from Tuscaloosa Circuit Court. (CC-12-2616).
Appellant: Ashley Toccara Adams, Joseph Peter Van Heest, and
LaTonia Marie Williams, Tuscaloosa.
Appellee: Luther Strange, atty. gen., and Ferris S. Stephens,
asst. atty. gen.
Kellum, and Joiner, JJ., concur. Windom, P.J., dissents.
Burke, J., dissents, with opinion.
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.
Factual Background and Procedural History
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
alcoholic beverages and listening to music on a lot at an RV
park adjacent to the Bama Trim property.
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
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.
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.
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. 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
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.
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 ...