Thomas v. United States, 249 A.3d 802

April 21, 2019: officers responded to a street fight; appellant Chantel Thomas approached officers after they detained two men.
Officer James ordered her back; he pushed her after she failed to comply and became belligerent; she twice charged and swung at him and made contact.
Officers Muse and Rich handcuffed Thomas; at that time she was cuffed behind her back on the sidewalk with two officers guarding her while Officer James stood ~10–12 feet away in the street.
While restrained, Thomas yelled that she "should" or "will" "take [his] gun and slap [his] bitch ass." No evidence showed Officer James was scared or that Thomas could actually reach him.
Charged at bench trial with simple assault (swinging at Officer James) and attempted threats to do bodily harm (the gun/slap statement); the trial court convicted on both counts.
On appeal the court affirmed the simple assault conviction but reversed the attempted-threats conviction for insufficient evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for simple assault (attempted battery)	Gov't: Thomas swung at and made contact with Officer James; she had apparent present ability and intent.	Thomas: She lacked present ability to injure due to distance, size disparity, and because Officer James initiated force.	Affirmed — trial court credited officer testimony; contact and punch-like swing satisfied assault elements; shove not excessive.
Sufficiency of evidence for attempted threats to do bodily harm	Gov't: Utterance was a facial threat and, despite restraints, could reasonably be seen as threatening (or executed via others).	Thomas: While facially threatening, context (hands cuffed, two officers in front, distance) eliminated any reasonable ability to carry out or to cause fear in an ordinary hearer.	Reversed — under the circumstances an ordinary hearer would not reasonably fear actual harm and there was no evidence of accomplices or realistic means to execute the threat; conviction for attempted threats cannot stand.
Legal question whether attempt requires objective fear by an ordinary hearer or only intent to induce such fear	Gov't: (not pressed on appeal)	Thomas: Attempt should fail if an ordinary hearer would not fear given incapacitation.	Court declined to definitively resolve the doctrinal divide but applied precedent (High, Lewis) reversing attempts where the ordinary hearer would not reasonably fear.

Powell v. United States, 238 A.3d 954 (D.C. 2020) (standard of review for sufficiency challenges)
Vines v. United States, 70 A.3d 1170 (D.C. 2013) (elements of simple assault/attempted battery)
Evans v. United States, 779 A.2d 891 (D.C. 2001) (definition and requirements for attempt)
High v. United States, 128 A.3d 1017 (D.C. 2015) (handcuffed defendant’s threats held insufficient where defendant no longer posed a realistic threat)
Lewis v. United States, 95 A.3d 1289 (D.C. 2014) (threats by handcuffed appellant insufficient where threat hinged on impossibility)
Haney v. United States, 41 A.3d 1227 (D.C. 2012) (threats by a handcuffed defendant may be sufficient if confederates could carry them out)
Clark v. United States, 755 A.2d 1026 (D.C. 2000) (threats that imply third-party execution can be actionable)
Gray v. United States, 100 A.3d 129 (D.C. 2014) (context matters to whether words convey fear to an ordinary hearer)
Carrell v. United States, 165 A.3d 314 (D.C. 2017) (mens rea for threats requires purpose or knowledge that words will be received as a threat)