Smoker’s Defense Rebutted by Jurors

In the case of the Dana Point defiant smoker, the defendant wanted the jury to take a stand for personal freedoms and the little guy. But in the end, the jury filtered all that out.

“Excuse the pun, but it was a smoke screen,” juror Ann Van der Weide said after she and 11 other nonsmokers found Craig Thomas Etling guilty of disrupting a business with his Jan. 17 tirade at a local bar after he was asked to snuff his Marlboro Light.

Etling was fined $270 and sentenced Wednesday to three days of collecting cigarette butts and other litter from the harbor area near the scene of the misdemeanor crime, Harpoon Henry’s bar and restaurant. Orange County Municipal Judge Selim Franklin prefaced the sentencing by saying, “Let the punishment fit the crime.”

The 35-year-old computer consultant and pack-a-day smoker was also fined $85 for flouting the state’s 4-month-old ban on smoking in enclosed, indoor bars. The prosecutor on the case said Etling is the first Orange County smoker to be busted and among the first statewide.

A jury of four men and eight women deliberated less than an hour before finding Etling guilty of disrupting business at Harpoon Henry’s. “They didn’t kick him out because he was smoking, they kicked him out because he was a problem,” said juror Rose Turi of Laguna Niguel. “He kind of acted like a jerk.”

Etling admitted on the witness stand that he ignored posted “No Smoking” signs and openly defied a bartender and manager who politely asked him to put out his cigarette or leave.

Witnesses testified that Etling told a bartender he hoped the bartender would “die from second-hand smoke” and challenged him to a fistfight. Etling then left the bar only to return a short time later, lit up three more cigarettes and lined them up on the bar to smolder, according to testimony.

Deputy Dist. Atty. Paul J. Chrisopoulos told the jurors that Etling was “being obnoxious for the sake of being obnoxious” and that Etling wanted “five minutes of fame” for his antics.

Defense attorney Michael B. Stone of Seal Beach argued that his client was “fed up” with laws encroaching on his personal freedoms and that the bar was empty when Etling and friends arrived to order coffee after a day of whale-watching.

The bar employees were the ones responsible for the escalating confrontation and they should have allowed Etling to smoke until someone else complained, Stone said. He told the jurors to ask themselves, “Is there a threshold of pettiness beyond which the law cannot go?”

After the verdict, puffing on a cigarette in the parking lot of the Laguna Niguel courthouse, Etling said he was disappointed but not surprised by the jury’s decision. Smokers are being demonized, he said, and his actions were a protest against the bar employees who targeted him and the ban that irks him.

“A different verdict would have made a statement to the Legislature,” Etling said.

He said his actions were initially a way to irritate the bar employees but became more symbolic as the tension mounted. “At that point it became a protest. I said to myself, ‘I’m not going to take it anymore.’ ”

Stone said he and his client are mulling an appeal to Etling’s conviction of violating the smoking ban. The six-page state law outlining the ban is so “vague and confusing” that it may be unconstitutional on the grounds that it denies citizens due process.