Submitted Sept. 26, 2013.
Fletcher P. Thompson, Crownsville, MD, was on the brief for appellant.
Ronald C. Machen, Jr., United States Attorney and Elizabeth Trosman and Kathryn L. Rakoczy, Assistant United States Attorneys, were on the brief for appellee.
Before THOMPSON, Associate Judge, and NEWMAN and SCHWELB, Senior Judges.
NEWMAN, Senior Judge:
Carrell was convicted after a bench trial of simple assault  and attempted threats to do bodily harm. He appeals the portion of the judgment relating to attempted threats to do bodily harm; he does not challenge his assault conviction. He urges us to hold that the evidence was insufficient to support a finding that he intended to threaten the victim, Ringenburg, a finding that he contends the trial judge never made, although required to do so. We affirm.
On January 10, 2012, the tumultuous two-year relationship between Carrell and his girlfriend, Ringenburg, began its eventful conclusion. According to Ringenburg's testimony, which the trial judge credited in its entirety, Carrell came to the residence they shared that evening in an intoxicated condition; an argument ensued. Carrell told Ringenburg that " I wish you would die" and that if she called any of her family or friends for help, he would kill them. Ultimately, this encounter ceased and none of these events are the subject of the charges in this case.
The argument began anew the following morning. Carrell grabbed Ringenburg with both his hands around her throat, in a choking position, and pushed her against the bedroom window. While doing so, Carrell yelled at her " I could kill you right now, I could fucking kill you." Ringenburg testified that this caused her to fear for her life. After releasing her and after a further bout of verbal jousting, Carrell again grabbed Ringenburg and pushed her to the floor. He pinned her to the floor and placed a hand over her nose and mouth, so that Ringenburg could not speak and had difficulty breathing. Ringenburg felt like she was suffocating. She was able to get free and called 911.
Carrell testified. He denied pushing Ringenburg down to the floor, covering her mouth with his hands, or telling her, " I could kill you, I could fucking kill you." On cross-examination, he admitted during previous arguments with Ringenburg he had broken furniture, furnishings, fixtures, and memorabilia.
We now quote, in some detail, from the trial court's findings.
Okay. The Court has before her two counts in this case the Government's proceeded on. One is an assault. I'm reading from the instruction, attempt battery-the elements of which the Government would have to prove beyond a reasonable doubt that the Defendant with force or violence injured or attempted to injure the complaining witness.
Two: That he did so voluntarily, on purpose and not by mistake or accident.
Three: At the time he had the apparent ability to injure her. And, also, there appears to be a self defense claim the Government would have to prove beyond a reasonable doubt that he did not act in self defense.
In terms of the second count, which is threats to do bodily harm the Government would have to prove that Mr. Carrell spoke words or otherwise communicated to the complaining witness words [that] would cause a person reasonably to believe that he or she would be seriously harmed if the event occurred and that he intended to utter the words which constituted the threat.
Later, the court continued its findings and conclusions.
... I still ... determined based upon ... crediting the testimony of the complaining witness in the— in its entire[ty]— that Mr. Carrell did with force or violence when he did choke her with both hands, press her throat, when he did push her down onto the rug in the living room with force or violence injured or attempted to injure the complaining witness, that he did so voluntarily, on purpose, and not by mistake or accident.
And that at the time he had the apparent ability to injure her, I dealt with the issue and find that the Government has proven each of those elements beyond a reasonable doubt and is proven beyond a reasonable doubt that there was no self defense viable in this case.
I also have concluded based on the testimony that Mr. Carrell did utter words to Ms. Ringenburg in his anger, that the words I'm focused on are the words " I could kill you, I could kill you. I could fucking kill you right now." And in terms of that— that— those sets of words, taken in the context— because one has to ask what is a threat.
There are threats that are immediate. There are threats that are— that threaten, if you will, utter future harm or conditional harm but in my assessment of the case law here the Court of Appeals ha[s] noted that I'm not to look at those words [in] a vacuum, I'm to look at those words in terms of the circumstances surrounding the statements whether or not those words would cause a reasonable person to interpret them as a threat or not.
Jenkins v. United States,
902 A.2d 79
Clark v. United States,
755 A.2d 1026
So I do find and conclude that the three elements of that offense have also been proven beyond a reasonable doubt.
Again, I just want to make the record clear that I am not finding the term— the comment that Mr. Carrell conceded he made— I wish you were dead. I'm not finding that to be the threat that is— is charged here. I don't think that was argued that way and that's not the threat— the words that I'm focusing on that constituted the Government's argument and constituted the threat in this case.
And so for the following reasons I find Mr. Carrell guilty beyond a reasonable doubt of both the simple assault and threats to do bodily harm.
There is no merit to Carrell's claim of evidentiary insufficiency. The evidence, as credited by the trial judge, is legally sufficient to establish each element of the offense beyond a reasonable doubt as those elements are enunciated in Campbell v. United States, 450 A.2d 428, 431 n. 5 (D.C.1982), and its progeny. Likewise if viewed under United States v. Baish, 460 A.2d 38, 42 (D.C.1983), and its progeny, as
Carrell contends we must, the evidence that the trial judge credited is legally sufficient to establish guilt beyond a reasonable doubt even if we must include as an element " that the defendant intended to utter the words as a threat." As the trial judge found, Carrell spoke the words " I could kill you, I could kill you, I could fucking kill you right now" while he was choking Ringenburg with both hands around her neck (i.e., the assault for which Carrell stands convicted and which he does not challenge here). Taken in the context in which they were used, including the prior interactions between the participants, these words were sufficient to enable a reasonable trier of fact to conclude beyond a reasonable doubt that Carrell was guilty of threatening Ringenburg with bodily harm, under either formulation of the " intent" requirement.
Carrell asserts that whether or not the evidence was sufficient to permit a finding that his words were uttered with the intent to threaten, his conviction must nevertheless be reversed because the trial judge did not make an explicit finding on this issue as he urges is required by such cases as United States v. Baish, supra, and its progeny, e.g., Clark v. United States, 755 A.2d 1026, 1030 (D.C.2000). To address this contention, we must analyze our decisions construing the elements of the offense of threats to do bodily harm.
We first construed our threats statute in Postell v. United States, 282 A.2d 551 (D.C.1971). There we noted that the
crime of oral threats to do bodily harm was unknown to the common law and we know of no cases in this jurisdiction which have construed our statute or the meaning of the word " threats." Accordingly, we must first interpret [the statute] in light of the facts in this case and the applicable principles of law as we understand them.
Id. at 553. After reviewing the authorities, we concluded that " the gist of the crime is that the words used are of such a nature as to convey a menace or fear of bodily harm to the ordinary hearer." Id. (citing State v. Schultheis, 113 N.J.Super. 11, 272 A.2d 544, 547 (A.D.1971)). We have reaffirmed on numerous occasions Postell's construction of the threats statute as encompassing all communications that are objectively viewed as threats by the " ordinary hearer." E.g., Tolentino v. United States, 636 A.2d 433, 435 (D.C.1994); Beard v. United States, ...