State v. Vetter: Defining “Tumultuous” Disorderly Conduct and Preserving Constitutional Claims Under N.D.C.C. § 12.1‑31‑01

I. Introduction

In State v. Vetter, 2025 ND 197, the North Dakota Supreme Court affirmed a disorderly conduct conviction arising from an emotionally charged encounter between a stepparent and school officials over a student’s bus suspension. The decision addresses two central questions:

• What is required to preserve and obtain review of a claim that conduct charged as disorderly conduct is “constitutionally protected activity” under N.D.C.C. § 12.1‑31‑01(2)?
• What constitutes “tumultuous” behavior under N.D.C.C. § 12.1‑31‑01(1)(a), and what mental state suffices for a conviction?

The Court clarifies that a defendant must actually assert a claim of constitutionally protected activity in the district court to trigger the statute’s special protection and evidentiary exclusion, and that failure to do so relegates the issue to (rarely granted) “obvious error” review on appeal. Substantively, the Court adopts a plain-language definition of “tumultuous” and upholds a conviction based on a pattern of loud, disruptive, emotionally charged conduct in a school setting that reasonably alarmed multiple witnesses.

The case thus sits at the intersection of disorderly conduct law, parental/stepparental advocacy in schools, and procedural rules governing preservation and review of constitutional defenses.

II. Factual Background and Procedural History

A. Factual Background

On November 4, 2024, Zachary Glen Vetter went to his stepchild’s elementary school to talk to the principal about the child’s suspension from riding the school bus. The record, as summarized by the Supreme Court, shows:

• Vetter entered the principal’s office “visibly upset” and raised his voice during the conversation.
• The principal testified she did not feel directly threatened but was “on high guard” and “alarmed” by his behavior.
• A school counselor supervising student breakfast in the commons area saw Vetter exit the office “visibly upset,” push a garbage can so that it collided with a door, forcefully push the door open, and leave the building. Students were present, and she testified that she was alarmed—primarily for the children.
• A paraprofessional outside the building heard “commotion and yelling” by the playground. She observed Vetter yelling obscenities and making middle-finger gestures toward the building. Afterward, he got into a vehicle, “sped away sending rocks into the air,” and blared the horn.
• All three school employees testified that they were alarmed by Vetter’s conduct.

B. Trial Court Proceedings

On November 26, 2024, the State charged Vetter with disorderly conduct under N.D.C.C. § 12.1‑31‑01(1)(a). Vetter:

• waived his right to a jury trial,
• proceeded to a bench trial in April 2025, and
• did not raise at trial any constitutional argument that his conduct was “constitutionally protected activity” within the meaning of § 12.1‑31‑01(2), nor did he assert vagueness or equal protection challenges in the district court.

The district court focused on subsection (1)(a), recognizing that the State did not allege threatening or fighting behavior, and analyzed whether:

1. Vetter engaged in “violent” or “tumultuous” behavior, and
2. those present were reasonably alarmed, and
3. he acted with at least reckless disregard that others were alarmed.

Taking the “culmination” or totality of Vetter’s actions—obscene language, pushing a garbage can, loud departure, and spinning out in the parking lot in the presence of students—the district court found the statutory elements proven beyond a reasonable doubt and convicted him of disorderly conduct.

C. Issues on Appeal

On appeal, Vetter raised two categories of arguments:

1. Constitutional claims:
   • He claimed he was engaged in constitutionally protected activity by exercising a “fundamental right” as a stepparent to direct the child’s education and advocate for the child’s educational welfare.
   • He contended that conduct occurring through “entirely appropriate means in the proper forum” retained constitutional protection.
   • He further argued the disorderly conduct statute was unconstitutionally vague as applied to him and that the decision to charge him reflected arbitrary and unequal enforcement.
2. Non-constitutional sufficiency-of-the-evidence claims:
   • The State allegedly failed to prove the required mental state (arguing the State had to show intent to harass, annoy, or alarm).
   • The State failed, in his view, to prove he engaged in “tumultuous” behavior.

The Supreme Court rejected his constitutional arguments based on lack of preservation and lack of obvious-error analysis, and it held that the evidence was sufficient to support the conviction under § 12.1‑31‑01(1)(a).

III. Summary of the Opinion

1. Constitutional claims were not preserved. Vetter did not raise any constitutional challenges in the district court. Under N.D.C.C. § 12.1‑31‑01(2), a defendant must actually claim to have engaged in constitutionally protected activity before the court must rule on the claim and exclude the protected conduct from evidence. Because he did not do so, the Supreme Court reviewed only for “obvious error” under N.D.R.Crim.P. 52(b), but Vetter did not even argue obvious error on appeal. Exercising its discretion, the Court declined to reach his constitutional claims.
2. Mental state: intent or reckless disregard is sufficient. The disorderly conduct statute requires either:
   • intent to harass, annoy, or alarm another, or
   • reckless disregard that another is harassed, annoyed, or alarmed.
   The Court emphasized that “intent” is not the only available mental state—a defendant can be convicted upon proof of reckless disregard, which may be established through circumstantial evidence and the defendant’s conduct.
3. Conduct need not be directed at a single, specific person. The Court reaffirmed that disorderly conduct may be based on conduct affecting multiple people and need not be narrowly targeted at a single victim. However, actions must be objectively offensive to at least one person who is reasonably alarmed.
4. “Tumultuous” behavior defined by ordinary meaning. Because neither the statute nor prior case law defined “tumultuous,” the Court adopted a dictionary definition:
   • “Very loud; noisy;”
   • “Characterized by disorderly commotion;” or
   • “Characterized by mental or emotional agitation.”
   Whether particular conduct is “tumultuous” is a factual question for the district court, subject to deferential sufficiency review.
5. Sufficiency of the evidence affirmed. Considering the totality of Vetter’s behavior and the witnesses’ testimony, the Court held that a rational factfinder could conclude beyond a reasonable doubt that:
   • Vetter’s conduct was “tumultuous” within the ordinary meaning of the term, and
   • he at least acted in reckless disregard that others were alarmed by his behavior.
   The conviction was therefore affirmed.

IV. Detailed Analysis

A. Statutory Framework: N.D.C.C. § 12.1‑31‑01

The governing statute provides, in relevant part:

• Section 12.1‑31‑01(1)(a): A person commits disorderly conduct if,

  with intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the individual's behavior, the individual: a. Engages in fighting, or in violent, tumultuous, or threatening behavior.

• Section 12.1‑31‑01(2) (constitutional carve‑out):

  If an individual claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.

This statutory design has two distinct layers:

1. The substantive offense—focused on behavior (e.g., fighting, violent, tumultuous, or threatening behavior) coupled with a mental state (intent or reckless disregard) and an effect on another person (harassed, annoyed, or alarmed).
2. A procedural/substantive safety valve in subsection (2)—to prevent the statute from punishing constitutionally protected conduct (primarily, though not exclusively, speech and expressive conduct). But this safeguard is activated only when the defendant claims constitutional protection.

Vetter primarily illuminates (2): what happens when the defendant fails to invoke that subsection at trial and then later characterizes his conduct as constitutionally protected on appeal.

B. Preservation of Constitutional Claims and “Constitutionally Protected Activity”

1. The requirement to “claim” constitutional protection

The Court’s reasoning is anchored in the statutory language: “If an individual claims to have been engaged in a constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude evidence of the activity.” The Court reads this as imposing a threshold requirement:

• The defendant must actually assert the constitutional protection in the district court.
• Only then does the district court have a mandatory duty to:
  • decide, as a matter of law, whether the conduct is constitutionally protected, and
  • if it is, exclude evidence of that conduct from the proof of disorderly conduct.

The Court expressly notes: “An individual must actually claim to have been engaged in constitutionally protected activity before the court is required to determine the validity of the claim.” (§ 12.1‑31‑01(2)).

2. Precedent: In re H.K. and the court’s independent review duty

The Court relies on In re H.K., 2010 ND 27, 778 N.W.2d 764, which involved a juvenile charged with disorderly conduct who did raise a First Amendment defense. In that case the Court held:

• “Whether an activity is constitutionally protected is a question of law, which is fully reviewable on appeal.”
• Where constitutional protection is claimed, the reviewing court has a “constitutional duty to independently examine the record as a whole to assure that the judgment does not constitute a forbidden intrusion on the field of free expression.”

Thus, when a constitutional claim is properly preserved, the appellate court engages in an independent constitutional review, not merely deferential sufficiency review. Vetter confirms that this heightened scrutiny is only triggered when the defendant satisfies the predicate: asserting constitutional protection at trial.

3. Brossart and caution around constitutional claims

The Court also cites State v. Brossart, 2015 ND 1, 858 N.W.2d 275, observing that the Court is “cautious when reviewing claims of constitutionally protected activity.” This reflects the tension between:

• protecting free expression and other constitutional rights, and
• preserving the State’s authority to regulate disorderly conduct that threatens public order and safety.

Vetter fits this pattern: the Court is careful not to expand the constitutional shield beyond what is properly presented, especially when the defendant has not raised the issue at the appropriate time.

4. Failure to raise the issue and the obvious error framework

Because Vetter did not raise any constitutional claims at trial, the Court applied its familiar rule:

• “Issues not raised below, even constitutional issues, generally will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).” (State v. Curtis, 2008 ND 93, ¶ 9, 748 N.W.2d 709).
• Obvious error is reserved for “egregious” or “grave” constitutional error (Curtis, citing State v. Parisien, 2005 ND 152, ¶ 17, 703 N.W.2d 306), and is exercised “cautiously and only in exceptional situations where the defendant has suffered serious injustice” (State v. Miller, 388 N.W.2d 522, 522 (N.D. 1986)).
• The burden to show obvious error rests on the appellant, and when it is not argued, “it is difficult for an appellate court to conclude the burden is satisfied.” (State v. Thompson, 2025 ND 3, ¶ 11, 16 N.W.3d 204).

Vetter did not address obvious error at all in his appellate briefing. The Court therefore:

• recognized that only obvious error review was potentially available, and
• declined, in its discretion, to reach his constitutional arguments.

This portion of Vetter reinforces and applies an entrenched North Dakota principle: appellate courts will not rescue unpreserved constitutional arguments absent a clear showing of obvious error, and they will not develop that showing for the appellant.

5. Stepparent “fundamental rights” and equal protection/vagueness

Substantively, Vetter framed his conduct as an exercise of a “fundamental right” to direct a child’s education and to advocate in the educational environment. The Court:

• notes that Vetter “cited no authority supporting a stepparent’s fundamental right to parent,” and
• mentions, but does not reach, his arguments that the statute is vague as applied to him and that his prosecution reflects arbitrary enforcement violating equal protection.

Because the Court stops at the threshold (lack of preservation and lack of obvious error argument), it does not address:

• whether stepparents in North Dakota enjoy a constitutional or quasi-constitutional parental right,
• whether Vetter’s conduct in the school office might, under some circumstances, be protected advocacy,
• or whether § 12.1‑31‑01 is vulnerable to a vagueness or equal protection challenge.

The significance for practitioners is procedural: even potentially strong constitutional theories must be clearly raised at the trial level and supported on appeal with a proper obvious-error analysis if not preserved.

C. Mental State: Intent vs. Reckless Disregard

Vetter argued that the State failed to prove the required mental state of “intent to harass, annoy, or alarm.” The Court rejects this premise as based on a misreading of the statute.

1. The dual mental state structure of § 12.1‑31‑01(1)

The statute provides two alternative mens rea pathways:

• Intent: The defendant intends to harass, annoy, or alarm another person, or
• Reckless disregard: The defendant acts in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the defendant’s behavior.

Thus, the State need not prove that the defendant specifically intended the harassing or alarming effect; it is enough that the defendant consciously disregarded a substantial risk that others would be (or were being) harassed, annoyed, or alarmed.

2. Circumstantial proof of mental state

Relying on State v. Kinsella, 2011 ND 88, ¶ 14, 796 N.W.2d 678, the Court reiterates:

• Criminal intent is often proven by circumstantial evidence.
• “A defendant’s conduct may be considered as circumstantial evidence of the required criminal intent.”

Here, the conduct itself—entering visibly upset, raising his voice at the principal, pushing a garbage can so that it struck a door, forcefully opening the door, yelling obscenities, gesturing with the middle finger toward the school, revving and spinning tires (“sending rocks into the air”), and blaring the horn in the presence of children—reasonably supports a finding that Vetter acted in reckless disregard that others would be alarmed.

D. “Tumultuous” Behavior: Definition and Application

1. Lack of prior statutory or case-law definition

The Court notes that neither N.D.C.C. § 12.1‑31‑01 nor prior North Dakota Supreme Court decisions had defined “tumultuous.” That interpretive gap is important because:

• the statute makes “violent, tumultuous, or threatening behavior” the core conduct element for subsection (1)(a);
• the State did not claim “threatening” or “fighting” conduct; and
• thus, the conviction depended specifically on whether Vetter’s conduct qualified as “tumultuous.”

2. Plain-meaning approach under N.D.C.C. § 1‑02‑02

Applying established interpretive rules, the Court turns to N.D.C.C. § 1‑02‑02 and its own precedent in State v. Bearrunner, 2019 ND 29, ¶ 12, 921 N.W.2d 894. When a statutory term is undefined, the Court:

• looks to “the plain, ordinary, and commonly understood meaning of the words,” and
• frequently uses dictionary definitions to discern that ordinary meaning.

Here, the Court quotes the American Heritage Dictionary of the English Language (5th ed. 2018) definition of “tumultuous”:

1. Very loud; noisy; 2. Characterized by disorderly commotion; 3. Characterized by mental or emotional agitation.

This is notable for two reasons:

• It encompasses not only sound-level (very loud; noisy) and physical disturbance (disorderly commotion), but also emotional or mental agitation.
• It gives the district court factual latitude to consider the entire context—noise, movement, emotional state, and their impact on observers—when deciding whether behavior is “tumultuous.”

3. Factual determination and standard of review

Citing Bearrunner, the Court emphasizes that whether conduct is “tumultuous” is a factual determination, not a pure question of law:

• It is “better suited to the district court, where evidentiary observations and credibility determinations are made.”
• On appeal, the Supreme Court reviews only for sufficiency of the evidence under a deferential standard (asking whether any rational factfinder could have found the element proved beyond a reasonable doubt when viewing the evidence in the light most favorable to the verdict).

4. Application to Vetter’s conduct

Viewed as a whole, the evidence showed:

• loud, visibly angry conduct in a school administrative office;
• a forceful exit involving pushing a garbage can and a door, coupled with noise and commotion;
• obscene yelling and middle-finger gestures directed toward the school building;
• a loud, agitated vehicular departure (speeding away, throwing rocks, horn blaring); and
• the presence of children and their caretakers, all of whom testified they felt alarmed.

Under the dictionary definition adopted by the Court, a rational factfinder could conclude that this conduct was:

• “very loud” and “noisy,”
• “characterized by disorderly commotion” in a school environment, and
• “characterized by mental or emotional agitation,” both in Vetter himself and in its effect on observers.

The Court therefore holds that this evidence was sufficient to support the district court’s finding that Vetter engaged in “tumultuous” behavior within the meaning of § 12.1‑31‑01(1)(a).

E. Target of the Conduct and Number of Complainants

Vetter’s argument appears to rely in part on the notion that his behavior was directed primarily, or even exclusively, at the principal in the context of a parent–school conference, and that it was therefore either protected or insufficiently directed at others to constitute disorderly conduct.

The Court turns to two key precedents:

• State v. Simon, 2018 ND 197, ¶¶ 13–14, 916 N.W.2d 626, where the defendants’ protest activities—including attempting to “flank officers’ skirmish lines and advance toward construction equipment”—supported a disorderly conduct conviction; and
• City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 13, 639 N.W.2d 466, and State v. Klindtworth, 2005 ND 18, ¶ 13, 691 N.W.2d 284, which held that “actions constituting disorderly conduct need be offensive to only one person,” evaluated under an objective standard.

From these cases, the Court reiterates:

• Behavior constituting disorderly conduct does not need to be directed at a single, clearly identified individual.
• It suffices that at least one reasonable person is offended, harassed, annoyed, or alarmed by the conduct.
• The presence of multiple alarmed witnesses—as here, the principal, counselor, and paraprofessional—only strengthens the State’s proof.

Instead of focusing on a “target,” the Court focuses on:

• the objective character of the behavior (loud, agitated, disorderly, emotionally charged, involving profanity and physical commotion), and
• its impact on reasonable observers (alarm, especially in a setting with children present).

F. Sufficiency of the Evidence and Standard of Review

The Court restates the standard from State v. Curtis, 2008 ND 93, ¶ 5:

• The evidence is viewed “in the light most favorable to the verdict,” and all reasonable inferences are drawn in favor of the verdict.
• A conviction will be reversed only when “no rational factfinder could have found the defendant guilty beyond a reasonable doubt.”

Because this is a bench trial, the Court also cites State v. Simon, 2018 ND 197, ¶ 10, noting that:

• on appeal from a conviction after a bench trial, the Court is not confined to the specific reasoning the district court gave; and
• it may consider the entire record to determine whether substantial evidence supports the conviction.

Applying this deferential review, the Court readily finds that:

• Vetter’s behavior satisfied the “tumultuous” conduct element as defined by ordinary meaning;
• his conduct, including its loudness, physical commotion, profanity, gestures, and high-speed departure in the presence of students, allowed a rational factfinder to infer at least reckless disregard that others were alarmed; and
• the testimony of multiple alarmed witnesses easily satisfies the requirement that at least one person was reasonably alarmed.

Thus, the conviction stands.

V. Complex Concepts Simplified

A. “Constitutionally Protected Activity” Under § 12.1‑31‑01(2)

The statute provides a special rule for “constitutionally protected activity.” In essence:

• If a defendant says, “What I was doing is protected by the Constitution (for example, by the First Amendment),” the trial judge must:
  • decide as a matter of law whether the activity is constitutionally protected; and
  • if it is, exclude that protected activity from the evidence the State can use to prove disorderly conduct.

This can be crucial in speech-heavy cases—e.g., protests, political speech, strong criticism of officials—because if the speech is protected, it cannot be the basis for a disorderly conduct conviction.

However, this protection is not automatic. The defendant must:

1. affirmatively assert that the conduct is constitutionally protected, and
2. do so in the trial court, not just for the first time on appeal.

B. “Obvious Error” Review

“Obvious error” is a limited safety valve allowing appellate courts to correct particularly serious errors that were not objected to at trial. To show obvious error, a defendant usually must demonstrate:

• there was an error (legal mistake),
• the error is “obvious” or “plain,” and
• the error affected substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings.

The Court applies this sparingly, especially to unraised constitutional claims, reserving it for “egregious” or “grave” constitutional violations causing serious injustice.

C. “Reckless Disregard” as a Mental State

“Reckless disregard” means that the person:

• is aware of a substantial risk that a certain harm or effect (here, that someone is harassed, annoyed, or alarmed) will occur, and
• consciously chooses to ignore or disregard that risk.

In other words, the person does not need to want the result to happen; it is enough that they realize it is very likely and proceed anyway.

D. “Tumultuous” Conduct

Taken from the Court’s adopted dictionary definition, “tumultuous” behavior means:

• very loud or noisy,
• involving disorderly commotion (physical or social disturbance), or
• driven by or producing strong emotional or mental agitation.

This is distinct from:

• “Violent” behavior, which involves physical force or harm; and
• “Threatening” behavior, which involves explicit or implicit threats of harm.

“Tumultuous” covers emotionally charged, disruptive, and noisy behavior that, while not necessarily violent or explicitly threatening, can destabilize order and alarm reasonable observers.

VI. Impact and Significance

A. Procedural Impact: Preserving Constitutional Defenses

State v. Vetter underscores the importance of properly preserving constitutional defenses, especially when invoking § 12.1‑31‑01(2):

• Defense counsel must explicitly raise the argument that the defendant’s conduct is “constitutionally protected activity” in the district court, ideally by motion or at least on the record.
• Failure to do so will typically foreclose full appellate review of the constitutional issue and limit the defendant to rare, hard-to-satisfy “obvious error” review—which must itself be argued on appeal.

For speech-related disorderly conduct charges (e.g., protests, confrontations with officials, expressive gestures), this case serves as a clear warning: constitutional arguments left unraised at trial are usually lost.

B. Substantive Impact: Interpretive Guidance on “Tumultuous” Conduct

This opinion provides the first explicit, authoritative definition of “tumultuous” for purposes of North Dakota’s disorderly conduct statute. Practically:

• Prosecutors now have a clearer framework to argue that loud, emotionally charged, and disruptive conduct in public settings—especially schools and other sensitive environments—can qualify as “tumultuous.”
• Defense counsel must be prepared to challenge whether the conduct in question truly fits within the ordinary-meaning definition, stressing context and proportionality (for example, emphasizing brief, non-disruptive complaints vs. extended, noisy, disruptive outbursts).
• Trial courts are reminded that the “tumultuous” determination is factual and must be grounded in evidence regarding noise level, emotional intensity, commotion, and impact on others.

C. School Context and Parental/Stepparental Advocacy

Although the Court declines to address the substantive constitutional questions about parental or stepparental rights, Vetter still has practical implications:

• Parents and stepparents have a legitimate interest in advocating for their children in schools, but there are boundaries: advocacy that becomes loudly disruptive, emotionally aggressive, or tumultuous in a way that alarms staff and children may expose them to criminal liability.
• School officials may rely on this decision to justify calling law enforcement when interactions escalate beyond strong but orderly advocacy into loud, disorderly commotion or emotionally agitated, disruptive displays.
• Defense counsel representing parents or stepparents in such situations must:
  • carefully distinguish protected advocacy from punishable disorderly conduct, and
  • explicitly invoke constitutional protections at the earliest possible stage.

D. Reinforcing Objective Standards for Alarm

By reaffirming that actions must be offensive or alarming to at least one reasonable person, but need not be targeted at a single individual, Vetter:

• reconfirms the objective nature of the “alarm” requirement—what matters is how a reasonable person in the witness’s position would experience the conduct;
• encourages courts to look to the broader environment (such as the presence of children in a school) when assessing reasonableness; and
• solidifies that multiple alarmed witnesses provide strong support for the disorderly conduct charge.

VII. Conclusion

State v. Vetter, 2025 ND 197, is significant for both its procedural and substantive contributions to North Dakota disorderly conduct law.

Procedurally, it clarifies that the statutory protection for “constitutionally protected activity” under N.D.C.C. § 12.1‑31‑01(2) is not self-executing. A defendant must timely and explicitly claim constitutional protection in the district court to trigger the court’s duty to rule on that claim as a matter of law and to exclude constitutionally protected activity from the State’s proof. Constitutional issues not raised below are ordinarily reviewed only for obvious error—if, and only if, the appellant actually argues obvious error on appeal.

Substantively, the Court adopts an ordinary-language definition of “tumultuous,” encompassing behavior that is very loud or noisy, marked by disorderly commotion, or characterized by mental or emotional agitation. Applying that definition to a school setting, the Court upholds a disorderly conduct conviction based on a pattern of emotionally charged, disruptive conduct that reasonably alarmed school staff, particularly in the presence of children. The decision confirms that reckless disregard of others’ alarm is sufficient mens rea, that conduct need not be directed at a single person, and that actions need only alarm at least one reasonable observer.

Taken together, Vetter provides clear guidance on how to litigate and adjudicate disorderly conduct charges involving expressive or emotionally intense conduct—especially in sensitive environments like schools—and underscores the critical importance of timely, explicit preservation of constitutional defenses in the trial court.