(Tuscaloosa Circuit Court, CC-12-2616; Court of Criminal
Justice. Moore, C.J., and Stuart, Bolin, Parker, Main, and
Wise, JJ., concur. Murdock and Shaw, JJ., dissent.
FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
DENIED. NO OPINION.
C.J., and Stuart, Bolin, Parker, Main, and Wise, JJ., concur.
and Shaw, JJ., dissent.
separately for what I believe to be two important reasons.
First, it is particularly important to note, as Justice Shaw
correctly explains in his dissent, that the main opinion in
Ex parte Pate, 145 So.3d 733 (Ala. 2013), was a
plurality opinion in which only four Justices concurred and
is not binding precedent. 145 So.3d at 741 n. 5 (Shaw, J.,
dissenting). The Court of Criminal Appeals concluded its
analysis in this case by stating that, if not for the
decision in Pate, it would not have reversed the trial
court's judgment convicting Phillip Allen Moore of the
offense of menacing. Moore v. State, [Ms.
CR-13-0113, Nov. 21, 2014] __ So.3d __, __ (Ala.Crim.App.
2014). That court states, however, that it was " bound
by the Pate decision." __ So.3d at __. For the reasons
explained by Justice Shaw in his separate writing, that
statement is incorrect.
other reason I write separately is to note that this is the
first " menacing case" to come before this Court
since Pate was decided and that the facts presented and the
result reached in this case corroborate the concern I
expressed in Pate as to " the continued viability of the
crime of menacing" if Pate were to be followed. 145
So.3d at 740 (Murdock, J., dissenting). Indeed, in contrast
to Justice Shaw (whose views generally coincide with mine), I
believe the present case presents no less a manifestation,
and perhaps an even stronger manifestation, of this concern
than do the facts and the result in Pate.
is a Class B misdemeanor and is defined simply as follows:
" A person commits the crime of menacing if, by physical
action, he intentionally places or attempts to place another
person in fear of imminent serious physical injury."
§ 13A-6-23(a), Ala. Code 1975. To prove that the
misdemeanor of menacing has occurred the State must prove
simply (1) some " physical action," by which (2)
the defendant " intentionally place[d] or attempt[ed] to
place" another in fear of " imminent serious
main opinion in Pate took the position that, as a matter of
law, the act of retrieving a firearm did not constitute
" physical action" for purposes of satisfying the
first element of menacing. Obviously, this is a position with