Gary v. United States, 12-CM-2045

• Decision Date: 25 September 2014
• Docket Number: No. 12-CM-2050,No. 12-CM-2045,12-CM-2045,12-CM-2050
• Court: D.C. Court of Appeals
• Parties: MYRON O'NEAL GARY, APPELLANT, v. UNITED STATES, APPELLEE.

MYRON O'NEAL GARY, APPELLANT,
v.
UNITED STATES, APPELLEE.

No. 12-CM-2045
No. 12-CM-2050

DISTRICT OF COLUMBIA COURT OF APPEALS

Submitted January 7, 2014
September 25, 2014

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeals from the Superior Court of the District of Columbia
(CMD-8279-12 & CMD-9183-12)

(Hon. Yvonne Williams, Trial Judge)

Rose Mary Drake was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman and Margaret E. Barr, Assistant United States Attorneys, were on the brief for appellee.

Before GLICKMAN and FISHER, Associate Judges, and RUIZ, Senior Judge.

RUIZ, Senior Judge: Gray appeals his convictions, after a bench trial, for threats,¹ contempt,² and unlawful entry.³ He contends that the trial court applied an incorrect legal standard in finding him guilty of threats and that the trial court erred

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in considering videos that were not formally admitted into evidence in finding him guilty of unlawful entry and contempt. We conclude that the trial court did not commit any error warranting reversal and affirm appellant's convictions.

I. Factual Background

The charges against appellant arose from incidents on May 12 and May 15, 2012, at his workplace, a Home Depot store on Rhode Island Avenue in Northeast Washington, D.C. Appellant's supervisor testified that because of appellant's "erratic" behavior in the store on May 11,⁴ appellant was told to "go home" and that he would be called when he should return to work. Early the following morning, May 12, appellant returned to the store and made a hostile remark to a coworker. Later that day, when appellant returned to the store with his dog, he was arrested and charged with having threatened the coworker that morning. At that time, appellant was told that he was barred from returning to the Home Depot store. An order requiring appellant to stay away from the coworker and the Home Depot store and parking lot was issued on May 14. The following day, May 15, Home Depot store cameras recorded appellant entering and exiting the store and driving through the parking lot.

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The coworker, Jonathan Lowery, had worked with appellant for approximately five months, and he considered appellant a casual friend with whom he normally talked about "sports, boxing, and stuff like that." Lowery testified that on the morning of May 12,⁵ appellant approached him and he "was threatening me, said he will kill me, I'll see you outside of work. He pointed his finger at me in my chest, I will kill you I see you outside of work." Lowery said that he was not scared by appellant's remarks but surprised, because they were "kind of random. I didn't understand the whole reason why he was so angry towards me." Lowery explained that he had had "no problems" with appellant in the past, and that appellant had no reason to threaten him.

Lowery said he thought appellant's behavior that day was "kind of strange, erratic. . . . [H]e seemed upset but it wasn't with me, it was with others. And he just seemed frustrated, I would say, pretty upset." Appellant spoke "calmly," Lowery testified, and seemed "impaired" because his eyes were "red, and they were jittery back and forth."⁶ After appellant made these remarks, Lowery thought to himself, "yeah, whatever, and I walked away because I was in my workplace. I

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wanted to avoid confrontation, further confrontation." He added that he understood that "everybody has problems, you know, but the incident happened and I left it at that[.]"

Appellant testified in his defense. He admitted that he visited the Home Depot with his dog on May 12, but said that he did so as a customer rather than as an employee. He denied having any contact with Lowery that day. Appellant recounted that he was arrested at Home Depot on May 12, released on May 14, and then went to Providence Hospital later that evening, where he was admitted in the early hours of May 15.⁷ He woke up on May 15 to learn that he would be transferred to Seton House and, not wanting to go there, appellant left Providence Hospital at 12:00 or 1:00 p.m. He said he was re-arrested later that day at Emory Recreation Center and taken to Seton House. Appellant denied that he visited Home Depot on May 15, and said that his rental car was in the store's parking lot that day because he had parked it there on May 12 and it was left in the parking lot when he was arrested. Appellant's mother also testified that she took her son to Providence Hospital at 9:00 p.m. on May 14, stayed overnight with him there, and then returned to Home Depot the next day to pick up appellant's rental car.

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The judge explained her factual findings on the threats charge as follows:

With respect to the threats count . . . I'll find [appellant] guilty. I understand that Mr. Lowery, maybe there's some—there's no reason for him to lie. He seemed to be a quite credible guy. He just said they were good friends and [appellant] made this threat toward him. . . . I don't know that Mr. Lowery necessar[ily] took it as a threat because I think he thought that [appellant] was having problems. But the standard is not what Mr. Lowery thought. I think it was what a reasonable person thought. Now, a reasonable person would assume that you say, I'm going to kill you, and then do a gun motion, that a reasonable person would take that as a threat. . . . I just don't see a reason for why he would come in here and lie when there's no reason. He's got a perfectly fine relationship with [appellant]. It just seems [appellant] was having whatever problems he was having that day and did what he did to Mr. Lowery. So I'll find [appellant] guilty on the threats count.

II. Threats

A person is guilty of the offense of threats under D.C. Code § 22-407 if he or she: (1) uttered words to another person, (2) those words "were of such a nature as to convey fear of serious bodily harm or injury to the ordinary hearer," and (3) he or she "intended to utter the words that constitute the threat." Carrell v. United States, 80 A.3d 163, 171 (D.C. 2013) (quoting Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C. 1982)).

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Appellant claims that, in finding him guilty of threats, the trial court misapprehended the correct legal standard for the second element and, as a result, misunderstood the relevance of Lowery's testimony that he was not scared by appellant's words and disregarded Lowery's reaction.⁸

An analysis of the evidence necessarily begins with the words the speaker used, the first element of threats. Whether a speaker makes a threat, however,

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depends not simply on the words the speaker uttered; the speaker's words "must be considered in the context in which they were used." In re S.W., 45 A.3d 151, 155 (D.C. 2012) (quoting Jenkins, 902 A.2d at 85); see also Clark, 755 A.2d at 1031. The factfinder's task in considering the second element of threats is to determine whether the speaker's words, taken in context, were "of such a nature as to convey fear of serious bodily harm or injury to the ordinary hearer." Carrell, 80 A.3d at 171 (quoting Campbell, 450 A.2d at 431 n.5). Thus, the words the speaker has uttered are "just the beginning" of a threats analysis. In re S.W., 45 A.3d at 157.⁹ In conducting this analysis, the factfinder must be guided by how an "ordinary hearer" would interpret those words taking into account the "full context in which the words are spoken." Carrell, 80 A.3d at 169.

Thus, the ordinary hearer¹⁰ we posit is one aware of all the surrounding circumstances, including what the actual hearer knew. This is because the ordinary

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hearer, like the often-used "reasonable person," responds to a situation in view of the totality of the circumstances. See, e.g., Florida v. Bostick, 501 U.S. 429, 437 (1991) ("We have said before that the crucial test is whether, taking into account all the circumstances surrounding the encounter, the police conduct 'would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'") (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)); 1901 Wyoming Ave. Co-op Ass'n v. Lee, 345 A.2d 456, 461 (D.C. 1975) ("Where the court is faced with an integrated agreement which contains ambiguous terms, the standard of interpretation is what a reasonable person in the position of the parties would have thought it meant. The presumption is that the reasonable person knows all the circumstances before and contemporaneous with the making of the integration."); Brown v. United States, 584 A.2d 537, 542 (D.C. 1990) ("What is sufficient provocation [to kill another in the heat of passion] has not been exactly defined and is probably incapable of exact definition, for it must vary with the myriad shifting circumstances of men's temper and quarrels. It is . . . therefore to be considered in view of all circumstances.") (quoting Commonwealth v. Pease, 69 A. 891, 892 (Pa. 1908)); Sinai v. Pollinger

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Co., 498 A.2d 520, 530-31 (D.C. 1985) (endorsing jury instruction on the "ordinary care" standard which said in...