Full Opinion (html_with_citations)

Rel: December 16, 2022




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                 Alabama Court of Criminal Appeals
                               OCTOBER TERM, 2022-2023
                                _________________________

                                          CR-20-1012
                                   _________________________

                                    Amber Nicole Douglas

                                                      v.

                                            City of Mobile

                          Appeal from Mobile Circuit Court
                                    (CC-21-685)

McCOOL, Judge.

        Amber Nicole Douglas appeals her conviction in the Mobile Circuit

Court for menacing, see § 13A-6-23, Ala. Code 1975, and her resulting
CR-20-1012

sentence of 30 days in the Mobile County Metro Jail.1 Her sentence was

suspended, and she was ordered to serve six months on probation. She

was also ordered to pay a $100 fine, court costs, and $25 to the Victims

Compensation Fund. Douglas was also ordered to have no contact with

the Purple Cow store or the victim.

     The following evidence was presented at trial:

     Nyandra Merery, an employee of the Purple Cow gasoline service

station and convenience store in Mobile, testified that she was working

at the Purple Cow on July 1, 2019. Merery stated that there had recently

been potential tension and discussion among the employees of the Purple

Cow based on some prior incidents that had occurred between an

employee's girlfriend and other employees. According to Merery, another

employee at the Purple Cow, Bobby Jet, was in a relationship with

Douglas. Merery testified that Douglas did not want Bobby working with

female cashiers and that Douglas had been coming to the Purple Cow and

"getting into … altercations." (R. 9.) Merery testified that, because of the

tension caused by Douglas, the owner of the store viewed recordings from


     1Douglas     was originally charged and convicted in the Mobile
Municipal Court of the offense of menacing. On March 22, 2021, Douglas
filed a notice of appeal for a trial de novo in the Mobile Circuit Court.
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CR-20-1012

the video camera at the store. As a result, some time before July 1, the

store owner held an employee meeting about the matter and banned

Douglas from entering the store.

     Merery testified that on the evening of July 1, 2019, Bobby was

assigned to relieve her from her shift. That evening, when she was

supposed to be getting off work, Merery observed Bobby and Douglas

arguing outside the front door of the store. Merery stated that Bobby then

"slammed the door [open]" and walked to the back of the store. Douglas

then opened the door and began stepping in and out of the door

repeatedly, which caused the "notification noise" to keep alarming. (R.

14.) According to Merery, Douglas started screaming, "Hello. Hello. I

need some fucking gas. I know you fucking hear me." (R. 14.) Merery

stated that Bobby was ignoring Douglas. Merery then walked to the back

of the store to use the restroom before leaving the store. When Merery

returned from the restroom, Douglas was no longer in the store. Merery

stated that she then clocked out, retrieved her belongings, and went out

the back door to her vehicle.

     According to Merery, as she got into her vehicle and "hit reverse,"

Douglas "swung [her vehicle] around behind [Merery's vehicle]." (R. 16.)


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CR-20-1012

Merery stated that Merery's vehicle door was still open at this time.

Douglas began screaming at Merery. Merery said that Douglas's vehicle

was "right behind" Merery's vehicle and that Douglas had Merery's

vehicle blocked in. (R. 17.) According to Merery, because the driver side

of Douglas's vehicle was closest to Merery's vehicle, the distance between

Douglas and Merery was approximately the distance between Merery's

driver door to the back of Merery's vehicle. Merery testified that Douglas

was screaming, "Bitch, what was you laughing at? Bitch, I will hit you

upside the head with this – Bitch, I will crack your fucking skull and hit

you upside the head with this tire iron." (R. 18.) As Douglas was

screaming, she was waving an "iron object" out of her window. (R. 18.)

Douglas did not get out of her own vehicle.

     Merery stated that she yelled, "[Douglas,] what's your problem?" (R.

18.) However, Douglas pulled away. Merery then started to close her door

and put her vehicle into reverse, but Douglas returned and blocked

Merery in again with her vehicle. According to Merery, Douglas blocked

her in "six or seven times." (R. 19.) Merery called the police. Merery

testified that she was scared for her safety because she thought Douglas

was going to hit her with the tire iron. When Merery got on the phone


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CR-20-1012

with the police, she was able to drive to the front of the store once

Douglas's vehicle was not behind her vehicle. Merery testified that, as

she was driving to the front of the store to "go to an open area and go

underneath the gas pump" area, Douglas "almost hit [Merery's vehicle]

with her car." (R. 21.) Merery stated that if she had not hit the gas pedal

"real fast," Douglas "would have smashed into [her vehicle.]" (R. 21.)

Douglas then drove off and Merery stayed on the phone with the police

dispatcher until the police arrived at the scene.

      Merery testified that, when the officer arrived to the scene, he

talked to her, viewed the video evidence from the store's surveillance

cameras, and then "authorized a complaint for harassment"; however,

when Merery went to the magistrate's office to obtain the warrant as

directed by the officer, the magistrate changed the charge "from

harassment to menacing." (R. 24.)

      The City rested its case and the defense moved for a judgment of

acquittal, claiming that there was no evidence indicating that Douglas

took any physical action that would place Merery in fear of imminent

serious physical injury. The court denied Douglas's motion for a judgment

of acquittal.


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CR-20-1012

       Bobby Jet testified on Douglas's behalf. Bobby testified that he

came into the store on the night of July 1, 2019, with Douglas and their

child, who was in his baby carrier. Bobby denied arguing with Douglas.

Bobby claimed that Douglas was standing at the counter talking to him

when Merery came up to them and began "cursing" at Douglas. (R. 45.)

Bobby claimed that Douglas and Merery both left out of the front door of

the store. Bobby stated that Douglas placed the child back into their

vehicle and got into her vehicle. He testified that Merery then went to

the back of the store, got into her vehicle, and drove her vehicle to the

front of the store where she pulled up behind Douglas's vehicle, blocking

Douglas in. Bobby stated that he knows that there was not a tire tool in

Douglas's vehicle. According to Bobby, before the July 1, 2019, incident,

management had not told him that Douglas was banned from the store;

rather, he claimed, management told him to "control [his] woman." (R.

50.)

       Douglas also testified in her own behalf. She denied arguing with

Bobby on the night of the incident, and she claimed that she went inside

the store with her baby to get a drink. Douglas testified that she was at

the counter talking to Bobby when Merery, who was on her way out the


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CR-20-1012

front door, turned around and began cursing her. Douglas claimed that

Merery threatened to get a taser out of her vehicle, so Douglas "ran out"

the front door to her own vehicle, put her baby in her vehicle, and called

9-1-1 to report the threat. Douglas claimed that she pulled around to the

back of the store to get Merery's license-plate number, but "did not pull

up to block [Merery] in." (R. 57.) She claimed that her passenger side door

was closest to Merery's vehicle, and that she "got [Merery's] license plate

[information] real quick and went back to the same parking spot that

[she] was in" at the front of the store. (R. 57.) Douglas claimed that she

did not have a tire tool in her hands or in her vehicle. Douglas claimed

that, after she had returned to the front of the store, Merery drove to the

front of the store and blocked Douglas's vehicle in, requiring Douglas to

"inch" back to try to get out of the parking spot. (R. 58.) She stated that

she eventually called 9-1-1 again, told them that she had to leave because

she was in fear for her life, and gave the officers her address and phone

number to contact her.

     At the conclusion of the trial, the circuit court found that Douglas

was guilty of the charge of menacing. This appeal followed.




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CR-20-1012

      On appeal, Douglas's sole contention is that there was insufficient

evidence presented to convict her of the offense of menacing because, she

says, the City failed to establish that she used "physical action" and that

she placed Merery in "fear of imminent serious physical injury."

(Douglas's brief, at 8.)

      Because this was a bench trial, the trial judge was the trier of fact.

This Court has held:

      " ' "When evidence is presented ore tenus to the trial court, the
      court's findings of fact based on that evidence are presumed
      to be correct," Ex parte Perkins,
646 So. 2d 46, 47
 (Ala. 1994);
      "[w]e indulge a presumption that the trial court properly ruled
      on the weight and probative force of the evidence," Bradley v.
      State,
494 So. 2d 750, 761
 (Ala. Crim. App. 1985), aff'd,
494 So. 2d 772
 (Ala. 1986); and we make " 'all the reasonable
      inferences and credibility choices supportive of the decision of
      the trial court.' " Kennedy v. State,
640 So. 2d 22, 26
 (Ala.
      Crim. App. 1993), quoting Bradley, 494 So. 2d at 761.
      " ' "Where evidence is presented to the trial court ore tenus in
      a nonjury case, a presumption of correctness exists as to the
      court's conclusions on issues of fact; its determination will not
      be disturbed unless clearly erroneous, without supporting
      evidence, manifestly unjust, or against the great weight of the
      evidence." ' " Ex parte Jackson, 886 So. 2d [155] at 159 [(Ala.
      2004)], quoting State v. Hill,
690 So. 2d 1201, 1203
 (Ala.
      1996), quoting in turn Ex parte Agee,
669 So. 2d 102, 104
      (Ala.1995).

            " 'However, "[t]he ore tenus presumption of correctness
      applies to findings of fact, not to conclusions of law." City of
      Russellville Zoning Bd. of Adjustment v. Vernon,
842 So. 2d 627, 629
 (Ala. 2002). "[T]he ore tenus rule does not extend to

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CR-20-1012

     cloak a trial judge's conclusions of law, or incorrect application
     of law to the facts, with a presumption of correctness."
     Eubanks v. Hale,
752 So. 2d 1113
, 1144–45 (Ala. 1999).
     " ' "[W]hen the trial court improperly applies the law to the
     facts, no presumption of correctness exists as to the court's
     judgment." ' " Ex parte Jackson, 886 So. 2d at 159, quoting
     Hill,
690 So. 2d at 1203
, quoting in turn, Ex parte Agee,
669 So. 2d at 104
. Thus, we review the trial court's conclusions of
     law and its application of law to the facts under the de novo
     standard of review.' "

Bailey v. City of Ragland,
136 So. 3d 498, 502
 (Ala. Crim. App. 2013),

quoting Washington v. State,
922 So.2d 145
, 157–58 (Ala. Crim. App.

2005).

     Section 13A-6-23(a), Ala. Code 1975, provides that "[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." "Serious physical injury" is defined, in pertinent part,

as "physical injury which creates a substantial risk of death, or which

causes serious and protracted disfigurement, protracted impairment of

health, or protracted loss or impairment of the function of any bodily

organ."

     Douglas relies on the Alabama Supreme Court's holding in Ex parte

Pate,
145 So. 3d 733
 (Ala. 2013) to support her contention that there was

insufficient evidence establishing that she used "physical action" and

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CR-20-1012

that she placed Merery in "fear of imminent serious physical injury." In

Pate, the Alabama Supreme Court held that an appellant's arming

himself, "without more, was not sufficient to establish the physical-action

element of menacing."
145 So. 3d at 738
. However, this case is

distinguishable from Pate. In the present case, Douglas did not merely

arm herself. Rather, evidence was presented that established that

Douglas pulled her vehicle in behind Merery's vehicle, blocking Merery's

vehicle into the parking space so that Merery could not leave. Merery

testified that Douglas then rolled down her window, held a tire iron out

of the window, and screamed at Merery that she would "crack [her]

fucking skull and hit [her] upside the head with th[e] tire iron." (R. 18.)

At the time, the distance between the women was the distance between

Merery's open driver's door to the back of her vehicle. Although Douglas

and Bobby provided evidence to the contrary, any "conflict between the

State's evidence and that offered by the appellant [goes] to the weight of

the evidence and [creates] questions of fact to be resolved by the [trier of

fact]." Rowell v. State,
647 So. 2d 67, 69-70
 (Ala. Crim. App. 1994).

Therefore, considering all the evidence presented by the City, there was

sufficient evidence to support the element of physical action for the


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CR-20-1012

offense of menacing. Because the City established a prima facie case of

menacing, we will not disturb the fact finder's determination of guilt.

     Based on the foregoing, the judgment of the circuit court is

affirmed.

     AFFIRMED.

     Windom, P.J., and Kellum, Cole, and Minor, JJ., concur.




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