Symone AndrewProfessor CobbMoot Court9/11/15

Jenkins v. United States902 A.2d 79 (D.C. 2006)

Facts: Defendant, Jenkins, was convicted after a bench trial in the Superior Court, on two counts of attempted threats to do bodily harm after complaining witness, Towanda Hunter failed to pay back money owed to Ms. Jenkins. This is an appeal.Issue: Did Jenkins make a valid threat when she yelled and kicked at Ms. Hunter’s door?Rule: the elements of a threat are “(1) that the defendant uttered words to another person; (2) that the words were of such a nature as to convey fear of serious bodily harm

to “the ordinary hearer”; and (3) that appellant intended to utter the words as a threat.” A person “threatens” when she utters words, which are intended to convey her desire to inflict physical or other harm on any person or on property. The words uttered by the defendant must be considered in the context in which they were used. No precise words are necessary to convey a threat.Application: Evidence was sufficient to support conviction for attempted threats to do bodily harm based on defendant's words while outside victim's residence, even though “open the door” and “come out” were not threatening in themselves; defendant less than three weeks earlier had in effect threatened to shoot victim over debt dispute, defendant's words at residence, which were uttered in angry manner and coupled with banging on and kicking door, might well have been intended to terrify victim, defendant's words made victim apprehensive enough to refuse to open door and to call 911 instead, and given previous threat, victim's apprehension was hardly unreasonable. Conclusion: Yes. Under the circumstances, Ms. Jenkins’ non-threatening words do constitute a threat.

Clark v. United States755 A.2d 1026 (D.C. 2000)

Facts: Defendant, Clark, was convicted after a jury trial of threats to do bodily harm after complaining witness, unlawfully arrested him after suspecting him of participating in a drug transaction. This is an appeal.Issue: Did Clark make a valid threat when he said, “You won't work here again, wait until I tell the boys, they will take care of you.”?Rule: the elements of a threat are “(1) that the defendant uttered words to another person; (2) that the words were of such a nature as to convey fear of serious bodily harm

to “the ordinary hearer”; and (3) that appellant intended to utter the words as a threat.” Words cannot always be read in the abstract and often acquire significant meaning from context, facial expression, tone, stress, posture, inflection, and like manifestations of the speaker and the factual circumstances of their delivery in order to determine whether they constitute threats.Application: Evidence was sufficient to support conviction for threats to do bodily harm, though defendant's statements to police officer, that she “won't work here again” and “the boys” would take care of her, were ambiguous, where defendant was handcuffed when he

made the statements, the statements were made in a serious and threatening tone, and police officer understood the statements to mean that defendant would arrange for boys in the neighborhood to physically incapacitate her.Conclusion: Yes. Under the circumstances, considering tone and gestures, Mr. Clark’s words do constitute a threat.

Gray v. United States100 A.3d 129 (D.C. 2014)

Facts: Defendant, Gray, was convicted after a bench trial of threats to do bodily harm, contempt of court, and unlawful entry after he threatened to kill complaining witness, Jonathan Lowery, at their work place. This is an appeal.Issue: Did Gray make a valid threat even though the complaining witness wasn’t threatened by his words and actions?Rule: the elements of a threat are “(1) that the defendant uttered words to another person; (2) that the words were of such a nature as to convey fear of serious bodily harm

to “the ordinary hearer”; and (3) that appellant intended to utter the words as a threat.” When a defendant challenges a conviction for threats to do bodily harm, an analysis of the evidence necessarily begins with the words the speaker used, the first element of threats. A person can be guilty of threats to do bodily harm without causing the target of the threats to fear serious bodily harm or injury, just as a person whose words actually cause fear can be innocent of threats.Application: Evidence was sufficient to show that words uttered by defendant to victim, “I'm going to kill you,” were of such a nature as to convey fear of serious bodily harm or injury to the ordinary hearer, so as to support a conviction for threats to do bodily harm, even though victim, who was defendant's coworker, testified that he was not scared or shaken by the words; the words were accompanied by defendant making a gun motion at victim's chest, there was evidence that defendant was told to go home from work the previous day because of erratic behavior, which included threatening another coworker, and victim's other testimony suggested that victim did not dismiss the incident altogether.

Conclusion: Yes. Despite the fact that Mr. Lowery’s testimony didn’t indicate that he was threatened by Mr. Clark, Mr. Clark’s words do constitute a threat.

Aboye v. United States2015 WL 4714153 (D.C. Aug. 6, 2015)

Facts: Defendant, Adoye, was convicted after a bench trial making bias-related threats to do bodily harm, after he confronted a gay couple with homophobic slurs and threatened to kill them with his dog. This is an appeal.Issue: Did Aboye make a valid threat when he threatened to kill a gay couple with his dog?Rule: The elements of a threat are “(1) that the defendant uttered words to another person; (2) that the words were of such a nature as to convey fear of serious bodily harm

to “the ordinary hearer”; and (3) that appellant intended to utter the words as a threat.”

An ordinary hearer is “one aware of all the surrounding circumstances, including what the actual hearer knew.”19 Whether a particular statement constitutes a threat is a question of fact. Especially because the answer to that question may turn on nuance and context, the determination of the trier of fact is entitled to substantial deference.Application: Appellant argues that there was insufficient evidence at trial to establish the second element of the offense of threats because there was no evidence that his dog actually was dangerous. On the contrary, appellant argues, the only pertinent evidence at trial about Tarzan was his breed (part pit bull), Eichler and Rosen's admission that “the dog was not being aggressive,” and Officer Fritts's testimony that Tarzan was friendly, energetic, and unthreatening. There was no evidence regarding the size, age, health, or physical characteristics of the dog.

The government responds, and we agree, that such details were unnecessary to prove appellant guilty of making a threat that would instill the requisite fear in the ordinary hearer. According to the evidence, appellant heatedly yelled menacing and homophobic slurs at Eichler and Rosen and threatened to kill them. He had a history of making antagonistic, homophobic remarks to these two men, and he did not appear to be joking when he threatened to sic his dog on them. Whatever that animal's precise physical characteristics, it was no miniature lap dog; and whatever its actual temperament and proclivities, appellant had told Eichler that Tarzan was hostile to homosexuals. An ordinary hearer in this situation reasonably could fear that Tarzan might become vicious and attack if directed by his master to do so. And even if Tarzan was friendly and tame, appellant's death threat was not. Appellant's words and demeanor could cause a reasonable hearer to fear that appellant imperiled his physical safety even if appellant's dog did not. We hold that the evidence adduced at trial was sufficient to support appellant's conviction.Conclusion: Yes. Despite the fact that Mr. Adoye’s dog didn’t appear aggressive in nature, Mr. Adoye’s words and actions do constitute a threat.

Gayden v. United States107 A.3d 1101 (D.C. 2014)

Facts: Defendant, Gayden, was convicted after a bench trial of assaulting a police officer and attempted threats after encouraging complaining witness, Officer Kimball, to call for a partner before he got “hit”. This is an appeal.Issue: Did Gayden make a valid threat when he said, “Are you calling for back-up, I would if I were you before what happen[ed] to your partner happens to you[;] you can get hit.”? Rule: The elements of a threat are “(1) that the defendant uttered words to another person; (2) that the words were of such a nature as to convey fear of serious bodily harm

to “the ordinary hearer”; and (3) that appellant intended to utter the words as a threat.” Application: Appellant contends that the statement, “are you calling for back-up, I would if I were you before what happens to your partner happens to you, you can get hit” only expressed a possible or conditional outcome. Here, Mr. Gayden's words were explicit, (a) invoking a prior incident in which his brother held Officer Kimball's partner

on the ground while his brother pointed two guns toward the partner's head, and (b) telling Officer Kimball that what happened to his partner in that incident could happen to him—meaning that he “could get hit,” that is, murdered; and there was no evidence that he was joking when he uttered the words. Applying the legal principle governing threats to do bodily harm, there is no doubt that Mr. Gayden uttered the words attributed to him and the trial court credited Officer Kimball's testimony. Nor is there any doubt on this record that Mr. Gayden's words were of such a nature as to convey fear of bodily harm to the ordinary hearer, and that Mr. Gayden intended to utter the words that constituted the threat to Officer Kimball. Hence, we agree with the trial court's finding that Mr. Gayden was guilty of a violation of the attempted threats statutes, based on Officer Kimball's credited testimony and the context in which Mr. Gayden's statement was made, including the prior interaction between Mr. Gayden, Officer Kimball, and Officer Robinson.Conclusion: Yes. Under the circumstances, Mr. Gayden’s words constituted a threat.

Lewis v. United States95 A.3d 1289 (D.C. 2014)

Facts: Defendant, Lewis, was convicted after a bench trial of misdemeanor attempted threats to do bodily harm after becoming irate after being arrested. This is an appeal.Issue: Did Lewis make a valid threat when he yelled during his arrest, “that he was lucky that we didn't get him (arrest him) when he had his gun on him, because he would have blown my partner's god-damned head off.”Rule: The elements of a threat are “(1) that the defendant uttered words to another person; (2) that the words were of such a nature as to convey fear of serious bodily harm

to “the ordinary hearer”; and (3) that appellant intended to utter the words as a threat.” To establish a conviction for threats to do bodily harm, although no precise words are necessary to convey a threat, appellant's words must still be able to induce fear of serious bodily harm or injury to the ordinary hearer. Application: In the instant case, appellant's statement could not have induced fear of bodily injury in the ordinary hearer as it was a past conditional statement that hinged on an impossibility—appellant's possession of a gun at the time of arrest. Officer Vandayburg testified that when he and Officer Gunnells arrested appellant, they searched him thoroughly and found that he did not have a gun. Additionally, 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. Although appellant made the statement while disobeying the officers' orders to sit down, the statement can most aptly be described as an expression of appellant's frustration over his arrest, rather than a serious threat of bodily harm. Our cases have stressed that the context in which words are spoken is critical and that the circumstances ... and the relations between the parties may be taken into consideration. As Officer Vandayburg testified, when people are arrested they “typically yell and blurt stuff.”

Furthermore, appellant's past conditional statement, reasonably construed, did not *1292 carry a future likelihood of the same intent and capacity. It would be unfounded for the ordinary hearer to presume that appellant's statement carried an implied future threat that appellant would hunt down and injure Officer Gunnells at some later time. We therefore

conclude that the court erred in finding that an ordinary person would have heard appellant's statement and reasonably feared imminent or future bodily harm or injury.Conclusion: No. Under the circumstances, Mr. Gayden’s words did not constitute a threat because he was arrested at the time.