The “Bias-Related Crime” Enhancement Can Apply to Any Crime on the Books

Girma Aboye v. United States (decided August 6, 2015)

Players: Judges Glickman and Easterly, Superior Court Judge Kravitz, sitting by designation. Opinion by Judge Glickman. Fletcher P. Thompson for Mr. Aboye. Trial judge: Robert E. Morin.

Facts: Mr. Aboye and his dog, Tarzan, had a tense relationship with the complainants, a gay couple. On one occasion when the couple approached Tarzan with their own dog, Mr. Aboye told them Tarzan “doesn’t like homosexuals.” A few months later, during a verbal exchange with the couple, Mr. Aboye “heatedly yelled, ‘Shut up you faggots[;] I’m going to kill you with my dog. I’m going to have my dog kill you.’” The complainants reported that Tarzan, a brindled pit bull mix, was not acting aggressively, and the officer who later arrested Mr. Aboye testified that he found Tarzan to be friendly and nonthreatening. After a bench trial, Judge Morin found Mr. Aboye guilty of bias-related threats to do bodily harm.

Issue 1: The sentencing enhancement for “bias-related crime” applies to “a designated act that demonstrates an accused’s prejudice based on the actual or perceived . . . sexual orientation . . . of a victim of the subject designated act.” D.C. Code § 22-3701(1). A “designated act” is defined as “a criminal act, including arson, assault, burglary, [and twenty-two other enumerated crimes].” D.C. Code §22-3701(2). Can the enhancement apply to threats, even though threats is not on the list of “designated act[s]”?

Holding 1: Yes. Elsewhere, the D.C. Code provides that “unless specifically provided otherwise: . . . . The word[] . . . ‘including’ mean[s] . . . ‘including, but not limited to.’” D.C. Code § 1-301.45(10). Thus, the plain language of the bias-related crimes law — like its statutory context and legislative history — indicates that the list of “designated act[s]” is not exclusive. The court held that “the term ‘designated act’ in D.C. Code § 22-3701(2) means any criminal act recognized under D.C. law.”

Issue 2: Was there sufficient evidence to prove the second element of threats, that Mr. Aboye’s words could convey fear of serious bodily harm or injury to the ordinary hearer?

Holding 2: Yes, in spite of Mr. Aboye’s argument that the evidence showed Tarzan to be a real pussycat, he was “no miniature lap dog,” and had already been described to the complainants as “hostile to homosexuals.” In any event, “even if Tarzan was friendly and tame, appellant’s death threat was not.” FT

Read full opinion here.