Lead Opinion
delivered the opinion of the Court.
Appellant was charged with communicating a threat against the President of the United States in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2012), Contrary to his pleas, Appellant was convicted by a military judge sitting as a special court-martial. We granted review to determine whether the military judge’s interpretation of what constitutes communicating a threat under Article 134, UCMJ, conflicts with the Supreme Court’s recent holding in Elonis v. United States, — U.S. -,
I. BACKGROUND
On Tuesday, November 6, 2012, Appellant and his wife went to the home of their friends, the Kilburns, in order to watch the results of the presidential election. As the election coverage unfolded on television, Appellant became angry when he realized that President Obama would be reelected for a second term.
After the election was officially called in favor of the President, Appellant stepped outside with his wife and Mr. Kilbum to smoke a cigarette. Also outside were the Kilburns’ neighbors. According to Mr. Kil-burn’s testimony at trial, Appellant stated the following:
I can’t believe that n[****]r won this election. He hasn’t done anything in the 4 years prior and I don’t feel that he’s going to do anything in the 4 years upcoming. I don’t think I can serve in the military another 4 years under his control. I might ■have to go back home in this upcoming training session that we’re going to do for the winter and break out my KKK robe*166 that was handed down to me by my grandfather and go put one order up and make it my last order to kill the President.3
Mr. Kilburn was shocked by Appellant’s statements and took them seriously. According to Mr. Kilburn, Appellant previously had indicated that his family had ties to the Ku Klux Klan. Ultimately, Mr. Kilburn told his wife, Specialist Kilburn, about the statements and she reported them to her chain of command.
The Criminal Investigation Division notified the Secret Service about Appellant’s alleged statements and an investigation was opened. During trial, a Secret Service agent testified that Appellant admitted that while at the Kilburns’ house on election night 2012, he “had made several statements claiming to be a member of the KKK, and that he was planning on going back to Missouri and giving an order to lynch President Obama, hang him from a tree, and cut his throat.” However, Appellant also told the Secret Service that his statements that night were “completely me[a]nt as harmless jokes” and that he “didn’t mean anything by those statements.” Ultimately, the inquiry uncovered no evidence that Appellant or his family had any connection to the Ku Klux Klan.
Appellant was tried by a military judge sitting as a special court-martial and found guilty of communicating a threat against the President of the United States in violation of Article 134, UCMJ.
Specialist Eric L. Rapert, U.S. Army, did, ... wrongfully communicate to Keith Kil-burn a threat to wit: “When I go back to Missouri for training soon, I am going to pull my robe out and give one order to be carried out to kill that n[****]r. I am not going to serve under that n[i|!***]r and I will ask for this one order to be carried out by me[],” or words to that effect, such communication referring to the President of the United States of America, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces.5
The military judge sentenced Appellant to confinement for six months, a reduction to E-l, and a bad-conduct discharge. The convening authority approved the sentence and the United States Army Court of Criminal Appeals summarily affirmed. We subsequently granted review of Appellant’s petition on the following specified issue:
Whether the finding of guilty for Charge I and its specification for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of the circumstances and in light of the Supreme Court’s decision in Elonis v. United States, 575 U.S. -,135 S.Ct. 2001 ,192 L.Ed.2d 1 (2015).
II. DISCUSSION
As specified by the President, communicating a threat under Article 134, UCMJ, requires the Government to demonstrate four elements beyond a reasonable doubt:
(1) That the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;
(2) That the communication was made known to that person or to a third person;
(3) That the communication was wrongful; and
(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the*167 armed forces or was of a nature to bring discredit upon the armed forces.
Manual for Courts-Martial, United States pt. IV, para. 110.b (2012 ed.) (MCM); see also United States v. Brown,
Appellant argues that his conviction is premised on legally insufficient evidence for two reasons. First, Appellant focuses on this Court’s long history of identifying a “threat” through an objective lens. He avers that if a “threat” is alone defined by what a reasonable listener would understand to be a threat—with no consideration of the accused’s state of mind when making the communication—then this approach runs counter to the traditional rule that mens rea is an essential element of every crime.
A. ELONIS AND COMMUNICATING A THREAT
In Elonis, a defendant who had made a number of emotionally charged “posts” on social media was convicted under 18 U.S.C. § 875(c)—a statute criminalizing the interstate communication of threats.
In light of the Supreme Court’s holding in Elonis, and consistent with the assigned issue in this case, we first are tasked with
Simply stated, the infirmities found in 18 U.S.C. § 875(c) are not replicated in Article 134, UCMJ. As explained in further detail below, both our precedent and basic principles of statutory construction demonstrate that communicating a threat under the UCMJ does not predicate criminal liability on mere negligence alone, but instead requires the Government to also prove a subjective element, i.e., the accused’s mens rea. This subjective element, which requires the communication to be “wrongful,” prevents the criminalization of otherwise innocent conduct and places the case at bar beyond the reach of Elonis.
i. The Objective Prong of Communicating a Threat Under Article 134, UCMJ
We have long embraced an objective approach in determining whether a communication constitutes a “threat” under the first element of Article 134, UCMJ. The general definition of this term in the military justice system can be traced to a 1918 federal district court opinion. See United States v. Sturmer, 1 C.M.A 17, 18,
Importantly, however, this objective approach to the notion of a “threat” refers only to the first element of the offense and not to the third element. See, e.g., United States v. Humphrys,
ii. The Subjective Prong of Communicating a Threat Under Article 134, UCMJ
The third element of this offense, which requires that a threat be “wrongful,” is properly understood to reference the accused’s subjective intent. “The wrongfulness of [an] act obviously relates to mens rea (not elsewhere specified amongst the elements) and lack of a defense, such as excuse or justification.” United States v. King,
As can be seen then, the proper legal framework for analyzing whether an individual communicated a threat as proscribed by Article 134, UCMJ, consists of both an objective prong and a subjective prong. Indeed, for clarity’s sake, the elements of this offense could be considered to read as follows:
(1) That the accused communicated certain language [that a reasonable person would understand as] expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;
(2) That the communication was made known to that person or to a third person;
(3) That the communication was wrongful [in that the speaker intended the statements as something other than a joke or idle banter, or intended the statements to serve something other than an innocent or legitimate purpose]; and
(4) That ... the conduct of the accused was to the prejudice of good order and discipline ... or ... of a nature to bring discredit upon the armed forces.
MCM pt. IV, para. llO.b.
The MCMs requirement that the Government prove that an accused’s statement was wrongful because it was not made in jest or as idle banter, or for an innocent or legitimate purpose, prevents the criminalization of otherwise “innocent conduct,” and thus requires the Government' to prove the accused’s mens rea rather than base a conviction on mere negligence. It is thereby evident that the offense of communicating a threat under Article 134, UCMJ, is substantively different than the offense at issue in Elonis. Cf.
B. THE MILITARY JUDGE’S UNDERSTANDING OF THE LAW
Having laid out the proper analytical framework to be used in determining wheth
We first start with the proposition that “Military judges are presumed to know the law and to follow it absent clear evidence to the contrary.”
Take, for example, the questioning of Agent Taylor (AT) by the military judge (MJ):
MJ: Agent Taylor, ... during cross-examination counsel just asked you something to the effect that [Appellant] said he wasn’t serious. Could you elaborate on that? What, if anything, did the accused tell you about why he made the statements?
AT: He said he was upset. I can’t remember the exact words here. It was something to the lines of he was venting, you know, that night, and that he didn’t mean anything by those statements.
MJ: Okay. Thank you. That’s all the questions I have for the Court.
Although the response provided by the witness may be seen as weakening the Government’s case, it is not the evidentiary weight of this response that is key to our current review; it is the nature of the military judge’s inquiry that matters. The military judge’s line of questioning correctly focused on Appellant’s subjective intent. This inquiry thereby indicates that the military judge was properly evaluating Appellant’s mens rea as he, the trier of fact, contemplated the wrongfulness element of communicating a threat.
Further, when trial counsel and defense counsel argued past one another with respect to intent while citing two cases—United States v. Hall
C. APPLICABILITY OF THE FIRST AMENDMENT
Also at issue in this case is whether the First Amendment renders Appellant’s conviction legally insufficient. This question requires that we initially consider whether “the speech involved ... is ... protected under the First Amendment.” United States v. Wilcox,
Upon considering these issues, we conclude that Appellant’s arguments in this vein are without merit. Even assuming ar-guendo that Appellant’s speech was within the ambit of the First Amendment’s embrace,
i. The Communication’s Effect on the Military Mission or Environment
We first consider whether in the instant case the Government proved the existence of a direct and palpable connection between Appellant’s speech and the military mission or environment. This connection is a necessary showing under Article 134, UCMJ. United States v. Brown,
The record clearly supports the conclusion that Appellant’s speech had a direct and palpable effect on the military mission and environment. Speech such as that used by Appellant on Election Day 2012 regarding the President of the United States—who also serves as the Commander in Chief of the Armed Forces—unquestionably undermines the military’s unique interest in ensuring obedience to the chain of command, and also undermines the military’s unique responsibility to maintain an effective fighting force during a time of war. “[T]o accomplish its mission[,] the military must foster instinctive obedience, unity, commitment, and esprit de corps.” Goldman v. Weinberger,
Also central to the American military’s successful operation is respect for the principle of civilian supremacy. Brown,
ii. Balancing Interests Regarding the Proscription of Certain Speech
Both this Court and the Supreme Court have “long recognized that the military is, by necessity, a specialized society separate from civilian society,” Parker v. Levy,
To achieve this balance, we must first weigh the gravity of the evil posed by the speech at issue against the probability of this evil’s manifestation. Id, (“ ‘In each case (courts) must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’” (citation omitted)). If the resulting danger justifies the invasion of free speech necessary to avoid it, the rights of individual servicemembers must yield to the needs of the nation. This, of course, is a question of law, which we review de novo.
The facts of Priest are instructive on this point. In Priest, this Court was confronted with a servicemember who had edited, published, and distributed an “underground” newsletter
The danger bred by Appellant’s speech about his desire to kill the President was twofold. First, there is the obvious risk that this conduct posed to the ability of Appellant, himself, to function as a member of the military. Statements such as those made by Appellant not only indicate a present disregard for the chain of command, but also forecast a future tendency for the same. This stands at direct odds with the reality that “the primary function of a military ,.. is to execute orders, not debate the wisdom of decisions that the Constitution entrust to ... the Commander in Chief.” Priest, 21 C.M.A. at 571,
Second, there is a collateral threat that this disregard for the chain of command might metastasize. This is true “despite the general intelligence and independence of thought that most military persons possess,” as not all have the maturity of judgment to resist an invitation to undermine the hierarchy that is central to the fluid operation of
In weighing the gravity of these two evils, it must be noted that the perils they pose need not be made manifest in order to warrant censure. “The hazardous aspect of license in this area is that the damage done may not be recognized until the battle, has begun.”
III. CONCLUSION
In regard to the military’s decision to prosecute Appellant for the remarks he uttered on November 6, 2012, we note what the Supreme Court acknowledged nearly half a century ago: “The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.” Parker,
IV. DECISION
The decision of the United States Army Court of Criminal Appeals is affirmed.
Notes
. Senior Judge Royce C, Lamberth, of the United States District Court for the District of Columbia, sat by designation, pursuant to Article 142(f), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 942(f) (2012).
. Oral argument in this case was heard at the University of Virginia School of Law, Charlottes-ville, Virginia, as part of the Court's "Project Outreach.” See United States v. Mahoney,
. Although Mr. Kilburn first testified that Appellant ended his statement with the words "the President,” he subsequently clarified that Appellant actually used the term "n[****]r" instead.
. Appellant also was convicted of violating a lawful general order, engaging in lewd acts in the physical presence of two females under sixteen years of age, and unlawfully striking a child under sixteen years of age in violation of Articles 92, 120b, and 128, UCMJ, 10 U.S.C. §§ 892, 920(b), 928 (2012).
.This version of Appellant's statement is not identical to the version testified to by Mr. Kil-burn, but we note that the specification properly employs the proviso "or words to that effect.”
."Mens rea” is Latin for "guilty mind” and refers to the state of mind an accused had when committing a crime. See Black’s Law Dictionary 1134-35 (10th ed. 2014). At common law, in order to secure a conviction the prosecution was required to prove two essential elements: the actus reus (or "guilty act”) and the mens rea of the accused. See United States v. Apfelbaum,
. 18 U.S.C. § 875(c) criminalizes "transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” Elonis,
. At the time, nine federal courts of appeals held that negligence alone was sufficient to establish liability under the statute. Elonis,
. As noted above, the first element of communicating a threat under Article 134, UCMJ, is as follows: "That the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future." MCM pt. IV, para. llO.b.(l).
. Importantly, however, intent in this context is not akin to the speaker's subjective intent to execute the threat; instead, this aspect of intent relates to whether the speaker intended his or her words to be understood as sincere.
. The dissent seems to be of the mind that because we have not yet had the opportunity to rule directly on what wrongfulness means in the context of communicating a threat, títere is simply no "law” for the military judge to “follow" beyond that referencing negligence as the proper standard—albeit in the context of the first element, as we have already described at length. Rapert,
. The record indicates that this opinion can be found at
. Traditionally, "threats of violence are outside the First Amendment.” R.A.V. v. City of St. Paul,
. There is a fundamental difference between suggesting that "the constitutionally protected status of [speech] may affect legal sufficiency” and suggesting that legal sufficiency review can be used "to determine whether Appellant’s [speech] is constitutionally protected." Goings,
. Two specific issues of the newsletter were evaluated in Priest. In one, the accused attacked the United States for its involvement in Vietnam and set forth explicit information on how service-members could enter Canada in order to desert. Priest,
Dissenting Opinion
with whom Judge RYAN joins, dissenting.
As a general rule, “a guilty mind is. ‘a necessary element in the indictment and proof of every crime.’” Elonis v. United States, — U.S. -,
I.
The principal issue in this case arises from the Supreme Court’s recent decision in Elon-is. At its heart, Elonis is a reiteration of a longstanding principle of statutory interpretation of federal criminal statutes: “ ‘wrongdoing must be conscious to be criminal.’ ”
Given the well-established nature of the aforementioned principle of statutory interpretation, any novelty in Elonis emanates from the Supreme Court’s application of this principle to the federal statute criminalizing the “transmi[ssion] in interstate or foreign commerce [of] any communication containing any threat to kidnap any person or any threat to injure the person of another.” 18 U.S.C. § 875(c) (2012). This federal offense is strikingly similar to the crime of communicating a threat under Article 134, Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 934 (2012); Manual for Courts-Martial, United States (MCM) pt. IV, ¶ 110.b. (2012 ed.).
The conviction in Elonis was overturned because:
[t]he jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.
[h]aving liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks—“reduces culpability on the all-important element of the crime to negligence,” [United States v. Jeffries,692 F.3d 473 , 484 (6th Cir.2012) (Sutton, J., dubitante) ], and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes.”
Id. at 2011 (quoting Rogers v. United States,
Our task is therefore to determine whether the crime of communicating a threat under Article 134, UCMJ, has turned on a mens rea standard of negligence and, if so, to gauge whether the principle reiterated in Elonis leads us to reinterpret the level of mens rea required for a finding of guilt.
II.
The majority correctly notes that the offense of communicating a threat under Article 134, UCMJ, contains four elements:
(1) That the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future;
(2) That the communication was made known to that person or to a third person;
(3) That the communication was wrongful; and
(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
MCM pt. IV, ¶ llO.b. However, it incorrectly concludes that the third element has always required a level of mens rea beyond negligence on the part of an accused.
The majority contends that the third element should be read to require “[t]hat the communication was wrongful in that the speaker intended the statements as something other than a joke or idle banter, or intended the statements to serve something other than an innocent or legitimate purpose.” Rapert,
Loolong simply at statutory language, the crime requires only that the accused wrongfully express a present determination or intent to injure a person, property, or reputation. MCM pt. IV, ¶ llO.b. We have found that an individual may be convicted when “a reasonable factfinder could conclude beyond a reasonable doubt that a reasonable person in the [hearer’s] place would perceive the contested statement by appellant to be a threat.” United States v. Phillips,
As far as the context and surrounding circumstances of a statement, the MCM states that:
it is not necessary that the accused actually intended to do the injury threatened. However, a declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose, or which contradict the expressed intent to commit the act, does not constitute this offense.
MCM pt. IV, ¶ llO.c. And our case law expounds on this:
The words communicated certainly matter because they are the starting point in analyzing a possible threat. But words are used in context. Divorcing them from their surroundings and their impact on the intended subject is illogical and unnatural. Legal analysis of a threat must take into account both the words used and the surrounding circumstances.
United States v. Brown,
A statement made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose which contradicts the expressed intent to commit the act is not wrongful.... Consequently, if .the evidence indicates any such defense, the military judge must, sua sponte, instruct carefully and - comprehensively on the issue.
Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch. 3, ¶ 3-110-1 (2010) (emphasis added). Certain mental states on the part of an accused can help negate criminality, but they are not positive requirements for criminality.
Our case law further implements the interpretation that criminality is determined by the perception of the reasonable hearer— which can be influenced by external circumstances surrounding an accused’s statement (including his mens rea). I have not found a case of ours holding that a mens rea requirement beyond negligence is an element of the communicating a threat offense, much less as part of the “wrongful” element. Nor have I found a case involving this crime in which we have not based our findings solely on the perception of a reasonable hearer. See Brown,
Summed up, we have carved out the rule that it is the audible pronouncement of an intent or determination to injure that constitutes the gravamen of the offense. In that setting, it matters not the purpose behind the declaration, so long as the words uttered could cause a reasonable person to believe that he was wrongfully threatened.
This is not to say that we have previously been unwilling to ascribe a mens rea requirement' to the term “wrongful” in the context of other offenses. E.g., United States v. Thomas,
The UCMJ and the explanations of Article 134 offenses in the MCM are littered with the term “wrongful.” The word, however, is predominantly defined to mean either “without legal justification or excuse” or “contrary to law, regulation, lawful order, or custom” and is placed alongside a specified mens rea requirement, if there is one. E.g., Article 109, UCMJ, 10 U.S.C. § 909 (2012); MCM pt. IV, ¶¶ 33, 34, 68.b, 86; Article 110, UCMJ, 10 U.S.C. § 910 (2012). Moreover, whether a statement is uttered in jest or for an innocent or legitimate purpose is treated as a defense in the Military Judges’ Bench-book, not a mens rea requirement attaching to the word “wrongful.” Military Judges’ Benchbook at ch. 3, ¶ 3-110-1. For these reasons, when interpreting the word “wrongful” to require a level of mens rea higher than that provided in the statute (or offenses created by the President under Article 134, UCMJ),- our custom has been to acknowledge the novelty of such action and assess lower courts’ rulings with this in mind. E.g., Thomas,
In light of the consistent interpretations noted above, and given that this case was conducted as a bench trial and that “Military judges are presumed to know the law and to follow it absent clear evidence to the contrary,” United States v. Erickson,
HI.
Aside from the majority’s error in not acknowledging the novelty of their reinterpretation of the elements of the communicating a threat offense and its enhancement of the mens rea requirement, there are additional problems with the specific language it uses to define the term “wrongful.”
Foremost, the majority presents its definition entirely in negative form, making it unnecessarily convoluted. The first part of the majority’s definition requires “that the speaker intended the statements as some
The second part of this definition requires that the speaker “intended the statements to serve something other than an innocent or legitimate purpose.” Id. Put in its positive form, this passage spares criminal liability for those who intend their statements to serve an innocent or legitimate purpose. Presumably, this includes declarations intended as jokes or idle banter. It likely also encapsulates those spoken with the intent to carry out a special defense—i.e., submit to duress or engage in self-defense. But, more broadly, what is an innocent or legitimate purpose under an offense that criminalizes threatening language? Seemingly, it is any other purpose than communicating a threat. If we are to look to the purpose for which language is spoken to determine criminality, we cannot legitimately criminalize language with a purpose other than that targeted by the offense. This would mean that the majority is implementing a purposeful mens rea requirement for the communicating a threat offense: in order to be found guilty, an individual must speak with the purpose of communicating a threat. See Model Penal Code § 1.13(12) (Am, Law Inst., Proposed Official Draft 1962) (“ ‘[Ijntentionally’ or ‘with intent’ means purposely”).
There are two striking problems with such a requisite mens rea. First, this is an incredibly high bar for prosecution given that
[a] person acts purposely with respect to a material element of an offense, when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result.
Model Penal Code § 2.02(2)(a). It is a substantial leap beyond the negligence standard that the communicating a threat offense has carried throughout its entire existence.
Second, in Elonis, the Supreme Court specifically stated that possession of a less demanding mens rea suffices for an individual to be found guilty of the comparable communicating a threat offense under § 876(c):
There is no dispute that the mental state requirement in Section 876(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.
On top of the striking problems inherent within the language of the majority’s definition of “wrongful,” there are additional conspicuous issues with how the majority chose this language. Given the absolute absence of support for its assertion that the term “wrongful” within the communicating a threat offense has always included a mens rea requirement beyond negligence, the majority is forced to overtly misinterpret and misapply military law.
The first half of the majority’s definition— “the speaker intended the statements as something other than a joke or idle banter,” Rapert,
The second half of the majority’s definition—“or [the speaker] intended the statements to serve something other than an innocent or legitimate purpose,” Rapert,
IV.
As noted above, under the principle of statutory interpretation i’ecounted in Elonis, we must first determine whether the offense turns on a negligence mens rea standard and then, if so, whether we should heighten this standard so as “to separate wrongful conduct from otherwise innocent conduct.”
Analogous to § 875(c) under the federal criminal code, communicating a threat has historically only required negligence on the part of an accused in order to be convicted. If a reasonable person in the hearer’s place would perceive the accused’s contested statement as a threat, then the accused has satisfied this requirement. E.g., Phillips,
In determining the proper level of mens rea required of an accused to criminally communicate a threat, I agree with Justice Ali-to’s concurrence in part and dissent in part in Elonis:
Once we have passed negligence ... no further presumptions are defensible. In the hierarchy of mental states that may be required as a condition for criminal liability, the mens rea just above negligence is recklessness.... [W]hen Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed_ Once we have reached recklessness, we have gone as far as we can without stepping over the line that separates interpretation from amendment.
That the accused [recklessly] communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future.
V.
In summation, the majority’s interpretation of the term “wrongful”—which adds a mens rea element to the offense of communicating a threat—is incorrect. The majority has instituted a novel interpretation of the word “wrongful” and improperly assumes that the military judge intuited and applied this new legal standard. Moreover, the majority’s definition of “wrongful,” in addition to being imprecise, appears to place too high of a burden on prosecution by requiring an accused to possess a purposeful mens rea in order to be convicted of communicating a threat. As such, I reiterate my disagreement with the decision of this Court.