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Moore v. State

Alabama Court of Criminal Appeals

November 21, 2014

Phillip Allen Moore
v.
State of Alabama

          Appeal from Tuscaloosa Circuit Court. (CC-12-2616).

         For Appellant: Ashley Toccara Adams, Joseph Peter Van Heest, and LaTonia Marie Williams, Tuscaloosa.

         For Appellee: Luther Strange, atty. gen., and Ferris S. Stephens, asst. atty. gen.

         Welch, Kellum, and Joiner, JJ., concur. Windom, P.J., dissents. Burke, J., dissents, with opinion.

          OPINION

          PER CURIAM.

         Phillip Allen Moore was convicted, following a jury trial, of menacing. See § 13A-6-23, Ala. Code 1975. The circuit court sentenced Moore to 90 days in the county jail and placed him on supervised probation for 12 months. On the authority of Ex parte Pate, 145 So.3d 733 (Ala. 2013), we reverse the conviction and render a judgment of acquittal in favor of Moore.

         I. Factual Background and Procedural History

         On June 23, 2012, Jeffrey West and his wife Kimberly were at a classic car show at Bama Trim on Highway 11 in Tuscaloosa. Moore, his brother Melvin, and Melvin's girlfriend Beth Dove were drinking

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alcoholic beverages and listening to music on a lot at an RV park adjacent to the Bama Trim property.

         At some point after the car show had begun, the Wests left the car show in a black Trans Am automobile, one of two cars the Wests had brought to the show. The Wests were going to their house to get their teenage daughter Rachel. As they were leaving, Dove and the Moores yelled at Kimberly, who was driving, to " spin the tires." Kimberly, however, did not know how to " spin the tires," so she did not.

         After going to his house, West returned alone in the Trans Am to the car show. He parked the car at the show, got out of the vehicle, and began wiping dust off the car to make it presentable for the car show. The Moores and Dove, who were still listening to music in the RV park, turned the music up to the point that it could be heard at the car show. West testified that he recognized the song that was playing--which he identified as " You Can Suck My Dick" by the musical rap artist Eminem. West testified that the lyrics of the song were obscene and, in his opinion, inappropriate for women or children to hear. West also saw the Moores and Dove making lewd hand gestures during the song; specifically, they were pointing to their respective genital areas.

         West, who had difficulty walking because of a recent back surgery, put down his dusting cloth and started walking toward the RV park. He walked to the road separating Bama Trim and the lot Moore's camper was on. Moore moved to the door of his camper and picked up a metal pipe that was about three feet long. Moore began walking toward West, and West stopped in the middle of the road. West put his hands up and said, " Look, all I wanted to do is ask you if you would mind turning your music down." In response, Moore said, " Yes, I do fucking mind." Moore then " raised [the metal pipe] above his shoulders kind of like a batter." Moore, however, did not leave the RV lot, and he remained about 15-20 feet away from West.

         West testified that he turned around to walk away because he was afraid of being hit with the pipe. In the meantime, Melvin had gone to get his car, with which he struck West.[1] West was thrown onto the hood and windshield of the car. Kimberly and Rachel had by this time arrived at the car show. Kimberly and Rachel both saw Moore raise the pipe, and they witnessed Melvin strike West with Melvin's car.

         Moore was charged with menacing. After he was found guilty in the Tuscaloosa County District Court, Moore appealed to the Tuscaloosa Circuit Court, and his case was tried before a jury. As noted above, the jury returned a verdict of guilty, and Moore was sentenced to 90 days in the county jail and placed on supervised probation for 12 months.

         II. Analysis

         Moore challenges, as he did in the circuit court, the sufficiency of the State's evidence to support his conviction for menacing. Among other things, he argues that the State presented insufficient evidence to indicate that Moore's actions constituted " physical ...


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