Thomas v. United States, 19-CM-817

• Decision Date: 06 May 2021
• Docket Number: No. 19-CM-817,19-CM-817
• Citation: 249 A.3d 802
• Parties: Chantel THOMAS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

249 A.3d 802

Chantel THOMAS, Appellant,

v.UNITED STATES, Appellee.

No. 19-CM-817

District of Columbia Court of Appeals.

Submitted November 2, 2020

Decided May 6, 2021

Russell A. Bikoff was on the brief for appellant.

Timothy J. Shea, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, Michael McCarthy, and Randle T. Wilson, Assistant United States Attorneys, were on the brief for appellee.

Before Glickman, Thompson, and Beckwith, Associate Judges.

Glickman, Associate Judge:

Appellant Chantel Thomas challenges the sufficiency of the evidence supporting her convictions for simple assault¹ and attempted threats to do bodily harm.² Because the evidence was sufficient to establish the former but not the latter, we affirm the simple assault conviction and reverse the attempted threats conviction.

I.

On April 21, 2019, around 3:30 a.m., Officer Omar James and Officer Arnold Corporan responded to a report of two men fighting in a residential street. The officers detained the two individuals and began questioning them in the street. Moments later, appellant, who was in a relationship with one of the individuals, approached from behind the officers, which prompted Officer James to tell her not to "walk up on [them] like that" and repeatedly ordered her to step back. Appellant did not comply, so Officer James "held her by the arms and pushed her away." Appellant then became "belligerent and aggressive." She was calling Officer James names, telling him not to shove her again, and threatening to spit on him. She approached the officers again, and Officer James again pushed her away. When appellant approached a third time, still yelling at Officer James, Officer James grabbed her and pushed her to a "safe distance" on the sidewalk. In response, appellant "started flailing and swinging at [Officer James] and pushing," even "mak[ing] contact" with him. Officer James tried placing appellant in handcuffs, but appellant fell to the ground. Two officers who had just arrived on the scene, Officers Linda Muse and Melanique Rich, helped place appellant in handcuffs.

Once appellant was safely detained, Officers Muse and Rich watched over her while Officer James returned to Officer Corporan and the two men. At this point, appellant was on the sidewalk with her hands cuffed behind her back and two officers standing directly in front of her. Officer James was in the middle of the street, about ten to twelve feet away from appellant. Appellant continued calling Officer James names and threatening to spit on him. At one point, appellant said that she "should" or "will" "take [his] gun and slap his bitch ass."³ There was no evidence about how Officer James perceived or reacted to this threat.

Appellant was charged with simple assault for swinging at Officer James after he pushed her to the sidewalk, and attempted threats to do bodily harm for telling Officer James that she "should" or "will" "take [his] gun and slap his bitch ass." At appellant's bench trial, the government presented the foregoing testimony from Officer James, as well as body-worn camera footage from Officers Corporan and Rich. The defense did not present any evidence, and appellant did not testify.

The trial court found appellant guilty on both charges. Relying heavily on the body-worn camera footage, the trial court found that "everything [it] saw was consistent with [Officer James's] words about what happened." On the simple assault charge, the trial court found that appellant "did actually swing at [Officer James] in a punch-like manner. He stood his ground at one point, and she charged him twice." The court also found "that the first thing you notice about that video is it's shocking how roughly [Officer James] pushes [appellant]." Nonetheless, the court found that Officer James did not use excessive force. On the attempted threats charge, the trial court was not sure "if the threat was I should or I will" but found that "it's very clearly a threat" either way.

II.

Appellant claims the evidence was insufficient to support either conviction. We review this challenge de novo, viewing the evidence in the light most favorable to the prosecution, and affirming a conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."⁴ With respect to bench trials, our review is "deferential to the prerogatives and advantages of the trial judge," and "[w]e will not disturb the trial judge's factual findings unless we can conclude they were plainly wrong or without evidence to support them."⁵

A.

To prove simple assault (i.e., attempted-battery assault), we have said the government must show "(1) an act on the part of the defendant; (2) the apparent present ability to injure the victim at the time the act is committed; and (3) the intent to perform the act which constitutes the assault at the time the defendant commits the act."⁶ Appellant challenges the second element, claiming she lacked the "apparent present ability to injure" Officer James given the distance between them, their "great" size disparity, and the fact that Officer James allegedly initiated the use of force.

Appellant's arguments are not convincing. First, she was not too far away. Officer James, whose testimony the trial court generally credited, testified that appellant was "pretty close" to him; close enough, in fact, that she actually "ma[d]e contact with [him]." Second, to prove simple assault, the threatened "injury" "may be extremely slight,"⁷ so the size disparity between appellant and Officer James does not mean she lacked the apparent ability to "injure" him. In any event, a reasonable juror could find that the threatened injury was not slight, given that appellant "did actually swing at [Officer James] in a punch-like manner."⁸ Third, even if Officer James shoved her first, appellant was not justified in responding with force. A citizen may use force against an officer only to defend against excessive force.⁹ However, the trial court found that Officer James's pushing of appellant, albeit "shocking," was not excessive. Appellant does not dispute this finding, and we do not consider it plainly wrong. Consequently, sufficient evidence exists to show that appellant had the apparent present ability to injure Officer James when she swung at him.

B.

To prove the completed offense of threats to do bodily harm, the government must show (1) "the defendant uttered words to another person;" (2) "the words were of such a nature as to convey fear of bodily harm or injury to the ordinary hearer;"¹⁰ and (3) the defendant "had the purpose or knowledge that his words would be received as a threat."¹¹ We analyze the elements of the completed offense, because proof of the completed offense of threats suffices to support a conviction for attempted threats.¹² Appellant disputes only the second element. When considering whether appellant's words could induce fear of bodily harm in an ordinary hearer under the circumstances, we consider "not just the words uttered, but also the complete context in which they were used."¹³

Here, appellant yelled at Officer James that she "should" or "will" "take [his] gun and slap [his] bitch ass." Putting aside any difference between "should" and "will,"¹⁴ we consider the statement facially threatening. It expressed a desire, if not an intent, to physically harm Officer James. Appellant is not helped by the fact that she yelled this on the heels of a hostile interaction with Officer James: Officer James had pushed her so roughly the court deemed it "shocking," and she had "sw[u]ng at him in a punch-like manner" and "charged him twice." Given this conflict, an ordinary hearer could reasonably infer appellant would hurt Officer James if she could.

The critical fact, however, is that she could not. At the time appellant made the statement at issue, Officer James was in the street, and appellant was on the sidewalk, with her hands cuffed behind her back, and not one but two officers standing guard in front of her. Despite these obstacles, the government argues that appellant still could have carried out her alleged threat. That argument strains credulity. To grab Officer James's firearm and "slap" him, appellant would have had to break out of her handcuffs, push past both officers in front of her, cover the distance between herself and Officer James without being stopped by any of the other officers at the scene, and grab his weapon off his own hip. If she does not break out of her handcuffs, the chances of this happening plunge further. Two cases are instructive on this point. In High v. United States , the appellant made the allegedly threatening statements when "he was bound by handcuffs, seated on the street curb, and was closely surrounded by at least three — possibly four — MPD officers."¹⁵ Under those circumstances, we said "[i]t was clear that [the] appellant ‘no longer posed a threat’ to Officer Smith, if he ever did."¹⁶ Similarly, in Lewis v. United States , another threats case, we noted that the "appellant only made the statement after he was arrested and placed in handcuffs, when he no longer posed a physical threat to the two officers."¹⁷ Here, appellant was restrained in comparable fashion, so we are satisfied that she no longer posed a physical threat to Officer James.¹⁸

Nor does her statement carry an "implied future threat" to "hunt down" Officer James whenever she was released from custody. Absent any indication that her statement "speaks to the future,"¹⁹ such an inference is objectively unreasonable.²⁰

In similar circumstances — when a handcuffed defendant threatens a police officer — we have deemed the utterance to be genuinely threatening to the ordinary hearer only if there is a reasonable chance the defendant could still execute the threat. For example, in Haney v. United States , the appellant, while handcuffed at a hearing, told a detective seated in the courtroom audience, ...