*2 Ali, Khadijah attorney from who wit- BECKWITH, Before FISHER and passing through nessed incident while FARRELL, Judges, Associate and Senior hallway of Ms. the courthouse. Ali Judge. “very testified saw she angry and he quite he was loud and was BECKWITH, Judge: Associate with” But she also Mr. Eshman. arguing convicted, Appellant was Richard Jones clearly that she testified “hear what could trial, after bench threats1 being any said” not hear was and she did daugh- for a he his statement made toward Specifically, threats. she testified she following a conten- guardian ter’s ad litem not hear Mr. say, going did “I’m Jones family hearing. tious Jones you.” smack the shit out of claims four errors: the trial court judge by denying erred his motion for new The found that both wit- is not nesses were that their testi- valid credible and law, mony was not inconsistent. actually offense under D.C. record support judge contains insufficient found Ali did while Ms. hear conviction, threat, any her and that was denied his attention drawn to he was (2012 Repl.). §§ 1. D.C.Code and -1803 angry until
the scene Mr. Jones became would not have its affected determination loud, testimony which occurred after he had that Mr. Eshman’s was credible. already in a uttered the threat normal tone We review the denial of a Rule 33 of voice. The court convicted Mr. Jones of motion for abuse discretion. Austin v. a mo- threats. Mr. Jones filed denied, trial,2 tion for a new *3 argues Mr. Jones that the trial court appeal followed. its abused discretion because the addition proffered
al evidence
was “fundamental to
II.
creating
impression
a full
for [the] trier of
fact.” The trial
that
court stated
it exam
argues
Mr. Jones first
that
trial
detail,
ined the motion in
including the
by
court
his
denying
erred
motion
attachments,
“extensive”
compared
and
contended,
new trial. Mr.
motion
Jones’s
that
testimony
evidence to the
that had
among
that his trial
things,
other
counsel
been elicited at trial. We have no reason
failing
investigate
was ineffective for
to second-guess the trial court’s conclusion
present
and
of Mr. Eshman’s
bias
that it
already
enough
was
well
informed
against
impeach
Mr.
Jones
order
Mr.
of
potential
against
Mr. Eshman’s
bias
Mr.
Having
Eshman’s testimony.
raised these
testimony
Jones from the trial
and that
claims in a motion under Rule 33 of the
testimony
additional
regarding the rela
Superior Court
Rules
Criminal Proce
tionship between
men
the two
would
dure, Mr.
argued
Jones
—and
affect the court’s
The
decision.
trial court
agreed
court
he need not demon
—that
did not
denying
abuse its discretion
strate a violation of his Sixth Amendment
Jones’s Rule 33 motion.
right to
pursuant
counsel
to Strickland v.
668,
Washington,
2052,
104 S.Ct.
U.S.
III.
(1984),
80 L.Ed.2d
to be awarded
new
but
to show that
needed
argues
next
Jones
his
necessary
new trial was
in “the interests of
conviction must be reversed because at
justice.” Super.
R.
CtCrim.
33. The trial
tempted threats is not
statutory
a valid
court concluded that a
un
new
claim
offense. This
was not
raised
necessary
court,
already
because it had
heard
for plain
so we review
error.
testimony
regarding
alleg
1282,
the events that
Howerton v. United
964 A.2d
edly gave
Eshman’s
rise Mr.
bias—a
Mr. Jones must demon
specific prior incident between the
charging
attempted
two
strate that
him with
(1) error, (2)
men and the fact that Mr.
(3)
Jones- had filed
plain,
threats “was
that is
bar
complaints against
(4)
Mr. Eshman.
substantial rights,
affects
broadly,
fairness,
More
it
seriously
stated that was
integrity
affects the
or
hostility, fi’ankly, generally,
“aware
public reputation
judicial
proceedings.”
[Ejshman
testified to and ac
Id. (quoting
Coleman United
534,
(D.C.2008)).
knowledged
Mr. Jones
between
and Mr. A.2d
He cannot
[E]shman.”
trial court
rigorous
determined meet this
standard.
Evans v.
(D.C.
prior
additional evidence
their
rela tionship
2001) (“To
alleged
up,
Mr. Eshman’s
bias
sum we
hold
pro
attorney
2. Mr. Jones first filed his
se and
motion
moved and another
submitted a third
appointed
supplemental
then
counsel filed a
argued
motion and
it in court.
attorney
memorandum. That
was later re-
”
is incor-
threat.’
But Mr. Jones
tempted
statutory offense under
a valid
is
n Columbia.”).
cannot be
assertion that one
District
rect
of the
the laws
gen-
commit a
attempting
convicted
misde-
because
argues
Mr. Jones
crime,5
no
and-thus he can show
intent
eral
crime,3
is
meanor
similarly argues that
error.
v. United
see Carrell
attempt for
be convicted of an
one cannot
vacated,
reh’g en banc
170-71
intent to do a
that do
involve
“[c]rimes
States, 565 A.2d
v. United
granted; Holt
State,
act,”
311 Md.
criminal
Cox
(en banc),
(D.C.1989)
and be-
stating that
requires the
attempt conviction
cause
speak
makes no sense
“[i]t
“specific intent
involuntary manslaughter
or
attempting,”
one
commit
the crime
maxim
This
is irrelevant
344, negligence.”
States, 500 U.S.
Braxton
*4
offense of
the misdemeanor
1854,
here because
*,
114
385
n.
L.Ed.2d
351
111
require intent to
to
States,
threats does
act-intent
(1991)
Morissette v. United
(citing
240,
a' threat.
246, 263,
that constitute
96
utter statements
72 S.Ct.
L.Ed.
U.S.
342
States,
762,
A.2d
(1952)),4
general
v. United
899
attempt
cannot
Joiner-Die
one
288
(D.C.2O06).6
‘at-
“there cannot be an
764
intent crime and
erpment
intent,'
"general”
than the fact
must
more
"specific” and
establish
3. The terms
shot,
marshals’!)]
routinely by
though
courts and treatise
Braxton had
‘at the
it
used
“that
writers,
vague and "often con-
are somewhat
have to have established
he
would also
fusing.”
Crimi-
killing
Judicial Council of California
the intent of
them." 500
did so with
(2015)
*,
Jury
(explaining
Instructions xxvi
nal
& n.
Mr. Eshman with
harm
him, “I’m going to smack the shit out of
. V.
you.” Mr. Jones’s
insistence
that his
benign by
statement was
argues
“rendered
[its]
S.W.,
context,”
In re
by allowing
court erred
unavailing.
if
Even
amend
information on
day
of trial
in a
deny
statement
made
“normal tone of
order to
his right
by jury.8
voice,” a reasonable factfinder could
con
Jones was first
with
misde
*5
clude that Mr.
possessed specific
Jones
meanor
in violation of D.C.Code
(2012
§
intent
Mr.
Repl.),
threaten
Eshman with seri
which
a
carries
bodily
given
ous
harm
the tumultuous
penalty
and maximum
of six months incarcera
emotionally charged
triggers
statutory
nature
their rela
tion and
a defendant’s
tionship and the fact that
trial in the District.9 right
jury
Mr. Jones later
to a
Third,
argues
passing
Mr. Jones
in
that the
for a threats conviction in accordance with
charge
Supreme
threats “runs afoul of
Court's recent decision in Elonis
protections”
States, -U.S.-,
First Amendment
criminaliz-
135 S.Ct.
ing speech
"unspoken”,
holding
is
or "unheard.”
L.Ed.2d
federal
case,
implicated
requires
government
Such concerns are not
in this
threats statute
however, where
prove
the evidence showed that his
that the defendant "transmits a com-
spoken
issuing
threat was
purpose
both
heard. Because
munication for the
threat,
explain why
knowledge
speech
Mr. Jones does not
his
or with
that the communi-
threat,”
constitutionally protected,
would be
we need
as a
while
cation will
viewed
leav-
depth.
ing
in
open
possibility
consider his claim more
recklessness
well.
would suffice as
Id.
2012. This
at
above,
contends,
7.As
discussed
granted rehearing
in
court has
en banc
Car-
arguing
áttempted
when
is not a
required
address the level of intent
rell to
District,
valid crime in the
that an
in the
a threats conviction
District.
requires specific
conviction
intent. He does
specific
not renew
his contention
subject
plain
8. This claim is
error review.
necessary
arguing
govern-
is
when
that the
When the
moved to amend the
presented
sup-
insufficient evidence to
ment
prior
information
counsel re-
defense
trial*
conviction,
port
quotes
his
and he even
Car-
objection,
sponded,
Your
“No
Honor.”
retl,
contrary.
give
which indicates the
We
doubt, however,
not, however,
charge
trigger
Mr. Jones the benefit of the
9. This
does
Mr.
right
jury
and assume
that the
must
Jones's constitutional
trial. See
,
1, 3,
Nachtigal,
specific intent
And
to convict.
because we
United States v.
507 U.S.
(1993) (citing
specific
required
assume that
intent is
D.C.Code (D.C.1996). attorney ap- ... has who witness is Bayly, 673 A.2d ner v. Judge gov- peared every in front of almost began, before the Moments Court,” statutory right to a Superior to at- the information amended ernment demanding upon §§ 22- jury contingent trial was threats under D.C.Code tempted place, a max- see D.C.Code charge jury carries the first and -1803. This incarceration, 16-705(b)(2), days’ § And penalty of 180 which he never did.11 imum trigger object one’s to the is not sufficient because Mr. Jones did amendment, § 16- in the statutory jury. to a there is no indication right D.C.Code 705(b). any way Ruling Mr. claim of the amendment Jones’s record on pre- Mr. Jones was in his motion for a new altered the defense error argument rejected pared present.12 Jones’s understanding of the law on [its] “based have time the Government does [that] VI. if that in a right to amend even results reject of Mr. Jones’s Because we each charge.” trial on of the denial error, his conviction is affirmed. claims Superior Rule of the Court Rules specifies that an infor-
Criminal Procedure So ordered. may any “at time be- be amended
mation
if no
or
finding
verdict or
additional
fore
Concurring opinion by
Judge
Associate
if substan-
different offense is
at page
BECKWITH
preju-
rights
tial
of the defendant are
BECKWITH,
Judge,
Associate
7(e);
Dy-
R.
diced.”
CtCrim.
see
Super.
concurring:
son v. United
then,
us,
question for
arguing
In
threats is not
any preju-
whether
Jones suffered
District,
valid crime
Jones
case, prejudice
in this
substan-
dice—and
*6
Supreme
on the
Court’s decision
relies
plain
enough
tial
reverse under the
States,
344,
500
Braxton v. United
U.S.
government’s
error
standard —from the
1854,
111
133
States,
Id. at 1199
Morissette v. United
(holding
appellant
U.S.
(1952)).
263, 72
I
L.Ed.
guilty of the “attempted-battery” type of
separately to make note of an incon-
write
though
assault even
the evidence showed a
sistency
regarding
in our case law
the
completed battery).2 In reaching this con-
law proposi-
extent which this common
clusion,
Ray
grapple
did
with Worms-
applies in
District of
tion
the
Columbia.
ley
premise
’s
attempt
requires
States,
specific
Ray
applied
intent. We later
Sellers v. United
In
to an
Then in
intent’
*7
(D.C.1990),
of a prosecution
any-
we
that
text
“[e]very
stated
is,
view,
completed
thing
criminal
in
necessarily in-
our
somewhat
offense
mislead-
Id. at 219. The court reiterated
attempt
cludes an
to commit that
ing.”
offense.”
Fogle
government
attempt
acquitted
1.
held that the
did not need
must be
if shown to have
prove
to
"an intent to violate the law” to be
committed
full
the
offense.” Id. at 841-42.
guilty
taking property
right, up-
without
Fleming
Ray
But
did not state —as
did—that
holding a conviction based on unauthorized
any completed
necessarily
offense
includes
though
ap-
removal of automobiles even
the
attempt. Fleming simply
the
stands for the
pellant “believed that he had been authorized
proposition
not
that failure is
an essential
by
property managers
the
to do so.” Id.
attempt;
element of an
it neither discussed
implied
required
nor
what mens rea is
when
Ray
part
2.
relied in
on United States v. Flem-
government charges
attempt
op-
the
an
as
(D.C.1966),
ing,
rejected
Wormsley’s at- allegedly of at- commit the crime to commit the offense intent required tent (citation the offense inter- to commit at tempted.” an intent Id. tempt is (citing omitted). Id. Worms- attempted.” allegedly marks We quotation nal held 1375). court also But the at ley, 526 A.2d evi- the record contained sufficient neces- Evans decision “[o]ur stated intent “appellant acted that the with dence attempt an that when sarily means animals,” cruelty the crime commit the defendant by evidence proven Id. we affirmed her conviction. to have been alleged crime the committed Wormsley-Brawner-Dauphine line The to commit required intent the attempted, prove requiring government cases greater be no attempt can the crime to commit the crime intend- specific intent to commit the required intent than the to be in tension with appears ed direct Evans, (citing Id. crime.” completed line of cases that does Evans-Smith 894). court then held A.2d require proof.4 Because Mr. Jones’s such sufficient there was review, however, plain case arises on error cruelty to children when second-degree in our this tension we need resolve to commit the “intended acts appellant need not decide jurisprudence, and we grave in ... risk of which resulted that the com- Mr. Jones is correct whether child, though even he did injury” to the as mon law intent element 219- injure the child. Id. at intend in Brax- Supreme articulated Court 20. jurisdiction. is the law this ton Evans continues to feature Yet while law,3 in our case other recent prominently specific intent for
cases have example, For conviction. A.2d 1191 United
Brawner v. that for an at- the court held al., conviction, RODRIGUEZ, Appellants, et escape Jose tempted intending “the mental state of must offense,” is, underlying commit COLUMBIA, OF DISTRICT though charge escape,” even “intent al., Appellees. et escape did not involve completed for a Dau-phine No. 13-CV-1027. at 1194. Id. And such intent. (D.C. United of Appeals. District of Columbia Court 2013), cruelty is this court held that animal 4, 2015. Argued Feb. crime but nonetheless Sept. 2015. Decided “where stated attempt, as it charges an individual with here, government must demon-
did See, .pleted in the and an offense former cases e.g., Lewis v. United (D.C.2014); Newman offense the latter. Cf. 506, 522-23, Gaudin, 515 U.S. States v. *8 (1995) ("The 132 L.Ed.2d 4. As the elements of a crime are determined gives a criminal Constitution defendant charges, by offense the what determine, beyond rea- right to have a n presents Evans what evidence it doubt, every guilt element of sonable distinguished from cannot be! Smith charged.”). the crime with which he is Brawner, Dauphine Wormsley, on proved ground a com-