Lowther v. State , 2014 Del. LEXIS 530 ( 2014 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ERIN LOWTHER, §
§
Defendant-Below, § No. 102, 2014
Appellant, §
§ Court Below — Superior Court
V § of the State of Delaware in
§ and for New Castle County .
STATE OF DELAWARE, §
§ Cr. ID. 1304021737
Plaintiff-Below, §
Appellee. §
Submitted: October 22, 2014 ‘
Decided: November 6, 2014
Before STRINE, Chief Justice; HOLLAND, and VALIHURA, Justices.
Upon appeal from the Superior Court of the State of Delaware.
AFFIRMED. ‘
Misty A. Seemans, Esquire, Office of the Public Defender, Wilmington,
Delaware, Attorney for Defendant-Below, Appellant.
Karen V. Sullivan, Deputy Attorney General, Delaware Department of
Justice, Wilmington, Delaware, Attorney for Plaintiff-Below, Appellee.
HOLLAND, Justice:
Erin Lowther (“Lowther”) was arrested on'April 24, 2013, following an
altercation with her sister-in-law, Trisha Lowther (“Trisha”). On December 9,
2013, the New Castle County grand jury issued a superseding indictment, charging
Lowther with Assault in the Second Degree, Terroristic Threatening and Offensive
Touching. On January 16, 2014, a two—day jury trial began. Lowther moved for a
judgment of acquittal on the Terroristic Threatening charge. The Superior Court
denied the motion. The jury found Lthher guilty of Assault in the Second Degree
and Terroristic Threatening, but not guilty of Offensive Touching. Lowther was
sentenced to six years at Level V incarceration, suspended for eighteen months at
Level III probation for Assault in the Second Degree and one year at Level V
incarceration, suspended for one year at Level III probation for Terroristic
Threatening.
Lowther has raised two arguments in this direct appeal.
First, Lowther contends that the evidence presented during the State’s case-in-chief
was not sufficient to allow the jury to find Lowther guilty of Terroristic
Threatening. According to Lowther, the State did not present sufficient evidence
that her threat to “fWing kill” Trisha was a “true threat”. We have concluded that,
viewing the evidence in the light most favorable to the State, a rational jury could
conclude beyond a reasonable doubt that Lowther had a subjective intent to
Jury Instruction
In reviewing whether the trial judge incorrectly formulated an un-objected to
jury instruction, this Court reviews for plain error.25 Under the plain error standard
of review, “[t]he error complained of must be so clearly prejudicial to substantial
3326
rights as to jeopardize the fairness and integrity of the trial process. Further,
plain error is “limited to material defects which are apparent on the face of the
record; which are basic, serious and fundamental in their character, and which
clearly deprive an accused of a substantial right, or which clearly show manifest
. . . 2
injustice.” 7
When reviewing for plain error it is important to note that “[a] defendant is
not entitled to a particular instruction, but has an ‘unqualified right to a correct
9:928
statement of the substance of the law. A trial judge’s instruction will not
constitute reversible error if “it is ‘reasonably informative and not misleading,
judged by common practices and standards of verbal communications. ’”29
25 Kostyshyn v. State, 51 A.3d 416, 419 (Del. 2012) (citing Probst v. State, 547 A.2d 114, 119
(Del. 1988); Daugherty v. State, 21 A.3d 1, 3 (Del. 2011)).
26 Daugherty, 21 A.3d at 3 (quoting Turner v. State, 5 A.3d 612, 615 (Del. 2010)).
27
Id.
28~Hankins v. State, 976 A.2d 839, 841 (Del. 2009) (quoting Flamer v. State, 490 A.2d 104 (Del.
1983)).
29 Idaho
11Lowther argues that the Superior Court erred in instructing the jury on the,
mens rea required for terroristic threatening.30 The trial court instructed the jury,
as follows:
A person is guilty [sic] Terroristic Threatening when:
The person threatens to commit any crime likely to result in
death or serious injury to person or property.
In order to find the defendant guilty of this crime, you must find
that the following elements have been established beyond a
reasonable doubt:
One: The defendant threatened to commit a crime;
Two: The threatened crime would likely result in death or
serious injury to a person or property.
And, Three: The defendant acted intentionally or knowingly.
Intentionally means that it was the defendant’s conscious object
or purpose to threaten to commit a crime likely to result in death or
serious injury.
Knowingly means the defendant was aware he was threatening
— he or she, excuse me, was threatening to commit a crime likely to
result in death or serious injury.
The statute imposes criminal liability for the use of words.
Even if the actor does not intend to actually carry out the threat,
the threat itself creates identifiable injuries, e.g., mental distress or
panic, that the Criminal Code protects against.
7 Thus, the crime is complete when the actor threatens a crime,
the commission of which could reasonably entail death or serious
injury to the person. Whether the threatened act is completed is
immaterial.31
30 Appellant’s Opening Br. at 11-13 (“The trial court’s incorrect statement of the substance of the
law in the jury instructions ignores the requirement for the State to prove beyond a reasonable
doubt that the defendant has a subjective intent to threaten the alleged victim”).
31 A27-29 (emphasis added).
12
Lowther correctly states that § 621 requires a subjective intent to make a
“threat? In Andrews, the State argued that § 621 only required the intent to utter
the words, and did not require the intent to threaten the victim.33 This Court
disagreed, stating, “we conclude that § 621 requires that the State prove not only
that the defendant uttered words that factually threaten serious physical injury or
death but also that in uttering them, the defendant intended to threaten the
aa34
victim. Lowther contends that the instructions given to the jury did not
adequately state the law concerning her subjective intent to make a threat.
In Andrews, however, this Court further stated:
Section 621 does not prescribe the requisite mens rea to commit
terroristic threatening. 11. Del. C. § 251(b) provides that when a
statute does not prescribe the mens rea required, the State must prove
the defendant acted intentionally, knowingly, or recklessly?1 5
Accordingly, the issue before this Court is whether there was plain error in the jury
instruction because the instruction was inadequate for the jury to consider
Lowther’s subjective intent to threaten, which may be proved by the State by
showing LOwther intentionally, knowingly or recklessly made a threat.
“A trial court’s jury charge will not serve as grounds for reversible error if it
is ‘reasonably informative and not misleading, judged by common practices and
32 See Andrews, 930 A.2d at 853—54.
33 Idaho
34 Id. at 854.
35 Id. at 853 (citing 11 Del. C. § 251(b)) (emphasis in original).
13
’”36 The proper focus is Whether the jury
standards of verbal communication.
instructions are adequate to “enable the jury to intelligently perform its duty in
returning a verdict.”37 In making this assessment, the instruction must be reviewed
as a whole.38
Considering the instruction in its entirety, the jury was properly instructed
that they needed to find Lowther had a subjective intent to make a threat, and
merely uttering the words or using an objective standard was not enough. The jury
was also instructed that they needed to determine whether Lowther intentionally or
knowingly acted. They were further instructed that the act in question was the
threat to commit a crime — not the act of uttering the words. Accordingly, the
record reflects no plain error.
Conclusion
The Superior Court’s judgment is affirmed.
36 Dawson v. State, 581 A.2d 1078, 1105 (Del. 1990) (citing Flamer, 490 A.2d at 104).
37 Whalen v. State, 492 A.2d 552, 559 (Del. 1985) (quoting Storey v. Castner, 314 A.2d 187, 194
(Del. 1973)). '
38 McNally v. State, 980 A.2d 364, 367 (Del. 2009) (citing Floray v. State, 720 A.2d 1132, 1138
(Del. 1998)).
14
threaten Trisha when she said she would “ko kill her.” Therefore, the trial judge
properly denied Lowther’s motion for a judgment of acquittal.
Second, she contends that the Superior Court committed plain error in
instructing the jury on the charge of Terroristic Threatening. We have determined
that, when read as a whole, Superior Court’s instructions were reasonably
informative, not misleading and allowed the jury to perform its duty.
Accordingly, both of Lowther’s arguments are without merit. Therefore, the
Superior Court’s judgment must be affirmed.
Facts
On the evening of April 23, 2013, Lowther picked up her brother, Michael
Lowther (“Michael”), from work in West Grove, Pennsylvania. Lowther was
approximately twenty minutes late picking up Michael and the two began to argue
on the way home. The two arrived at Michael’s home in Newark, Delaware, and
the argument escalated into a physical altercation.
Upon arriving at Michael’s home, Lowther went into the kitchen and
grabbed a pair of scissors and threatened Michael with them. Lowther then put
down the scissors and grabbed a broom and broke it over Michael’s back. Lowther
next entered the living room, grabbed a cane that belonged to Michael’s wife,
Trisha, and began to hit Michael on the back with it. Lowther then turned to
Trisha and started to hit her with the cane. Lowther then got on top of Trisha and
started hitting Trisha with her hands. Lowther eventually stopped and went
upstairs.
Michael called the police. Shortly thereafter, Officer John O’Hara (“Officer
O’Hara”) of the New Castle County Police Department arrived at Michael’s home.
After briefly speaking with Michael, Officer O’Hara went inside Michael’s home
and asked Lowther to come downstairs. Officer O’Hara then handcuffed Lowther
and placed her in the back of a patrol car. Trisha was transported to the hospital by
ambulance.
Lowther complained of stomach and vaginal pain and was also transported
to the hospital. While Lowther was in the police car, she stated that if she saw
Trisha at the hospital, she was going to “Fm kill her.” At the hospital, Officer
O’Hara read Lowther her Miranda rights and asked her questions. Lowther
repeatedly told the officer to, “go f2W yourself.”
Motion for Judgment of Acquittal on Terroristic Threatening
This Court reviews a trial judge’s denial of a motion for judgment of
acquittal de 710120.1 This Court must determine “whether any rational trier of fact,
viewing the evidence in the light most favorable to the State, could find the
defendant guilty beyond a reasonable doubt of all the elements of a crime.”2
1 Flonnory v. State, 893 A.2d 507, 537 (Del. 2006) (citing Priest v. State, 879 A.2d 575, 577
(Del. 2005)).
2 Id.
Under 11 Del. C. § 62E, “[a] person is guilty of terroristic threatening when
that person . . . to commit any crime likely to result in death or in serious injury
to a person or property.”3 This Court has held that there are three elements to meet
the statutory requirements of 11 Del. C. § 621: “(1) a threat, (2) to commit a crime,
(3) likely to result in death or “serious injury” to person or property.”4 This Court
has further held that the mental. state necessary to commit terroristie threatening is
that of a “subjective intent to threaten” the Victim.5
When determining Whether these elements are present, the utterance must
not be placed in a vacuum, but rather should be viewed in light of its context and
6
the totality of the circumstances. Furthermore, this Court has noted that § 621
“punishes mere words, because the statute is meant to protect against the fear
.7
threats engender.”' Therefore, “an intent to actually carry out the threat is
immaterial.”
3 11 Del. C. §621(a)(l).
4 Andrews v. State, 930 A.2d 846, 853 (Del. 2007) (quoting Bilinski v. State, 462 A.2d 409, 413
(Del. 1983)).
5 See id. at 852 (citing Virginia v. Black, 538 US. 343, 360 (2003)) (noting that the Supreme
Court has required an- objective test when determining Whether speech is unprotected by the First
Amendment as a true threat, but further noting that 11 Del. C. § 621 applies only to speech made
with the subjective intent to threaten). ,
6 See id. at 851 (quoting United States v. Kosma, 951 F.2d 549, 557 (3d Cir. 1991)).
7 Id. at 853. ’
8 Id. (citing Allen v. State, 453 A.2d 1166, 1168 (Del. 1982)).
5
Lowther argues that the State did not present evidence which proved beyond
'a reasonable doubt that she had the appropriate subjective intent to threaten Trisha
at the time she made the statement. In doing so, Lowther makes three arguments.
First, she argues that when she made the statements, she was handcuffed and in the
back of the police car, and therefore, it was impossible for her to have any contact
with Trisha, let alone kill her.9 Second, she argues that there were no facts which
indicate that she knew Trisha was going to the hospital.10 Third, she argues that
the statement she made was not one the legislature intended to punish.11
Lowther’s first argument is without merit. This Court has held that intent to
utter the words and intent to threaten the victim is all that is necessary for
terroristic threatening.12 There does not need to be intent to actually carry out the
threat.13 In Andrews, this Court explicitly stated:
[W]e conclude that § 621 requires that the State prove not only that
the defendant uttered words that facially threaten serious physical
injury or death but also that in uttering them, the defendant intended
to threaten the victim. The defendant need not intend to carry out the
9 Appellant’s Opening Br. at 7-9 (“First, Lowther was in police custody and handcuffed, making
it impossible to have contact with Trisha, let alone kill her at the hospital”).
10 Id. (“Second, at the time, Lowther did not know that Trisha was going to the hospital”).
11 Id. (“Third, Lowther had just been involved in arguments and a physical altercation with her
brother and sister—in—law, had been detained and was in pain. She was angry and blowing off
steam when she said these words in the presence of a police officer and was out of the presence
of the Victim”).
‘2 See Andrews, 930 A.2d at 852-53.
‘3 Id.
threat, but it is not enough to show only that the defendant merely
intended to utter threatening words. 14
in addition, the statutory language of § 621 does not support Lowther’s
argument. The text of the statute states, “[tlhe person threatens to commit any
r;
crime likely to result in death or in serious injury to person or property.”]" The
statute criminalizes a threat that is likely to result in death or serious injury,
regardless of whether death or serious injury is likely to occur.16 Lowther’s threat
was that she was going to kill Trisha if she saw Trisha at the hospital.
Accordingly, Lowther‘s argument that she could not have had contact with, let
alone kill, Trisha when she made the statement is meritless because her ability to
carry out the threat is immaterial to the analysis.
Lowther’s second argument — that there was no evidence suggesting that she
knew Trisha was‘going to the hospital — is also without merit. Again, the intent to
actually carry out the threat is not necessary.17 Thereonly needs to be the intent to
utter the words and to threaten the Victim.18 Here, Lowther argues that she did not
_ know Trisha was going to the hospital, and therefore could not have committed the
14 Id. at 854.
15 11 Del. C. §62i(a)(r).
16 See Andrews, 930 A.2d at 853.
17 See id. at 852-53.
‘8 Id.
threatened act. This argument fails for the same reasons as Lowther’s first
argument.
Further, when viewing the evidence in the light most favorable to the State,
the record reflects that Lowther knew that Trisha was going to the hospital.
Officer O‘Hara testified that he placed Lowther in a police car outside of Michael’s
home. Officer O’Hara further testified that Trisha was “being lead [sic] to the
ambulance.” As a result, the jury could have inferred that Lowther saw Trisha
walking to the ambulance and knew that she was being transported to the hospital.
Lowther’s third argument is that this type of statement is not within the
category of statements that the statute penalizes.19 In making this argument,
Lowther relies on Pennsylvania case law.20 However, Delaware’sterroristic threat
statute and Pennsylvania’s are not the same. Pennsylvania’s analogous statute, 18
Pa.C.S.A. §2706(a)(l), provides: “A person commits the crime of terroristic
threats if the person communicates, either directly or indirectly, a threat to: (l)
71
commit any crime of Violence with intent to terrorize another.” On its face, the
law seems similar. However, the Pennsylvania’s statute includes an official
comment indicating that:
19 See Appellant’s Opening Br. at 7-8.
20 Id. (“Pennsylvania has recognized that spur—of—the-moment statements and statements made in
the heat of anger may be exempt from proscription.”).
21 18 Pa. C.S.A. §2706(a)(1).
[t]he purpose of [§ 2706] is to impose criminal iiability on persons
who make threats which seriously impair personai security or public
convenience. It is not intended by this section to penalize mere spur-
of—the—moment threats which result from anger.22
Pennsylvania explicitly acknowledges that threats made in anger are not true
threats. Deiaware”s statute, however, does not include an official comment
indicating that spur—of—the-moment comments, are exempt from the statute.23
Nevertheless, this Court’s construction of the statute exempts statements that
were not true threats by requiring that the speaker intend to actually make a threat,
not merely intend to utter the words.24 Thus, the question before this Court is
whether a rational jury, viewing the evidence in the light most favorable to the
State, could find that Lowther had the subjective intent to make a threat — that is to
say, Lowther was not acting merely in the heat of passion and making a comment
she did not intend to be a threat. Subjective intent to threaten may be proved by
showing the defendant intentionally, knowingly or recklessly made a threatening
statement.
Lowther argues that she could not have had the required intent to threaten
Trisha, in the sense of engendering fear in her, because Lowther made her
statement to a police officer when under arrest, when Trisha was not present, and
22 Id. at § 2706.
23 See 11 Del. C. § 621.
24 See Andrews, 930 A.2d at 853-54.
when Lowther supposedly had no reason to believe Trisha would be going to the
hospital. But as noted, from the facts presented at trial, the jury had a basis to infer
that Lowther knew that Trisha was going to the hospital, not just because
Lowther’s own statement implied that she suspected that was the case, but because
Lowther had beaten Trisha severely and caused injuries in need of treatment.
Further, Lowther was sitting in a police car outside of Michael’s home at the same
time Trisha was led to an ambulance for those injuries, which Lowther was capable
of observing.
Moreover, the jury could have inferred that Lowther knew that the police
would likely tell Trisha about this statement so that Trisha knew to be wary of
Lowther. The jury could also have inferred that the statement, when
communicated to Trisha, would frighten her, because Trisha had just suffered a
violent attack at Lowther’s hands. Based on these facts, a reasonable jury could
conclude that Lowther had the subjective intent to threaten Trisha when making
her statement.
Lowther’s three arguments regarding her motion for judgment of acquittal
on the Terroristic Threatening charge are without merit. Accordingly, we hold that
the Superior Court properly denied Lowther’s motion for a judgment of acquittal.
10