Lowther v. State, 104 A.3d 840

On April 24, 2013 Erin Lowther assaulted her brother and sister‑in‑law; Trisha Lowther required ambulance transport to the hospital.
Police arrived; Lowther was handcuffed in a patrol car and later transported to the hospital.
While in the police car, Lowther told an officer that if she saw Trisha at the hospital she was going to “f* kill her.”
A grand jury returned a superseding indictment charging Assault in the Second Degree, Terroristic Threatening (11 Del. C. § 621), and Offensive Touching.
A jury convicted Lowther of Assault in the Second Degree and Terroristic Threatening; she was sentenced to Level V incarceration with portions suspended for Level III probation.
On appeal Lowther challenged (1) sufficiency of the evidence on Terroristic Threatening and (2) the jury instruction on the mens rea required for that offense.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Lowther)	Held
Sufficiency of evidence for Terroristic Threatening	Evidence showed Lowther knowingly/intentionally threatened to kill Trisha and a rational jury could find subjective intent to threaten	Statement made while handcuffed, in custody, with victim absent and possibly not going to hospital; thus no subjective intent to threaten or ability to carry out threat	Affirmed: viewing evidence in light most favorable to State, a rational jury could find Lowther had subjective intent to threaten
Jury instruction on mens rea for Terroristic Threatening	Court’s instruction (intentionally or knowingly) properly tracked Delaware law permitting proof of subjective intent via intentional, knowing, or reckless conduct	Instruction failed to convey that State must prove subjective intent to threaten (not merely uttering words) and thus was erroneous	Affirmed: no plain error; instructions read as a whole were reasonably informative and allowed jury to consider subjective intent

Flonnory v. State, 893 A.2d 507 (Del. 2006) (standards for appellate review of denial of judgment of acquittal)
Andrews v. State, 930 A.2d 846 (Del. 2007) (§621 requires subjective intent to threaten; mens rea may be proven by intentional, knowing, or reckless conduct)
Bilinski v. State, 462 A.2d 409 (Del. 1983) (elements of terroristic threatening)
Virginia v. Black, 538 U.S. 343 (2003) (discussion of "true threat" doctrine under the First Amendment)
United States v. Kosma, 951 F.2d 549 (3d Cir. 1991) (context and totality of circumstances in assessing threatening utterances)
Allen v. State, 453 A.2d 1166 (Del. 1982) (statute punishes words; intent to carry out threat is immaterial)
McNally v. State, 980 A.2d 364 (Del. 2009) (instructions reviewed as a whole to determine adequacy)