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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.