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NOTICE

COURT OF APPEALS
DECISION
DATED AND FILED
October 7, 2003

    Cornelia G. Clark
    Clerk of Court of Appeals
    This opinion is subject to further editing. If
    published, the official version will appear in
    the bound volume of the Official Reports.
    A party may file with the Supreme Court a
    petition to review an adverse decision by the
    Court of Appeals. See     W    IS. STAT.  808.10
    and R    ULE 809.62.

Appeal No. 03-0377-CR Cir. Ct. No. 01-CM-3050
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV/III

State of Wisconsin,
Plaintiff-Respondent,

v.

Ralph Ovadal,
Defendant-Appellant.

 

    APPEAL from a judgment and an order of the circuit court for Dane County: PAUL B. HIGGINBOTHAM, Judge. Affirmed.

¶1. PETERSON, J.1   Ralph Ovadal appeals a judgment finding him guilty of disorderly conduct, and an order denying his motion for a new trial and recusal of the trial court judge. Ovadal argues (1) the court's findings are not supported by the evidence; (2) his conduct constituted speech protected by the First Amendment; and (3) the trial judge was biased. We disagree and affirm the judgment and order.

BACKGROUND

¶2. Mazomanie Beach, located on the Wisconsin River in Dane County, is operated by the Department of Natural Resources. For several years, Ovadal has been part of a group protesting nudity at the beach. The group protests at the beach's parking lot, located a mile and a half from the beach. The beach is not visible from the lot.

¶3. On May 28, 2001, Ovadal and a group of five to ten people were protesting in the parking lot. Nancy Erickson parked her car in the lot. When she exited the car, she was approached by a member of the group who offered her a gospel tract. Erickson responded by directing expletives at him. The commotion drew Ovadal's attention. Erickson apparently threatened or pretended to threaten to lift her top and expose herself. She also performed a dance, which Ovadal describes as twisting her hips, holding her hands in the air, and sticking out her tongue.

¶4. Ovadal and the group began shouting at Erickson, calling for her to repent as well as calling her a "whore," "harlot" and "Jezebel," among other things. Most of the shouting came from Ovadal. The shouting continued for approximately six minutes while Erickson unloaded her car to go to the beach. A warden who was present in the parking lot asked the group to stay back and give Erickson room.

¶5. Erickson later filed a complaint against Ovadal and he was charged with disorderly conduct. Ovadal pled not guilty and waived his right to a jury trial.

¶6. A trial to the court took place on February 1, 2002. Erickson testified she felt intimidated, singled out, upset, and frightened. Three video recordings of the incident were admitted into evidence. After testimony, the court requested briefs from the parties before making its decision. A written decision followed on April 24. The court found Ovadal guilty of disorderly conduct.

¶7. Ovadal filed motions for a new trial and for recusal of the trial court judge. The motions were denied. Ovadal was ordered to pay a fine of $1,000. In a postconviction motion, Ovadal renewed his requests for a new trial and for recusal. The court denied the motions.

DISCUSSION

A. Findings of Fact

¶8. Ovadal first claims the evidence does not support the court's findings of fact. The trial court's findings of fact will be upheld unless they are clearly erroneous. State v. Richardson , 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990). Our role is to search the record for evidence to support the findings of fact reached by the trial court. Johnson v. Merta , 95 Wis. 2d 141, 154, 289 N.W.2d 813 (1980).

¶9. Ovadal argues that the videotapes contradict many of the trial court's findings. Ovadal quotes numerous excerpts from the court's written decision, and then states how the videotapes show otherwise. However, he argues facts not found by the trial court. The question before us on appeal is limited to reviewing the findings of the trial court, and whether those findings are clearly erroneous. See Wis. Stat. § 805.17(2).

¶10. In any event, we are not persuaded that the videotapes contradict Erickson's testimony in any significant way. We see no purpose in responding to each and every little contradiction argued by Ovadal.2 By way of illustration, however, Ovadal speaks of Erickson's actions towards Ovadal and the members of his group, and argues the court was erroneous in its finding that Erickson did not taunt them. However, with the exception of the very end of Erickson's dance, the actions Ovadal characterizes as taunting occurred before any videotaping began.

¶11. Erickson testified that Ovadal was five feet away from her while he was shouting at her. Ovadal disputes this and claims the videotapes clearly show that Ovadal never approached closer than seven or eight feet away from Erickson. Therefore he claims that the court's finding that Ovadal was "within a few feet" from Erickson is clearly erroneous. We do not see any significant difference between five and eight feet in the context of these events. It certainly is not significant enough to cause the court's finding of a distance of a few feet to be clearly erroneous.

¶12. As a final example, the court found that Ovadal and his group "created a small semicircle around [Erickson], shouting and yelling continuously at her for over six minutes, and in essence, backed her up against her automobile." Ovadal, however claims the videotapes show Erickson "at all times had complete freedom of movement." The court's characterization is based on its impression of Erickson's testimony and the videotapes. We also have reviewed the transcripts and the videotapes and conclude that the evidence supports the court's findings.

¶13. Erickson testified at trial, as did Ovadal and two other members of the group. Because the court was the finder of fact in this case, it is the ultimate arbiter of the credibility of the witnesses and of the weight to be given to each witness' testimony. Plesko v. Figgie Int'l, 190 Wis. 2d 764, 775, 528 N.W.2d 446 (Ct. App. 1994). The court gave greater credibility and weight to Erickson's testimony. The trier of fact is in a far better position than an appellate court to make this determination because it has the opportunity to observe the witnesses and their demeanor on the witness stand. Pindel v. Czerniejewski, 185 Wis. 2d 892, 898-99, 519 N.W.2d 702 (Ct. App. 1994). Ovadal, in essence, asks us to second-guess the decision of the trial court regarding the credibility of the witnesses and the videotapes. We cannot and will not do so.

    B. Freedom of Speech

¶14. Ovadal next argues that his speech was protected by the First Amendment. Whether Ovadal's speech is protected is a question of law that we review independently. See Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 19-20, 580 N.W.2d 156 (1998).

¶15. Ovadal maintains that street preaching and sidewalk evangelizing are protected even if loud and boisterous. Ovadal is correct that this type of speech is protected. See Edwards v. South Carolina, 372 U.S. 229, 233 (1963). Here, however, Ovadal's actions amounted to more than just speech. He approached Erickson, and the group formed a semi-circle around her. Ovadal continued shouting at Erickson for over six minutes and refused to move back when the warden asked him to. This was non-speech conduct. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567 (1991) ("[W]hen `speech' and `non-speech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.").

¶16. The State argues that Ovadal's comments amounted to fighting words and therefore are not protected. While many forms of speech are protected under the First Amendment, "fighting words" are not. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). "Fighting words" are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." State v. Zwicker, 41 Wis. 2d 497, 510, 164 N.W.2d 512 (1969) (quoting Chaplinsky , 315 U.S. at 571). "[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest