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Moore v. State

Alabama Court of Criminal Appeals

May 24, 2019

Lance Lamar Moore
v.
State of Alabama

          Appeal from Madison Circuit Court (CC-16-1078)

          PER CURIAM.

         The appellant, Lance Lamar Moore, appeals his convictions for third-degree domestic violence based on third-degree assault, see § 13A-6-132, Ala. Code 1975 ("domestic-violence assault"), and for third-degree domestic violence based on menacing ("domestic-violence menacing"), see § 13A-6-132, Ala. Code 1975. Moore was sentenced to one year's imprisonment for each conviction, and those sentences were to run consecutively. Moore was also ordered to pay a $100 bail-bond fee for each count, a $500 victim-compensation assessment, and a $500 fine.

         The evidence at trial indicated the following. Moore and Patrice Legrone were in a dating relationship from 2013 through part of 2015. According to Legrone, about two months into the relationship, Moore began getting violent with her. During much of that time, Moore lived with Legrone in Huntsville. In June 2015, however, Moore went to live with some of his relatives.

         On June 12, 2015, Moore telephoned Legrone and told her that he wanted to see her. When Moore arrived at Legrone's residence, he went to her car and looked through some papers. He then went to her front door. Legrone stated that she was hesitant to let Moore in because he appeared very agitated.

         When Legrone opened the front door, Moore pushed his way in and demanded Legrone's cellular telephone to see with whom she had been communicating. According to Legrone, Moore told her that if she did not give him the phone, he would beat her. When Legrone hesitated, Moore began hitting her in the face and head until she finally gave him the phone.

         Legrone testified that after Moore went through the messages on her phone, he began beating her again. Legrone said that she tried to get away from Moore by running upstairs but that he came up behind her, pinned her to her bed, and put his hands around her neck. Although Legrone tried to escape by running into her bathroom, Moore followed her, grabbed her, slammed her around the bathroom, and hit her in the face. He then strangled Legrone until she lost consciousness.

         When Legrone regained consciousness, she left the bathroom and saw Moore sitting at the kitchen table again going through messages on her cellular telephone. As she tried to calm Moore down, Moore grabbed a kitchen knife, held it to her side, and said, "Bitch, I will kill you." (R. 101, 103-104.) Legrone testified that she was afraid for her life.

         Legrone testified that she tried to escape by running toward the garage but that Moore caught up with her and slammed her into the clothes dryer. According to Legrone, Moore eventually stopped beating her after he became exhausted. She also said that, in order to calm him down, she told him that she would marry him. Moore then left and Legrone drove to a nearby gas station and telephoned the police.

         Moore testified in his own defense. He admitted that he went to Legrone's house on June 12. He testified that he and Legrone fought after he confronted her about her "messing around." According to Moore, he found evidence that Legrone had been "sexting" another man.[1] (R. 224-26.) He testified that Legrone hit him first and that it, "you know, went from there." (R. 226.) He admitted to slapping Legrone, but he denied strangling her or threatening her with a knife. He denied that Legrone ever lost consciousness. He testified that Legrone had pulled the knife and had tried to cut him with it, although he said the knife had only scratched him. He offered into evidence a shirt with a slash mark.

         Law-enforcement officers documented Legrone's injuries, which included black eyes, injured lips, bruises on her chin and her neck, an injured nose, loose teeth, and injured sinuses. Legrone testified that she was in pain for two weeks. She also stated that she obtained a protective order against Moore and moved to Georgia to "start her life over." (R. 107-08.)

         On March 11, 2016, the Madison County Grand Jury indicted Moore on one count of domestic violence by strangulation, see § 13A-6-138, Ala. Code 1975; one count of domestic-violence assault, see § 13A-6-132, Ala. Code 1975; and one count of domestic-violence menacing, see § 13A-6-132, Ala. Code 1975. Moore's trial began on September 26, 2017. The next day, the jury found him guilty of the domestic-violence-menacing and domestic-violence-assault charges. The jury acquitted Moore of the charge of domestic violence by strangulation or suffocation.

         On October 23, 2017, Moore was sentenced to one year's imprisonment on each conviction. On November 22, 2017, he filed a motion for a new trial. That motion was denied on December 4, 2017, following a hearing. Moore filed a timely notice of appeal.

         I.

         Moore contends that his convictions and sentences for domestic-violence assault and domestic-violence menacing violate principles of double jeopardy.[2] (Moore's brief, pp. 11-13.) The record, however, does not affirmatively establish that a double-jeopardy violation, in fact, occurred in this case. Id.

"'The Fifth Amendment's Double Jeopardy Clause protects against a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after conviction, and against multiple punishments for the same offense.' Woods v. State, 709 So.2d 1340, 1342 (Ala.Crim.App.1997). 'The clause applies to "multiple punishment" because, if it did not apply to punishment, then the prohibition against "multiple trials" would be meaningless; a court could achieve the same result as a second trial by simply resentencing a defendant after he has served all or part of an initial sentence.' United States v. Fogel, 829 F.2d 77, 88 (D.C. Cir. 1987)."

Lanier v. State, [Ms. CR-17-0429, July 13, 2018]__So. 3d__, __(Ala.Crim.App.2018) (emphasis added). In Birdsong v. State, [Ms. CR-15-1381, July 7, 2017] __So. 3d__, __(Ala.Crim.App.2017), this Court stated:

"In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court announced a two-pronged test for addressing this issue. First, the threshold inquiry under Blockburger is whether the alleged statutory violations arose from the same act or transaction. Id. at 304. Second, if the offenses did arise from the same act or transaction, then we must determine whether each offense requires proof of an additional fact which the other does not. Id. If each offense does not require proof of an additional fact that the other does not, then double jeopardy applies. Id. On the other hand, '"if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."' Id."

         With regard to the first prong from Blockburger, this Court has previously stated that, "[a]lthough a single crime cannot be split up into multiple offenses, ... '[w]hen the same conduct ... may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.'" Shelton v. State, 521 So.2d 1035, 1037 (Ala.Crim.App.1987) (holding that the elements of the robbery occurred when the defendant made a demand and threatened the victim with a weapon, whereas the attempted first-degree assault occurred as the victim was escaping). The State argues that the evidence in this case demonstrates each conviction arose out of different acts. (State's brief, p. 17.) Specifically, the State argues that the facts underlying the domestic- violence-assault conviction occurred when Moore beat Legrone until she was unconscious. Id. When Legrone regained consciousness sometime later and approached Moore, Moore grabbed a kitchen knife and threatened to kill Legrone. (R. 101-04.) The State contends that the incident involving the knife formed the basis for the domestic-violence-menacing conviction and thus was separate and distinct from the domestic-violence assault. (State's brief, p. 17.)

         The indictment charging Moore with domestic-violence assault and domestic-violence menacing reads, in relevant part:

"Count 2
"The Grand Jury of said County charge, that before the finding of this Indictment, LANCE LAMAR MOORE, whose name is unknown to the Grand Jury other than as stated, did, with intent to cause physical injury to another person, cause physical injury to another person, to-wit: Patrice Legrone, the said Patrice Legrone being a ... person who ... had a dating ... relationship with the defendant, in violation of Section 13A-6-132 of the CODE OF ALABAMA, against the peace and dignity of the State of Alabama.
"Count 3
"The Grand Jury of said County charge, that before the finding of this Indictment LANCE LAMAR MOORE, whose name is unknown to the Grand Jury other than as stated, did, commit the crime of Menacing in violation of Section 13A-6-23 of the CODE OF ALABAMA, in that the said defendant did, by physical action, to-wit: pulled a knife and poked the victim multiple times while threatening to kill her, intentionally place or attempt to place another person, to-wit: Patrice Legrone, in fear of imminent serious physical injury, and the victim being a ... person who ... had a dating ... relationship with the defendant, in violation of Section 13A-6-132 of the CODE OF ALABAMA, against the peace and dignity of the State of Alabama."

(C. 12.)

         The circuit court gave the following instructions to the jury for the charges quoted above:

"A person commits the crime of domestic violence in the third degree if he commits the crime of assault in the third degree and the victim is a person who had a dating relationship with the defendant.
"To convict, the State must prove beyond a reasonable doubt each of the following elements:
"One, that the Defendant, Lance Moore, caused physical injury to any person, namely, Patrice Legrone;
"Two, that the Defendant acted with intent to cause physical injury to another person, and;
"Three, that the victim, Patrice Legrone, has or had a dating relationship with the Defendant.
"....
"A person commits the crime of domestic violence in the third degree if he commits the crime of menacing third degree and the victim is a person who has or had a dating relationship with the Defendant.
"To convict, the State must prove beyond a reasonable doubt each of the following elements:
"That the Defendant, Lance Moore, intentionally placed or attempted to place another person in fear of physical injury;
"Two, that the Defendant intended to place a person or other people in fear of eminent, serious physical injury, and
"Three, that the Defendant--I'm sorry, the victim, Patrice Legrone, has or had a dating relationship with the defendant."

(R. 290-92.)

         Legrone's testimony was extensive and detailed. She testified, in relevant part:

" Q. Do you know about how many times he hit you in the face?
"A. Maybe five or six in the first--we went through different parts of the house fighting. The living room and the kitchen are kind of connected. So we went--we started out in the living room when he came through the door and we sat down to talk.
"It ended up with me giving him the phone. He went through the phone for awhile. He ran upstairs. He chased me upstairs. He beat me upstairs. He grabbed me around my neck. He choked me upstairs.
"And his signature move was to cover--because he knows I hated it--he would cover my nose and cover my mouth at the same time and kind of muzzle me to the floor.
"Q. Let me back up a little bit. You said he hit you multiple times in the face?
"A. Yes.
"Q. Where in the house were you when that happened?
"A. In the kitchen.
"Q. And did he hit you anywhere else on your body?
"A. Yes.
"Q. Where else on your body did he hit you?
"A. I had bruises on my arms. I had bruises on my legs. I fell a couple of times. I was trying to break away from him. I tried to break for the garage. I tried to break for the back door. I tried to jump out of my bedroom window. ...

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