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Carrell v. United States

Court of Appeals of Columbia District

August 3, 2017

Lee Carrell, Appellant,
United States, Appellee.

          Argued En Banc January 26, 2016

         Appeal from the Superior Court of the District of Columbia (DVM-134-12) (Hon. Heidi M. Pasichow, Trial Judge)

          Fletcher P. Thompson for appellant.

          John 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, for appellee.

          Shilpa S. Satoskar, with whom Samia Fam and Jaclyn S. Frankfurt were on the brief, for Public Defender Service, amicus curiae, in support of appellant.

          Joan 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.

          Before Blackburne-Rigsby, Chief Judge; Glickman, Fisher, Thompson, B eckwith, and E asterly, Associate Judges; and W ashington, Senior Judge.[*]


          Easterly, Associate Judge.

         We 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).[1] 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.

         I. Facts and Procedural History

         Lee 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, "[2] 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.

         Mr. Carrell testified in his own defense and disputed the complainant's account of this incident.[3] He denied being physically violent with the complainant or saying to her, "I could fucking kill you right now if I wanted to."[4] 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 apartment.

         After instructing herself as to the elements of each offense charged, [5] 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[6] 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, [7] 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 now."

         Mr. 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).

         II. The Law of Threats

         We are 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, [8] contains no description of the crime at all; it merely sets the penalty:

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.

         The felony threats statute, D.C. Code § 22-1810, passed in 1968[9] and patterned on a federal statute, 18 U.S.C. § 875 (c) (1994), [10] 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.

         The "phrasing" of these statutes is "hardly ideal."[11] 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.[12] Specifically, we have said that, in order to obtain a conviction, the government must prove a conduct element and a result element[13]: that the defendant (1) "uttered words[14] 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. 1971) (same).

         This 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 same conclusion.

         First, 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), [15] 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.

         Second, 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)).

         Third, 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.[16] The Court explained that, in some cases, "to protect the innocent actor, " courts should infer that the government must prove that the defendant purposely[17] 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][18] the facts that make his conduct fit the definition of the offense."[19] Elonis, 135 S.Ct. at 2009.[20] The Court explained that merely inferring a negligence, i.e., should-have-known, standard[21] is disfavored. Id. at 2011. In short, the Court made clear that, when determining culpability, "what [a defendant] thinks does matter."[22] Id. (internal quotation marks omitted).

         Applying 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"[23]-and determined the mens rea for each. Elonis, 135 S.Ct. at 2011.

         As to 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.[24] 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).

         As to 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. at 2012.

         Applying 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.[25]

         Following 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.[26]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, [27] we, like the Supreme Court, look to the Model Penal Code terms and their definitions. See supra notes 17, 18, and 21.

         Applying 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.

         We 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;[28] (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.[29]

         Thus, 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.

         III. Standard of Review and Appropriate Remedy

         We turn 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 case.[30]

         In his 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).

         As we 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.

         We turn 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 attempted threats.

         But our analysis does not end here. The fact remains that the trial court did not apply the law as we have outlined it above.[31] 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.

         Mr. 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, [32] just as we would when a jury has been misinstructed as to the elements of a crime.[33] 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.);[34] 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.

         Under 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;[35] the pertinent question is whether we can say, beyond a reasonable doubt, that the trial court would ...

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