Girma Aboye v. United States , 2015 D.C. App. LEXIS 360 ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CM-1219
GIRMA ABOYE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CMD-3858-13)
(Hon. Robert E. Morin, Trial Judge)
(Argued January 28, 2015 Decided August 6, 2015)
Fletcher P. Thompson for appellant.
Kristina L. Ament, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Suzanne G. Curt, David Misler, Karen Seifert, and Derrick Williams,
Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and EASTERLY, Associate Judges, and KRAVITZ,
Associate Judge of the Superior Court of the District of Columbia.∗
∗
Sitting by designation pursuant to D.C. Code § 11-707(a) (2001).
2
GLICKMAN, Associate Judge: Appellant Girma Aboye was convicted of
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. On appeal, he makes
two arguments: first, that the Bias-Related Crime Act does not apply to the offense
of threats; and second, that there was insufficient evidence to convict him of that
offense. We reject both contentions and affirm appellant’s conviction.
I.
The evidence presented at trial by the government may be summarized as
follows. In 2012-2013, Michael Eichler and Zachary Rosen were an engaged gay
couple living in Adams Morgan with their dog, Nico. 1 Appellant owned a store in
the neighborhood and also had a dog, Tarzan, who was described at trial as a
brindled pit bull mix. The two dogs and their respective owners sometimes
encountered each other while out walking; according to Eichler and Rosen, Tarzan
usually was rather unsociable and even hostile to Nico. On one encounter in the
fall of 2012, though, Eichler perceived Tarzan as friendly and attempted to lead
1
Although Nico’s breed and other characteristics were not elicited at trial, it
may be inferred, from testimony that she sat on her owner’s lap, that Nico was a
small dog.
3
Nico forward so that the two dogs could interact. Appellant, however, jerked
Tarzan back and declared, “My dog doesn’t like homosexuals. You are a
homosexual, right?” Eichler affirmed that this was so, and appellant continued,
“My dog doesn’t like homosexuals; my dog doesn’t like faggots.”
A few months later, on the evening of March 11, 2013, Eichler, Rosen, and
Nico happened to be sitting on the patio outside Chief Ike’s Mambo Room in
Adams Morgan, next door to appellant’s store. Appellant came outside to speak
with someone on the sidewalk a short distance away from Eichler and Rosen.
While they could not hear the entire conversation, they did hear appellant use the
word “faggot” several times and make statements such as, “Look at those faggots.”
Rosen turned to appellant and said, “You know we can hear you.”
Appellant looked at Rosen and heatedly yelled, “Shut up you faggots[;] I’m
going to kill you with my dog. I’m going to have my dog kill you.”2 Rosen
testified that appellant’s outburst made him feel unsafe. Eichler called 911 on his
cell phone. As he did so, appellant went into his store and returned with his dog on
2
Eichler and Rosen differed slightly as to the exact words that appellant
used, but they distinctly remembered that appellant used the word “faggot”
repeatedly and threatened to kill them with his dog. They both described
appellant’s demeanor as aggressive and loud.
4
a leash. Tarzan and Nico barked at each other. Appellant then walked Tarzan past
Eichler, Rosen, and Nico and down the street, away from the area.
While appellant was gone, Metropolitan Police Department Officer Fred
Fritts arrived in response to Eichler’s 911 call. Upon appellant’s return from
walking his dog, Officer Fritts detained him for having threatened Eichler and
Rosen. Called at trial to testify as a defense witness, Fritts confirmed that Rosen
and Eichler told him that Tarzan (in contrast to his owner) “was not being
aggressive,” 3 and from his own observation of the animal, Fritts described Tarzan
as “[v]ery friendly” and “energetic but not threatening.”4
Appellant eventually was charged with an enhanced misdemeanor offense,
namely bias-related threats to do bodily harm in violation of D.C. Code §§ 22-407and -3703 (2012 Repl.). After a bench trial, the judge, crediting Eichler and
Rosen’s account of the incident, found appellant guilty as charged.
3
The government made no hearsay objection to this testimony.
4
Appellant also testified at trial. He denied having talked to Eichler or
Rosen before March 11, 2013, and denied speaking to them or referring
derogatorily to them that evening. The trial court did not credit these denials.
5
II.
A provision of the Bias-Related Crime Act, D.C. Code § 22-3703 (2012
Repl.), authorizes enhanced punishment for persons convicted of bias-related
crimes. A “bias-related crime” is defined in § 22-3701 (1), inter alia, as “a
designated act that demonstrates an accused’s prejudice based on the actual or
perceived . . . sexual orientation . . . of a victim of the subject designated act.” A
“designated act,” in turn, is defined to mean
a criminal act, including arson, assault, burglary, injury
to property, kidnapping, manslaughter, murder, rape,
robbery, theft, or unlawful entry, and attempting, aiding,
abetting, advising, inciting, conniving, or conspiring to
commit arson, assault, burglary, injury to property,
kidnapping, manslaughter, murder, rape, robbery, theft,
or unlawful entry.[5]
Because the offense of threats to do bodily harm is not one of the particularly
enumerated crimes in this definition, appellant argues that it is not a “designated
act” subject to enhanced punishment under the Bias-Related Crime Act. 6 The
government rejoins that the use of the word “including” before the enumeration of
5
D.C. Code § 22-3701 (2) (2012 Repl.).
6
Appellant does not challenge the trial judge’s finding that his alleged
offense was bias-related in that it evinced his prejudice “based on the actual or
perceived sexual orientation” of Eichler and Rosen.
6
particular offenses shows that the list is merely illustrative, not exhaustive, and that
the term “designated act” means any criminal act under D.C. law. The trial judge
agreed with the government—and so do we.
The question being one of statutory interpretation, our review is de novo.7
We begin with the plain language of the statute, but if we find ambiguity, “our task
is to search for an interpretation that makes sense of the statute and related laws as
a whole.”8 In doing so, we may “turn to legislative history to ensure that our
interpretation is consistent with legislative intent.” 9
Subsection (2) of D.C. Code § 22-3701 states that “designated act” means “a
criminal act, including” any of the particular listed offenses. Whether the listing is
illustrative or exhaustive thus turns on the meaning we attach to the word
“including.” The Bias-Related Crime Act itself does not define “including,” but
“[t]he participle including typically indicates a partial list.” 10 And so as not to
7
Richardson v. United States, 927 A.2d 1137, 1138 (D.C. 2007).
8
Id. at 1139 (citing, inter alia, Peoples Drug Stores, Inc. v. District of
Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)).
9
Id.; see also Peoples Drug Stores, 470 A.2d at 754.
10
Include, BLACK’S LAW DICTIONARY (10th ed. 2014); see also Fed. Land
Bank v. Bismarck Lumber Co. 314 U.S. 95, 100 (1941) (“[T]he term ‘including’ is
(continued…)
7
leave interpretation of the word to chance, another section of the D.C. Code
decrees that “[f]or the purposes of any act or resolution of the Council of the
District of Columbia, unless specifically provided otherwise: . . . . The words
‘include’ and ‘including’ mean ‘includes, but not limited to’ and ‘including, but
not limited to.’” 11 It is not “specifically provided otherwise” in the Bias-Related
Crime Act. Thus, we are obliged to conclude from the plain language of the statute
and the express direction in § 1-301.45 (10) that the definition of a “designated
act” in § 22-3701 (2) encompasses any criminal act under District of Columbia
law, including threats of bodily harm.
Appellant takes issue with this reasoning. If a “designated act” is no more
nor less than “a criminal act,” why, appellant asks, didn’t the Council just say so?
Why did the Council bother to invent an unnecessary synonym (“designated” as a
(continued…)
not one of all-embracing definition, but connotes simply an illustrative application
of the general principle.”); Dong v. Smithsonian Inst., 125 F.3d 877, 880 (D.C. Cir.
1997) (“We recognize, of course, that the word ‘includes’ normally does not
introduce an exhaustive list but merely sets out examples of some ‘general
principle.’”) (quoting Bismarck Lumber); Intercounty Constr. Corp. v. District of
Columbia, 443 A.2d 29, 33 (D.C. 1982) (Nebeker, J., dissenting) (noting the
“multitude of cases which hold that the term ‘include’ is expansionary, and not
limiting”).
11
D.C. Code § 1-301.45 (10) (2012 Repl.).
8
substitute for “criminal”) and enumerate a list of particular qualifying offenses?
Doesn’t this signal that, in this instance, despite the rule of construction in D.C.
Code § 1-301.45 (10), the Council actually intended the list following the word
“including” to be exhaustive?
We do not think that it does. For three reasons, we are more inclined to
chalk up the somewhat puzzling wording of the statute to the occasional vagaries
of legislative draftsmanship when many hands are at work, than to any intent to
limit the scope of the definition of a “designated act.” First, as we have said,
positing such an intent requires us to assume that the drafters of the statute
employed the word “including” in an atypical manner, one at odds with the
Council’s own standard rule of construction. Second, there is no apparent
selection principle at work in the Bias-Related Crime Act’s broad list of
enumerated offenses, and certainly no clear limitation to particular categories of
offenses. The list includes misdemeanors as well as felonies; property crimes as
well as crimes against the person; and attempts as well as completed offenses. The
omission from such a listing of a crime like threats to do bodily injury, not to
mention other serious offenses that can be committed as hate crimes (e.g., stalking,
extortion), appears arbitrary and inexplicable if the list is not merely illustrative; it
is difficult to fathom why the Council would have intended to exclude threats and
9
other candidate offenses from the coverage of a statute designed to combat hate
crimes.
Third, all indications from the legislative history of the Bias-Related Crime
Act are that the Council had no such intent. The Act was proposed in 1989 and
became law in 1990.12 In recommending the bill to the Council, the Committee on
the Judiciary described it as an effort to “curb the proliferation” of “bias-related or
‘hate’ crimes” of all kinds, specifically including not only assaultive behavior, but
also non-assaultive intimidating “activities like burning a cross in front of a black
family’s home [and] painting a swastika on a synagogue.”13 Criminal threats, in
other words, were meant to be targeted. The Act was designed to apply, the
Committee emphasized, “[i]rrespective of the basis of a bias-related crime,” in
order to “send a powerful message . . . that such insidious forms of hatred will not
be tolerated in the District and will be treated seriously by law enforcement
authorities.” 14 Underscoring the immateriality of the particular type of offense to
the Act’s coverage of hate crimes, the Committee explained the terms “bias-related
12
D.C. Law 8-121, 37 D.C. Reg. 27 (May 8, 1990).
13
Comm. on the Judiciary, Rep. on Bill 8-168 at 2 (Oct. 18, 1989).
14
Id.10
crime” and “designated act” as referring simply to “a criminal act” without
substantive qualification:
[The definitional section of the Act] [d]efines “bias-
related crime” as a criminal act which is based primarily
upon race, color, religion, national origin, sex, age,
marital status, personal appearance, sexual orientation,
family responsibilities, physical handicap, matriculation,
or political affiliation. The section also defines
“designated act” as a criminal act pursuant to D.C.
Code.[15]
We have found no indication anywhere in the legislative history of the Bias-
Related Crime Act that the Council meant to limit it to the particular criminal
offenses listed as being “included” in the definition of a “designated act.”
We conclude that the term “designated act” in D.C. Code § 22-3701 (2)
means any criminal act recognized under D.C. law, including the offense of threats
to do bodily harm. 16
15
The term “designated act” is defined the same way now as when the
Committee explained it.
16
Appellant asserts that our construction of the term “designated act”
renders the statute unconstitutionally vague. We see no basis for this contention.
The statute as we construe it provides fair warning that the punishment for any
criminal act under D.C. law may be enhanced if the crime demonstrates the actor’s
prejudice based on the victim’s actual or perceived sexual orientation or other
protected characteristic specified in D.C. Code § 22-3701 (1). See McNeely v.
United States, 874 A.2d 371, 381-82 (D.C. 2005).
11
III.
Appellant also contends that the evidence was insufficient to convict him for
threatening to kill Eichler and Rosen with his dog Tarzan. When reviewing the
sufficiency of the evidence, we interpret the trial record in the light most favorable
to the government and ask whether there is some probative evidence on each of the
essential elements of the crime from which a reasonable person could fairly find
guilt beyond a reasonable doubt. 17
“A person is guilty of the offense of threats under D.C. Code § 22-407 if he
or she: (1) uttered words to another person, (2) those words ‘were of such a nature
as to convey fear of serious bodily harm or injury to the ordinary hearer,’ and (3)
he or she ‘intended to utter the words that constitute the threat.” 18 An ordinary
17
See Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc).
18
Gray v. United States, 100 A.3d 129, 133 (D.C. 2014) (internal citations
and quotation marks omitted). In two respects not material to this appeal, there are
unresolved conflicts in our cases as to the wording of the second and third of these
elements. First, while some of our cases, such as Gray, have said an utterance
must threaten “serious bodily harm or injury” to be criminally actionable, others of
our cases have said an utterance need only threaten “bodily harm or injury”
(without the adjective “serious”). See, e.g., Joiner-Die v. United States, 899 A.2d
762, 764 (D.C. 2006).
Second, our cases have not been consistent with respect to the mens rea
required to commit the offense. See Carrell v. United States, 80 A.3d 163 (2013).
(continued…)
12
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. 20 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. 21
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
(continued…)
On July 15, 2015, this court granted a petition for rehearing and vacated the
decision and judgment of the panel in Carrell, in order to consider en banc whether
the government must prove that the accused had a greater mens rea than stated in
Gray, e.g., that the accused intended to utter the words as a threat. Cf. Elonis v.
United States, 135 S.Ct. 2001 (2015).
Appellant’s sufficiency argument does not implicate either of these issues,
however.
19
Gray, 100 A.3d at 134-35.
20
Clark v. United States, 755 A.2d 1026, 1031 (D.C. 2000).
21
See Gray, 100 A.3d at 133-36.
13
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. 22 And even if Tarzan was friendly and tame,
appellant’s death threat was not. Appellant’s words and demeanor could cause a
22
Rosen testified that, under the circumstances of the confrontation on the
evening of March 11, he felt unsafe. We have appreciated that the victim’s fear
may be probative as to whether the utterance, in the circumstances, was such as to
convey fear of bodily injury to the “ordinary hearer.” See id. at 135 (“[E]vidence
about an actual person’s response to a situation is evidence, sometimes the best
evidence available, of how a reasonable person would have responded under the
circumstances.”).
14
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.
Affirmed.