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Roberts v. United States

Court of Appeals of The District of Columbia

September 26, 2019

Lamont D. ROBERTS, Appellant,
v.
UNITED STATES, Appellee.

         Argued May 1, 2019

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[Copyrighted Material Omitted]

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          Appeal from the Superior Court of the District of Columbia (CF3-14048-15) (Hon. Juliet J. McKenna, Trial Judge)

         Deborah A. Persico, Washington, for appellant. Sydney J. Hoffman also filed briefs for appellant.

         Elizabeth Gabriel, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, Youli Lee, and Jessica Brooks, Assistant United States Attorneys, were on the brief, for appellee.

         Before Glickman, Thompson, and McLeese, Associate Judges.

         OPINION

         McLeese, Associate Judge:.

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          Appellant Lamont Roberts was found guilty at trial of stalking, threats, assault, and unlawful disclosure of sexual images. Mr. Roberts argues that his unlawful-disclosure convictions must be reversed due to instructional error and that his unlawful-disclosure and threats convictions were not supported by sufficient evidence. We hold that in one respect the jury was erroneously instructed on the elements of unlawful disclosure. On that basis, we vacate four of Mr. Roberts’s unlawful-disclosure convictions but affirm the fifth, as to which the instructional error was harmless. We hold that there was sufficient evidence to support all of the unlawful-disclosure convictions, and we therefore remand for further proceedings as to the convictions vacated for instructional error. Finally, we affirm the threats convictions.

          I.

          In pertinent part, the evidence at trial was as follows. Mr. Roberts and L.H. first met in 2013 and then became romantically involved. L.H. enjoyed the relationship at first. Over time, however, the relationship began to change. Mr. Roberts started to engage in controlling behavior. He stopped taking L.H. to social gatherings, told her not to wear certain clothing that might attract attention, and began to check in frequently on her whereabouts. When L.H. did not quickly return Mr. Roberts’s calls or text messages, he would show up unannounced at her work or at the row house she shared with her mother and children and honk his car horn until she came out. Quite a few times, L.H. became so uncomfortable with and annoyed by Mr. Roberts’s behavior that she broke up with him. These breakups did not last for long. Mr. Roberts would apologize and beg for L.H. to take him back and L.H., who loved Mr. Roberts and wanted him to change, would agree to get back together.

          After a particularly uncomfortable altercation in December 2013, L.H. wanted to end the relationship with Mr. Roberts permanently and therefore obtained a civil protection order against him. In July 2014, Mr. Roberts showed up at the parking lot at L.H.’s place of work. As L.H. was getting into her car, Mr. Roberts pulled in, and the two argued through their car windows. When L.H. pulled out of the parking lot, Mr. Roberts followed her and eventually pulled up alongside her. The two had a heated exchange that ended with Mr. Roberts throwing a soda can from his car into the open driver’s side window of L.H.’s car before speeding off. Although L.H. reported this incident to the police, she also decided shortly thereafter to get back together with Mr. Roberts.

          Later in July 2014, after L.H. and Mr. Roberts had resumed their relationship, Mr. Roberts pulled up in front of L.H.’s home while L.H. was sitting in a car with a male family friend. Mr. Roberts asked L.H. to get out of the car, saying that the two of them needed to talk. When L.H. refused, Mr. Roberts retrieved a baseball bat from his trunk and told L.H., "You’re going to get out of the car. Bitch, you think this is a joke, you’re going to get out of the car." L.H. still did not get out of the car and her mother, who had heard the commotion and had come out of the house, called the police. Mr. Roberts appeared to be so mad when he approached the car with the bat that L.H.’s mother feared that he would have done "terrible bodily damage"

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to L.H. had L.H.’s family friend let Mr. Roberts open the car door.

          L.H. continued to be romantically involved with Mr. Roberts for some time after this incident, but by May or June 2015 she decided to end the relationship for good. At first, Mr. Roberts did not appear to take the breakup seriously and engaged in the same sort of calling, apologizing, and randomly showing up at L.H.’s home that he had engaged in during the couple’s previous breakups. After Mr. Roberts saw L.H. arrive home with another man, however, Mr. Roberts’s behavior changed. Mr. Roberts started calling and texting L.H. more frequently, sometimes as many as 150 to 200 times a day. He also sent her text messages and emails, and left her voicemails, with angry and aggressive language.

          On August 22, 2015, Mr. Roberts left L.H. a voicemail in which he stated: "When I see you baby, I’m a try to kill you Bitch. You gonna sleep with another n**a, don’t talk to nobody else. You the only girl I love, watch when I see you." (This communication was the basis for the first threats count.) On August 28, 2015, Mr. Roberts left L.H. another voicemail:

So fuck me, right, so fuck me and you with another fucking n**a, I’m-a tell you ..., you better have all my money, the purse and all of that. I’m going to make your life a living fucking hell. Watch man. I went and got your name on me about 8 times, thinking you with another n**a. You going to answer, watch.

(This communication was the basis for the second threats count.) On October 3, 2015, Mr. Roberts sent L.H. an email that read: "So u have been to party with him rite I’ll see u tomorrow bitch die with your mother and kids." (This communication was the basis for the third threats count.)

          Around this same time period, Mr. Roberts began telling L.H. that he was going to post nude photos that he had taken of her with his phone during their relationship. L.H. described the photos as follows. The first photo was a close-up of L.H.’s vagina. The second was of L.H. from behind while she was lying on her stomach across a bed with her legs crossed. The third was from the same angle as the second but without L.H.’s legs crossed and with her vagina visible. (It is unclear whether, in describing the photos, L.H. was using the term "vagina" in its precise anatomical sense or more colloquially to refer to the vulva.)

          Although L.H. had been aware that Mr. Roberts had taken the photos, she had told him to delete them immediately after they were taken and believed that she had seen him do so. L.H. only learned that Mr. Roberts had not in fact deleted the photos when he included them as attachments to numerous text messages and emails he sent her in September and October 2015.

          On the morning of October 3, 2015, L.H. received an email from Mr. Roberts which said, "Enjoy it on bitch[.]" A short time later, L.H.’s mother heard a knock at the front door. When she opened the door, she found a sexually explicit photo of L.H. taped to the door. L.H.’s mother removed the photo from the door and gave it to L.H., who in turn gave it to the police. L.H. identified the photo as being one of the photos that Mr. Roberts took of her from behind while she was nude. (This incident was the basis for the first unlawful-disclosure count.)

          On the following day, L.H. went to a laundromat near her home to do laundry. After bending down to transfer clothes from the washing machine to the dryer, L.H. looked up to find Mr. Roberts standing over her. L.H. told Mr. Roberts to leave and warned him that he could not do anything to her in the laundromat where

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other people were present. After Mr. Roberts left, L.H. went out to the parking lot and found an explicit picture of herself -- which she identified as "the butt one" -- on the windshield of her car. The picture had L.H.’s name written on it. She immediately took the picture off the window, and as she did so she saw Mr. Roberts sitting in his car in the parking lot. L.H. yelled at Mr. Roberts and took pictures of him with her phone as he rolled down his window, laughed at her, and waved a stack of extra copies of the explicit images he had taken of her. L.H. testified that she was yelling and hysterical during this interaction and that people other than her and Mr. Roberts were watching. L.H. told Mr. Roberts that she was calling the police and then did so. A police officer arrived about ten minutes later, by which time Mr. Roberts had left. The incident left L.H. angry and in tears. (This incident was the basis for the second unlawful-disclosure count.)

          The police officer stayed with L.H. for about fifteen minutes, until L.H. was nearly done with her laundry, and then left. A few minutes later, L.H. left the laundromat and saw Mr. Roberts drive up in his car as she pulled out. Mr. Roberts made a U-turn and began to follow L.H. When L.H. stopped at a traffic light, Mr. Roberts pulled up alongside her and held a stack of explicit photos of her out of his open driver-side window. L.H. took pictures of Mr. Roberts as he did this. There were other cars around, and the light at which L.H. and Mr. Roberts were stopped was right next to the shopping center where the laundromat was located. When the light turned green, Mr. Roberts drove off. (This incident was the basis for the third unlawful-disclosure count.)

          The following evening, on October 5, 2015, L.H. received an email from Mr. Roberts which said, "Bring my stuff outside or get pic off pole." One of the explicit photos of L.H. was attached to the email. L.H. looked outside and saw that a piece of paper was folded and tucked into her front gate. L.H.’s gate, which is about twenty feet from her front door, opens onto the sidewalk of the residential street where she lives. The piece of paper was stuck in the gate in the same way that someone might place a "carry-out flyer," and was accessible to anyone walking by. L.H. retrieved the piece of paper, saw that it was an explicit photo of her, took it inside her house, tore it up before her children could see it, and then called the police. (This incident was the basis for the fourth unlawful-disclosure count.)

          Two days later, on October 7, 2015, at around 8 a.m., L.H. was leaving her house to take her children to school when she noticed a white sheet of paper on the windshield of her car. L.H. told her children to go back into the house and then crossed the street to where her car was parked. After recognizing that the paper on the windshield was an explicit image of her, she took a photo of how the image was placed on her car and then removed the image and saved it. L.H. testified that she had last seen her car the preceding night and that she was not sure when the image had been placed on the windshield. A police officer who patrols L.H.’s neighborhood testified that traffic is "very heavy" on L.H.’s street during the morning commute from as early as 6 a.m. onward. (This incident was the basis for the fifth unlawful-disclosure count.)

          II.

          We turn first to Mr. Roberts’s challenges to the jury instruction defining the elements of unlawful disclosure. Mr. Roberts raises two objections: that the instruction erroneously defined the term "disclose" and that the instruction failed to state that any disclosure had to be to

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someone other than L.H. We agree with Mr. Roberts’s second claim of error but not his first. We further conclude that the error requires vacation of four of Mr. Roberts’s five unlawful-disclosure convictions.

          A.

         The unlawful-disclosure statute, D.C. Code § 22-3052 (2019 Supp.), provides in pertinent part that

(a) It shall be unlawful in the District of Columbia for a person to knowingly disclose one or more sexual images of another ...

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