216 A.3d 870
D.C.2019Background
- Roberts and L.H. were romantically involved; Roberts took nude photos of L.H., which she had asked him to delete.
- After their final breakup (May–June 2015) Roberts sent threatening voicemails/emails and repeatedly contacted L.H.; three communications formed three threats counts.
- In Sept–Oct 2015 Roberts sent/placed sexually explicit photos of L.H. in several places: taped to her front door (Count 7), on her car in a laundromat parking lot (Count 8), held out a car window at a traffic light (Count 9), folded in her front gate (Count 10), and on her car windshield near her house (Count 11).
- Roberts was convicted of stalking, threats, assault, and five counts of unlawful disclosure under the D.C. Criminalization of Non‑Consensual Pornography Act.
- On appeal Roberts argued (1) the jury instruction misdefined "disclose" and failed to require disclosure to a third party and (2) insufficient evidence supported unlawful‑disclosure and threats convictions.
- The court held the trial instruction was correct that "exhibit" may include making an image available for viewing even if no third party actually viewed it, but erred by not making clear the image had to be disclosed to someone other than the victim; Count 7 affirmed (harmless error), Counts 8–11 vacated and remanded; threats convictions affirmed; evidence was sufficient to support the unlawful‑disclosure counts.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Roberts) | Held |
|---|---|---|---|
| Whether "exhibit to" requires actual third‑party viewing | "Exhibit" need not be actually viewed; making image viewable suffices | "Exhibit to" requires proof someone other than defendant actually saw image | Held: making an image available for viewing suffices; actual viewing by third party not required |
| Whether instruction required disclosure to a person other than the depicted person | Govt initially argued disclosure to L.H. could suffice; later conceded third‑party required | Instruction failed to state disclosure must be to someone other than the person depicted | Held: trial court erred by not clearly requiring disclosure to a third party (error) |
| Harmlessness of instructional error | Some incidents were public; any error was harmless as jurors could infer third‑party availability | Error could have led jury to convict based solely on exhibition to L.H. | Held: Error harmless as to Count 7 (mother saw image) but not harmless as to Counts 8–11; convictions for 8–11 vacated and remanded |
| Sufficiency of evidence for unlawful disclosure and threats | Evidence (locations, bystanders, testimony, context) sufficient for all counts; threats clear in context | Argues insufficient proof of third‑party viewing/identification and insufficient mens rea for threats | Held: Evidence was sufficient to support all five unlawful‑disclosure counts and all three threats convictions; vacatur based solely on instructional error, retrial/remand allowed for vacated counts |
Key Cases Cited
- Facebook, Inc. v. Wint, 199 A.3d 625 (D.C. 2019) (standard for de novo statutory interpretation)
- Carrell v. United States, 165 A.3d 314 (D.C. 2017) (harmless‑error and threats mens rea framework)
- Buskey v. United States, 148 A.3d 1193 (D.C. 2016) (review of jury instructions de novo)
- Miller v. United States, 209 A.3d 75 (D.C. 2019) (sufficiency‑of‑evidence standard)
- Hobbs v. United States, 18 A.3d 796 (D.C. 2011) (double jeopardy and review after vacatur)
- Neder v. United States, 527 U.S. 1 (Sup. Ct.) (harmless‑error standard)
- Gray v. United States, 100 A.3d 129 (D.C. 2014) (context for how an ordinary hearer perceives threats)
- Andrews v. United States, 125 A.3d 316 (D.C. 2015) (ambiguous statements may be threatening in volatile contexts)
- McCoy v. United States, 781 A.2d 765 (D.C. 2001) (victim testimony alone can suffice to identify photographic evidence)