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Date: 01-17-2025
Case Style:
STATE OF KANSAS v. ROBERT E. MCINTOSH
Case Number: o. 126,136
Judge: Before ARNOLD-BURGER, C.J., GARDNER and COBLE, JJ
Court:
Plaintiff's Attorney: Tyler W. Winslow, assistant solicitor general, and Kris W. Kobach, attorney general
Defendant's Attorney: Sean P. Randall, of Kansas Appellate Defender Office
Description:
and interference with law enforcement.
McIntosh was charged with criminal threat, disorderly conduct, and interference
with law enforcement after an alleged altercation with a city official, Terry Ward, and a
subsequent encounter with Sergeant Michael Cordell of the Greenwood County Sheriff's
Office.
Ward served as both the animal control and city code enforcement officer for the
City of Eureka. In January 2020, he arrived at McIntosh's residence to respond to a call
about a loose dog. McIntosh and Ward had a history of conflict from ongoing disputes
about city code violations. During their interaction on that day, McIntosh made a violent,
racially charged threat against Ward. The details of that threat are not necessary for this
appeal.
Ward reported this threat to his supervisors at city hall. He then spoke with
Greenwood County Sheriff's Deputy Michael Lazar and Sgt. Cordell, while they were all
standing outside city hall. At the same time, McIntosh drove past them and Cordell
shouted at McIntosh to "come here." But McIntosh kept driving.
Both officers ran to their patrol cars and followed McIntosh with their lights
activated. They followed McIntosh for three blocks, where he eventually pulled over.
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Sgt. Cordell approached the vehicle and said, "'I know you heard me say, stop.'"
According to Cordell, McIntosh "became immediately aggressive" and responded,
"'[Y]ou know what? Fuck you. How about that?'" Cordell asked McIntosh to get out of
the vehicle, to which McIntosh replied, "'[F]uck you.'" Cordell then asked McIntosh to
get out of the vehicle two more times before ultimately using a taser gun on him.
McIntosh then became "immediately compliant." He got out of the vehicle and
Sgt. Cordell placed him in handcuffs. Cordell then took McIntosh to jail, where he was
booked for criminal threat against Ward and interference with law enforcement. The
State later added the disorderly conduct charge.
McIntosh had a two-day jury trial, where he was found guilty of all three charges.
The district court sentenced McIntosh to a controlling sentence of 15 months in prison.
McIntosh now appeals two of his three convictions— disorderly conduct and interference
with law enforcement.
More detailed facts will be presented as they relate to each claim.
ANALYSIS
1. There was not sufficient evidence that McIntosh's statements to the officer were
"fighting words" to convict him of disorderly conduct.
A person is guilty of disorderly conduct if they use "fighting words . . . tending
reasonably to arouse alarm, anger or resentment in others" that the person "knows or
should know will alarm, anger or disturb others or provoke an assault or other breach of
the peace." K.S.A. 21-6203(a)(3). Under the statutory definition, "'fighting words' means
words that by their very utterance inflict injury or tend to incite the listener to an
immediate breach of the peace." K.S.A. 21-6203(c) (adopting language from Chaplinsky
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v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942); State v.
Huffman, 228 Kan. 186, 190, 612 P.2d 630 [1980]).
McIntosh argues that the phrases, "[Y]ou know what? Fuck you. How about that?"
and "fuck you" towards Cordell were not fighting words and thus this panel must reverse
his conviction and vacate his sentence for disorderly conduct.
Unless the defendant's words were not fighting words as a matter of law, the
ultimate determination is a question of fact for the finder of fact to decide. State v. Beck,
9 Kan. App. 2d 459, 463, 682 P.2d 137 (1984). Thus, this issue turns on whether
McIntosh's words fail to meet the definition of fighting words as a matter of law.
When sufficiency of the evidence is challenged for a criminal conviction, we
review all trial evidence in the light most favorable to the prosecution and determine
whether a rational fact-finder could have found the defendant guilty beyond a reasonable
doubt. Appellate courts "do not reweigh evidence, resolve evidentiary conflicts, or make
witness credibility determinations." State v. Gutierrez-Fuentes, 315 Kan. 341, 348, 508
P.3d 378 (2022).
The following facts, related to the disorderly conduct charge were presented to the
jury:
• After McIntosh pulled over his vehicle, Cordell approached the vehicle and
said, "'I know you heard me say, stop.'"
• McIntosh responded, "'[Y]ou know what? Fuck you. How about that?'"
• Cordell perceived this as becoming "immediately aggressive."
• Cordell told McIntosh get out of the vehicle and McIntosh replied, "'[F]uck
you.'"
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• Cordell drew out his taser and told McIntosh to get out of the vehicle again.
This time, McIntosh "said he wasn't going to."
• For the third time, Cordell told McIntosh to get out of the vehicle, and again,
McIntosh "said he was not going to."
• At that point, Cordell deployed his taser on McIntosh and let it run a fivesecond cycle.
• Cordell stated his reason for choosing to use the taser was because studies have
shown using a taser prior to physical interactions could reduce injuries in both
officers and suspects and could lead to a lower level of force than hands-on
contact.
• McIntosh became "immediately compliant" and got out of the vehicle.
• Cordell placed McIntosh in handcuffs and placed him in the patrol car.
• Throughout the stop, Cordell used "curse words" against McIntosh, and his
language "was probably, you know, from the outside perspective, harsh."
While these were the immediate facts surrounding McIntosh's and Cordell's
interaction, the finder of fact may also look to "the intention of the person uttering the
language, the person to whom uttered, and all the surrounding facts and circumstances"
when determining whether disorderly conduct occurred. State v. Stroble, 169 Kan. 167,
170, 217 P.2d 1073 (1950). Thus—as the State emphasizes in its brief—courts must
consider the totality of the circumstances in determining whether language constitutes
fighting words. Beck, 9 Kan. App. 2d at 462.
These additional facts were presented to the jury and, when viewed in the light
most favorable to the prosecution, might have been considered as a part of the totality of
the circumstances:
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• McIntosh had allegedly threatened to use physical violence against another
person (Ward) earlier that same day.
• Ward stated, "'Oh, I'm scared to death of the dude. I—it's not the first time that
I've had interactions with him. . . . I—I know how he acts.'"
• The threat impacted Ward enough that he would no longer go on calls to the
area near McIntosh's residence alone.
• Cordell was aware of the history of conflict between McIntosh and Ward and
felt concerned for Ward's safety "when it came to Mr. McIntosh."
• Cordell had also previously interacted with McIntosh when called to his house
for various domestic disputes with his girlfriend.
• McIntosh had a "don't tread on me" flag in his front yard and held strong
beliefs about his rights to privacy.
• McIntosh had used a racial slur against Ward the same day and had a bumper
sticker on his car that read "Certified Peckerwood" which, according to
McIntosh, "'means that I'm a true white boy.'"
• McIntosh was opinionated and would "talk back" to police.
While some of these facts may help in understanding the overall circumstances
that surrounded McIntosh's stop, most do not relate to Cordell. These facts could
probably support a finding that, given the totality of the circumstance, the phrases,
"[Y]ou know what? Fuck you. How about that?" and "fuck you" would, by their very
utterance, inflict injury, or tend to incite Ward to an immediate breach of the peace. See
K.S.A. 21-6203(c). Yet the same reasoning does not naturally flow to Cordell. The only
facts here that directly relate to Cordell is that McIntosh tended to talk back to the police
and Cordell had met him before during domestic calls. But that is not enough to support a
finding that "[Y]ou know what? Fuck you. How about that?" and "fuck you" were "words
that by their very utterance inflict injury or tend to incite the listener to an immediate
breach of the peace." See K.S.A. 21-6203(c).
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Beyond a general totality of the circumstances analysis, other panels on this court
have also considered more specific factors such as whether there was any physical action
or threat, or any reaction by the officer. See, e.g., Beck, 9 Kan. App. 2d at 463 (an "offer
to fight . . . addressed to the officers before they entered the apartment" was sufficient to
meet the definition of fighting words); In re E.O., No. 108,682, 2013 WL 1339930, at *5
(Kan. App. 2013) (unpublished opinion) (finding that the lack of evidence that the words
were accompanied by any threatening movement toward officer was key in finding that
they were not fighting words).
And in cases that did not involve officers, other panels on this court have similarly
found it important if the profanity did not accompany physical action or threats and
occurred during a mutual argument. See, e.g., State v. Kiraly, No. 125,190, 2023 WL
2941555, at *4 (Kan. App. 2023) (unpublished opinion) ("'Although the phrase "stupid
bitch" is offensive and profane, when said in a mutual argument between two people,
unaccompanied by any physical actions or threats, the phrase [does not meet definition of
"fighting words"].'"); State v. Hamilton, No. 120,729, 2019 WL 6223352, at *3 (Kan.
App. 2019) (unpublished opinion) ("no evidence that Hamilton engaged in disorderly
conduct by using fighting words" when he used the phrase "'fucking bitch'" during a
"mutual argument . . . unaccompanied by any physical actions or threats").
In this case, McIntosh did not use any physical action or make any aggressive
move toward the officer at all when he said, "'[Y]ou know what? Fuck you. How about
that?'" Nor did McIntosh make any aggressive moves or physical action against the
officer when he said, "'[F]uck you'" the second time. In fact, McIntosh's refusing to move
and get out of the car was the main basis of contention between him and Cordell.
Similarly, McIntosh did not use any threats during his statements to Cordell. After the
two statements of "fuck you" described above, he only stated and repeated that he would
not get out of the vehicle.
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Nor did Cordell immediately react to McIntosh's use of profanity. After McIntosh
stated, "'[Y]ou know what? Fuck you. How about that?'" Cordell simply told McIntosh to
get out of the vehicle. Then, after McIntosh replied "'fuck you,'" Cordell drew his taser,
but did not use it and again told McIntosh to get out of the vehicle. Yet even after
McIntosh refused again and "said he wasn't going to," Cordell still held off on action and
told McIntosh to get out of the vehicle for a third time. Only then, after McIntosh refused
for the third time, did Cordell react by using the taser. He was tased when he did not get
out of the vehicle, not because of any words he used.
The State disagrees with this analysis, arguing that the tasing was evidence that
Cordell "[took] some action against him." But multiple steps occurred between the last
time McIntosh said, "'[F]uck you'" and the first time Cordell acted. And rather than being
an immediate breach of the peace, Cordell's action was delayed and appeared to be based
on rational reasoning—he testified that he chose to use the taser because studies have
shown that using a taser prior to physical interactions could reduce injuries in both
officers and suspects and could lead to a lower level of force than hands-on contact. This
was apparently an alternative to physically removing McIntosh from the vehicle.
Finally, these statements of "'[Y]ou know what? Fuck you. How about that?'" and
"'fuck you'" appeared to occur during a mutual argument between McIntosh and Cordell.
Cordell originally approached the vehicle in an escalating manner by saying, "'I know
you heard me say, stop.'" According to Cordell, McIntosh then "became immediately
aggressive." And Cordell also used "curse words" against McIntosh during the stop—
admitting that his language "was probably, you know, from the outside perspective,
harsh."
Given these facts, even in the light most favorable to the prosecution, a rational
fact-finder could not have found that "[Y]ou know what? Fuck you. How about that?"
and "fuck you" were "fighting words." As a matter of law, the statements do not meet the
9
statutory definition of "words that by their very utterance inflict injury or tend to incite
the listener to an immediate breach of the peace" under K.S.A. 21-6203(c). Thus, there
was insufficient evidence to convict McIntosh of disorderly conduct. Accordingly, we
reverse McIntosh's conviction for disorderly conduct and vacate his sentence.
2. There was sufficient evidence that the officer was attempting to arrest McIntosh to
convict McIntosh of interference with law enforcement.
McIntosh next argues that Sgt. Cordell was not attempting to arrest him for the
offense of criminal threat, so there was insufficient evidence to convict him under the
State's theory that he knowingly opposed Cordell's attempts to arrest him by refusing to
stop and refusing to exit his vehicle.
Interference with law enforcement includes "knowingly obstructing, resisting or
opposing any person . . . in the discharge of any official duty." K.S.A. 21-5904(a)(3).
Thus, the State must prove three elements under the statute: (1) the officer was acting in
furtherance of an official duty; (2) the defendant had knowledge that the officer was
acting as part of an official duty; and (3) that the defendant obstructed, resisted, or
opposed the execution of that duty.
In this case, the jury was instructed that it must find: Cordell was discharging an
official duty, "namely attempting to arrest Robert McIntosh for Criminal Threat";
McIntosh "knowingly opposed Michael Cordell in discharging that official duty by
refusing to stop and refusing to get out of the vehicle"; those acts "substantially hindered
or increased the burden of the officer in the performance of the officer's official duty";
and at the time McIntosh "knew or should have known that Michael Cordell was a law
enforcement officer."
10
The same standard of review for a sufficiency of the evidence claim discussed
under the first issue also applies here. See Gutierrez-Fuentes, 315 Kan. at 348.
The Kansas Supreme Court has held that "there is no distinction between direct
and circumstantial evidence in terms of probative value." State v. Potts, 304 Kan. 687,
694, 374 P.3d 639 (2016). And juries are entitled to make reasonable inferences based on
the evidence presented. 304 Kan. at 694. An inference is sufficient to support a
conviction if the evidence reasonably tends to support the inference. State v. Logsdon,
304 Kan. 3, 25, 371 P.3d 836 (2016). This evidence "'need not rise to that degree of
certainty which will exclude any and every other reasonable conclusion.'" 304 Kan. at 25
(quoting Casey v. Phillips Pipeline Co., 199 Kan. 538, 551, 431 P.2d 518 [1967]).
McIntosh argues that when he allegedly refused to stop the vehicle, Cordell had
neither decided nor attempted to arrest him for criminal threat or any other crime. And
when McIntosh allegedly refused to exit the vehicle, there was no evidence that Cordell
was attempting to arrest him for criminal threat.
But the following evidence was presented to the jury that could reasonably be used
to support an inference that Cordell was attempting to arrest McIntosh:
• Cordell originally told Ward that he "might arrest" McIntosh, but he wanted to
speak to McIntosh first, so he planned to go investigate and discuss the
criminal threat with McIntosh.
• But then Cordell saw McIntosh drive past city hall, and Cordell perceived the
purpose of this drive-by as either intimidation or seeking confrontation, which
convinced him that "maybe a custodial arrest was the best route."
• Cordell then shouted at McIntosh to "come here."
• When McIntosh did not stop, Cordell ran across the street to the sheriff's
office, got in his patrol car, and activated his lights and siren.
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• Once McIntosh pulled over, Cordell approached the vehicle and said, "'I know
you heard me say, stop.'"
• Cordell told McIntosh to get out of the vehicle, and ultimately tased McIntosh
when he continued to refuse.
• After McIntosh exited the vehicle, Cordell's very next action was to place him
in handcuffs.
• Cordell patted McIntosh down, removed a knife from his belt, and placed him
in the patrol car.
• Cordell then took McIntosh to jail, where he was booked for criminal threat
against Ward and interference with law enforcement.
Outcome:
In conclusion, we reverse McIntosh's conviction of disorderly conduct because there was insufficient evidence to support a finding that his words were "fighting words"and vacate his sentence. But we affirm McIntosh's conviction of interference with law enforcement because there was sufficient evidence to support a finding that Cordell was attempting to arrest McIntosh.
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