State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0588

State of Minnesota,
Respondent,

vs.

Thanantos Lee Ashing,
Appellant.

Filed February 19, 2019
Affirmed
Rodenberg, Judge

Scott County District Court
File No. 70-CR-17-10357

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County A ttorney, Todd P. Zettler, Assista nt County Attorney,
Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Roden berg, Presiding Judge; Cleary, Chief Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Thanantos Lee Ashing a ppeals from his conviction for misdemeanor
disorderly conduct. We affirm.

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FACTS
Appellant was cited for disorder ly conduct after tenants at an apartment complex
heard him yelling from his girlfriend’s apartment balcony in th e early afternoon. A
neighbor, A.T., heard someone “ being loud and obnoxious.” She opened her patio door
and noticed a male on a balcony “yelling at random people,” say ing “f this place.” A.T.
was acquainted with appellant’s girlfriend, and she recognized appellant as the person who
was yelling.
According to A.T., appellant appeared “distraught, angry, and upset.” A.T.
described that, when appellant first came out to the balcony, he was yelling at people going
to and from the building. His attention then turned toward the apartment’s office building,
and appellant began yelling the na me of G.P., the apartment man ager. A.T. testified that
appellant yelled “f you” toward the office and called G.P. the “ B w o r d . ” A . T . w a s
concerned with appellant’s behav ior because there were children outside and because
appellant’s yelling was making A.T.’s roommate “really anxious.”
G.P., the building manager, went to see what was going on afte r receiving
complaints about appellant’s yelling. G.P. saw appellant on th e balcony, could hear him
yelling, but could not clearly understand what he was saying. G.P. decided to call police
because appellant was not a lessee of the apartment and was disturbing other people.
Shakopee Police Officers Weiers and Chadderdon responded to G.P.’s call. Almost
immediately upon arriving to the apartment building, Officer Ch adderdon got out of his
squad car and could hear appellant yelling from the northwest c orner of the apartment
building. Officer Chadderdon described that appellant was yelling “expletives or profane
language from a third-story balcony.” Officer Chadderdon heard appellant yell, “F--k you.

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I’m going to beat your a--” in the officer’s direction. Office r Chadderdon tried to speak
with appellant, but appellant told the officer, “F--k off, go away.”
Officer Weiers, arriving at the building in another squad car, also heard appellant
yelling. The officers spoke with G.P. and A.T. and decided to attempt to speak with
appellant. When they knocked on the door of the apartment with in which appellant was
located, they could hear dogs barking from inside the apartment . Appellant told the
officers, “F--k off, go away, I’ll send my dogs after you.” At that point, other residents
were becoming upset because appellant’s yelling could be heard from the hallway.
The officers returned to their squad car and called M.L., appe llant’s girlfriend and
the lessee of the apartment. M.L. identified appellant as the person inside her apartment
and said that he was dog sitting her pit bulls while she was out of town. The officers then
moved Officer Chadderdon’s squad car out of sight, thinking thi s might de-escalate the
situation. It did. Appellant quieted down and was no longer on the balcony. At that point,
the officers decided to leave r ather than risk agitating appell ant again. A citation was
mailed to appellant charging him with disorderly conduct under Minn. Stat. § 609.72, subd.
1(3) (2016).1
The disorderly-conduct charge was tried to a jury. At trial, the state requested that
the district court include the fighting-words limitation from C RIMJIG 13.121 in its jury
instructions. 10 Minnesota Practice , CRIMJIG 13.121 (Supp. 2018). The proposed
instruction concerning fighting words would preclude conviction where the allegedly
disorderly “conduct consisted onl y of offensive, obscene, or ab usive language.”

1 Appellant was cited for disorderly conduct on June 5, 2017. We therefore cite to the 2016
version of the disorderly-conduct statute.

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Appellant’s trial counsel objecte d to this proposed instruction , arguing that appellant’s
yelling was not limited to langua ge, but instead was conduct. The district court agreed,
and instructed the jury on the elements of disorderly conduct as forth in CRIMJIG 13.121,
without including the fighting-words limitation.
The jury found appellant guilty, and the district court sentenced appellant to 60 days
in jail.
This appeal followed.
D E C I S I O N
I. The district court did not plainly err when it instructed th e jury on the elements
of disorderly conduct.

Appellant argues that the district court plainly erred by omitting the fighting-words
limitation from the disorderly-con duct instructions because the allegations against him
were based only on appellant’s language. At trial, appellant’s trial counsel objected to the
proposed fighting-words instruc tion and argued that appellant’s yelling constituted
conduct.
Here, it appears that appellant’s trial strategy was to keep the trial focus away from
whether he was yelling “fighting words” and instead keep the focus on whether appellant’s
conduct violated the statute.2 Typically, we do not review errors that were invited or that

2 Appellant also maintains that h is trial counsel’s objection to the fighting-words
instruction “arguably constitutes ineffective assistance of cou nsel.” Because appellant
cites no legal authority in support of his claim, this issue wa s not adequately briefed. We
therefore decline to address this issue further. See State v. Krosch, 642 N.W.2d 713, 719
(Minn. 2002) (stating that, becau se appellant’s pro se suppleme ntal brief contained no
argument or citation to legal authority in support of the alleg ations, those arguments are
waived). Moreover, any alleged error by appellant’s trial coun sel appears to have been
trial strategy, for the reason noted. See State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014)

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could have been prevented. State v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016). “Despite
these general rules, we will review an unobjected-to error, even if the error was invited by
the defendant under the plain-error test.” Id. “As a result, we will treat any errors
committed by the district court or the parties as errors made during the course of a trial and
apply the plain error framework.” Id. To establish plain error, an appellant must show that
a district court’s jury instructions were (1) error; (2) that w as plain; and (3) that the error
affected appellant’s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
“If these three prongs are met, the appellate court then assess es whether it should address
the error to ensure fairness and the integrity of the judicial proceedings.” Id.
We first consider whether an error occurred at trial. Id. District courts have broad
discretion when selecting langua ge for jury instructions. State v. Ihle , 640 N.W.2d 910,
916 (Minn. 2002). When reviewing jury instructions for error, we review the instructions
in their entirety to determine whether they fairly and adequate ly explain the law. Id. A
jury instruction is erroneous if it materially misstates the la w. Id. Jury instructions must
define the crime charged and explain the elements of the offense. Id.
A person may be convicted of disorderly conduct if he or she “engages in offensive,
obscene, abusive, boisterous, or noisy conduct,” while “knowing , or having reasonable
grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an
assault or breach of the peace.” Minn. Stat. § 609.72, subd. 1 (3). Alternatively, a person
may be convicted of disorderly conduct based on “offensive, obscene, or abusive language
tending reasonably to arouse alarm, anger, or resentment in oth ers.” Id. T h e F i r s t

(stating that, generally, appellate courts do not review an ineffective-assistance-of-counsel
claim based on an attorney’s trial strategy).

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Amendment prohibits a conviction of disorderly conduct for usin g offensive or obscene
language unless that language involves “fighting words,” which are not protected under the
First Amendment. In re Welfare of S.L.J., 263 N.W.2d 412, 418-19 (Minn. 1978). Fighting
words are words that have a direct tendency to cause acts of violence by persons to whom,
individually, the remark is addressed. State v. Crawley, 819 N.W.2d 94, 105 (Minn. 2012).
A defendant’s offensive, boisterous, or noisy conduct is not speech, and therefore
receives no First Amendment protection. In re Welfare of T.L.S ., 713 N.W.2d 877, 881
(Minn. App. 2006). A defendant’s words are considered as a package in combination with
conduct and physical movements, viewed in light of the surrounding circumstances. In re
Welfare of M.A.H., 572 N.W.2d 752, 757 (Minn. App. 1997); see also State v. Klimek, 398
N.W.2d 41, 43 (Minn. App. 1986) (“[W]e view appellant’s words, coupled with his
conduct and physical movements, and measure them as a package a gainst the controlling
statute.”). “Conduct is disorderly in the ordinary sense when it is of such nature as to affect
the peace and quiet of persons who may witness it and who may be disturbed or provoked
to resentment.” State v. Zais, 790 N.W.2d 853, 861 (Minn. App. 2010) (quotation omitted),
aff’d, 805 N.W.2d 32 (Minn. 2011).
Here, the district court instructed the jury that the elements of disorderly conduct
are “[f]irst, the defendant enga ged in offensive, obscene, abus ive boisterous or noisy
conduct, or in an offensive, obscene, or abusive language tendi ng reasonably to arouse[]
alarm, anger or resentment in others,” and second, that “the de fendant knew or had
reasonable grounds to know, that the conduct would or could tend to alarm, anger, disturb,
provoke an assault by, or provoke a breach of the peace by others.” As appellant requested,
the district court did not include the fighting-words instruction. See CRIMJIG 13.121.

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Appellant argues on appeal that, despite his attorney’s protes tations at trial, the
district court should have included the fighting-words instruct ion because, without
including that limiting instructio n, the jury was permitted to convict appellant for his
constitutionally protected speech.
The trial record demonstrates t hat both the state and appellan t focused solely on
whether appellant’s yelling amounted to conduct that was disord erly. Appellant made no
argument that his yelling was co nstitutionally protected, and t he state made no argument
that appellant used “fighting words.” The focus at trial was on the disturbing volume and
duration of appellant’s yelling—it continued for more than two hours and could be heard
by multiple other tenants inside the building.
The jury concluded, and the r ecord supports, that appellant’s conduct was
disorderly—it was not just appellant’s use of profanities that disturbed others. Instead, it
was appellant’s “manner of delivery of speech”; the disorderly nature of the speech did not
depend on its content. See T.L.S., 713 N.W.2d at 881. Because of how the case was tried,
the district court did not err by omitting the fighting-words limitation provided in CRIMJIG
13.121.
3
Because the district court did not err, it cannot have plainly erred.
Affirmed.

3 We also observe that, even if appellant had demonstrated error that was plain, he would
not be entitled to appellate relief unless he also demonstrated that the district court’s error
affected appellant’s substantial rights. Griller, 583 N.W.2d at 740. We are convinced that
the outcome here would surely hav e been the same even if the ju ry had received the
fighting-words instruction which appellant actively opposed at trial. Yelling for two hours
so loudly that multiple tenants o f the apartment building and t he building manager were
sufficiently disturbed that the police were called would have been regarded by the jury as
disorderly conduct regardless of the specific words appellant was using.