Terrance Rashuan Moore v. State of Alabama

Rel: February 10, 2023

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

_________________________

CR-2022-0914

_________________________

Terrance Rashaun Moore

v.

State of Alabama

Appeal from Lamar Circuit Court

(CC-21-64)

WINDOM, Presiding Judge.

Terrance Rashaun Moore appeals his conviction for first-degree

elder abuse, see § 13A-6-192, Ala. Code 1975.1 Moore was sentenced to

15 years in prison.

1Moore was acquitted of the offense of first-degree robbery.

CR-2022-0914

On the evening of July 11, 2020, Brenda Hunt was concerned about

a light-brown vehicle she did not recognize that had been parked in front

of her house for approximately an hour. Hunt, who was 70 years old, was

unsettled by the presence of the vehicle because she thought it may be

connected to suspected drug activity in the neighborhood. Hunt walked

outside to load some items into her vehicle, carrying with her a notepad

and a pencil. Hunt was intent on writing down the license-plate number

of the vehicle so that she could pass the information on to law

enforcement.

Hunt loaded the items into the trunk of her vehicle and then turned

to face the rear of the light-brown vehicle. Unaware that anyone was

inside the vehicle, Hunt recorded its license-plate number on her

notepad. Moore, though, was sitting inside the vehicle, and he saw Hunt

writing down his vehicle's license-plate number. Moore exited his vehicle

and approached Hunt. Moore asked Hunt if she had written down his

license plate number, and Hunt admitted that she had. Moore grabbed

Hunt by her arms and "twisted them" while cursing at her. (C. 101.)

Hunt released the notepad to Moore, who tore off the page on which Hunt

had written the license-plate number. Moore threw the notepad and pen

2

CR-2022-0914

on the ground and told Hunt, "You can have that." (C. 101.) Moore then

returned to his vehicle.

Moore's grabbing Hunt caused her to sustain tears in the skin on

her forearms. The injury to Hunt's left forearm in particular bled

profusely. Hunt returned to her house and telephoned her neighbor,

Mary McKay. As McKay was on her way to Hunt's house, she saw Moore

leave in the light-brown vehicle. McKay found Hunt inside her house

crying and shaking. McKay testified that Hunt had a towel wrapped

around her left arm. McKay contacted the Vernon Police Department,

and Officer Eric Tew responded to the scene. Officer Tew summoned an

ambulance, describing Hunt's apparent condition to be one of

"discomfort." (R. 100.) Emergency medical personnel checked Hunt's

arms for broken bones; however, they did not otherwise treat her injuries.

Hunt did not go the hospital for medical treatment.2

Hunt's son, Wesley Hunt, picked her up and took her to his house,

where his wife cleaned and bandaged Hunt's wounds. Wesley took

photographs of Hunt's arms, which were admitted into evidence and

2The record contains conflicting testimony as to whether Hunt

refused to go to the hospital for treatment or whether she was even asked

by medical personnel if she wanted to go.

3

CR-2022-0914

viewed by the jury. Along with a tear in the skin on Hunt's left forearm,

her arms were bruised. Several days after the assault, Hunt went to the

police department to give an official statement and to identify her

assailant. While there, police took additional photographs of Hunt's

arms. These photographs were also admitted into evidence and viewed

by the jury.

Months after the assault, Hunt was diagnosed with cancer.

Because of her diagnosis and judicial delays as a result of the COVID-19

pandemic, Hunt gave a video-recorded deposition during which she

testified about the assault and her injuries. Hunt passed away before

trial, and the video of her deposition was played and a transcript provided

for the jury.

In her deposition, Hunt testified that the wound to her left arm

resulted in a scar. Because Hunt wore long sleeves during her deposition,

her scar was not visible on camera during her testimony. Hunt displayed

her scar to the prosecutor when he questioned her about it; however, an

item in front of Hunt obstructed the view of the camera. Hunt's relatives

testified at trial that the scar remained until Hunt passed away. Two

4

CR-2022-0914

photographs of Hunt taken after the assault were admitted into evidence

to show the scar.

On appeal, Moore argues that the circuit court erred in denying his

motion for a judgment of acquittal. Moore asserts that his motion was

due to be granted because the State failed to prove that Hunt had

sustained a serious physical injury.

The circuit court's denial of Moore's motion for a judgment of

acquittal must be reviewed by determining whether there was sufficient

legal evidence before the jury at the time the motion was made from

which the jury by fair inference could find the defendant guilty. Adams

v. State, 336 So. 3d 673, 690 (Ala. Crim. App. 2020). "In deciding whether

there is sufficient evidence to support the verdict of the jury and the

judgment of the trial court, the evidence must be reviewed in the light

most favorable to the prosecution." Breckenridge v. State, 628 So. 2d

1012, 1018 (Ala. Crim. App. 1993) (citing Cumbo v. State, 368 So. 2d 871

(Ala. Cr. App. 1978)). The evidence in this case was largely uncontested;

even so, this Court recognizes that " '[c]onflicting evidence presents a jury

question which is not subject to review on appeal.' " Murphy v. State, 108

5

CR-2022-0914

So. 3d 531, 543 (Ala. Crim. App. 2012) (quoting Barnes v. State, 571 So.

2d 372, 374 (Ala. Crim. App. 1990)).

First-degree elder abuse, a Class A felony, occurs when "[a] person

… intentionally abuses or neglects any elderly person and the abuse or

neglect causes serious physical injury to the elderly person." § 13A-6-

192, Ala. Code 1975. An elderly person is defined as "[a] person 60 years

of age or older." § 13A-6-191(4), Ala. Code 1975.

Moore challenges the State's evidence only with respect to the

element of "serious physical injury." "Serious physical injury" is a

"[p]hysical 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." § 13A-1-2(14), Ala. Code 1975. 3 Here, there was no evidence

indicating that Hunt's injuries had created a substantial risk of death or

that she had suffered a protracted impairment of her health or of the

function of a bodily organ. Rather, the State offered evidence of Hunt's

3Subsequent to Moore's offense against Hunt, the definition of

"serious physical injury" in § 13A-1-2(14) was amended to include "a

penetrating gunshot wound inflicted by a firearm as defined in Section

13A–8–1." Act No. 2022-401, Ala. Acts 2022.

6

CR-2022-0914

scarring to show that she had suffered a "serious and protracted

disfigurement."

This Court recognized in Hunter v. State, 866 So. 2d 1177 (Ala.

Crim. App. 2003), the dearth of caselaw in Alabama on "serious and

protracted disfigurement":

" 'Here, we focus on the "serious and protracted

disfigurement" element of [§ 13A-6-20, Ala. Code 1975,

defining assault]. "Disfigurement" is defined as "[a]n

impairment or injury to the appearance of a person or thing."

Black's Law Dictionary 480 (7th ed. 1999). "Protracted" is

defined as "prolong[ed] in time or space." Merriam-Webster's

Collegiate Dictionary. (10th ed. 1999). ...

" 'Most Alabama cases discussing "serious physical

injury" concern "physical injury which creates a substantial

risk of death, or ... protracted impairment of health, or

protracted loss or impairment of the function of any bodily

organ." Thus, there is little guidance in Alabama caselaw

concerning what constitutes a serious and protracted

disfigurement. Some cases discussing serious and protracted

disfigurement also discuss the substantial risk of death or

protracted impairment of health. See Lee v. State, 727 So. 2d

887 (Ala. Crim. App. 1998) (in which this Court implied that

the mere presence of a scar resulting from a gunshot wound

will not elevate "physical injury" to "serious physical injury").

Other cases do not indicate which part of the statute is

implicated. See Pope v. State, 586 So. 2d 1003 (Ala. Crim.

App. 1991) (holding that testimony that the victim was

hospitalized for three days and was unable to work for one

and one-half months and that staples had to be used to hold

wound together, along with victim's exhibition of his scars to

the jury, was sufficient to present a jury question on the issue

of the existence of serious physical injury).

7

CR-2022-0914

" 'Other jurisdictions whose definition of serious physical

injury, like Alabama's, include a serious and protracted

disfigurement have found a scar sufficient to constitute

serious physical injury. See State v. Nival, 42 Conn. App. 307,

678 A.2d 1008 (1996) (where jury observed the victim's one-

half-inch facial scar and evidence was presented that the scar

was permanent there was sufficient evidence to create jury

question as to whether the victim had suffered a serious

physical injury); State v. Anderson, 370 N.W. 2d 703 (Minn.

Ct. App. 1985) (a long scar present two and one-half years

after the injury was a serious permanent disfigurement);

State v. Bledsoe, 920 S.W.2d 538 (Mo. Ct. App. 1996) (a one-

and-one-half-inch cut on the victim's chin leading to scarring,

a one-and-one-half-inch scar on lower lip, and a scar between

her eyes constituted serious disfigurements); State v. Pettis,

748 S.W.2d 793 (Mo. Ct. App. 1988) (holding that serious

physical injury as applied to first-degree assault would

include a four-inch permanent scar as a result of a knife

wound); People v. Wade, 187 A.D.2d 687, 590 N.Y.S.2d 245

(1992) (a scar that was visible eight months after victim's face

was cut with a razor from ear to mouth was serious

permanent disfigurement); People v. Greene, 488 N.Y. S.2d

812, 111 A.D.2d 183 (1985) (serious physical injury includes a

knife wound on the victim's neck that required 120 stitches to

close and that resulted in a substantial keloid scar).' "

Hunter, 866 So. 2d at 1179-80. This Court's opinion in Hunter makes it

clear that scarring may constitute a disfigurement sufficient to satisfy

the element of "serious physical injury." Further, the Alabama Supreme

Court has held, after quoting heavily from Hunter, that "testimony from

a lay witness can be sufficient to establish ['serious and protracted

8

CR-2022-0914

disfigurement'] for submission of the case to a jury." Reck v. State, 84 So.

3d 155, 158 (Ala. 2011).

Scars, by their nature, tend to be protracted disfigurements –

Hunt's son testified that she had a scar on her left forearm until she died,

some 19 months after the assault. The question in this case is whether

there was sufficient evidence indicating that Hunt suffered serious

scarring due to Moore's assault. Although this Court has addressed

whether a scar could constitute a "serious physical injury," Alabama

courts have set forth little guidance on what constitutes a serious

disfigurement.

The legislative choice to qualify disfigurement with "serious"

evidences an intent to require the presence of some other factor beyond a

scar to render the scar a "serious" disfigurement. Compare Hunter,

supra (pronounced scar on victim's face from knife cut was a "serious

physical injury") and Dailey v. State, 316 So. 3d 253 (Ala. 2020) (scarring

from hot grease along with other injuries sufficient to establish "serious

physical injury") with Lee v. State, 727 So. 2d 887 (Ala. Crim. App. 1998)

(scar from bullet wound not "serious physical injury") and Vo. v. State,

612 So. 2d 1323 (Ala. Crim. App. 1992) (bullet wound through arm was

9

CR-2022-0914

not "serious physical injury"). Although ordinarily a factual question for

the jury, there is a legal distinction between "physical injury" and

"serious physical injury" that is not a purely subjective matter.

As this Court considers the difference between disfigurement and

serious disfigurement, it is important to establish the meaning of

"serious," specifically as it relates to an injury. Black's Law Dictionary

1371 (9th ed. 2009) defines "serious," in pertinent part, as "dangerous;

potentially resulting in death or other severe consequences." Miriam-

Webster's Collegiate Dictionary (11th ed. 2020) defines "serious," in

pertinent part, as "having important or dangerous possible

consequences" and "excessive or impressive in quality, quantity, extent,

or degree." Other jurisdictions have applied similar definitions to

"serious" as a qualifier to "disfigurement" in their statutes. See Williams

v. State, 248 Ga. App. 316, 318, 546 S.E. 2d 74 (2001) ("grave, or great");

State v. Silva, 75 Haw. 419, 864 P.2d 583 (1993) ("giving cause for

apprehension; critical"); State v. Clark, 974 A.2d 558, 573 (R.I. 2009)

("grave and not trivial in quality or manner."); People v. McKinnon, 15

N.Y.3d 311, 937 N.E.2d 524 (2010) (stating that "serious disfigurement"

is an injury that would make the victim's appearance distressing or

10

CR-2022-0914

objectionable to a reasonable person observing her); Hernandez v. State,

946 S.W.2d 108, 113 (Texas App. 1997) (a "significant cosmetic deformity

caused by the injury.").

Thus, to disfigure seriously must be to inflict some harm

substantially greater than the minimum required for disfigurement. The

disfigurement does not have to rise to the level of "severe" disfigurement

such that it is shocking or extremely unsightly to a reasonable person;

the disfigurement should, however, be significant and of such a character

that it substantially detracts from the appearance of the person bearing

the disfigurement. Some factors to consider in determining the

seriousness of a disfigurement in the form of a scar include its

permanence, location, size, and general appearance or nature. Other

jurisdictions have considered the cumulative effect of several disfiguring

features in assessing seriousness. State v. Anderson, 16 Conn. App. 346,

547 A.2d 1368 (1988); Levin v. State, 334 Ga. App. 71, 778 S.E.2d 238

(2015). Serious disfigurement does not necessarily have to be permanent

or in a location that is readily visible to others. In offering guidance, this

Court does not strive to set forth a strict formula for weighing factors.

For example, a highly prominent scar in a less visible location may

11

CR-2022-0914

constitute serious disfigurement, just as a less prominent scar in a more

visible location – such as one's face – may constitute serious

disfigurement.

With these principles in mind, we turn to the evidence of the

injuries sustained by Hunt as a result of Moore's assault. The record

contains pictures of the injuries taken the day of the assault and a few

days after the assault. The pictures depict bruises and some abrasions.

Hunt's left arm sustained the most significant injury with a tear to her

skin. Hunt did not receive any professional medical attention to treat the

damage to her skin. Hunt displayed her injury to the prosecutor at her

deposition, though the jury was unable to view it as her arm was blocked

from the camera. Two photographs of Hunt taken after the wound on her

left arm had healed were admitted into evidence; however, the

photographs are of Hunt at a distance of several feet and do not clearly

depict her scar.

This limited record is not sufficient to support a finding of serious

disfigurement. It shows no more than that Hunt had a scar of

approximately an inch on her forearm. Although it is certainly a

disfigurement, no basis appears in the record for finding it to be "serious"

12

CR-2022-0914

as we define the term. The mere existence of such a scar, considering its

size and location, would not make the victim's appearance distressing or

objectionable to a reasonable person observing her. To declare this

evidence sufficient to establish a serious disfigurement would be to

undermine the legislative intent behind the definition of "serious

physical injury" in § 13A-1-2(14), Ala. Code 1975.

It is neither this Court's intent to trivialize Hunt's injuries nor to

condone Moore's actions. Certainly, this experience and disfigurement

were significant to Hunt. Nonetheless, the evidence presented does not

support a conviction for first-degree elder abuse as the statute is written.

Therefore, it is the judgment of this Court that the circuit court erred in

denying Moore's motion for a judgment of acquittal and that Moore's

conviction for first-degree elder abuse is due to be reversed.

However, the circuit court's charge to the jury also included an

instruction on the lesser-included offense of second-degree elder abuse.

According to § 13A-6-193(a)(1), Ala. Code 1975, "[a] person commits the

crime of elder abuse in the second degree if he …[i]ntentionally abuses or

neglects any elderly person and the abuse or neglect causes physical

injury to the elderly person." A "physical injury" is an "[i]mpairment of

13

CR-2022-0914

physical condition or substantial pain." § 13A-1-2(12), Ala. Code 1975.

The evidence presented at trial would support a finding that Hunt

suffered a "physical injury." Therefore, we remand this cause to the

circuit court with instructions that Moore's conviction for first-degree

elder abuse be set aside, that Moore be adjudged guilty of second-degree

elder abuse, and that Moore be sentenced, in open court with the presence

of counsel, for that offense. See §§ 13A-6-193 and 13A-5-6, Ala. Code

1975. See Brand v. State, 960 So. 2d 748 (Ala. Crim. App. 2006) (holding

that appellate courts have the authority to reverse a conviction and order

an entry of judgment on a lesser-included offense). 4 The trial court shall

take all necessary action to see that the circuit clerk makes due return to

this Court at the earliest possible time and within 42 days after the

release of this opinion. The return to remand shall include a transcript

of the remand proceedings conducted by the circuit court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Kellum, Cole, and Minor, JJ., concur. McCool, J., recuses himself.

4Moore also argued on appeal that a presentence report was never

produced and that, therefore, he was improperly sentenced by the circuit

court. In light of our reversal, we pretermit discussion of this issue.

14