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In re S.W.

June 7, 2012

IN RE S.W., APPELLANT


The opinion of the court was delivered by: Easterly, Associate Judge

Submitted March 6, 2012

Before OBERLY and EASTERLY, Associate Judges, and KING, Senior Judge.

Appellant, S.W., was adjudicated delinquent after being found guilty of felony threats to damage property, D.C.Code § 22–1810 (2001) formerly D.C.Code § 22–2307 (1981).*fn1 S.W. appeals, contending that the evidence was insufficient to find him guilty. We agree. The record reflects that the complainant, Cherie Gardner, and S.W. were friends with no history of animosity, much less violence. The day before the alleged threat was made Ms. Gardner experienced an upsetting incident when her house caught on fire. But her sensitivity about that scare did not turn words sung by fifteen-year-old S.W., who is not alleged to have had any connection to the fire, into a threat. Specifically, the fact that S.W. paraded back and forth on the sidewalk in front of Ms. Gardner, performing to a laughing audience and singing a modified rap song about setting the block and her house on fire, cannot reasonably be perceived as communicating a threat to damage Ms. Gardner's home. Because an essential element of the crime was not proved, we reverse S.W.'s adjudication of delinquency.*fn2

I. Facts

The complainant, Cherie Gardner, was the government's sole witness at trial. Ms. Gardner, age 22, testified that she and S.W., then age 15, had been neighborhood friends for about three and a half years. S.W. had been to her home on numerous occasions to play video games and watch movies and to attend parties and get-togethers. According to Ms. Gardner, prior to August 9, 2010, the date of the alleged offense, there was no "change in the nature of their relationship."

On the afternoon of August 8, 2010, however, Ms. Gardner experienced a frightening event. A vacant row house adjacent to the house where Ms. Gardner lived with her mother went up in flames.*fn3 The fire began to spread towards the upstairs portion of Ms. Gardner's house, and the firefighters at the scene broke holes in her ceiling to prevent the fire's progression. In the wake of this near calamity, Ms. Gardner became upset and angry. She was angry because, had the fire continued to spread, her mother, who was bedridden, could have been trapped.

When she evacuated the house, Ms. Gardner saw a number of young men, including S.W., gathered outside.*fn4 Ms. Gardner testified: "I was yelling in anger. I was yelling that when I find out who did this I would, I would try to handle it in any way I could because I didn't appreciate that, you know, the whole situation." Ms. Gardner acknowledged that she "didn't directly yell at anyone." She and S.W. then briefly exchanged words. Ms. Gardner was unable to recall at trial what S.W. said to her, although she stated that it "wasn't anything threatening." In response, Ms. Gardner yelled at S.W. in much the same manner as she had yelled at others who were at the scene of the fire. Ms. Gardner testified that "it was just a moment thing [sic], and that was the end of that." S.W. walked away shortly thereafter.

The following night, Ms. Gardner was sitting outside with some neighbors. Accompanied by three or four of his friends, S.W. walked back and forth on the sidewalk past Ms. Gardner approximately four or five times. On each turn, just after the group passed by Ms. Gardner, approximately fifteen to twenty feet away from her, S.W. sang snippets of what Ms. Gardner recognized to be a song by Lil Wayne,*fn5 with modified lyrics. The title of the Lil Wayne song adapted by S.W. is not in the record.*fn6 According to Ms. Gardner, however:

the chorus of the song, pretty much the main part of the song where [S.W.] was singing [goes:] they will say, he said, if I set this place on fire. That's the main part of the chorus, but instead of him saying that he said, we'll set this block on fire, in that type of, in that way. (Emphasis added.)

According to Ms. Gardner, S.W.'s performance built on itself:

When [S.W.] first walked—it was first ... fuck the police. Then it was, fuck the police, Cherie, and then it was, we're not scared of the police, Cherie. Then it seemed like every time he would walk back past he would say something else, and then that's when he came to the, we will set this whole block on fire, and then, we will set your house on fire. (Emphasis added.)

According to Ms. Gardner's testimony, S.W.'s demeanor appeared "[r]egular.... [H]e didn't seem aggravated or agitated or anything." When asked if he was "doing [anything] with his body," Ms. Gardner testified that S.W. "kind of arched [his back] I guess to help project." S.W. never faced towards her when he was singing:

He didn't walk back and forth singing the song. He—when he was the distance away from me that's when he—it seemed like every time he got away from me that's when he would say something. When he was actually passing me he never said anything. It's just when he was the 20 feet away from me is when he said something.

Ms. Gardner acknowledged that throughout the performance S.W.'s friends were laughing. In response to the government's question—"Are you able to state whether or not [S.W.] was joking?"—Ms. Gardner initially testified, "I'm not sure. He didn't seem like he was joking to me." The government again asked ...


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