Thomas v. United States

T
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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 19-CM-817

                          CHANTEL THOMAS, APPELLANT,

                                         V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                 (CMD-5497-19)

                     (Hon. Patricia A. Broderick, Trial Judge)

(Submitted November 2, 2020                                 Decided May 6, 2021)

      Russell A. Bikoff was on the brief for appellant.

      Timothy J. Shea, United States Attorney at the time the brief was filed, and
Elizabeth Trosman, Elizabeth H. Danello, Michael McCarthy, and Randle T.
Wilson, Assistant United States Attorneys, were on the brief for appellee.

      Before GLICKMAN, THOMPSON, and BECKWITH, Associate Judges.


      GLICKMAN, Associate Judge:        Appellant Chantel Thomas challenges the

sufficiency of the evidence supporting her convictions for simple assault 1 and


      1
          D.C. Code § 22-404 (2012 Repl. & 2020 Supp.).
                                            2

attempted threats to do bodily harm. 2 Because the evidence was sufficient to

establish the former but not the latter, we affirm the simple assault conviction and

reverse the attempted threats conviction.



                                            I.



      On April 21, 2019, around 3:30 a.m., Officer Omar James and Officer

Arnold Corporan responded to a report of two men fighting in a residential street.

The officers detained the two individuals and began questioning them in the street.

Moments later, appellant, who was in a relationship with one of the individuals,

approached from behind the officers, which prompted Officer James to tell her not

to “walk up on [them] like that” and repeatedly ordered her to step back.

Appellant did not comply, so Officer James “held her by the arms and pushed her

away.” Appellant then became “belligerent and aggressive.” She was calling

Officer James names, telling him not to shove her again, and threatening to spit on

him. She approached the officers again, and Officer James again pushed her away.

When appellant approached a third time, still yelling at Officer James, Officer

James grabbed her and pushed her to a “safe distance” on the sidewalk.           In



      2
          D.C. Code § 22-407, -1803 (2020 Supp.).
                                         3

response, appellant “started flailing and swinging at [Officer James] and pushing,”

even “mak[ing] contact” with him.        Officer James tried placing appellant in

handcuffs, but appellant fell to the ground. Two officers who had just arrived on

the scene, Officers Linda Muse and Melanique Rich, helped place appellant in

handcuffs.



      Once appellant was safely detained, Officers Muse and Rich watched over

her while Officer James returned to Officer Corporan and the two men. At this

point, appellant was on the sidewalk with her hands cuffed behind her back and

two officers standing directly in front of her. Officer James was in the middle of

the street, about ten to twelve feet away from appellant. Appellant continued

calling Officer James names and threatening to spit on him.           At one point,

appellant said that she “should” or “will” “take [his] gun and slap his bitch ass.” 3

There was no evidence about how Officer James perceived or reacted to this threat.



      Appellant was charged with simple assault for swinging at Officer James

after he pushed her to the sidewalk, and attempted threats to do bodily harm for



      3
          Officer James testified that appellant told him that she would “smoke [his]
bitch ass,” but it is clear from the body-worn camera footage that she said “slap
[his] bitch ass.”
                                           4

telling Officer James that she “should” or “will” “take [his] gun and slap his bitch

ass.” At appellant’s bench trial, the government presented the foregoing testimony

from Officer James, as well as body-worn camera footage from Officers Corporan

and Rich. The defense did not present any evidence, and appellant did not testify.



      The trial court found appellant guilty on both charges. Relying heavily on

the body-worn camera footage, the trial court found that “everything [it] saw was

consistent with [Officer James’s] words about what happened.” On the simple

assault charge, the trial court found that appellant “did actually swing at [Officer

James] in a punch-like manner. He stood his ground at one point, and she charged

him twice.” The court also found “that the first thing you notice about that video is

it’s shocking how roughly [Officer James] pushes [appellant].” Nonetheless, the

court found that Officer James did not use excessive force. On the attempted

threats charge, the trial court was not sure “if the threat was I should or I will” but

found that “it’s very clearly a threat” either way.



                                          II.



      Appellant claims the evidence was insufficient to support either conviction.

We review this challenge de novo, viewing the evidence in the light most favorable

to the prosecution, and affirming a conviction if “any rational trier of fact could
                                         5

have found the essential elements of the crime beyond a reasonable doubt.” 4 With

respect to bench trials, our review is “deferential to the prerogatives and

advantages of the trial judge,” and “[w]e will not disturb the trial judge’s factual

findings unless we can conclude they were plainly wrong or without evidence to

support them.” 5



                                        A.



      To prove simple assault (i.e., attempted-battery assault), we have said the

government must show “(1) an act on the part of the defendant; (2) the apparent

present ability to injure the victim at the time the act is committed; and (3) the

intent to perform the act which constitutes the assault at the time the defendant

commits the act.” 6 Appellant challenges the second element, claiming she lacked


      4
        Powell v. United States, 

238 A.3d 954

, 957 (D.C. 2020) (quoting Solon v.
United States, 

196 A.3d 1283

, 1289 (D.C. 2018)).
      5
          Augustin v. United States, 

240 A.3d 816

, 823–24 (D.C. 2020).
      6
         Vines v. United States, 

70 A.3d 1170

, 1179 (D.C. 2013); accord Rogers v.
United States, 

222 A.3d 1046

, 1053 (D.C. 2019). In Perez Hernandez v. United
States, we have granted rehearing en banc to consider the elements of simple
assault, notably including whether the required mens rea is not merely intent to
perform the assaultive act, but an intent to injure the victim. 

207 A.3d 594

(D.C.
2019), vacated on grant of reh’g en banc, 

207 A.3d 605

(D.C. 2019). For present
purposes, we can assume the prosecution must prove intent to injure; appellant
does not contend there was insufficient proof of her intent.
                                          6

the “apparent present ability to injure” Officer James given the distance between

them, their “great” size disparity, and the fact that Officer James allegedly initiated

the use of force.



      Appellant’s arguments are not convincing. First, she was not too far away.

Officer James, whose testimony the trial court generally credited, testified that

appellant was “pretty close” to him; close enough, in fact, that she actually “ma[d]e

contact with [him].” Second, to prove simple assault, the threatened “injury” “may

be extremely slight,” 7 so the size disparity between appellant and Officer James

does not mean she lacked the apparent ability to “injure” him. In any event, a

reasonable juror could find that the threatened injury was not slight, given that

appellant “did actually swing at [Officer James] in a punch-like manner.” 8 Third,

even if Officer James shoved her first, appellant was not justified in responding

with force. A citizen may use force against an officer only to defend against

      7
           Ray v. United States, 

575 A.2d 1196

, 1198 (D.C. 1990); see also
Contreras v. United States, 

121 A.3d 1271

, 1275–76 (D.C. 2015) (holding that
attempted-battery assault is not a “crime of violence” under federal law because it
“can rest on the use or attempted use of force that does not rise to the level of
violent force as required under federal law”).
      8
           Appellant argues that she merely “flailed” her arms to express “her
impotence and helplessness” after being shoved by Officer James, as opposed to
swinging them in a “punch-like manner.” However, appellant gives us no reason
to think the trial court’s finding was clearly wrong.
                                          7

excessive force. 9 However, the trial court found that Officer James’s pushing of

appellant, albeit “shocking,” was not excessive. Appellant does not dispute this

finding, and we do not consider it plainly wrong.          Consequently, sufficient

evidence exists to show that appellant had the apparent present ability to injure

Officer James when she swung at him.



                                          B.



      To prove the completed offense of threats to do bodily harm, the government

must show (1) “the defendant uttered words to another person;” (2) “the words

were of such a nature as to convey fear of bodily harm or injury to the ordinary

hearer;” 10 and (3) the defendant “had the purpose or knowledge that his words

would be received as a threat.” 11 We analyze the elements of the completed

offense, because proof of the completed offense of threats suffices to support a

conviction for attempted threats. 12 Appellant disputes only the second element.

When considering whether appellant’s words could induce fear of bodily harm in

      9
           Speed v. United States, 

562 A.2d 124

, 128 (D.C. 1989).
      10
           Joiner-Die v. United States, 

899 A.2d 762

, 764 (D.C. 2006).
      11
           Carrell v. United States, 

165 A.3d 314

, 330 (D.C. 2017) (en banc).
      12
           Evans v. United States, 

779 A.2d 891

, 894 (D.C. 2001).
                                         8

an ordinary hearer under the circumstances, we consider “not just the words

uttered, but also the complete context in which they were used.” 13



      Here, appellant yelled at Officer James that she “should” or “will” “take

[his] gun and slap [his] bitch ass.” Putting aside any difference between “should”

and “will,” 14 we consider the statement facially threatening. It expressed a desire,

if not an intent, to physically harm Officer James. Appellant is not helped by the

fact that she yelled this on the heels of a hostile interaction with Officer James:

Officer James had pushed her so roughly the court deemed it “shocking,” and she

had “sw[u]ng at him in a punch-like manner” and “charged him twice.” Given this

conflict, an ordinary hearer could reasonably infer appellant would hurt Officer

James if she could.



      The critical fact, however, is that she could not. At the time appellant made

the statement at issue, Officer James was in the street, and appellant was on the

sidewalk, with her hands cuffed behind her back, and not one but two officers


      

13
Gray v

. United States, 

100 A.3d 129

, 136 (D.C. 2014).
      14
          The trial court could not determine whether appellant said “should” or
“will” based on the body-worn camera footage, but concluded it was “clearly a
threat” either way. Appellant does not argue that the difference in words matters,
so we decline to address it.
                                          9

standing guard in front of her. Despite these obstacles, the government argues that

appellant still could have carried out her alleged threat. That argument strains

credulity. To grab Officer James’s firearm and “slap” him, appellant would have

had to break out of her handcuffs, push past both officers in front of her, cover the

distance between herself and Officer James without being stopped by any of the

other officers at the scene, and grab his weapon off his own hip. If she does not

break out of her handcuffs, the chances of this happening plunge further. Two

cases are instructive on this point. In High v. United States, the appellant made the

allegedly threatening statements when “he was bound by handcuffs, seated on the

street curb, and was closely surrounded by at least three — possibly four — MPD

officers.” 15 Under those circumstances, we said “[i]t was clear that [the] appellant

‘no longer posed a threat’ to Officer Smith, if he ever did.” 16 Similarly, in Lewis v.

United States, another threats case, we noted that the “appellant only made the

statement after he was arrested and placed in handcuffs, when he no longer posed a

physical threat to the two officers.” 17 Here, appellant was restrained in comparable




      15
           High v. United States, 

128 A.3d 1017

, 1022 (D.C. 2015).
      16


Id.
17

           Lewis v. United States, 

95 A.3d 1289

, 1291 (D.C. 2014).
                                         10

fashion, so we are satisfied that she no longer posed a physical threat to Officer

James. 18



      Nor does her statement carry an “implied future threat” to “hunt down”

Officer James whenever she was released from custody. Absent any indication

that her statement “speaks to the future,” 19 such an inference is objectively

unreasonable. 20



      In similar circumstances — when a handcuffed defendant threatens a police

officer — we have deemed the utterance to be genuinely threatening to the

ordinary hearer only if there is a reasonable chance the defendant could still

execute the threat. For example, in Haney v. United States, the appellant, while


      18
           Of course, we have recognized in other contexts that handcuffed
individuals can still pose a present threat to themselves and others. See Germany
v. United States, 

984 A.2d 1217

, 1229 & n.16 (D.C. 2009). For instance, an
individual with his hands cuffed, even behind his back, might still be able to grab a
weapon hidden in their waistband. But given that appellant threatened to grab a
weapon off someone else’s waistband some ten feet away, we are satisfied the
combination of behind-the-back handcuffs and dual guardians eliminated that risk.
      19
            

High, 128 A.3d at 1022

.
      20
         See

id. at 1021–22

(concluding that ordinary hearer could not reasonably
presume the statement “carried an implied future threat” to “hunt down” the officer
where appellant told officer, “take that gun and badge off and I’ll fuck you up”
(quoting 

Lewis, 95 A.3d at 1292

)).
                                         11

handcuffed at a hearing, told a detective seated in the courtroom audience, “I’m

going to fuck you up,” and mimicked a gun with his hand. 21 We held that the

appellant’s actions could reasonably be interpreted as a threat, despite the fact that

he was securely in custody, because “[i]t would not be unreasonable for the jury to

infer that [appellant’s] confederates could have” carried out the threat on

appellant’s behalf. 22 Similarly, in Clark v. United States, we found the evidence

sufficient to support a conviction for threats where a handcuffed appellant told an

officer, “You won’t work here again, wait until I tell the boys, they will take care

of you.” 23 The officer understood that to mean the “boys” would injure her on

appellant’s behalf. 24 In contrast, in High, where a handcuffed appellant told an

officer standing a few feet away, “take that gun and badge off and I’ll fuck you

up,” 25 we held the evidence was insufficient partly because “[i]t was clear that




      21
           

41 A.3d 1227

, 1229 (D.C. 2012).
      22


Id. at 1233–34.
23
755

A.2d 1026, 1028, 1031 (D.C. 2000).
      24


Id. at 1028.
25
128

A.3d at 1019.
                                           12

appellant ‘no longer posed a threat’” at that time, and the statement did not

“reasonably convey a desire or ability to inflict serious injury in the future.” 26



      Here, as previously discussed, there was no reasonable chance that appellant

could execute her threat. Her words do not give an ordinary hearer any reason to

think appellant meant for unspecified accomplices to execute the threat on her

behalf, and the government did not present any evidence supporting such an

understanding of her remark. 27 Accordingly, appellant’s case is more analogous to

High, where the court reversed a threats conviction, than to Clark, where the court

upheld it, and Haney, where the court found the statement sufficiently threatening

to an ordinary hearer. The government argues High is distinguishable because the

      26


Id. at 1022–23;

see also 

Lewis, 95 A.3d at 1290

–92 (holding that
evidence was insufficient to support threats conviction where handcuffed appellant
told officer “that he was lucky that [the officers] didn’t get him (arrest him) when [
] he had his gun on him, because he would have blown [an officer’s] god-damned
head off,” because it was “a past conditional statement that hinged on an
impossibility — appellant’s possession of a gun at the time of arrest”).
      27
          We take into account the fact that, as recorded in body-worn camera
footage of the incident, the two men detained in the street objected when Officer
James pushed appellant to the sidewalk and attempted to handcuff her. As Officers
Muse and Rich ran towards the scuffle, one of the men yelled, “Get his ass, man!”
(The identity of the person to whom he directed this exhortation is unclear.) But
this was a few minutes before appellant voiced her threat to take Officer James’s
gun. There is no evidence that either of the detained men (or anyone else) said or
did, or could have done, anything against the police in reaction to appellant’s
words.
                                          13

appellant’s threat in that case was conditional, whereas appellant’s statement here

was not. 28 We also recognize that High did not consider the statements facially

threatening, whereas we do vis-à-vis appellant.



      Even so, “context can make facially threatening words benign,” 29 and we are

satisfied that it does so here. An ordinary hearer would know that appellant

already swung at Officer James “in a punch-like manner.” But they would also

know that appellant’s hands are now cuffed behind her back, and two officers are

standing guard in front of her. Meanwhile, Officer James is still in the street, and

there is no evidence he thought appellant posed any risk at this time. Under these

circumstances, the ordinary hearer could not reasonably take appellant’s threat at

face value. Rather than a “serious threat of bodily harm,” her statements were a

“feisty lament, an ‘expression of [her] frustration’” over the prior alarming events

— being shoved by Officer James in a manner that “shock[ed]” the court, and

watching her boyfriend get arrested. 30




      28
          

High, 128 A.3d at 1022

(“[A]ppellant is communicating that if Smith
were not a police officer, then appellant would, in his words, “fuck [him] up.”).
      29
           

Gray, 100 A.3d at 136

.
      30
           

High, 128 A.3d at 1022

(quoting 

Lewis, 95 A.3d at 1291

).
                                           14

      That being said, appellant was convicted of attempted threats, not completed

threats. Generally, when evidence is insufficient to prove a completed offense —

as it is here — that same evidence could still prove an attempt to commit that

offense. 31 Our past cases on threats, however, have not consistently hewed to this

distinction. For example, in both High and Lewis, the court reversed convictions

for attempted threats because the evidence was insufficient to prove the elements

of the greater-included offense. 32 As a result, we have yet to grapple with the

murky boundary between the two offenses, particularly when it comes to the

“ordinary hearer” element. If attempt is “an overt act done with the intent to

commit a crime, . . . which, except for some interference, would have resulted in

the commission of the crime,” 33 it is unclear whether proof of attempted threats

requires a showing that the threatening utterance would induce an ordinary hearer

to fear injury, or whether it is sufficient to prove that the threat was uttered with the


      31
         See, e.g., Hagood v. United States, 

93 A.3d 210

, 224 (D.C. 2014) (“[T]he
armed appellant attempted, but did not successfully complete, the crime of
burglary.”).
      32
           

High, 128 A.3d at 1020

–23; 

Lewis, 95 A.3d at 1291

–92.
      33
          

Evans, 779 A.2d at 894

(quoting Wormsley v. United States, 

526 A.2d
1373

, 1375 (D.C. 1987)); see also Stroman v. United States, 

878 A.2d 1241

, 1245
(D.C. 2005) (“To prove attempt, the government must show the intent to commit a
crime and the doing of some act toward its commission that goes beyond mere
preparation.”).
                                          15

intent to induce such fear. 34 The answer would be dispositive here. A jury could

reasonably find that appellant intended to cause the ordinary hearer in Officer

James’s shoes to fear bodily harm, but as we previously said, an ordinary hearer

would not actually be afraid given her incapacitation.



      Nonetheless, we need not decide that issue now. Although our court has yet

to consider it, our past cases have reversed convictions for attempted threats where

the “ordinary hearer” would not fear bodily injury.35           And given that the

government has not argued to the contrary, we are not prepared to hold the

distinction against appellant.   Thus, we hold that appellant was not guilty of

attempted threats. 36


      34
             Cf. People v. Chandler, 

332 P.3d 538

(Cal. 2014) (addressing the
question).
      35
           

High, 128 A.3d at 1022

–23; 

Lewis, 95 A.3d at 1291

.
      36
          We note an issue regarding the proper articulation of the second element
of threats. This element, the court has said, requires “words . . . of such a nature as
to convey fear of serious bodily harm or injury to the ordinary hearer.” 

Lewis, 95
A.3d at 1291

. Although the words “convey . . . to” may not make it clear, the
notion is that while the utterance need not have scared the actual recipient, it must
be of a nature to scare an “ordinary hearer.” See Postell v. United States, 

282 A.2d
551

, 553 (D.C. 1971). But we have occasionally offered a different formulation,
typically in passing, in which it does not matter whether the ordinary hearer would
be scared, so long as the ordinary hearer would understand the utterance as a
serious expression of intent to harm. See, e.g., In re S.W., 

45 A.3d 151

, 156 (D.C.
2012) (“[S]peech is only a ‘true threat’ and therefore unprotected under the
                                                                         (continued…)
                                          16

                                         III.



      For the foregoing reasons, we affirm appellant’s conviction for simple

assault and reverse her conviction for attempted threats.



      So ordered.




(…continued)
Constitution if an ‘ordinary reasonable recipient who is familiar with the[ ] context
[of the statement] would interpret’ it as a ‘serious expression of an intent to cause a
present or future harm.’” (alteration in original) (footnote omitted) (first quoting
United States v. Armel, 

585 F.3d 182

, 185 (4th Cir. 2009); then quoting Doe v.
Pulaski Cnty. Special Sch. Dist., 

306 F.3d 616

, 622 (8th Cir. 2002))); Gray v.
United States, 

100 A.3d 129

, 135 (D.C. 2014) (asking “whether an ordinary hearer
would understand words to be in the nature of a threat of serious bodily harm”).
The outcome here depends on which of these two formulations govern. An
ordinary hearer would probably interpret appellant’s statement as a “serious
expression of an intent to cause a present or future harm,” but would not be scared,
given the circumstances. The dispositive nature of this question merits careful
attention, but we need not resolve it now, given the application of High and Lewis.

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