Jones v. United States

• Decision Date: 17 September 2015
• Docket Number: No. 13–CM–651.,13–CM–651.
• Citation: 124 A.3d 127
• Parties: Richard C. JONES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

124 A.3d 127

Richard C. JONES, Appellant,

v.UNITED STATES, Appellee.

No. 13–CM–651.

District of Columbia Court of Appeals.

Submitted Sept. 29, 2014.

Decided Sept. 17, 2015.

Nicholas Q. Elton was on the briefs for the appellant.

Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and Ann K.H. Simon, Assistant United States Attorneys, were on the brief for appellee.

Opinion

BECKWITH, Associate Judge:

Appellant Richard Jones was convicted, after a bench trial, of attempted threats¹for a statement he made toward his daughter's guardian ad litem following a contentious family court hearing. Mr. Jones claims four errors: that the trial court erred by denying his motion for a new trial, that attempted threats is not a valid offense under D.C. law, that the record contains insufficient evidence to support his conviction, and that he was denied his right to a jury trial when the government amended the information from charging misdemeanor threats to attempted threats just moments before trial. We affirm.

I.

Dennis Eshman, the complainant in this case, represented Mr. Jones's daughter as her guardian ad litem in a family court matter for nearly four years. At a hearing in June 2012, Mr. Eshman recommended that Mr. Jones's visits with his daughter be supervised. Mr. Eshman testified that when he left the courtroom, Mr. Jones stopped him in the hallway and said, “I'm going to smack the shit out of you.” The statement was made “in pretty close to a normal tone of voice, maybe just a little bit elevated.” Mr. Jones then expressed his displeasure with Mr. Eshman's recommendation of supervised visitation, and “his voice escalated so that he got to the point where he was yelling at” Mr. Eshman. Mr. Eshman was initially “taken aback” and eventually came to believe that his physical safety was “in jeopardy.”

The defense countered with testimony from Khadijah Ali, an attorney who witnessed the incident while passing through the hallway of the courthouse. Ms. Ali testified that she saw Mr. Jones “very angry and he was quite loud and he was arguing with” Mr. Eshman. But she also testified that she could “hear clearly what was being said” and she did not hear any threats. Specifically, she testified that she did not hear Mr. Jones say, “I'm going to smack the shit out of you.”

The trial judge found that both witnesses were credible and that their testimony was not actually inconsistent. The judge found that while Ms. Ali did not hear any threat, her attention was not drawn to the scene until Mr. Jones became angry and loud, which occurred after he had already uttered the threat in a normal tone of voice. The court convicted Mr. Jones of attempted threats. Mr. Jones filed a motion for a new trial,²which was denied, and this appeal followed.

II.

Mr. Jones first argues that the trial court erred by denying his motion for a new trial. Mr. Jones's motion contended, among other things, that his trial counsel was ineffective for failing to investigate and present evidence of Mr. Eshman's bias against Mr. Jones in order to impeach Mr. Eshman's testimony. Having raised these claims in a motion under Rule 33 of the Superior Court Rules of Criminal Procedure, Mr. Jones argued—and the trial court agreed—that he need not demonstrate a violation of his Sixth Amendment right to counsel pursuant to Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to be awarded a new trial, but needed only to show that a new trial was necessary in “the interests of justice.” Super. Ct.Crim. R. 33. The trial court concluded that a new trial was unnecessary because it had already heard testimony regarding the events that allegedly gave rise to Mr. Eshman's bias—a specific prior incident between the two men and the fact that Mr. Jones had filed bar complaints against Mr. Eshman. More broadly, the court stated that it was “aware of the hostility, frankly, generally, that Mr. [E]shman testified to and acknowledged between Mr. Jones and Mr. [E]shman.” The trial court determined that additional evidence of their prior relationship and Mr. Eshman's alleged bias would not have affected its determination that Mr. Eshman's testimony was credible.

We review the denial of a Rule 33motion for abuse of discretion. Austin v. United States,64 A.3d 413, 427 (D.C.2013). Mr. Jones argues that the trial court abused its discretion because the additional evidence proffered was “fundamental to creating a full impression for [the] trier of fact.” The trial court stated that it examined the motion in detail, including the “extensive” attachments, and compared that evidence to the testimony that had been elicited at trial. We have no reason to second-guess the trial court's conclusion that it was already well enough informed of Mr. Eshman's potential bias against Mr. Jones from the trial testimony and that additional testimony regarding the relationship between the two men would not affect the court's decision. The trial court did not abuse its discretion by denying Mr. Jones's Rule 33motion.

III.

Mr. Jones next argues that his conviction must be reversed because attempted threats is not a valid statutory offense. This claim was not raised in the trial court, so we review for plain error. Howerton v. United States,964 A.2d 1282, 1286 (D.C.2009). Mr. Jones must demonstrate that charging him with attempted threats “was (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id.(quoting Coleman v. United States,948 A.2d 534, 544 (D.C.2008)). He cannot meet this rigorous standard. See Evans v. United States,779 A.2d 891, 895 (D.C.2001)(“To sum up, we hold that attempted threats is a valid statutory offense under the laws of the District of Columbia.”).

Mr. Jones argues that because misdemeanor threats is a general intent crime,³see Carrell v. United States,80 A.3d 163, 170–71 (D.C.2013), vacated, reh'g en banc granted; Holt v. United States,565 A.2d 970, 971–72 (D.C.1989)(en banc), and because an attempt conviction requires the government to prove “specific intent to commit the crime one is attempting,” Braxton v. United States,500 U.S. 344, 351 n. *, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991)(citing Morissette v. United States,342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952)),⁴one cannot attempt a general intent crime and “there cannot be an ‘attempted threat.’ ” But Mr. Jones is incorrect in his assertion that one cannot be convicted for attempting to commit a general intent crime,⁵and thus he can show no error. Mr. Jones similarly argues that one cannot be convicted of an attempt for “[c]rimes that do not involve intent to do a criminal act,” Cox v. State,311 Md. 326, 534 A.2d 1333, 1335 (1988), stating that “[i]t makes no sense to speak of attempted involuntary manslaughter or attempted negligence.” This maxim is irrelevant here because the misdemeanor offense of threats doesrequire intent to act-intent to utter statements that constitute a threat. Joiner–Die v. United States,899 A.2d 762, 764 (D.C.2006).⁶

For these reasons, attempted threats is a valid offense in the District, and the trial court did not err in convicting Mr. Jones.

IV.

Mr. Jones argues that the record contains insufficient evidence that he was guilty of attempted threats. Assuming that the government was required to prove that Mr. Jones possessed specific intent to threaten,⁷the record contains sufficient evidence that Mr. Jones intended to threaten Mr. Eshman with bodily harm by telling him, “I'm going to smack the shit out of you.” Mr. Jones's insistence that his statement was “rendered benign by [its] context,” In re S.W.,45 A.3d 151, 156 (D.C.2012), is unavailing. Even if the statement was made in a “normal tone of voice,” a reasonable factfinder could conclude that Mr. Jones possessed specific intent to threaten Mr. Eshman with serious bodily harm given the tumultuous and emotionally charged nature of their relationship and the fact that Mr. Jones later started yelling and gesticulating at Mr. Eshman in the hallway. It also is not a defense that Mr. Eshman was only startled by the threat because “[a] person can be guilty of threats without causing the target of the threats to fear serious bodily harm or injury.” Gray v. United States,100 A.3d 129, 136 (D.C.2014)(citation omitted). Viewing the evidence in the light most favorable to the government, we conclude that the evidence is sufficient to sustain Mr. Jones's conviction.

V.

Mr. Jones argues that the trial court erred by allowing the government to amend the information on the day of trial in order to deny his right to trial by jury.⁸Mr. Jones was first charged with misdemeanor threats in violation of D.C.Code § 22–407(2012 Repl.), which carries a maximum penalty of six months incarceration and triggers a defendant's statutory right to a jury trial in the District.⁹SeeD.C.Code § 16–705(b)(2012 Repl.); Turner v. Bayly,673 A.2d 596, 602 (D.C.1996). Moments before the trial began, the government amended the information to attempted threats under D.C.Code §§ 22–407and –1803. This charge carries a maximum penalty of 180 days' incarceration, which is notsufficient to trigger one's statutory right to a jury. D.C.Code § 16–705(b). Ruling on Mr. Jones's claim of error in his motion for a new trial, the trial court rejected Mr. Jones's argument “based on [its] understanding of the law at this time [that] the Government does have the right to amend even if that results in a denial of the jury trial on the charge.”

Rule 7 of the Superior Court Rules of Criminal Procedurespecifies that an information may be amended “at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Super. Ct.Crim. R. 7(e); see Dyson v. United States,485 A.2d 194, 197 (D.C.1984). The question for us, then, is whether Mr....