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COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, McClanahan and Senior Judge Fitzpatrick Argued at Salem, Virginia

E. DUANE HOWARD v. Record No. 1584-06-3 OPINION BY JUDGE LARRY G. ELDER DECEMBER 27, 2007

CITY OF ROANOKE

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Jonathan M. Apgar, Judge G. David Nixon (Huffman & Nixon, P.C., on brief), for appellant. Andrew E. Stephens, Assistant Commonwealth's Attorney (Office of the Commonwealth's Attorney for the City of Roanoke, on brief), for appellee.

E. Duane Howard (appellant) appeals from his bench trial conviction for disorderly conduct in violation of the Roanoke City Code, based on his behavior during a city council meeting. On appeal he contends the evidence was insufficient to support his conviction because his "verbal utterances" were expressly excluded from the scope of the ordinance and his disorderly conduct, if any, occurred during a recess. We hold the evidence of appellant's behavior excluding the content of his utterances was sufficient to support his conviction under the ordinance, and we affirm. I. BACKGROUND On November 7, 2005, appellant attended a meeting of the Roanoke City Council. Prior to the 2:00 p.m. meeting, appellant and a companion engaged Police Officer John T. Rogers in conversation, asking Rogers why he was present. Rogers explained to both men "[he] was there

to make sure that everything ran fast and smoothly and everything was secure." They spoke about whether Officer Rogers had ever asked people to leave a meeting, and when he indicated he had, appellant inquired, "[W]hat if they don't want to leave[?]" Officer Rogers responded, "there's a thing called pain compliance." When the meeting began at 2:00 p.m., Mayor Harris made an "opening statement telling everybody the rules he was going to apply for that meeting." Those rules included time limits at the podium for each of the 54 scheduled speakers; a requirement that comments relate to the issue at hand, which concerned whether to renovate the city's Victory Stadium; and a warning that "any outbursts, . . . any verbal attacks or anything against city council or any other people" would not be tolerated. The mayor also advised the attendees "that the officers were [there] to make sure that was enforced." He said people who did not comply with the rules would "first . . . be asked to leave, and if they didn't, he said the officers [would] escort them out." After appellant took his turn at the podium, "another man was talking to city council saying his views," including his belief that some members of council were "rotten to the core," and the mayor was "stopping him." At that time, appellant "was yelling out loud. Everybody was a little bit rumbling, but [appellant] was the loudest all the way from the back row . . . yelling toward the city council," "[L]et him speak, let him speak." Appellant had his hands "[c]upped around his mouth" "when he was yelling." The mayor "warned everybody there . . . that this would not be tolerated and . . . he again laid down the rules of exactly what he expected." The mayor reiterated, "We are not having people heckle from the audience. . . . If people heckle from the audience, I will call a recess, and we will have the police officers come forward. We are going to conduct ourselves in a civil manner." After several additional speakers had taken their turns at the podium, the mayor calmly declared a five-minute recess between speakers, after which statements resumed. -2-

At about 4:10 p.m., after more people had taken their turns at the podium, Officer Rogers stepped outside the chamber to brief the officer replacing him "on what was going on and what the mayor's rules were." Rogers told his replacement that appellant and others were heckling and that appellant was the "loudest." At that same time, inside the chamber, the mayor repeated his request for "civil discourse," and as he was attempting to talk, appellant spoke in a loud voice while the mayor was attempting to speak. Appellant was again heckling by "[c]upping" his hands "around his mouth," and his "loud voice" was audible on the videotape of the meeting. When appellant refused to be silent, the mayor said, in an agitated voice, "Mr. Howard--Mr. Howard--Where is the police officer? Where is the officer?" Officer Rogers immediately re-entered the chamber and approached appellant, at which time, the mayor said, "Thank you, sir. Thank you, sir. Council stands in recess, Mr.

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