Lynch , 392 N.W.2d 700 (Minn. App. 1986), in which we
concluded that a conviction of disorderly conduct under the same Minneapolis ordinance
may, consistent with the First Amendment, be based on a person’s verbal conduct only if
the person spoke “fighting words.” Id. at 704. In response, the state cites In re Welfare of
T.L.S., 713 N.W.2d 877 (Minn. App. 2006), in which we concluded that a person may,
consistent with the First Amendment, be found guilty under the state disorderly conduct
statute for verbal conduct that is not in the nature of fighting words. Id. at 880-81. The
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state introduced evidence in T.L.S. that the juvenile “shrieked” profanities at an officer who
was attempting to remove her from the school building. Id. at 879. We concluded that the
shrieking could be the basis of a disorderly conduct conviction:
Although the disorderly conduct statute prohibits only fighting
words” as applied to speech content, the disorderly shouting of
otherwise protected speech or engaging in other “boisterous or
noisy conduct” may still trigger punishment under the statute
. . . . In that circumstance, it is not the speech itself that triggers
punishment; the statute may be applied to punish the manner
of delivery of speech when the disorderly nature of the speech
does not depend on its content.

Id. at 881.
If we assume that the prosecutor’s closing argument may reasonably be construed
to mean that the jury could convict Peterson solely based on his verbal conduct, the
prosecutor did not plainly misstate the law given the evidence presented at trial. We note
that no appellate opinion ever has declared the ordinance to be fa cially unconstitutional.
Cf. State v. Hensel , 901 N.W.2d 166, 170 -81 (Minn. 2017) (holdi ng that Minn. Stat.
§ 609.72, subd. 1(2) (2016), which criminalizes disturbance of meeting or assembly, is
substantially overbroad and not readily susceptible to narro wing construction). The
evidence of Peterson’s verbal conduct would survive an as-applied constitutional challenge
under both Lynch and T.L.S. D.M. testified that Peterson screamed at him for
approximately eight to ten minutes and threatened to physically harm D.M. “in a way
which nobody would be able to notice. ” Officer Payne testified that D.M. told him that
Peterson had threatened to take D.M. out and that no one would know about it. Those are
fighting words. See Lynch, 392 N.W.2d at 704. In addition, the manner in which Peterson
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screamed at D.M., while punching him in the face and head in his own bedroom after an
argument, would be a valid basis for a conviction, apart from the substance or meaning of
Peterson’s words. See T .L.S., 713 N.W.2d at 881. If the jury had considered only
Peterson’s verbal conduct, the jury could have found him guilty of disorderly conduct
without plainly violating his First Amendment right to free speech.
Thus, the prosecutor did not engage in misconduct because he did not plainly
misstate the applicable law in closing argument.
Affirmed.