En Banc January 26, 2016
from the Superior Court of the District of Columbia
(DVM-134-12) (Hon. Heidi M. Pasichow, Trial Judge)
Fletcher P. Thompson for appellant.
P. Mannarino, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney, and Elizabeth
Trosman, Assistant United States Attorney, were on the brief,
S. Satoskar, with whom Samia Fam and Jaclyn S. Frankfurt were
on the brief, for Public Defender Service, amicus curiae, in
support of appellant.
S. Meier, Bruce A. Ericson (admitted pro hac vice), Christine
Scheuneman (admitted pro hac vice), Julia E. Judish, Kristen
Baker, and Stephen Asay were on the brief for amici curiae
Domestic Violence Legal Empowerment and Appeals Project, D.C.
Coalition Against Domestic Violence, D.C. Volunteer Lawyers
Project, National Network to End Domestic Violence, and
Network for Victim Recovery of D.C., in support of appellee.
Blackburne-Rigsby, Chief Judge; Glickman, Fisher, Thompson, B
eckwith, and E asterly, Associate Judges; and W ashington,
Easterly, Associate Judge.
return to this case, sitting en banc, to determine what, if
anything, the government must prove vis-à-vis a
defendant's mens rea, or state of mind, in order to
obtain a conviction for threats (misdemeanor or
felony). Our threats statutes do not give us much
guidance; neither expressly includes a requisite culpable
mental state. And in the wake of this statutory silence, we
developed two strands of case law: one indicating that the
government had an obligation to prove the defendant
"intended" to utter the words as a threat, and the
other indicating that it did not. A division of this court
considered the split in our precedent and resolved that the
latter branch of our case law was binding precedent. See
Carrell v. United States, 80 A.3d 163, 170-71 (D.C.
2013). We now hold that the government must prove the
defendant's mens rea to utter the words as a threat, and
that it may do so by establishing that the defendant acted
with the purpose to threaten or with knowledge that his words
would be perceived as a threat.
Facts and Procedural History
Charles Carrell was charged with one count of assault and one
count of attempted threats; he pled not guilty and received a
bench trial. To prove its case, the government relied
primarily on the testimony of the complainant, Mr.
Carrell's ex-girlfriend at the time of trial. (On the
date of the alleged incident, the two were in the process of
ending their relationship but were still living together.)
The complainant testified that Mr. Carrell returned home in
the early morning hours. They argued. Eventually, "it
just subdued, " and they went to bed in different rooms.
The following morning, however, they resumed fighting. The
complainant testified that, in the midst of their argument,
Mr. Carrell grabbed her, put both of his hands around her
neck "with pressure, " and pushed her against the
bedroom window. While doing so, Mr. Carrell yelled at her,
"I could fucking kill you, I could kill you, I could
kill you right now if I wanted to." The complainant
testified that she thought he was going to kill her. After
some period of time, perhaps as long as a minute, Mr. Carrell
let the complainant go. But after the complainant told Mr.
Carrell that he was "sick" and "needed help,
" he attacked her again, this time pushing her to the
ground, pinning her arms against her sides and putting his
hands over her nose and mouth. The complainant testified
that, eventually, she was able to get free and called 911.
Carrell testified in his own defense and disputed the
complainant's account of this incident. He denied being
physically violent with the complainant or saying to her,
"I could fucking kill you right now if I wanted
to." He testified that the complainant had
initiated the argument with him that morning; that when he
"refused to pay attention to her, " she grabbed him
and kicked him; and that he only engaged with her to get
away. He testified that she then accused him of hurting her,
threatened him with arrest and the loss of custody of his
daughter, and called 911. He had waited for the police to
arrive because he "had nothing to hide" and
"wanted to tell his side of the story." On
cross-examination, he admitted that he had, during previous
arguments with the complainant, thrown and torn pages out of
books, pulled a chandelier partially out of the ceiling, and
broken a vase, a cabinet door, and the French doors in the
instructing herself as to the elements of each offense
charged,  the trial judge rendered her verdict. The
court credited the complainant's testimony "in its
entirety, " discredited Mr. Carrell's testimony, and
found Mr. Carrell guilty of assault and attempted threats. As
to the latter charge, the court determined that the
government had to prove beyond a reasonable doubt "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 . . .
harmed if the event occurred" and "that
he intended to utter the words which constituted the
threat." The court did not acknowledge any obligation to
determine whether Mr. Carrell in fact intended to threaten
the complainant,  and it noted that his subsequent apology
to the complainant was "an indicia that Mr. Carrell
reacted under these circumstances understandably frustrated .
. . that [the complainant] could not control herself orally
in terms of her argument and the timing of it." The
court determined that the government had met its burden by
proving that Mr. Carrell "utter[ed] words to [the
complainant] in his anger, " specifically "I could
kill you, I could kill you. I could fucking kill you right
Carrell challenged his attempted threats conviction on
sufficiency grounds, arguing that the trial court
"fail[ed] to make a finding as to his intent when he
uttered the words which [the trial court] found constituted a
crime." A division of this court acknowledged a split of
authority in our case law regarding the government's
obligation to prove a defendant's "intent" to
threaten, but determined that, per M.A.P. v. Ryan,
285 A.2d 310 (D.C. 1971), the line of cases eschewing such a
mens rea element was controlling. Carrell, 80 A.3d
at 169-70. Over a dissent from Judge Schwelb, id. at
171-77, a division of this court affirmed, id. at
171. Mr. Carrell then filed a petition for en banc review,
which the full court granted. Carrell v. United
States, No. 12-CM-523, 2015 WL 5725539 (D.C. June 15,
2015) (per curiam order).
The Law of Threats
confronted with a question of statutory interpretation: How
should we read the District of Columbia's threats
statutes, neither of which defines the elements of the crime,
much less addresses what, if any, mens rea the government
must prove as to each element? The misdemeanor threats
statute, D.C. Code § 22-407, dating back to 1912,
contains no description of the crime at all; it merely sets
Whoever is convicted in the District of threats to do bodily
harm shall be fined not more than the amount set forth in
§ 22-3571.01 or imprisoned not more than 6 months, or
both, and, in addition thereto, or in lieu thereof, may be
required to give bond to keep the peace for a period not
exceeding 1 year.
felony threats statute, D.C. Code § 22-1810, passed in
and patterned on a federal statute, 18 U.S.C. § 875 (c)
(1994),  is similarly vague about what exactly
the government must prove to obtain a conviction. It states:
Whoever threatens within the District of Columbia to kidnap
any person or to injure the person of another or physically
damage the property of any person or of another person, in
whole or in part, shall be fined not more than the amount set
forth in § 22-3571.01 or imprisoned not more than 20
years, or both.
"phrasing" of these statutes is "hardly
ideal." United States v. Baish, 460
A.2d 38, 41 (D.C. 1983). But over the years this court has
addressed any vagueness concerns by carving out a defined
actus reus, i.e., the act made punishable by this
crime. Specifically, we have said that, in
order to obtain a conviction, the government must prove a
conduct element and a result element: that the defendant (1)
"uttered words to another person" (2) with a
result that "the ordinary hearer [would] reasonably . .
. believe that the threatened harm would take place."
In re S.W., 45 A.3d 151, 155 (D.C. 2012); see
also Clark (Harold) v. United States,
755 A.2d 1026, 1030 (D.C. 2000) (acknowledging these two
actus reus elements); Baish, 460 A.2d at 42 (same);
Postell v. United States, 282 A.2d 551, 553 (D.C.
leaves the question of the requisite mens rea for the crime
of threats- what courts have often, imprecisely, referred to
as the question of "intent." The Supreme Court
recently considered in Elonis v. United States, 135
S.Ct. 2001 (2015), what proof of mental state the federal
threats statute, 18 U.S.C. § 875 (c), requires. Relying
on basic principles of statutory construction in the criminal
law context, the Court determined that the federal threats
statute-also silent on the subject of mens rea-necessitates
proof of mens rea with respect to both its conduct and result
elements, and endorsed purpose or knowledge for the latter.
Elonis, 135 S.Ct. at 2011-12. We hew to the three
pillars of the Supreme Court's reasoning and reach the
the Court reaffirmed that "'mere omission from a
criminal enactment of any mention of criminal intent'
should not be read as 'dispensing with it.'" 135
S.Ct. at 2009 (quoting Morissette v. United States,
342 U.S. 246, 250 (1952)). The Court explained that
"[t]his rule of construction reflects the basic
principle that wrongdoing must be conscious to be
criminal." Id. (internal quotation marks
omitted) (also noting that "the general rule is that a
guilty mind is a necessary element in the indictment and
proof of every crime" (internal quotation marks
omitted)). Thus, we will read mens rea requirements into
criminal statutes "even where the statute by its terms
does not contain them." Id. By the same token,
because our criminal justice system is premised on a
"belief in freedom of the human will and a consequent
ability and duty of the normal individual to choose between
good and evil, " id. (quoting
Morissette, 342 U.S. at 250),  we require a
clear statement from the legislature before we will conclude
that a defendant may be found guilty of a crime without
regard to his subjective state of mind. Id. at 2011.
as the Supreme Court explained, "[t]he presumption in
favor of a scienter requirement . . . appl[ies] to
each of the statutory elements that criminalize
otherwise innocent conduct." Elonis, 135 S.Ct.
at 2011 (internal quotation marks omitted) (quoting
United States v. X-Citement Video, Inc., 513 U.S.
64, 72 (1994)); see also Staples v. United States,
511 U.S. 600, 609 (1994) ("[D]ifferent elements of the
same offense can require different mental states.");
United States v. Bailey, 444 U.S. 394, 405-06 (1980)
("Clear analysis requires that the question of the kind
of culpability required to establish the commission of an
offense be faced separately with respect to each material
element of the crime." (brackets omitted)).
in furtherance of the aim to distinguish "wrongful
conduct from otherwise innocent conduct, "
Elonis, 135 S.Ct. at 2010 (internal quotation marks
omitted), the Supreme Court indicated that careful attention
should be paid to gradations of mens rea, which it discussed
using the hierarchy of culpable mental states set forth in
the Model Penal Code (MPC): purpose, knowledge, recklessness,
and negligence. The Court explained that, in some cases,
"to protect the innocent actor, " courts should
infer that the government must prove that the defendant
purposely engaged in the prohibited conduct.
Elonis, 135 S.Ct. at 2010. But generally, courts
should infer that the government must prove at least that a
defendant "know[s] the facts that make his conduct fit
the definition of the offense." Elonis, 135
S.Ct. at 2009. The Court explained that merely
inferring a negligence, i.e., should-have-known,
standard is disfavored. Id. at 2011. In
short, the Court made clear that, when determining
culpability, "what [a defendant] thinks does
matter." Id. (internal quotation marks
these principles, the Supreme Court examined the actus reus
of the federal crime of threats in its distinct parts-as it
defined them, (1) the transmission of a communication, and
(2) "the fact that that communication contains a
threat"-and determined the mens rea for each.
Elonis, 135 S.Ct. at 2011.
the conduct element, the Court determined that there was no
dispute: a defendant "must know that he is transmitting
a communication." 135 S.Ct. at 2011. Similarly, in Mr.
Carrell's case, there has never been any question that
the government must prove that Mr. Carrell
"intended" to communicate the words alleged to be a
threat, i.e., he knew he was transmitting a
communication. But the Supreme Court made clear that
criminal liability for threats could not rest solely on this
determination: "[C]ommunicating something is not what
makes the conduct 'wrongful.' Here the crucial
element separating legal innocence from wrongful conduct is
the threatening nature of the communication. The mental state
requirement must therefore apply to the fact that the
communication contains a threat." Id. at 2011
(emphasis, citation, and internal quotation marks omitted).
the result element of the crime, the Court held that it was
not enough to require the government to prove that a
reasonable person would understand the communication to
contain a threat, because that would amount to a negligence
standard and contravene the "conventional
requirement" in our criminal justice system that the
defendant be aware of his wrongdoing. Elonis, 135
S.Ct. at 2011. Instead, the mens rea requirement "is
satisfied if the defendant transmit[ted] a communication for
the purpose of issuing a threat, or with knowledge that the
communication will be viewed as a threat." Id.
the principles of Elonis, we too hold that, in
interpreting our threats statute, and in particular the
result element of the crime as we have defined it, see
supra note 13 and accompanying text, more is required
than a showing that a reasonable person would have understood
the defendant's words as a threat or that a defendant
should have known that that would be the case.
the lead of the Supreme Court, see supra note 16, we
likewise conclude that more precise gradations of mens rea
should be employed. We have previously expressed concern
about the use of "general" and "specific"
intent.We reiterate our endorsement of more
particularized and standardized categorizations of mens rea,
and, in the absence of a statutory scheme setting forth such
categorizations,  we, like the Supreme Court, look to the
Model Penal Code terms and their definitions. See
supra notes 17, 18, and 21.
this hierarchy of mens rea levels to the actus reus result
element of the crime of threats, we hold that the government
may carry its burden of proof by establishing that the
defendant acted with the purpose to threaten or with
knowledge that his words would be perceived as a threat.
Elonis, 135 S.Ct. at 2012. Like the Supreme Court,
however, we decline to decide whether a lesser threshold mens
rea for the second element of the crime of
threats-recklessness- would suffice.
defer resolution of this issue for multiple reasons, among
them: (1) post-Elonis, the majority of federal
courts confronting this question have taken their cue from
the Supreme Court and have declined to reach
it; (2) given that we adhere to the
reasoning of Elonis, and that the same legislature
(Congress) enacted the federal threats statute and our
threats statutes, we hesitate at this juncture to adopt a
mens rea for our threats crimes that may turn out to conflict
with what the Supreme Court or the majority of federal courts
ultimately adopt; (3) we prefer to make a more informed
judgment on the question whether recklessness suffices in the
context of a factual situation that concretely presents the
issue; and (4) we have no need to reach the question in this
case, because, while the parties before us disagree in the
abstract, the prosecuting agency, the United States
Attorney's Office, disclaims reliance on recklessness,
discounts the need to resolve the question as a general
matter, and states that it does not intend to prosecute
future threats cases on a recklessness theory.
we leave for another day whether a defendant can be found
guilty of the crime of threats based on a showing that he
recklessly uttered words as a threat. For now, we decide only
that, to obtain a conviction for threats, the government may
carry its burden of proof by establishing that the defendant
acted with the purpose to threaten or with knowledge that his
words would be perceived as a threat.
Standard of Review and Appropriate Remedy
now to the appropriate disposition of Mr. Carrell's case.
Echoing the analysis of the division, the government argues
that, even if we hold that the mens rea for the result
element of threats is satisfied by proof of purpose or
knowledge, as we have done, Mr. Carrell is entitled to no
relief, because he did not preserve a challenge to the trial
court's verdict on this basis, and he cannot satisfy the
test for plain error. We conclude that, at his bench trial,
Mr. Carrell adequately preserved his challenge to the
sufficiency of the evidence-which encompassed his mens rea
claim-and the test for plain error has no application to this
initial brief to a division of this court, Mr. Carrell argued
that the evidence was insufficient to sustain his conviction,
because the trial court-the factfinder-was obligated to find
that he had uttered the alleged threatening words as a
threat; the trial court did not so find; and the evidence did
not support such a finding. The division rejected his claim
on the merits, and then added that, because Mr. Carrell had
made no request for special findings of fact under Super. Ct.
Crim. R. 23 (c), "his claim of error here is subject to
plain error review at best." Carrell, 80 A.3d
at 171. But Mr. Carrell's appellate claim before the
division did not pertain to the accuracy or validity of the
trial court's factual findings; indeed, he never cited
Rule 23 and he expressly stated that the factual findings the
trial court made were not in dispute. Instead, his claim was
that the evidence was insufficient to sustain his conviction
because he did not have the requisite mens rea to threaten
the complainant-a claim which was predicated on his argument
that a showing of such mens rea was required. See
Carrell, 80 A.3d at 177 n.7 (Schwelb, J., dissenting)
(observing Mr. Carrell's "basic contention [wa]s
that the judge applied the wrong legal standard" in
assessing Mr. Carrell's guilt).
explained in Newby v. United States, 797 A.2d 1233
(D.C. 2002), it is well settled in this jurisdiction that a
"full range of challenges" to the sufficiency of
the evidence are automatically preserved at a bench trial by
a defendant's plea of not guilty. Id. at 1237-38
& n.2 (observing that, "in a non-jury proceeding . .
. sufficiency challenges may be preserved whether or not the
defense raises them at trial"). Moreover, such
sufficiency challenges encompass challenges to the requisite
elements of the crime. See, e.g., Sutton v.
United States, 988 A.2d 478, 482 (D.C. 2010) ("This
court . . . reviews de novo the elements of the crime which
the prosecution must prove and against which sufficiency of
the evidence is assessed."). Thus, in Newby, as
here, the defendant argued on appeal that the trial court
failed to find that she acted with the mens rea necessary to
sustain a conviction (malice) and that the record evidence
was insufficient to support such a determination; she had not
made this claim in the trial court. 797 A.2d at 1237.
Nevertheless, we concluded that her argument was preserved
for our review, because it was "in reality a challenge
to the sufficiency of the evidence to sustain her
conviction." Id. At his bench trial, Mr.
Carrell not only pled not guilty but also made a general
motion for a judgment of acquittal challenging the
sufficiency of the government's evidence. Thus, Mr.
Carrell's claim that the trial court was obligated to
find that he acted with purpose or knowledge is preserved as
part of his repeated challenge to the sufficiency of the
evidence to sustain his conviction for attempted threats.
then to the sufficiency question. As explained above, under
our law of threats, Mr. Carrell could not have been found
guilty based on a showing of mere negligence, but he could
have been found guilty if the government proved that he had
the purpose to threaten the complainant or that he knew his
words would be perceived as a threat. Thus, we consider
whether, "[v]iewing the evidence in the light most
favorable to the government, " Ortberg v. United
States, 81 A.3d 303, 309 (D.C. 2013), a reasonable
factfinder could have determined that the government proved
Mr. Carrell's purpose or knowledge beyond a reasonable
doubt. See Rivas v. United States, 783 A.2d 125,
133-34 (D.C. 2001) (en banc). Mr. Carrell's briefing is
silent on this point; he directs us to no record evidence
that would have precluded such a finding. We conclude that a
reasonable factfinder could have determined that he acted
with a mens rea adequate to support his conviction of
analysis does not end here. The fact remains that the trial
court did not apply the law as we have outlined it
above. Specifically, the court only assessed
Mr. Carrell's mens rea as to the conduct element for
attempted threats and determined that Mr. Carrell had
"intended to utter the words which constituted the
threat." The trial court did not determine that Mr.
Carrell spoke these words to the complainant with knowledge
or purpose that they would be understood as a threat.
Carrell requests that, to remedy the trial court's legal
error, we remand the case to the trial court to apply the law
of threats as we have outlined in this opinion and issue a
verdict thereunder. The government counters that no remand is
necessary. Citing Neder v. United States, 527 U.S.
1, 4 (1999), and Wilson-Bey v. United States, 903
A.2d 818, 843 (D.C. 2006) (en banc), the government argues
(in the alternative to its plain error argument) that we must
assess whether the trial court's error was harmless under
the Chapman standard,  just as we would when a
jury has been misinstructed as to the elements of a
crime. The government further argues that the
trial court's failure to consider whether Mr. Carrell
acted with knowledge or purpose was harmless. We agree that
we must assess whether the trial court's error was
harmless under Chapman. D.C. Code § 11-721 (e)
(2012 Repl.) ("On the hearing of any appeal in any case,
the District of Columbia Court of Appeals shall give judgment
after an examination of the record without regard to errors
or defects which do not affect the substantial rights of the
parties."); see also United States v.
Argueta-Rosales, 819 F.3d 1149, 1156 (9th Cir. 2016)
("When a district court in a bench trial has made a
legal error regarding the elements of an offense, the error
is reviewed using the same harmless error standard that would
apply to an erroneous jury instruction, " i.e., the
Chapman standard.); United States v.
Sheehan, 512 F.3d 621, 631 (D.C. Cir. 2008) (determining
that the trial court made the legal error of
"eliminat[ing] the prosecutor's burden of proving
mens rea, " and applying the Chapman
standard for harmless error); Douglas v. United
States, 859 A.2d 641, 642 (D.C. 2004) (effectively
applying Chapman harmless error where the trial
court "arguably" erred in determining that the
defendant had failed to make out a prima facie case of
self-defense but then made the same credibility findings it
would have made had the court properly placed the burden to
disprove self-defense on the government). But we disagree
that the error in this case was harmless.
Chapman, an error is considered harmless if the
government can "show beyond a reasonable doubt that the
error complained of did not contribute to the verdict
obtained." Sullivan v. Louisiana,508 U.S. 275,
279 (1993); see also Wilson-Bey, 903 A.2d at 844 (en
banc). "[T]he question . . . is not what effect the
constitutional error might generally be expected to have upon
a reasonable [factfinder], but rather what effect it had
upon the guilty verdict in the case at hand."
Sullivan, 508 U.S. at 279 (emphasis added). It is thus
beside the point that we have already concluded that the
evidence was legally sufficient; the pertinent question is
whether we can say, beyond a reasonable doubt, that the trial
court would ...