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.

Case Note: APOWA is not unconstitutionally vague

Fadero v. United States (decided March 22, 2018)

Players: Associate Judges Glickman, Fisher, and Thompson.  Opinion by Judge Fisher.  Trial judge: Ronna Lee Beck.

The main issue in this pro se § 23-110 motion was whether the phrase “grave risk of causing significant bodily injury,” incorporated in the crime of felony assault on a police officer while armed (APOWA), is unconstitutionally vague.  Appellant relied on the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551 (2015).  In Johnson, the Supreme Court considered a provision in the Armed Career Criminal Act (ACCA) that includes conduct “that presents a serious potential risk of physical injury to another” in the definition of “violent felony.”  The Supreme Court found that provision to be unconstitutionally vague.  The DCCA rejected Appellant’s argument that if the “serious potential risk of physical injury” clause in the ACCA offends due process, the “grave risk” language incorporated in APOWA must as well. The problem with the ACCA was that it required judges to determine whether the “ordinary” way a crime unfolded created a serious risk of potential injury – a “highly subjective exercise.”  In contrast, determining whether a defendant committed a violent act that created a “grave risk of causing significant bodily injury” is a question of fact that involves an inquiry into the defendant’s actual conduct.  The provision does not require judges to imagine the risk posed by the “ordinary” APOWA.  NG

Read the full opinion here.