647 So. 2d 100 | Ala. Crim. App. | 1994
The appellant, Neal Moser, was found guilty in a jury trial of harassment and public intoxication. He was sentenced on each conviction to 90 days' hard labor, and both sentences were suspended on the condition that he be placed on probation for one year and he was also ordered to pay a $250 fine and court costs.
The presence of a court reporter at trial was waived; however, pursuant to Rule 10(e), Ala.R.App.P., the parties stipulated to the following facts: Birmingham Police Officer Jennifer Kushner was called at approximately 2:30 a.m. to investigate a report of a person lying in the street. When she responded, she found the appellant. She asked him to stand and the appellant staggered into her. His breath smelled of alcohol, his speech was slurred, and his eyes were bloodshot. The officer believed that the appellant was intoxicated, so she placed him under arrest for public intoxication and patted him down for weapons. When she handcuffed him, the appellant called her a "M__________ F__________" and said, "F__________ You," in the presence of four young women who were on the sidewalk nearby. He continued to curse on the way to the jail. Officer Kushner testified that she felt irritated and harassed by the appellant's expletives and that she therefore arrested him for harassment. Her testimony was corroborated by the testimony of her partner, who was at the scene of the arrest when it occurred.
In the present case, Officer Kushner testified that the appellant's words were directed to her. Because she is a trained police officer who was working in the line of duty, the appellant's language was unlikely to provoke a violent response. The language he used, therefore, did not constitute fighting words, and he could not lawfully be arrested for harassment. The appellant's conviction of and sentence for harassment, therefore, must be reversed.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
All Judges concur. *102