Amber Nicole Douglas v. City of Mobile ( 2022 )

Rel: December 16, 2022
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
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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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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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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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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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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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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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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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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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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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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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