MILON C. HIGH, JR. v. UNITED STATES ( 2015 )

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No. 13-CM-1394 F D
MILON C' HIGH’ JR" DISTRICT OF COLUMBIA
Appellant, count OF APPEALS
v. CMD-11538-13
UNITED STATES,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Criminal Division
BEFORE: Fisher and Easterly, Associates; and Ruiz, Senior Judge.
J U D G M E N T
This case came to be heard on the transcript of record, the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed
this date, it is now hereby
ORDERED and ADJUDGED that appellant’s conviction for attempted
threats to do bodily harm is reversed, and the matter is remanded with instructiOns to
enter a judgment of acquittal.
For the Court:
Dated: December 24, 2015.
Opinion by Senior Judge Vanessa Ruiz.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. l3-CM-1394
MILON C. HIGH, JR., APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CMD-11538-13)
(Hon. John McCabe, Trial Judge)
(Argued April 9, 2015 Decided December 24, 2015)
Paul J Riley for appellant.
Adrienne Dawn Gurley, Assistant United States Attorney, with whom
Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and
Elizabeth T rosman, John P. Mannarino, and David Misler, Assistant United States
Attorneys, were on the brief, for appellee.
Before FISHER and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
RUIZ, Senior Judge: Appellant, Milon C. High, Jr., was convicted of one
count of attempted threats] following a bench trial. Appellant contends that the
government presented insufficient evidence to support his conviction, specifically
1 See DC. Code §§ 22—407, -1803 (2012 Repl.)
10
you” accompanied by a “gun motion” with hands were “facially threatening
words” that could be “taken [] at face value”); Haney v. United States, 41 A.3d
1227, 1229, 1234 (DC. 2012) (holding that it was for jury to decide whether
evidence that defendant made gesture mimicking cocked gun and mouthed “I’m
going to fuck you up” directed at officer testifying against him in court was a threat
against the officer or merely expression of generalized “prior dislike of law
enforcement”).
Nor do appellant’s statements reasonably convey a desire or ability to inflict
serious injury in the fiiture. Looking solely to the words spoken, it would be
unreasonable for an ordinary hearer “to presume that appellant’s statement carried
an implied future threat” that appellant would “hunt down” and Visit physical harm
on Officer Smith at a later time. Lewis, 95 A.3d at 1292. Nothing in the
statements uttered by appellant is a prediction or speaks to the future.
Having concluded that the words appellant uttered were not on their face
threatening, our analysis continues, as the “context of an utterance can turn words
that would be innocuous . . . into a threat.” Gray, 100 A.3d at 136; see also id. at
134 (noting that “the words . .
. uttered are ‘just the beginning’ of a threats
analysis” (quoting In re SW, 45 A.3d at 157)). Accordingly, we consider the
11
“complete context” that the words were used in, including the factual
circumstances surrounding the utterance. Id. at 136.
Here, the context reinforces the conclusion that the statements made would
not induce fear in an ordinary hearer in the same circumstances. Appellant spoke
in what was described as a conversational tone, one not rising above the level of
two people talking in a quiet room. When appellant made the statements, he had
already been arrested: he was bound by handcuffs, seated on the street curb, and
was closely surrounded by at least three—possibly four—MPD officers. It was
clear that appellant “no longer posed a threa ” to Officer Smith, if he ever did. See
Lewis, 95 A.3d at 1291 (taking into account that appellant had been arrested and
handcuffed when he uttered an alleged threat); cf Gayden, 107 A.3d at 1106 n.4
(considering that the statements were made “prior to arrest” in concluding that
sufficient evidence existed to convict). Further, while it is well settled that “the
government need not prove that the actual hearer felt fear or intimidation,”
evidence of a person’s actual response is “sometimes the best evidence available”
of how an ordinary hearer would have responded. Gray, 100 A.3d at 135. Here,
the record is devoid of evidence that Smith was “aware of a certain risk” after
hearing the utterances. Id; cf. Clark, 755 A.2d at 1031 (considering the police
officer’s “immediate interpretation” of appellant’s words in concluding that
12
evidence was sufficient to affirm conviction of threats to do bodily harm). Thus,
our analysis of the surrounding circumstances confirms that the statements would
not “convey fear of serious bodily harm” to the ordinary hearer. Williams, 106
A.3d at 1067 (quoting Carrel], 80 A.3d at 171).
In sum, we hold that the evidence was insufficient to support appellant’s
conviction for attempted threats to do bodily harm. Accordingly, we reverse and
remand with instructions to enter a judgment of acquittal.
So ordered.
arguing that the words he uttered would not convey fear of serious bodily harm or
injury to the ordinary hearer. We agree, and reverse appellant’s conviction for
attempted threats.2
1. Facts
Late in the afternoon on July 5, 2013, appellant was arrested for unlawful
entry in the Northeast quadrant of the District of Columbia by Metropolitan Police
Department (MPD) Officers Brock Vigil, Nicholas Smith, John Stathers, and
3
“possibly” Dwight Jones. Officer Vigil, the government’s sole witness at trial,
testified that the arresting officers, who were assigned to the MPD “Vice Unit,”
were wearing plain clothes but with tactical vests labeled “Police” and police
2 Appellant also contends that the evidence was insufficient to prove that he
intended to make a threat. The scienter element of the offense of threats is a
question that the court has decided to address en banc. See Carrel] v. United
States, No. 12-CM-523, 2015 WL 5725539, at *1 (DC. order dated July 15, 2015)
(vacating division opinion that held no scienter required beyond the intent to utter
words that constitute the threat, 80 A.3d 163, 171 (DC. 2013), citing possible
impact of Elom's v. United States, 135 S. Ct. 2001 (2015)). We need not address
that aspect of appellant’s insufficiency challenge as we reverse appellant’s
conviction on the ground of insufficiency with respect to another element of the
offense.
3 One count of unlawful entry, in Violation of DC. Code § 22-3302 (2012
Repl.), for which appellant had been arrested on July 5, 2013, was dismissed for
want of prosecution.
badges. Officer Vigil also testified that at the time, he and his partner, Officer
Smith, patrolled the area appellant was arrested in “[a]t least once a day,” and that
Vigil “immediately” recognized appellant when he saw him. Appellant was taken
into custody, handcuffed, and sat down “on the curb.”4 Smith, standing “[W]ithin a
few feet” of appellant, then began to ask appellant for basic identifying
information, such as his name, date of birth, and social security number, in order to
properly fill out a booking form.
Appellant did not respond to Officer Smith’s questions, and instead
“glar[ed]”_ at him. Appellant then said to Officer Smith, “take that gun and badge
off and I’ll fuck you up.” Appellant “continued to look directly at [Officer Smith]”
after making the statement. A few seconds later, appellant made a second
statement, “something to the effect of, too bad it’s not like the old days where
fucking up an officer is a misdemeanor.” Appellant spoke in a conversational tone
throughout.
4 There was conflicting testimony in the record as to whether an ambulance
had to be called for appellant after he was arrested for unlawful entry.
At trial, appellant introduced witness testimony that he never made the
statements at issue. Appellant’s primary defense, however, was that the statements
in question, “[g]iven the nature of the words spoken . , . and the context
surrounding them . . . would not convey fear of serious bodily harm to the ordinary
hearer.” The trial court credited testimony presented by the defense that there was
“some bad feeling[s] on the part of [] [appellant’s] family towards some of the
officers,” and found appellant guilty of attempted threats, concluding that the
negative feelings toward the officers “helps to demonstrate why there might be a
reason [appellant] would be angry enough to just lose his temper and make these
99
statements . Appellant was sentenced to sixty days of incarceration and
timely appealed the judgment of conviction.
II. Sufficiency of Evidence
Appellant contends that the government failed to prove beyond a reasonable
doubt that his statement would cause an ordinary hearer to reasonably believe that
the threatened harm would occur. In reviewing for sufficiency of evidence, we
must sustain the conviction unless there is “no evidence upon which a reasonable
mind could fairly conclude guilt beyond a reasonable doubt.” Bolden v. United
States, 835 A.2d 532, 534 (DC. 2003) (quoting Harris v. United States, 668 A.2d
839, 841 (DC. 1995)) (noting appellant faces a “difficult burden” in asserting such
a challenge). When the appeal is from a bench trial, we recognize that the trial
court is empowered to weigh the evidence, draw reasonable inferences of fact, and
make determinations of the credibility of witnesses; we will displace such findings
55
only if they are “plainly wrong or without evidence to support [them]. Watson 12.
United States, 979 A.2d 1254, 1256 (DC. 2009) (internal quotation marks omitted)
(alteration in original) (quoting Mihas v. United States, 618 A.2d 197, 200-01
(DC. 1992)). Whether trial was by a jury or the court, on appeal this court reviews
the legal sufficiency of the evidence de novo. See Russell v. United States, 65
A.3d 1172, 1176 (DC. 2013).
To obtain a conviction of threats to do bodily harm, the government must
prove, inter alia, the following beyond a reasonable doubt: that “(1) the defendant
uttered words to another person, [and that] (2) those words were of such a nature as
to convey fear of serious bodily harm or injury to the ordinary hearer . . . .”
Williams v. United States, 106 A.3d 1063, 1067 (DC. 2015) (citation and internal
quotation marks omitted). See note 2, supra.5
5 The government was permitted to charge appellant with attempted threats
even though it purported to prove the completed offense. See Evans v. United
States, 779 A.2d 891, 894 (DC. 2001).
We begin by noting that this court has previously recognized three general
fact patterns where we have “determined that the underlying situation presents
some substantive reason—beyond the particulars of the utterance itself—for an
objective listener’s belief that the defendant is inclined to do harm and that the
threat should be taken seriously . . . .” In re S. W., 45 A.3d 151, 157 (DC. 2012).
One such fact pattern is where, as in the case before us, “the defendant makes
statements to law enforcement officers acting in the course of duty.” Id. at 158. In
these encounters, “we have generally upheld convictions for threats . . . against
challenges of evidentiary insufficiency.” Id; see, e.g., Gayden v. United States,
107 A.3d 1101, 1102, 1106 (DC. 2014) (affirming conviction of attempted threats
where defendant told an officer who had urged defendant “to move along” that he
“could get hit” i.e., murdered); Joiner~Die v. United States, 899 A.2d 762, 765
(DC. 2006) (discussing a “sequence of events . . . [that] could lead a reasonable
person to believe he was in imminent danger of bodily harm,” even though
defendant was not armed, Where he angrily exited his car, reached into his jacket,
and said he was going to “bust” the officer who had asked him to move his car);
Clark v. United States, 755 A.2d 1026, 1031 (DC. 2000) (noting that taking into
account “the underlying situation, appellant’s choice of words, his tone, his
manner, and Officer Mapp’s immediate interpretation, a reasonable jury could
conclude that the statements made [during search and seizure] would ‘convey fear
339
of serious bodily harm or injury to the ordinary hearer (quoting United States v.
Batsh, 460 A.2d 38, 42 (DC. 1983))); Pastel! v. United States, 282 A.2d 551, 552-
53 (DC. 1971) (upholding conviction based on a threat that was conditioned on the
police officer engaging in his professional duties, and thus the threat was not
remote). Nonetheless, simply because certain words are addressed to a law
enforcement officer who is performing official duty does not necessarily mean that
the utterance constitutes a criminal threat. See, e.g., Lewis v. United States, 95
A.3d 1289, 1290, 1291-92 (DC. 2014) (holding that notwithstanding that
defendant yelled at arresting officer “that [officer] was lucky that we didn’t get him
(arrest defendant) when he had his gun on him, because he would have blown
officer’s partner’s god-damned head off,” the statement did not satisfy second
element because a past conditional statement that “hinge[s] on an impossibility”
cannot induce fear) (alterations in original omitted).
Appellant concedes that the government met its burden as to the first
element of the offense, because Officer Vigil heard appellant make the statements
6
in question, and his testimony was credited by the fact-finder. We conclude,
6 As appellant notes in his brief, Officer Vigil was heavily impeached. This
court generally is in “no position to second-guess, on the basis of a paper record, a
credibility determination by a trier of fact who was in the courtroom.” Robinson v.
United States, 928 A.2d 717, 727 (DC. 2007) (quoting Lee v. United States, 668
A.2d 822, 833 n.26 (DC. 1995)).
however, that there was insufficient evidence to prove the second element of the
offense, that an ordinary hearer, in the same circumstances, Who heard appellant’s
statements would reasonably fear imminent or future serious bodily harm or injury.
While “[n]o precise words are necessary to convey a threat,” Grz'flin v.
United States, 861 A.2d 610, 616 (DC. 2004) (quoting Clark, 755 A.2d at 1031),
appellant’s words must still be able to induce “fear of serious bodily harm or injury
to the ordinary hearer,” Gray 12. United States, 100 A.3d 129, 133 (DC. 2014)
(quoting Carrel], 80 A.3d at 171). The “ordinary hearer” perspective establishes
an objective standard, but it is evaluated contextually, assuming awareness of the
circumstances known to the parties in the case. See id. at 134-36. We conclude
that appellant’s statements do not meet this standard. Appellant’s statements, “take
that gun and badge off and I’ll fuck you up,” and “too bad it’s not like the old days
where fucking up an officer is a misdemeanor,” reasonably construed, are most
aptly described as an expression of exasperation or resignation over the fact that
appellant had just been arrested by police officers for whom his family had “bad
feeling[s]” based on prior experience.7 These statements do not convey a true
7 The trial court observed that appellant and his family “may very well feel
very justified having bad feeling[s] and may feel that they’ve been, you know,
mistreated by police officers in the past.”
threat of serious bodily harm or injury to Officer Smith.8
Specifically, appellant’s first statement—‘take that gun and badge off”—is
not a direct challenge or a “dare” to Officer Smith; appellant is not taunting the
officer, or directly attempting to goad him into hand-to-hand combat. Rather,
appellant is communicating that if Smith were not a police officer, then appellant
would, in his words, “fuck [him] up.” Similarly, appellant’s second statement—
referring with nostalgia to a time past (“too bad it’s not like the old days”) when
assaulting a police officer was a misdemeanor—recognizes the increased penalty
associated with inflicting physical harm upon a law enforcement officer as yet
another reason not to do so. The statements convey both appellant’s anger at being
arrested (in his view unjustifiably) as well as his appreciation that he is constrained
by the officer’s status and potential criminal penalties from doing anything about
it. Read together, appellant’s statements amount to a feisty lament, an “expression
of [his] frustration over his arrest, rather than a serious threat of bodily harm.”
Lewis, 95 A.3d at 1291; cf Gray, 100 A.3d at 136 (noting that “I’m going to kill
8 Even if appellant’s first statementm‘take that gun and badge off and I’ll
fuck you up”—~—is considered a conditional threat under Pastel], 282 A.2d at 553, it
was Officer Smith-mnot appellantmwho possessed the ability to trigger the
hypothetical “condition.” Under the circumstances, the idea that a law
enforcement officer would divest himself of his badge and official status to,
willfully engage an arrestee in a fight is “so remote as not to connote a menace or
to create alarm.” Id. at 553.