Following a jury trial, appellant Levi M. Ruffin was convicted of one misdemeanor count of assaulting, resisting, or interfering with a police officer (“APO”), and two counts of felony threats arising from statements he directed at a Metropolitan Police Department (“MPD”) vehicle and a police officer.
I. Factual Background
On June 12, 2010, at approximately 5:00 a.m., JaNai Humphrey was awoken by a noise in the backroom of her apartment. She looked through an internal window to investigate, noticed that the blinds were askew, and saw a portion of a person’s arm. She left her apartment and went to a neighbor’s apartment upstairs, where she immediately called the police. MPD Officer Carlos Amaya arrived approximately four minutes later. At that point, Ms. Humphrey advised Officer Amaya that someone was breaking into the back of her apartment. Officer Amaya walked to the back of the building to investigate.
As Officer Amaya entered the alley behind the buñding, he saw appellant hopping over a short retaining wall. Officer Amaya observed no one else in the alley. Although he was walking in Officer Ama-ya’s direction, appellant was looking over his shoulder, towards a police car entering the alley behind the building. Consequently, appellant did not see Officer Ama-ya approach and, according to Office Ama-ya, appellant seemed “surprised” and “startled” when he turned and saw Officer Amaya, who was wearing his full police uniform. Officer James Wells, who observed the encounter from his patrol car, testified that appellant “didn’t see [Officer Amaya] ... he just kind of bumped into him and it appeared he was trying to pull away from Officer Amaya.” Officer Ama-ya testified that, at that point, without saying anything to appellant: “I went to ... put my hands on [appellant], and he— my hand hit his shoulder and he brushes his shoulder off my hand.” Officer Amaya further described appellant’s reaction as “elbowing to the back with his right arm.” Then, according to Officer Amaya, he grabbed appellant and appellant became “a little combative,” which prompted Officer Wells to assist Officer Amaya in handcuffing appellant. Officer Amaya did not explain what he meant by “combative.”
Officer Amaya later observed Officers Wells and Pena, who had also responded to the call, attempt to place appellant in a police vehicle to transport him to the police station. The police vehicle was assigned to Officer Pena. However, appellant became “very agitated.” When Officer Wells told Officer Pena that they should put appellant in the police vehicle, appellant said:
Appellant was charged with five counts arising from the incident: (1) first-degree burglary; (2) threatening to injure a person (Officer Amaya); (3) threatening to damage property (the police vehicle); (4) misdemeanor assaulting, resisting, or interfering with a police officer; and (5) commission of an offense while on release.
A jury trial began on September 23, 2010. The jury acquitted appellant of burglary and convicted appellant of threatening to damage the police vehicle, threatening to injure Officer Amaya, and APO with respect to Officer Amaya. On January 12, 2011, the trial judge sentenced appellant to twenty-four months for each of the two felony threat counts to run concurrently and a consecutive six-month sentence for the APO count. Despite acknowledging that the jury acquitted appellant of the burglary count, the trial judge also imposed a consecutive sentence of twelve months for commission of a burglary while on release. This timely appeal followed.
II. The APO Conviction
We first consider whether there was sufficient evidence to support appellant’s APO conviction. “In a sufficiency challenge we view the evidence in the light most favorable to the government, draw all reasonable inferences in the government’s favor, and defer to the factfinder’s credibility -determinations.” In re J.S.,
Whoever without justifiable and excusable cause, assaults,, resists, opposes, impedes, intimidates, or interferes with a law enforcement officer on account of, or while that law enforcement officer is engaged in the performance of his or her official duties shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned not more than 180 days or fined not more than $1,000, or both.
D.C.Code § 22-405(b). “These acts are stated in the disjunctive, and a finding that a defendant committed any one of them would support a finding of guilt under the statute.” J.S., supra,
Here, the government argues that by “using his elbow to brush Officer Amaya’s hand from appellant’s shoulder,”
“[D]espite its breadth, ‘the District’s APO statute does not criminalize every refusal to submit to a police officer or every prevention or hindrance of an officer in his duties.’ ” Id. at 331 (quoting Coghill v. United States,
The government argues that appellant’s elbow motion was comparable to the conduct of the appellants in J.S., Coghill, and Dolson. In J.S., the officers chased J.S. until he slipped and fell onto the ground where the officers grabbed his arms, but he continued to resist by hiding his hands and “broke free from [the officer’s] grip twice by swinging his arm forward.”
In all three cases, the defendants were clearly aware that the police intended to apprehend them and their deliberate acts of physical resistance exceeded a single motion. The evidence in J.S., Coghill, and Dolson established that each defendant actively sought to avoid police efforts to restrain them. Conversely, here, the government’s evidence established that appellant was “surprised” and “startled” by Officer Amaya’s presence immediately in front of him, and that Officer Amaya had not identified himself before reaching for appellant’s shoulder. Then, according to Officer Amaya’s testimony, appellant instantaneously “brushed his shoulder” away from Officer Amaya’s hand. Such an isolated motion is not conduct that rises to the level of “active and oppositional conduct.” Coghill, supra,
III. The Felony Threats Statute
We next consider whether the felony threats statute, D.C.Code § 22-1810, prohibits threats to destroy property owned by the District of Columbia. This is a matter of first impression. The statute is entitled “Threatening to kidnap or injure a person or damage his property” and provided in its entirety at the time of these offenses:
Whoever threatens within the District of Columbia to kidnap any person or to injure the person of another or physically damage the property of any person or of another person, in whole or in part, shall be fined not more than $5,000 or imprisoned not more than 20 years, or both.
Id. Appellant argues that the terms of this statute only apply to property belonging to natural persons and therefore do not criminalize the conduct for which he was convicted, i.e., his statement while being restrained by officers outside of a MPD vehicle that: “You put me in there, I’m going to kick out the windows.” The government responds that the use of “person” in the felony threats statute encompasses the District of Columbia due to its legal status as a municipal corporation. See
Appellant styles this issue as a sufficiency challenge by arguing that the evidence was insufficient to establish that appellant violated the felony threats statute. Yet, at bottom, the resolution of this claim “turn[s] on pure questions of law....” Wynn v. United States,
A. The meaning of “person” in the felony threats statute
Congress enacted the felony threats statute in Title X of the “Omnibus Crime Control and Safe Streets Act of 1968” (hereinafter the “1968 Crime Control Act”) as 10 U.S.C. § 1502. See Pub.L. No. 90-351, 82 Stat. 197. Although the Council of the District of Columbia (hereinafter the “Council”) has recodified this provision twice — as D.C.Code § 22-2307 (1973) and D.C.Code § 22-1810 (2001) — as of appellant’s arrest, the Council had not altered the language adopted by Congress in the original statute.
The Dictionary Act defines “person” as “including] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. The government argues that this broad definition of “person” encompasses the District of Columbia, given its legal status as a municipal corporation. See D.C.Code § 1-102. Consequently, we consider whether the context of § 1502 — the original codification of the felony threats statute enacted by the 1968 Crime Control Act — indicates that Congress intended to limit the meaning of “person” to natural persons rather than “person” as defined by the Dictionary Act; and, even if Congress did intend to apply the Dictionary Act definition of “person” in § 1502, whether the District of Columbia should be considered a “corporation” as that term is defined by the Dictionary Act.
In Rowland v. California Men’s Colony Unit II Men’s Advisory Council,
If ‘context’ thus has a narrow compass, the ‘indication’ contemplated by 1 U.S.C. § 1 has a broader one. The Dictionary Act’s very reference to contextual ‘indication’ bespeaks something more than an express contrary definition ... the point at which the indication of particular meaning becomes insistent enough to excuse the poor fit is of course a matter of judgment, but one can say that ‘indicates’ certainly imposes less of a burden than, say, ‘requires’ or ‘necessitates.’
Id. That is, “this exception from the general rule would be superfluous if the context ‘indicates otherwise’ only when use of the general definition would be incongruous enough to invoke the common mandate of statutory construction to avoid absurd results.” Id. at 200,
In Rowland, the Court concluded that the use of “person” in a federal statute enabling qualified civil litigants to proceed in forma pauperis refers only to natural persons, not to artificial entities, due to four “contextual features” in the statute. See id. at 202-07,
Here, in determining whether the contextual features indicate that Congress limited “person” in § 1502 to natural persons, we first look to the terms of the statute itself, which as noted above, prohibited threatening to “kidnap any person or to injure the person of another or physically damage the property of any person or of another person....” This creates three means of committing a felony threat: (1) threatening to kidnap any person; (2) threatening to injure the person of another; or (3) threatening to damage the property of any person. Importantly, artificial entities, such as corporations, cannot be victims of the first two acts proscribed by § 1502 because they cannot be kidnapped or injured. See United States v. Havelock,
Limiting the victims of threats to kidnap and injure to natural persons, while including artificial entities amongst the victims of threats to inflict property damage, would run afoul of the “ ‘presumption that identical words used in different parts of the same act are intended to have the same meaning.’ ” Gen. Dynamics Land Sys., Inc. v. Cline,
In continuing our exploration of the context surrounding the use of “person” in § 1502, we also look to the language of § 1501, which was § 1502’s companion statute (and for that matter, the only other provision) in Title X of the 1968 Crime Control Act.
The government notes that in 1982, the Council rewrote and severed the extortion statute (§ 1501) from the felony threats statute (§ 1502), moving the extortion statute to D.C.Code § 22-3251. The government argues that such changes “render[ ] reliance on the earlier, hastily enacted [extortion] language to interpret the threats statute an ill-advised venture.” Instead, in the government’s view, the revised Code indicates that the term “person” in the felony threats statute should be construed in accordance with the broad definition in both the Dictionary Act and Black’s Law Dictionary.
any property in which a government or a person other than the accused has an interest which the accused is not privileged to interfere with or infringe upon without consent, regardless of whether the accused also has an interest in that property. The term “property of another” includes the property of a corporation or other legal entity established pursuant to an interstate compact....
D.C.Code § 22-8201(4) (2001). Thus, the Council’s use of “property of another” and its explicit inclusion of a “government” and a “corporation” in its definition thereof lie in contrast to Congress’s use of “the property of any person or of another person” in the felony threats statute, the terms of which the Council left intact when it revised the criminal code in 1982. Conversely, the Council did not provide a definitions section for Chapter 18, which is entitled “General Offenses.” Thus, neither the Council’s changes to the extortion statute, nor its decision to codify the felony threats statute in the chapter governing “General Offenses,” indicate that the Council intended to alter Congress’s use of “person” in § 1502 of the 1968 Crime Control Act. If
Further, we are not persuaded by the government’s assertion that, by virtue of its legal status as a municipal corporation, the District of Columbia is a “corporation” within the purview of the Dictionary Act for purposes of the felony threat statute. Consideration of the overarching statutory scheme of the 1968 Crime Control Act indicates that Congress did not intend to include the District of Columbia in it use of “person” in the felony threats statute. Although the District of Columbia has been constituted “as a body corporate for municipal purposes” with all the “powers of a municipal corporation” since 1878, 20 Stat. 102, ch. 180, § 1 (1878), “[f]or relevant purposes, [the District of Columbia] has been variously compared to or described as a state, territory, or municipality, and sometimes it has simply been called ‘unique.’ ” District of Columbia v. Owens-Corning Fiberglas Corp.,
Our interpretation is bolstered by appellant’s observation that, if we conclude that property owned by the District of Columbia is protected by the felony threats statute by virtue of the District of Columbia’s status as a municipal corporation, it would be a felony to threaten to break the window of a MPD vehicle, but a similar threat to break the window of a Secret Service or Park Police vehicle would be exempt from the statute. This incongruous result would occur because the Dictionary Act definition of “person” includes “corporations,” but not “governments” or “sovereigns.” Thus, adopting the government’s position would defy the canons of statutory interpretation that “the literal meaning of a statute will not be followed when it produces absurd results,” and “whenever possible, the words of a statute are to be construed to avoid obvious injustice.” Peoples Drug Stores, Inc. v. District of Columbia,
In conclusion, the four contextual features discussed above indicate that the word “person,” as first used in 10 U.S.C'. § 1502, and later recodified in D.C.Code § 22-1810, does not encompass the sweeping definition in the Dictionary Act. First, in light of the impossibility of extending the statute’s proscriptions of threats to kidnap and injure to artificial persons, the presumption of uniform usage requires that “person” be limited to natural persons. Second,, including artificial entities in “person” in § 1502 would render the list of artificial entities in § 1501 superfluous. These two features establish that “person” is limited to natural persons. Third, even if we were to accept that “per
B. Property interests protected by the felony threats statute
Alternatively, the government argues that even if we construe the felony threats statute to apply only to threats made to the property of natural persons, appellant’s conviction is still lawful because “the statute does not describe what type of property interest a person must have in the threatened property for the threat to be cognizable.” Specifically, appellant threatened to kick a police vehicle assigned to Officer Pena, who, pursuant to MPD procedures, was responsible for the vehicle’s care and operation.
This sweeping interpretation does not comport with our case law. In support of this argument, the government cites to Moss v. United States,
In summary, we have established, first, that the context of the felony threats statute indicates that its use of “person” is limited to natural persons, thereby excluding threats to property owned by artificial entities — particularly the District of Columbia; and, second, that the statute does not criminalize threats that impinge upon possessory property interests. Our conclusion is supported by the Supreme Court’s admonition, which the Ninth Circuit recently recited in its factually-analogous Havelock decision, that “ ‘[b]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.’ ”
IV. Conclusion
For the foregoing reasons, we reverse appellant’s APO conviction and felony threat conviction that was based on his threat to damage the police vehicle. Further, we remand to the trial court to vacate appellant’s sentence for committing a burglary while on release — a crime for which he was not convicted.
So ordered.
Notes
. In violation of D.C.Code § 22-4050?) (2009 Supp.) and D.C.Code § 22-1810 (2001), respectively.
. In violation of D.C.Code § 23-1328(a)(l) (2001).
. In a D.C.App. R. 28(k) letter dated August 23, 2013, appellant’s counsel referred the court to our recent decision in Cave v. United States,
. At trial, Officer Amaya testified that it was "not so dark” outside. Conversely, before the Grand Jury, Officer Amaya testified that it was "real dark outside” The parties stipulated that on the morning of June 12, 2010, sunrise did not occur until 5:42 a.m. — almost forty-five minutes after the incident.
. The fifth count of the indictment specified that the offense committed while on release was burglary.
. In its brief, the government does not argue that Officer Amaya’s testimony that appellant became "a little bit combative” after Officer ■ Amaya grabbed him was a basis for the APO conviction. Rather, the government urges us to consider this testimony, as well as evidence of appellant's attempts to kick the police officers as he was being led to the police wagon and his behavior in the van, "in determining whether appellant's reaction to Officer Amaya was a ‘mere reflex’ as appellant contends in this appeal, or a more calculated effort to assault, resist, oppose, impede, intimidate or interfere with the police.”
.Although the government’s brief also classifies appellant's arm movement as an act of "intimidating” Officer Amaya, it did not offer
. However, in light of our holding that flight is not "active conduct directed at the officers,” we reversed Marhsall’s APO conviction because the trial judge gave no limiting instruction in response to the jury’s note asking whether Marshall’s flight could be considered the sole basis of his APO conviction. Coghill, supra,
. Our recent holding in Cave lends support to our decision to reverse appellant’s APO conviction. In Cave, we reversed Cave's APO conviction because the government conceded, and we agreed, that an individual cannot be convicted of APO for resisting a police officer because of a simple refusal of an officer’s request to exit his or her vehicle.
. Appellant did not challenge his other felony threat conviction, which was predicated on his threat to injure Officer Amaya.
. In 2012, the Council amended the penalty provision of the statute, “by striking the provision ‘not more than $5,000' ” and inserting the phrase "not more than the amount set forth in section 101 of the Criminal Fine Proportionality Amendment Act of 2012, passed on 2nd reading on November 1, 2012 (Enrolled version of Bill 19-214)” in its place. Criminal Fine Proportionality Amendment Act of 2012, 2012 District of Columbia Law 19-317 § 223.
. "The ‘presumption of uniform usage’" does, however, "relent[] when a word used has several commonly understood meanings among which a speaker can alternate in the course of an ordinary conversation, without being confused or getting confusing.” General Dynamics, supra,
. We distinguish our present contextual analysis of § 1501 from our decision in Holt v. United States,
The fact that [the felony threats statute] was enacted and codified in tandem with an extortion provision does not establish that the two statutes address the same subject matter.... We conclude that we need not construe the two statutes together in order to divine the meaning of the felony threats statute, [§ 1502],
Here, unlike Holt, we are not examining § 1501 to find implicit elements of § 1502 beyond its plain text and we need not find the statutes in pari materia. Instead, in accordance with the approach adopted by the Supreme Court in Rowland, we look to § 1501 to glean context for § 1502.
. See Holt, supra note 13,
. 18 U.S.C. § 875(b) provides:
Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of. another, shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 875(c) provides:
Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
. Black's Law Dictionary 1257 (9th ed. 2009) defines "person” as:
1. A human being.
2. The living body of a human being.
3. An entity (such as a corporation) that is recognized by law as having most of the rights and duties of a human being.
. Other crimes in Chapter 32 of the D.C.Code include: theft, shoplifting, fraud, forgery, and blackmail.
. “Care and operation” explicitly include "[t]he safeguarding of the vehicle as well as its assigned equipment." MPD General Order 301, Part 1, A.2 (e) (rev’d Nov. 3, 1986).
. It appears from the sentencing transcript that, when the trial judge imposed a consecutive 12-month sentence for committing an offense during release pursuant to Count 5 of the indictment, he was unaware that the Count 5 specified that the predicate crime for the charge of committing an offense during release charge was burglary, rather than appellant’s felony threats against Officer Pena and the MPD vehicle. The sentencing order specified that appellant was sentenced pursuant to Count 5. In its brief, the government states that it "agrees with appellant the trial court imposed an illegal sentence on Count 5 of the indictment.”