B.E.S. v. State, CR-92-253

CourtAlabama Court of Criminal Appeals
Writing for the CourtBOWEN; TAYLOR
Citation629 So.2d 761
Docket NumberCR-92-253
Decision Date09 July 1993
PartiesB.E.S. v. STATE.

Page 761

629 So.2d 761
B.E.S.
v.
STATE.
CR-92-253.
Court of Criminal Appeals of Alabama.
July 9, 1993.
Rehearing Denied Sept. 3, 1993.
Certiorari Denied Dec. 3, 1993
Alabama Supreme Court 1921894.

Page 762

Julius H. Hunter, Jr., Phenix City, for appellant.

James H. Evans, Atty. Gen., and Jack Willis, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

The appellant, B.E.S., was adjudicated delinquent based on a petition charging him with harassment. He was fined $50 and was placed on six month's unsupervised probation.

The State's evidence tended to show that on July 9, 1992, the complainant, Sheree Elder, and her husband, Robert, were in the process of moving out of "a double wide [mobile home]" that they "shar[ed]" with the appellant and his family. R. 5. Mrs. Elder testified that she was expecting a telephone call that day and that she had asked the appellant and his brother, D.S., to "let [her] know" when the call came in. R. 10. According to Mrs. Elder, the person she was expecting to call did call, but she was not notified of the call. Mrs. Elder related that when she asked B.E.S. and D.S. why she was not told about the telephone call,

"[w]ell they, I don't know what was really said about that, but anyway, it just went on and he told, [B.E.S.] told me to shut the F up and he also told me don't let the door hit me in the ass when I leave. He never did get in my face, he did not get close to me like he was going to hit me, all he did was say things to me, he didn't make any attempts to even get close to me."

R. 10.

Robert Elder testified that he was outside "loading the truck" when these words were spoken to his wife. R. 7. He testified that both brothers "would just like get in [his] face and try to intimidate [him]." R. 6. At one point, D.S. "balled his fist up" in Elder's face and "str[uck] his [own] hand." R. 8-9. However, Mr. Elder could not remember what, if anything, D.S. said at the time.

Mrs. Elder testified that after they had loaded their car and truck, they left to go to Mr. Elder's son's house. Mrs. Elder was driving the truck and Mr. Elder was following her in the car. Mr. Elder's two grandchildren were riding in the truck with Mrs. Elder. After stopping to inform their landlady that they were leaving, the Elders came back by the rental unit in order to leave the property. Mrs. Elder testified that a vehicle driven by B.E.S. and occupied by D.S. and

Page 763

other people that she did not know began to follow her and her husband. This car "tailgat[ed]" first her husband, then her and nearly ran her off the road. R. 13. This vehicle also got in front of both her and her husband and D.S. shone a spotlight into their eyes.

The Elders' landlady, Tina Hurst, testified that when the Elders came by to tell her that they were leaving, Mrs. Elder "was almost in tears," and she "was very upset, she was crying, well practically, she was shaking." R. 18-19. She also stated that she had observed B.E.S., D.S., and some of their friends get into a vehicle and begin to follow the Elders. At this time, the people in the car "had a spotlight on." R. 20. Although she was not sure who was holding the spotlight, Mrs. Hurst testified that B.E.S. was driving the vehicle that "pulled out directly behind [the Elders]." R. 20.

The evidence adduced by the State might have supported a number of criminal charges, including reckless driving, 1 Ala.Code 1975, § 32-5A-190, reckless endangerment, § 13A-6-24, or menacing, § 13A-6-23. However, the petition charged the appellant only with verbal harassment, which is defined by § 13A-11-8(a)(1)(b) as follows: "A person commits the crime of harassment if, with intent to harass, annoy or alarm another person he ... [d]irects abusive or obscene language or makes an obscene gesture towards another person." 2

Section 13A-11-8(a)(1)(b) clearly seeks to restrict speech, which, under the First Amendment, states have only limited authority to regulate. See Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 540, 100 S.Ct. 2326, 2335, 65 L.Ed.2d 319 (1980) ("[w]here a government restricts the speech of a private person, the state action may be sustained only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest"). However, "[g]overnment regulation of speech has been allowed when the purpose of the statute was to proscribe 'fighting words.' " J. Nowak & R. Rotunda, Constitutional Law § 16.37 (4th ed. 1991). As the United States Supreme Court stated in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942):

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words." (Footnote omitted.)

In order to bring § 13A-11-8(a)(1)(b) within the range of constitutionally permitted legislation, we have held that the words "abusive or obscene language," as used in this statute, are to be " 'interpreted narrowly to apply only to "fighting words." ' " Robinson v. State, 615 So.2d 112, 113 (Ala.Cr.App.1992) (applying Swann v. City of Huntsville, 455 So.2d 944, 950 (Ala.Cr.App.1984), and Mosley v. City of Auburn, 428 So.2d 165, 166 (Ala.Cr.App.1982), superseded on other grounds, Mason v. City of Vestavia Hills, 518 So.2d 221 (Ala.Cr.App.1987), wherein this Court had previously interpreted in the same manner the same words contained in § 13A-11-7(a)(3), the disorderly conduct statute). See also Shinault v. City of Huntsville, 579 So.2d 696, 699-700 (Ala.Cr.App.1991) (Bowen, J., concurring in result). Consequently, the dispositive issue in this case is obviously whether the words spoken by the appellant to Mrs. Elder constitute "fighting words." The appellant maintains that they do not.

Page 764

"Fighting words" are "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). The utterance itself must "tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. at 572, 62 S.Ct. at 769. See also Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S.Ct. 970...

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21 practice notes
  • State v. Parnoff, SC 19588
    • United States
    • Supreme Court of Connecticut
    • July 3, 2018
    ...believes that the use of ‘fighting words’ in or around one's own home should be constitutionally protected"), with B.E.S. v. State , 629 So.2d 761, 765 (Ala. Crim. App. 1993) (holding that, "[c]onsidering the circumstances under which these statements were made, including the fact that the ......
  • Ruffino v. City of Hoover, Case No. 2:08–CV–0002–SLB.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 29, 2012
    ...F.Supp.2d 1267]Conkle v. State, 677 So.2d 1211 (Ala.Crim.App.1995); R.I.T. v. State, 675 So.2d 97 (Ala.Crim.App.1995); B.E.S. v. State, 629 So.2d 761 (Ala.Crim.App.1993); Robinson v. State, 615 So.2d 112 (Ala.Crim.App.1992). “[Fighting words] by their very utterance provoke a swift physical......
  • Ruffino v. City of Hoover, CASE NO. 2:08-CV-0002-SLB
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 29, 2012
    ...e.g., Conkle v. State, 677 So. 2d 1211 (Ala. Crim. App. 1995); R.I.T. v. State, 675 So. 2d 97 (Ala. Crim. App. 1995); B.E.S. v. State, 629 So. 2d 761 (Ala. Crim. App. 1993); Robinson v. State, 615 So. 2d 112 (Ala. Crim. App. 1992). "[Fighting words]Page 22by their very utterance provoke a s......
  • State v. Allcock, No. 02-504.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 9, 2004
    ...Many decisions from other states involve similar fact situations where defendant yells expletives to others. See B.E.S. v. State, 629 So.2d 761, 765 (Ala.Ct.Crim.App.1993); State v. Suiter, 138 Idaho 13, 56 P.3d 775, 778 (2002); State v. Miller, 110 Ohio App.3d 159, 673 N.E.2d 934, 937-38 (......
  • Request a trial to view additional results
21 cases
  • Ruffino v. City of Hoover, Case No. 2:08–CV–0002–SLB.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 29, 2012
    ...F.Supp.2d 1267]Conkle v. State, 677 So.2d 1211 (Ala.Crim.App.1995); R.I.T. v. State, 675 So.2d 97 (Ala.Crim.App.1995); B.E.S. v. State, 629 So.2d 761 (Ala.Crim.App.1993); Robinson v. State, 615 So.2d 112 (Ala.Crim.App.1992). “[Fighting words] by their very utterance provoke a swift physical......
  • State v. Parnoff, SC 19588
    • United States
    • Supreme Court of Connecticut
    • July 3, 2018
    ...believes that the use of ‘fighting words’ in or around one's own home should be constitutionally protected"), with B.E.S. v. State , 629 So.2d 761, 765 (Ala. Crim. App. 1993) (holding that, "[c]onsidering the circumstances under which these statements were made, including the fact that the ......
  • Ruffino v. City of Hoover, CASE NO. 2:08-CV-0002-SLB
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 29, 2012
    ...e.g., Conkle v. State, 677 So. 2d 1211 (Ala. Crim. App. 1995); R.I.T. v. State, 675 So. 2d 97 (Ala. Crim. App. 1995); B.E.S. v. State, 629 So. 2d 761 (Ala. Crim. App. 1993); Robinson v. State, 615 So. 2d 112 (Ala. Crim. App. 1992). "[Fighting words]Page 22by their very utterance provoke a s......
  • State v. Allcock, No. 02-504.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • June 9, 2004
    ...Many decisions from other states involve similar fact situations where defendant yells expletives to others. See B.E.S. v. State, 629 So.2d 761, 765 (Ala.Ct.Crim.App.1993); State v. Suiter, 138 Idaho 13, 56 P.3d 775, 778 (2002); State v. Miller, 110 Ohio App.3d 159, 673 N.E.2d 934, 937-38 (......
  • Request a trial to view additional results

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