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Rapping order at American Fork McDonald's not a crime, judge rules

Judge rules Am. Fork teen who rapped his order was no threat

Published: Wednesday, May 19 2010 12:51 a.m. MDT

Spenser Dauwalder, 18, listens as 4th District Judge Thomas Low finds him not guilty of disorderly conduct.

Steve Landeen, KSL-TV

Enlarge photo»

AMERICAN FORK — Yo yo yo! Not guilty, dawg.

The trial of the century it was not. But Tuesday, 4th District Judge Thomas Low found Spenser Dauwalder, 18, not guilty of disorderly conduct for rapping his order at a McDonald's drive-through in American Fork last fall.

The Lone Peak High School student and his friends rapped their order over an iPod recording in imitation of a video they had seen on YouTube. They then repeated the rap at a slower pace, ignoring a request to order normally or leave.

The judge found that Dauwalder did not engage in any threatening behavior or create any unreasonable noise as required for a disorderly conduct conviction in the Oct. 27 incident. He faced a fine of up to $750.

During the ponderous two-hour trial Tuesday, attorneys presented evidence that included surveillance footage at the restaurant, cell phone recordings of the rap, testimony from the officer who cited them and from McDonald's employees.

The restaurant manager told police that as the teens drove away that night, Dauwalder yelled at her, "I hate this (expletive) McDonald's anyway." Prosecutors said he "acted in an angry, threatening, tumultuous manner" and sped recklessly out of the parking lot.

"The song on the cell phone itself was actually kind of creative," American Fork police officer Keith Southard testified. "It was what happened afterward that created an issue."

The video footage played several times at the trial showed the youths pulling into the drive-through. Eventually, manager Eileen Timoko is seen approaching the car for a brief conversation. The car pulls out of the lane and exits a few seconds after she walks out of view toward the restaurant.

Timoko testified that she felt threatened and was initially afraid the teens were following her in the car.

"That's why I called the cops. I don't care that they were rapping," she said.

Dauwalder denied following her or using profanity, although he said one of his friends yelled a curse word when they were told to order normally.

The other three teens face juvenile court proceedings that were put on hold until Dauwalder's case was resolved.

Defense attorney Ann Boyle argued that singing an order, whether profanity was used or not, is speech that is protected by both the federal and Utah constitutions. She said she took the case for free because she believed his free speech rights were violated, adding that she believes police throughout Utah County have been inappropriately handing out disorderly conduct citations for speech instead of behavior.

"Anytime anyone infringes someone's First Amendment rights, it's not a small matter," Boyle said.

She said that even if one of the teens had cursed, the state law defining disorderly conduct does not prohibit obscene or abusive language.

"Using the f-word is not and has never been a crime in the United States of America," Boyle said, noting that Vice President Joe Biden was recently caught on camera saying the word while celebrating the passage of health care reform.

City prosecutor Kasey Wright said he was disappointed by the verdict but did not feel the trial had been a waste of resources. He said that even minor cases must be prosecuted fully, or everyone would challenge speeding tickets and other infractions.

After the trial, the student's mother, Sharon Dauwalder, said simply: "I'm just glad it's done."

Publicity from the incident has taken the teens as far as an appearance on "The Colbert Report."

e-mail: pkoepp@desnews.com

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