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09/30/94 YOLANDA D. MOORE v. STATE

September 30, 1994

YOLANDA D. MOORE
v.
STATE



Appeal from Montgomery Circuit Court. (CC-93-2043 and CC-93-2044). Joseph Phelps, TRIAL JUDGE.

Rule 39(k) Motion Denied November 10, 1994. Rehearing Denied November 10, 1994. Certiorari Denied March 3, 1995. Released for Publication July 5, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Yolanda D. Moore, was convicted of assault in the second degree and of assault in the third degree, violations of §§ 13A-6-21 and 13A-6-22, Code of Alabama 1975, respectively. She was sentenced to three years' imprisonment on each conviction, the sentences to be served concurrently. The sentences were split, and she was ordered to serve 18 months in prison, and the remainder of the sentence on supervised probation.

The state's evidence tended to show that on August 18, 1993, the appellant cut Lawanda Vinson numerous times on her back, face, and arms with a knife made for cutting boxes while they were engaged in a fight. The appellant also cut Sara Vickers on her arm when Vickers attempted to break up the fight. Vinson testified that during the week preceding August 18, 1993, the appellant had told Vinson's friends that she was going to "do something to her" because she did not like the way Vinson "was looking at her." Vinson testified that the appellant made these comments over a period of several days. On August 18, 1993, the appellant told Veranta Ware, a neighbor, to ask Vinson if she and Vickers were "ready for an ass whipping." Later that day, Vinson walked to Vickers's house. She passed John Bennefield's house and saw the appellant sitting on the porch. The appellant said, "If that fat bitch wants me she can come and get me." Vinson ran toward the appellant but tripped and fell before she got to the porch. The appellant then attacked Vinson with a box cutter, cutting her numerous times on her back, face, and arms. Vickers ran over to the fray and received a cut on her arm. There was no evidence presented that either of the victims had carried, brandished, or used any weapons.

The appellant raises three issues on appeal to this court.

I

The appellant contends that the trial court erred in denying her motion for a judgment of acquittal because she contends that the evidence presented at trial established that she was acting in self-defense.

This issue was not preserved for our review because the appellant did not allege this ground in her motion for a judgment of acquittal or her motion for a new trial. Zumbado v. State, 615 So. 2d 1223, 1241 (Ala. Cr. App. 1993).

Further, the question of whether the appellant was in actual or apparent immediate peril so as to justify the use of physical force in self-defense is a question of fact to be decided solely by the jury, after appropriate instruction by the court as to the application of the term. Lemley v. State, 599 So. 2d 64, 74 (Ala. Cr. App. 1992). Here, the jury concluded that the evidence presented at trial did not establish self-defense. We will not substitute our judgment for that of the jury. Owens v. State, 597 So. 2d 734, 737 (Ala. Cr. App. 1992).

The circuit court did not err in denying the appellant's motion for a judgment of acquittal.

II

The appellant contends that the trial court erred in denying her motion for a judgment of acquittal on the ground that the victim's last name was misspelled in the indictment. Specifically, she contends that ...


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