Criminal Prohibition on Negligent Stalking Withstands Constitutional Challenge despite Potential Ambiguity

Beachum v. United States (decided July 31, 2018; published December 20, 2018)

Players: Associate Judges Fisher, Beckwith, and McLeese. Per curiam opinion. Vincent A. Jankoski for Mr. Beachum. Trial Judge: Patricia A. Broderick.

Facts: Following a bench trial, Mr. Beachum was convicted of attempted stalking in violation of D.C. Code § 22-3133(a)(3), which makes it unlawful:

to purposefully engage in a course of conduct directed at a specific individual . . . [t]hat [one] should have known would cause a reasonable person in the individual’s circumstances to: (A) Fear for his or her safety or the safety or another; (B) Feel seriously alarmed, disturbed, or frightened; or (C) Suffer emotional distress. 

Evidence at trial showed that between 2016 and 2017, Mr. Beachum made a series of escalating advances toward the complainant, Ms. Telfer, despite her attempts to ignore or rebuff him. He first encountered her while visiting one of her neighbors. Thereafter, he appeared on her block regularly and tried to engage her in conversation. Though she rebuffed him, he persisted. Once, he asked to speak to her while sliding his hand down his pants. Even after the neighbor moved, Mr. Beachum continued to appear on the block almost daily and to approach Ms. Telfer.

In January 2017, Mr. Beachum approached Ms. Telfer as she was arriving home and said that he wanted to speak with her. He was “extremely more aggressive” than in previous encounters and persisted, even as she tried to ignore him and unlock her door. When she got inside, Ms. Telfer called the police. While she waited for them to arrive, Mr. Beachum went to his van, wrote something down, came back, and then rang the doorbell and banged on the door for about one minute. Mr. Beachum left before the police arrived. Ms. Telfer later found a note stating: “It’s not about being your friend, it’s about being your best friend. Can you? Hi.”

Issue: Whether D.C. Code § 22-3133(a)(3) is unconstitutional because it permits conviction based on the negligent failure to realize that one’s conduct would cause fear, serious alarm, or emotional distress?

Holding: No. Although the DCCA and the U.S. Supreme Court have held that criminal threats convictions require a more culpable state of mind than negligence, see Elonis v. United States, 135 S. Ct. 2001 (2015); Carrell v. United States, 165 A.3d 314 (D.C. 2017) (en banc), these cases did not ban all convictions based on negligence. Rather, they presented an issue of statutory interpretation—whether statutes must be construed to require a more culpable state of mind than negligence, in the absence of a clear statement of legislative intent to the contrary. Here, by contrast, the legislature gave a clear statement of its intent to enact a ban on negligent stalking.

The statute provides adequate notice of what it prohibits by requiring proof that the person convicted had reason to believe his conduct would engender, fear, serious alarm, or emotional distress. The argument that “diverse cultural norms make it impossible to know what conduct might engender” such a response has no merit here, where, despite Ms. Telfer’s repeated efforts to rebuff him, Mr. Beachum made escalating advances, ultimately ringing her doorbell and banging on her door for about a minute.

Of Note: 
The Court does not rule out the merit of a challenge to D.C. Code § 22-3133(a)(3) in a different case, based on the argument that “diverse cultural norms make it impossible to know what conduct might engender fear, serious alarm, or emotional distress in a reasonable person.” Slip Op. at 7-8. WC.

Read the full opinion here.

DCCA: Social security numbers may fall within Miranda’s “routine booking exception”; the government need not prove an unregistered firearm is not antique unless the record suggests that it is.

(Image of Social Security Cards from Wikimedia Commons)

Toler v. United States (decided December 20, 2018)

Players: Associate Judges Beckwith and McLeese, Senior Judge Steadman. Opinion by Judge Steadman. Ian A. Willams for Mr. Toler. Trial Judge: Hon. Maribeth Raffinan.

Facts: While executing a search warrant on Mr. Toler’s apartment, members of the Gun Recovery Unit handcuffed him and, without obtaining a waiver of his Miranda rights, asked for his name, date of birth, phone number, and social security number. Mr. Toler provided this information and volunteered that he was a former U.S. Marine. During their search, officers seized three firearms, assorted ammunition, and Mr. Toler’s apartment lease. An indictment later charged him with, inter alia, possession of an unregistered firearm and unlawful possession of a firearm by a person previously convicted of a crime punishable by more than one year of imprisonment. A jury found Toler guilty of the latter offense, based on his un-Mirandized statements to police and a certified copy of a U.S. Marine Corps court martial conviction, stating that someone with the name and social security number that Toler provided to police had been convicted of a crime punishable by more than one year imprisonment. The same name and social security number also appeared on the lease seized from Mr. Toler’s apartment.

Issue 1: Whether the social security number provided by Mr. Toler was subject to suppression absent a valid waiver of his Miranda rights?

Holding: No. Miranda only applies to interrogation, which includes express questioning and words or actions reasonably likely to elicit an incriminating response but excludes “routine booking questions,” such as those related to identity. Like name and date of birth, social security number is “a routine means of identifying oneself.” Slip Op. at 8. Since questioning is allowed as to these other identifiers, “it is difficult to see any meaningful distinction that would generally prohibit a request for a social security number.” Id. at 8-9. While such questions may trigger Miranda if they are “reasonably likely to elicit an incriminating response,” the question here does not fall into that category. Id. at 9. That the question was asked on the scene rather than at booking, without more, does not transform it into interrogation. See Jones v. United States, 779 A.2d 277 (D.C. 2001) (en banc)

Of Note: An exception to the general rule that questions about suspect identity are not “reasonably likely to elicit an incriminating response” may exist where the information is relevant to an element of a crime other than identity, e.g., the suspect’s date of birth in a statutory rape case. Slip Op. at 8-9 (citing State v. Locklear, 531 S.E.2d 853 (N.C. Ct. App. 2000)).

Issue 2: Whether Mr. Toler’s conviction for possessing an unregistered firearm required proof that the firearm was not “antique?”

Holding: No. Although the D.C. firearm registration requirement excludes firearms manufactured in or before 1898, antiquity is an affirmative defense that the government need only disprove when there is some evidence in the record to support it. Courts have uniformly interpreted the D.C. statute’s federal counterpart in the same manner. That the registration requirement excludes four other firearm categories further supports that the government need not disprove each one during its case in chief. To do so would be impracticable. As there was no evidence that the firearms seized from Mr. Toler’s apartment were antique, the government had no burden to prove otherwise. WC

Read the full opinion here.

To be punishable under D.C. Code § 22-1321(a)(1), "disorderly conduct" must cause actual, subjective fear of harm.

 Edvard Munch, The Scream, 1893, National Gallery Oslo

Solon v. United States (decided Nov. 29, 2018)

Players: Associate Judges Fisher, Thompson, and Beckwith. Opinion by Judge Thompson. Thomas C. Paynter for Ms. Solon. Trial Judge: Juliet J. McKenna.

Facts: A judge found Ms. Solon guilty of disorderly conduct in violation of D.C. Code § 22-1321(a)(1), which makes it a crime “to intentionally or recklessly act in such a manner to cause another person to be in reasonable fear that a person or property in a person’s immediate possession is likely to be harmed or taken.” Ms. Solon’s charges arose out of her interaction with climate march participants in April 2017. Holding a “TRUMP: Make America Great Again” sign, Ms. Solon tried to push her way between marchers, who were standing arm-in-arm. When she was not pushing, Ms. Solon walked from side to side, while the marchers looked on impassively. Others laughed or took photos of Solon. At one point, someone appeared to bump into her on purpose. March staff testified that her behavior was “scary” and “aggressive” but could not identify any objective on her part beyond getting between the marchers. Ms. Solon told an officer at the scene that her aim was to impede the march.

The trial court found Ms. Solon guilty of violating D.C. Code § 22-1321(a)(1) by “ramming her body into individuals who . . . were standing peacefully, expressing their views[.]” In so doing, the court rejected Ms. Solon’s argument that § 22-1321(a)(1) required the victim’s actual, subjective fear of injury. The court found that although the government had not proven actual, subjective fear, conduct sufficient to create objectively reasonable fear of immediate bodily harm would suffice for conviction. In the court’s view, Ms. Solon’s “demeanor,” “agitation,” and “volatility” met this standard.

Issue 1: Whether a conviction for disorderly conduct under D.C. Code § 22-1321(a)(1) requires proof that the charged conduct caused actual, subjective fear of harm?

Holding: Yes. On its face, D.C. Code § 22-1321(a)(1) appears to require proof that the perpetrator’s conduct “cause[d] [someone] to be in . . . fear.” Legislative history confirms this interpretation. When a subcommittee proposed that § 22-1321(a)(1)’s general prohibition on intentional or reckless conduct made a separate anti-jostling provision of the statute redundant, the Judiciary Committee disagreed, noting § 22-1321(a)(1)’s distinct requirement for the victim’s actual, subjective fear of harm. “In light of th[is] legislative history, . . . § 22-1321(a)(1) requires proof that the defendant’s charged conduct placed another person in fear of harm to his or her person.”

Issue 2: Whether Ms. Solon’s conviction may stand?

Holding: No. The trial court’s verdict relied solely on its erroneous determination that the government did not have to prove that Ms. Solon’s conduct caused actual fear among the demonstrators. Although, ordinarily, the Court would remand for a correct application of the statute, the Court will not do so here because the trial court already found that Ms. Solon’s behavior did not place anyone in fear of harm. This finding was neither plainly wrong nor without evidence to support it— none of the marchers manifested any fear of Ms. Solon, who by herself; rather, some were laughing; police were nearby; and witnesses confirmed that she appeared to lack any objective beyond getting in between the marchers. WC

Read the full opinion here.