Released for Publication July 22, 2015.
Appeal from Montgomery Circuit Court. (CC-13-754). Johnny Hardwick, Trial Judge.
For Appellant: Luther Strange, atty. gen., and Robin D. Scales, asst. atty. gen.
For Appellee: Mary Michelle Alexander-Oliver, Montgomery.
BURKE, Judge. Windom, P.J., and Kellum and Joiner, JJ., concur. Welch, J., concurs in part II; concurs in the result in part I.
Phillip Joshua Baker was indicted for impersonating a peace officer, a violation of § 13A-10-11, Ala. Code 1975. Prior to trial, Baker filed a motion to dismiss the indictment, in which he alleged that the indictment fails to charge a crime and that § 13A-10-11 is unconstitutional. The trial court granted Baker's motion. The State now appeals.
Baker made two claims in his motion to dismiss. First, he alleged that the indictment fails to charge a crime because, he said, the State has failed to allege conduct sufficient to meet both elements of the
offense described in § 13A-10-11. Second, Baker claimed that § 13A-10-11 is unconstitutional because, he said, the statute fails to establish reasonably clear guidelines for law-enforcement officials and triers of fact so as to prevent arbitrary and discriminatory enforcement.
In his motion to dismiss, Baker first challenged the sufficiency of the indictment. " Appellate courts review the legal sufficiency of indictments de novo." Hunt v. State, 642 So.2d 999, 1022 (Ala.Crim.App. 1993).
As noted, Baker was indicted for impersonating a peace officer, a violation of § 13A-10-11, which provides that " [a] person commits the crime of impersonating a peace officer if he  falsely pretends to be a peace officer and  does any act in that capacity." The indictment charged that Baker
" did falsely pretend to be a peace officer, to-wit: a Deputy Sheriff, and did an act in that capacity, to-wit: told others that he was a Deputy Sheriff; and/or wore a shirt that said Sheriff's Office on it; and/or wore a duty belt with a gun, magazine, baton, pepper spray, handcuffs and other law enforcement equipment, in violation of section 13A-10-11 of the Code of Alabama, against the peace and dignity of the State of Alabama."
(C. 5.) Baker argued, and the trial court agreed, that the language in the indictment alleging that Baker " told others that he was a Deputy Sheriff; and/or wore a shirt that said Sheriff's Office on it; and/or wore a duty belt with a gun, magazine, baton, pepper spray, handcuffs and other law enforcement equipment" charges only the first element of the offense, i.e., that Baker falsely pretended to be a peace officer. ...