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04/14/95 KENNETH H. CULBREATH v. STATE

April 14, 1995

KENNETH H. CULBREATH
v.
STATE



Appeal from Cullman Circuit Court. (CC-94-374). Frank Brunner, TRIAL JUDGE.

Rule 39(k) Motion Denied May 26, 1995. Rehearing Denied May 26, 1995. Certiorari Denied August 4, 1995. As Corrected January 19, 1996. Released for Publication January 23, 1996.

Taylor, Presiding Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, PRESIDING JUDGE

The appellant, Kenneth H. Culbreath, was convicted of the crime of stalking his former wife, a violation of § 13A-6-90, Code of Alabama 1975. He was sentenced to seven years in the penitentiary.

I

The appellant initially contends that Alabama's stalking statute is unconstitutional because, he says, it is vague and overbroad. Section 13A-6-90, defines the crime of stalking as follows:

"A person who intentionally and repeatedly follows or harasses another person and who makes a credible threat, either express or implied, with the intent to place that person in reasonable fear of death or serious bodily harm is guilty of the crime of stalking."

"Harasses" as that term is used in the above statute is defined in § 13A-6-92(c) as follows:

"Engages in an intentional course of conduct directed at a specified person which alarms or annoys that person, or interferes with the freedom of movement of that person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress. Constitutionally protected conduct is not included within the definition of this term."

"Credible threat" as the phrase is used in the above statute is defined in § 13A-6-92(b) as follows:

"A threat, expressed or implied, made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to fear for his or her safety or the safety of a family member and to cause reasonable mental anxiety, anguish, or fear."

"Course of conduct" is defined in § 13A-6-92(a) as follows:

"A pattern of conduct composed of a series of acts over a period of time which evidence a continuity of purpose."

The United States Supreme Court has stated the following about the void for vagueness challenge:

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, Judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute 'abuts upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of [those] freedoms.' Uncertain meanings inevitably lead citizens to '"steer far wider of the unlawful zone" ... than if the boundaries of the forbidden areas where clearly marked.'"

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222 (1972), quoting, in part, Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 1323, 12 L. Ed. 2d 377 (1964). See also United States v. Harriss, 347 U.S. 612, 617-18, 74 S. Ct. 808, 812, 98 L. Ed. 989 (1954). To withstand a challenge of vagueness, a statute must: 1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and, 2) provide explicit standards to those who apply the laws. Grayned.

"This prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for 'in most English words and phrases there lurk uncertainties.' Robinson v. United States, 324 U.S. 282, 286, 65 S. Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid."

Rose v. Locke, 423 U.S. 48, 49-50, 96 S. Ct. 243, 244, 46 L. Ed. 2d 185 (1975). "A defendant who challenges a statute on the ground of vagueness 'must demonstrate that the statute under attack is vague as applied to his own conduct, regardless of the potentially vague applications to others.'" Senf v. State, 622 So. 2d 435, 437 (Ala. Cr. App. 1993), quoting Aiello v. City of Wilmington, 623 F.2d 845, 850 (3d Cir. 1980). (Emphasis supplied.)

This court has stated the following about the overbreadth doctrine:

"The overbroad doctrine derives from the First Amendment, see Young v. American Mini Theatres, 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976); Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974), and serves to invalidate legislation so sweeping that, along with its allowable proscriptions, it also restricts constitutionally-protected rights of free speech, press, or assembly, see, e.g., Coates v. Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971)."

McCrary v. State, 429 So. 2d 1121, 1123 (Ala. Cr. App. 1982), cert. denied, 464 U.S. 913, 104 S. Ct. 273, 78 L. Ed. 2d 254 (1983).

Alabama appellate courts have never had occasion to address the issue of whether Alabama's stalking statute, § 13A-6-90, is unconstitutionally vague or overbroad. Forty-eight states have enacted stalking laws. "Forty-eight states and the District of Columbia now have laws that make it a crime to stalk another person--that is, to follow and harass that person." Boychuk, M. Katerine, Are Stalking Laws Unconstitutionally Vague or Overbroad?, 88 Nw.U.L.Rev. 769 (1994).

Several states have addressed this issue and found their stalking statutes to be neither vague nor overbroad. See Pallas v. State, 636 So. 2d 1358 (Fla. Dist. App. 1994), reveiw granted, 648 So. 2d 723 (Fla. 1994) *fn1; People v. Heilman, 25 Cal. App. 4th 391, 30 Cal. Rptr. 2d 422 (1994); Johnson v. State, 264 Ga. 590, 449 S.E.2d 94 (1994); Woolfolk v. Commonwealth, 18 Va.App. 840, 447 S.E.2d 530 (1994); State v. Bilder, [1994 WL 721920, Dec. 30, 1994] N.E.2d (Ohio App. 1994); State v. Culmo, 43 Conn. Supp. 46, 642 A.2d 90 (Conn. Super. 1993).

The Alabama stalking statute is substantially similar to both the Florida and California statutes. The Alabama stalking statute, like the Florida and California statutes, has three components. First, the accused must intentionally commit the offense. Second, there must be a "credible threat." Third, there must be an "act" of repeatedly following or ...


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