In re S.W.

• Decision Date: 07 June 2012
• Docket Number: No. 11–FS–11.,11–FS–11.
• Citation: 45 A.3d 151
• Parties: In re S.W., Appellant.
• Court: D.C. Court of Appeals

45 A.3d 151

In re S.W., Appellant.

No. 11–FS–11.

District of Columbia Court of Appeals.

Submitted March 6, 2012.

Decided June 7, 2012.

Christine Pembroke, Washington, DC, was on the brief for appellant.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Rosalyn Calbert Groce, Deputy Solicitor General, and

Janice Y. Sheppard, Assistant Attorney General, were on the brief for appellee.

Before OBERLY and EASTERLY, Associate Judges, and KING, Senior Judge.

EASTERLY, Associate Judge:

Appellant, S.W., was adjudicated delinquent after being found guilty of felony threats to damage property, D.C.Code § 22–1810 (2001)formerlyD.C.Code § 22–2307 (1981).¹ S.W. appeals, contending that the evidence was insufficient to find him guilty. We agree. The record reflects that the complainant, Cherie Gardner, and S.W. were friends with no history of animosity, much less violence. The day before the alleged threat was made Ms. Gardner experienced an upsetting incident when her house caught on fire. But her sensitivity about that scare did not turn words sung by fifteen-year-old S.W., who is not alleged to have had any connection to the fire, into a threat. Specifically, the fact that S.W. paraded back and forth on the sidewalk in front of Ms. Gardner, performing to a laughing audience and singing a modified rap song about setting the block and her house on fire, cannot reasonably be perceived as communicating a threat to damage Ms. Gardner's home. Because an essential element of the crime was not proved, we reverse S.W.'s adjudication of delinquency.²

I. Facts

The complainant, Cherie Gardner, was the government's sole witness at trial. Ms. Gardner, age 22, testified that she and S.W., then age 15, had been neighborhood friends for about three and a half years. S.W. had been to her home on numerous occasions to play video games and watch movies and to attend parties and get-togethers. According to Ms. Gardner, prior to August 9, 2010, the date of the alleged offense, there was no “change in the nature of their relationship.”

On the afternoon of August 8, 2010, however, Ms. Gardner experienced a frightening event. A vacant row house adjacent to the house where Ms. Gardner lived with her mother went up in flames.³ The fire began to spread towards the upstairs portion of Ms. Gardner's house, and the firefighters at the scene broke holes in her ceiling to prevent the fire's progression. In the wake of this near calamity, Ms. Gardner became upset and angry. She was angry because, had the fire continued to spread, her mother, who was bedridden, could have been trapped.

When she evacuated the house, Ms. Gardner saw a number of young men, including S.W., gathered outside.⁴ Ms. Gardner testified: “I was yelling in anger. I was yelling that when I find out who did this I would, I would try to handle it in any way I could because I didn't appreciate that, you know, the whole situation.” Ms. Gardner acknowledged that she “didn't directly yell at anyone.” She and S.W. then briefly exchanged words. Ms. Gardner was unable to recall at trial what S.W. said to her, although she stated that it “wasn't anything threatening.” In response, Ms. Gardner yelled at S.W. in much the same manner as she had yelled at others who were at the scene of the fire. Ms. Gardner testified that “it was just a moment thing [sic], and that was the end of that.” S.W. walked away shortly thereafter.

The following night, Ms. Gardner was sitting outside with some neighbors. Accompanied by three or four of his friends, S.W. walked back and forth on the sidewalk past Ms. Gardner approximately four or five times. On each turn, just after the group passed by Ms. Gardner, approximately fifteen to twenty feet away from her, S.W. sang snippets of what Ms. Gardner recognized to be a song by Lil Wayne,⁵ with modified lyrics. The title of the Lil Wayne song adapted by S.W. is not in the record.⁶ According to Ms. Gardner, however:

the chorus of the song, pretty much the main part of the song where [S.W.] was singing [goes:] they will say, he said, if I set this place on fire. That's the main part of the chorus, but instead of him saying that he said, we'll set this block on fire, in that type of, in that way. (Emphasis added.)

According to Ms. Gardner, S.W.'s performance built on itself:

When [S.W.] first walked—it was first ... fuck the police. Then it was, fuck the police, Cherie, and then it was, we're not scared of the police, Cherie. Then it seemed like every time he would walk back past he would say something else, and then that's when he came to the, we will set this whole block on fire, and then, we will set your house on fire. (Emphasis added.)

According to Ms. Gardner's testimony, S.W.'s demeanor appeared “[r]egular.... [H]e didn't seem aggravated or agitated or anything.” When asked if he was “doing [anything] with his body,” Ms. Gardner testified that S.W. “kind of arched [his back] I guess to help project.” S.W. never faced towards her when he was singing:

He didn't walk back and forth singing the song. He—when he was the distance away from me that's when he—it seemed like every time he got away from me that's when he would say something. When he was actually passing me he never said anything. It's just when he was the 20 feet away from me is when he said something.

Ms. Gardner acknowledged that throughout the performance S.W.'s friends were laughing. In response to the government's question—“Are you able to state whether or not [S.W.] was joking?”—Ms. Gardner initially testified, “I'm not sure. He didn't seem like he was joking to me.” The government again asked for Ms. Gardner's subjective reaction to S.W.'s song, and received this response:

Q: So, what were you thinking when you heard him say that?

A: I thought he was serious.

Q: Why did you think he was serious?

A: Because the house next to our address got set on fire the day before.

At the end of his performance, S.W. and his friends sat on a brick wall; Ms. Gardner testified that she went home and told her mother about what happened. In response to the prosecutor's question, “How were you feeling at that time?” Ms. Gardner testified that she “was scared.”

S.W. did not testify.⁷ At the close of the government's case, and again at the close of evidence, S.W.'s counsel moved for acquittal on the ground that the government failed to establish every element of a felony threats charge.

Prior to announcing its verdict, the trial court stated that in order to find that S.W. had threatened Ms. Gardner, it had to find, beyond a reasonable doubt, that: (1) S.W. had spoken words to Ms. Gardner; (2) the words S.W. had spoken would cause a person reasonably to believe that his or her property would be damaged; and (3) when S.W. had said those words, he had intended for the person who heard them to believe that the property would be damaged. The trial court then adjudicated S.W. delinquent for making criminal threats.

The trial court credited Ms. Gardner's testimony in full. The court specifically found that S.W. sang the words as alleged, and sang them loudly, indicating an intention to be heard. The court ruled that “some of the things that were said ... like ‘fuck the police, we're not scared’ ... in and of themselves ... are not a threat.” But other words—“We'll set this block on fire. We'll set your house on fire”—did constitute threats. The trial court did not address whether a reasonable listener would have believed that her property would be damaged, or whether S.W. intended Ms. Gardner to believe that he would burn her house down.⁸ Regarding S.W.'s motivations, the court remarked only that testimony “about [Ms. Gardner] being outrageous and running her mouth at [S.W.] [on the day of the fire], that sort of gives [S.W.] motive to come back the next day and get back at her....”

II. Analysis

A. Standard of Review

On appeal S.W. does not challenge any of the trial court's findings of fact; rather he argues that, accepting these findings as true, the evidence was insufficient as a matter of law to convict him beyond a reasonable doubt of threats to property. We review such challenges to the sufficiency of the evidence at trial de novo. United States v. Bamiduro, 718 A.2d 547, 550 (D.C.1998). Like a trial court reviewing a motion for a judgment of acquittal, id., in conducting this review, “we view the evidence in the light most favorable to the government, recognizing the province of the fact finder to weigh the evidence, resolve issues of credibility, and to draw reasonable inferences from the evidence presented.” Griffin v. United States, 861 A.2d 610, 613 (D.C.2004) (quoting Smith v. United States, 837 A.2d 87, 91–92 (D.C.2003)) (internal quotation marks omitted). “This court will reverse only where the government has failed to present evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt.” Id.

B. The Law Regarding Criminal Threats

Section 22–1810 of the District of Columbia Code is entitled “Threatening to kidnap or injure a person or damage his property.” It provides that:

[w]hoever 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 $5,000 or imprisoned not more than 20 years, or both.

This court has held that a criminal threat ⁹ requires proof of three elements: “(1) that the defendant uttered words to another person”; “(2) that the words were of such a nature” to cause “the ‘ordinary hearer’ ” reasonably to believe that the threatened harm would take place; “and (3) that the [defendant] intended to utter the words as a threat.” ¹⁰Clark v. United States, 755 A.2d 1026, 1030 (D.C.2000) (citing Baish, 460 A.2d at 42); Criminal Jury Instructions for the District of Columbia, No. 4.130 (5th ed. rev.2011).

With respect to the second element, our cases have stressed...