Misdemeanor threats to do bodily harm need not be “serious”

Mark E. Lewis v. United States (decided May 12, 2016)

Players: Associate Judges Blackburne-Rigsby and Thompson and Senior Judge Reid. Opinion by Judge Blackburne-Rigsby. Charles Burnham for Mr. Lewis. Trial Judge: Jennifer M. Anderson.

Facts: Following a bench trial, Mr. Lewis was convicted of second-degree theft and attempted misdemeanor threats to do bodily harm. The complaining witness testified that Mr. Lewis spent the night at her home and took money out of her wallet when she left the bedroom to answer the door. The complaining witness reported the money stolen when she returned to the bedroom to find Mr. Lewis gone and her wallet empty and displaced. The complaining witness testified that in a later phone call, Mr. Lewis denied the theft and demanded, “Stop playing with me, b****. I’ll smack the s*** out of you [and] get you f***ed up.”

Issue 1: Whether the evidence was sufficient to sustain a conviction for attempted misdemeanor threats to do bodily harm?/Whether the crime of misdemeanor threats requires a threat to do “serious bodily harm”?

Holding 1: Yes/No. Although the Court has sometimes stated that the crime of misdemeanor threats requires uttered words that “convey fear of serious bodily harm or injury,” the Court has never confronted the issue squarely. The statute itself does not use “serious” to qualify the type of harm that is punishable if threatened. The “serious bodily harm” language from the cases appears to be an artifact of the Redbook and an inversion of jurisprudence requiring that the promise of bodily harm be serious for a true threat to occur. Requiring “seriousness” in the context of verbally threatened, as opposed to completed, bodily harm would be unworkable in practice. Cf. D.C. Code § 22-3001(7) (defining “serious bodily injury” for purposes of aggravated assault).

Issue 2: Whether the evidence was sufficient to sustain a conviction for second-degree theft, in light of the fact that no one witnessed the alleged theft?

Holding 2: Yes. The circumstantial evidence presented was sufficient.

Of note:

• It is troubling that the Court’s reasons for declining to read “seriousness” into misdemeanor “threats to do bodily harm” apply with equal force to its felony counterpart, which is punishable by up to 20 years imprisonment. See D.C. Code § 22-1810. The DCCA has traditionally “interpreted the elements of this misdemeanor to be the same as those of its subsequently enacted felony counterpart.” United States v. Baish, 460 A.2d 38, 41 (D.C. 1983), abrogated by Carrell v. United States, 80 A.3d 163 (D.C. 2013), reh’g en banc granted, No. 12-CM-523, 2015 WL 5725539 (D.C. June 15, 2015). The implications of this opinion figure to extend beyond the misdemeanor statute.

• Following Joiner-Die v. United States, 899 A.2d 762 (D.C. 2006), and In re Z.B., 131 A.3d 351 (D.C. 2016), this case deepens the divide in how the statutes for threats and assault are interpreted, despite conceptual overlap between the two offenses. While the Court posits that it would be unworkable to require proof that the harm contemplated by uttered words is “serious” in the same sense that aggravated assault requires, it is conceivable that the government would face this exact burden in prosecuting attempted aggravated assault. The Court opined that it was “unclear and possibly unknowable” that a threat to “smack the s*** out of” someone or “get [him or her] f***ed up” would threaten “serious bodily injury.” This opinion may raise interesting sufficiency questions in the future.  WC

Read full opinion here.