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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 12-CM-523

                           LEE CARRELL, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                     Appeal from the Superior Court of the
                             District of Columbia
                               (DVM-134-12)

                       (Hon. Heidi Pasichow, Trial Judge)

(Submitted September 26, 2013                       Decided November 21, 2013)

      Fletcher P. Thompson was on the brief for appellant.

      Ronald C. Machen, Jr., United States Attorney and Elizabeth Trosman and
Kathryn L. Rakoczy, Assistant United States Attorneys, were on the brief for
appellee.

     Before THOMPSON, Associate Judge, and NEWMAN and SCHWELB, Senior
Judges.

      Opinion for the court by Senior Judge NEWMAN.

      Dissenting opinion by Senior Judge SCHWELB at page 20.

      NEWMAN, Senior Judge: Carrell was convicted after a bench trial of simple
                                         2

assault1 and attempted threats to do bodily harm.2 He appeals the portion of the

judgment relating to attempted threats to do bodily harm; he does not challenge his

assault conviction.3 He urges us to hold that the evidence was insufficient to

support a finding that he intended to threaten the victim, Ringenburg, a finding that

he contends the trial judge never made, although required to do so. We affirm.



                                         I.



      On January 10, 2012, the tumultuous two-year relationship between Carrell

and his girlfriend, Ringenburg, began its eventful conclusion.        According to

Ringenburg‘s testimony, which the trial judge credited in its entirety, Carrell came

to the residence they shared that evening in an intoxicated condition; an argument

ensued. Carrell told Ringenburg that ―I wish you would die‖ and that if she called

any of her family or friends for help, he would kill them.          Ultimately, this



      1
          D.C. Code § 22-404 (2001).
      2
         D.C. Code §§ 22-407 (threats), 22-1803 (attempt) (2001). The threats
statute was amended in 2012 after the events here at issue, but the amendments
have no substantive bearing on this case. See Criminal Fine Proportionality
Amendment Act of 2012, sec. 203 (b), § 22-407, 60 D.C. Reg. 2064 (2012).
      3
        We affirm this conviction without further discussion save as the extent to
which the evidence of the assault relates to the attempted threats conviction.
                                           3

encounter ceased and none of these events are the subject of the charges in this

case.



        The argument began anew the following morning.               Carrell grabbed

Ringenburg with both his hands around her throat, in a choking position, and

pushed her against the bedroom window. While doing so, Carrell yelled at her ―I

could kill you right now, I could fucking kill you.‖ Ringenburg testified that this

caused her to fear for her life. After releasing her and after a further bout of verbal

jousting, Carrell again grabbed Ringenburg and pushed her to the floor. He pinned

her to the floor and placed a hand over her nose and mouth, so that Ringenburg

could not speak and had difficulty breathing.         Ringenburg felt like she was

suffocating. She was able to get free and called 911.



        Carrell testified. He denied pushing Ringenburg down to the floor, covering

her mouth with his hands, or telling her, ―I could kill you, I could fucking kill

you.‖     On cross-examination, he admitted during previous arguments with

Ringenburg he had broken furniture, furnishings, fixtures, and memorabilia.



        We now quote, in some detail, from the trial court‘s findings.
                                   4

             Okay. The Court has before her two counts in this
      case the Government‘s proceeded on. One is an assault.
      I‘m reading from the instruction, attempt battery – the
      elements of which the Government would have to prove
      beyond a reasonable doubt that the Defendant with force
      or violence injured or attempted to injure the
      complaining witness.
             Two: That he did so voluntarily, on purpose and
      not by mistake or accident.
             Three: At the time he had the apparent ability to
      injure her. And, also, there appears to be a self defense
      claim the Government would have to prove beyond a
      reasonable doubt that he did not act in self defense.
             In terms of the second count, which is threats to do
      bodily harm the Government would have to prove that
      Mr. Carrell spoke words or otherwise communicated to
      the complaining witness words [that] would cause a
      person reasonably to believe that he or she would be
      seriously harmed if the event occurred and that he
      intended to utter the words which constituted the threat.



Later, the court continued its findings and conclusions.



      . . . I still . . . determined based upon . . . crediting the
      testimony of the complaining witness in the – in its
      entire[ty] – that Mr. Carrell did with force or violence
      when he did choke her with both hands, press her throat,
      when he did push her down onto the rug in the living
      room with force or violence injured or attempted to injure
      the complaining witness, that he did so voluntarily, on
      purpose, and not by mistake or accident.
              And that at the time he had the apparent ability to
      injure her, I dealt with the issue and find that the
      Government has proven each of those elements beyond a
      reasonable doubt and is proven beyond a reasonable
      doubt that there was no self defense viable in this case.
                            5

        I also have concluded based on the testimony that
Mr. Carrell did utter words to Ms. Ringenburg in his
anger, that the words I‘m focused on are the words ―I
could kill you, I could kill you. I could fucking kill you
right now.‖ And in terms of that – that – those sets of
words, taken in the context – because one has to ask what
is a threat.
        There are threats that are immediate. There are
threats that are – that threaten, if you will, utter future
harm or conditional harm but in my assessment of the
case law here the Court of Appeals ha[s] noted that I‘m
not to look at those words [in] a vacuum, I‘m to look at
those words in terms of the circumstances surrounding
the statements whether or not those words would cause a
reasonable person to interpret them as a threat or not.
        Jenkins v. United States, 902 A.2d 79, (D.C.
2006); and Clark v. United States, 755 A.2d 1026 [(D.C.
2000)]. From the context of facial expression, tone,
infliction, posture, the way that the incident was
described at the given time and how it was described
quite expressly and vividly by the complaining witness in
great detail at the time that she was being choked.
        So I do find and conclude that the three elements
of that offense have also been proven beyond a
reasonable doubt.
        Again, I just want to make the record clear that I
am not finding the term – the comment that Mr. Carrell
conceded he made – I wish you were dead. I‘m not
finding that to be the threat that is – is charged here. I
don‘t think that was argued that way and that‘s not the
threat – the words that I‘m focusing on that constituted
the Government‘s argument and constituted the threat in
this case.
        And so for the following reasons I find Mr. Carrell
guilty beyond a reasonable doubt of both the simple
assault and threats to do bodily harm.
                                          6

                                         II.



      There is no merit to Carrell‘s claim of evidentiary insufficiency.          The

evidence, as credited by the trial judge, is legally sufficient to establish each

element of the offense beyond a reasonable doubt as those elements are enunciated

in Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C. 1982), and its progeny.

Likewise if viewed under United States v. Baish, 460 A.2d 38, 42 (D.C. 1983), and

its progeny, as Carrell contends we must, the evidence that the trial judge credited

is legally sufficient to establish guilt beyond a reasonable doubt even if we must

include as an element ―that the defendant intended to utter the words as a threat.‖

As the trial judge found, Carrell spoke the words ―I could kill you, I could kill you,

I could fucking kill you right now‖ while he was choking Ringenburg with both

hands around her neck (i.e., the assault for which Carrell stands convicted and

which he does not challenge here). Taken in the context in which they were used,

including the prior interactions between the participants, these words were

sufficient to enable a reasonable trier of fact to conclude beyond a reasonable

doubt that Carrell was guilty of threatening Ringenburg with bodily harm, under

either formulation of the ―intent‖ requirement.
                                             7

                                         III.



      Carrell asserts that whether or not the evidence was sufficient to permit a

finding that his words were uttered with the intent to threaten, his conviction must

nevertheless be reversed because the trial judge did not make an explicit finding on

this issue as he urges is required by such cases as United States v. Baish, supra,

and its progeny, e.g., Clark v. United States, 755 A.2d 1026, 1030 (D.C. 2000). To

address this contention, we must analyze our decisions construing the elements of

the offense of threats to do bodily harm.4


      4
        The District of Columbia has criminalized the offense of threats to do
bodily harm as both a misdemeanor and as a felony. The misdemeanor statute
states:

             Whoever is convicted in the District of threats to do
             bodily harm shall be fined not more than $500 or
             imprisoned not more than 6 months, or both, and, in
             addition thereto, or in lieu thereof, may be required to
             give bond to keep the peace for a period not exceeding 1
             year.

D.C. Code § 22-407 (2001) formerly D.C. Code § 22-507 (1981). The felony
statute states:

             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 $5,000 or imprisoned not more than 20 years, or
             both.
                                                                      (continued…)
                                            8

      We first construed our threats statute in Postell v. United States, 282 A.2d

551 (D.C. 1971). There we noted that the



             crime of oral threats to do bodily harm was unknown to
             the common law and we know of no cases in this
             jurisdiction which have construed our statute or the
             meaning of the word ―threats.‖ Accordingly, we must
             first interpret [the statute] in light of the facts in this case
             and the applicable principles of law as we understand
             them.


Id. at 553. After reviewing the authorities, we concluded that ―the gist of the crime

is that the words used are of such a nature as to convey a menace or fear of bodily

harm to the ordinary hearer.‖ Id. (citing State v. Schul-Theis, 272 A.2d 554, 547

(N.J. Super. 1971)).      We have reaffirmed on numerous occasions Postell‘s

construction of the threats statute as encompassing all communications that are

objectively viewed as threats by the ―ordinary hearer.‖ E.g., Tolentino v. United

States, 636 A.2d 433, 435 (D.C. 1994); Beard v. United States, 535 A.2d 1373,




(…continued)
D.C. Code § 22-1810 (2001) formerly D.C. Code § 22-2307 (1981). The elements
for both are the same. In re S.W., 45 A.3d 151, 155 n.9 (2012) (citing Baish,
supra, 460 A.2d at 41, and United States v. Young, 376 A.2d 809 (D.C. 1977)).
Accordingly, in determining the elements of the offense of threating bodily harm,
we review our precedent regardless of whether the felony or misdemeanor statute
was charged.
                                         9

1378 (D.C. 1988); United States v. Smith, 337 A.2d 499, 503 (D.C. 1975); Gurley

v. United States, 308 A.2d 785, 787 (D.C. 1973).



      Our next visit to this issue was in Campbell v. United States, 450 A.2d 428

(D.C. 1982). We held with respect to the elements of the offense:



             The essential elements of the offense of threats to do
             bodily harm are: that the defendant uttered words to
             another person; that the words were of such a nature as to
             convey fear of serious bodily harm or injury to the
             ordinary hearer; that the defendant intended to utter the
             words which constituted the threat. Gurley v. United
             States, D.C.App., 308 A.2d 785 (1973); Criminal Jury
             Instruction for the District of Columbia, No. 4.17 (3d ed.
             1978).


Id. at 431 n.5.



      Thus our jurisprudence on threats to do bodily harm remained until we

decided United States v. Baish, 460 A.2d 38 (D.C. 1983). There, after referring to

WEBSTER‘S THIRD INTERNATIONAL DICTIONARY (1966) and BLACK‘S LAW

DICTIONARY (1979) to define the term ‗threat,‘ as a ―communicated intent to inflict

harm on any person or on property,‖ id. at 42, we opined:
                                          10

                   Our several cases which construe § 22-507
             recognize this principle. In Campbell v. United States,
             450 A.2d 428 (D.C. 1982), we enumerated the statutory
             elements.     To establish a prima facie case, the
             government must prove, first, that the defendant uttered
             words to another, as well as that these words were of
             such a nature as to convey fear of serious bodily harm or
             injury to the ordinary hearer, and that the defendant
             intended to utter these words as a threat. Id. at 431 n.5
             (emphasis added) (citing Gurley v. United States, supra,
             and Criminal Jury Instructions for the District of
             Columbia, No. 4.17 (3d ed. 1978)).


Id.



      Comparing this recitation of the elements of the offense with the recitation

actually contained in Campbell, the authority on which Baish relies, it is apparent

that Baish adds the language ―and that the defendant intended to utter the words as

a threat,‖ a ‗requirement‘ nowhere found in Campbell. Compare id. (―. . . that the

defendant intended to utter these words as a threat.‖ (emphasis added)), with

Campbell, supra, 450 A.2d at 431 n.5 (―. . . that the defendant intended to utter the

words which constituted the threat.‖). Noteworthy, the only cases cited by Baish

on this issue were Gurley and Campbell. 460 A.2d at 42.



      Clark v. United States, 755 A.2d 1026 (D.C. 2000), came next. Citing

Baish, it also included this ‗requirement.‘ Id. at 1030 (―. . . that appellant intended
                                         11

to utter the words as a threat.‖). The defendant in Clark contended, among other

things, that the evidence was insufficient to establish the words he spoke to a

police officer while under arrest constituted a threat to do bodily harm.    In

discussing this issue we said:



                    Words cannot always be read in the abstract and
             often acquire significant meaning from context, facial
             expression, tone, stress, posture, inflection, and like
             manifestations of the speaker and the factual
             circumstances of their delivery. See State v. Howe, 247
             N.W.2d 647, 654 (N.D. 1976) (―No precise words are
             necessary to convey a threat. It may be bluntly spoken,
             or done by innuendo or suggestion. A threat often takes
             its meaning from the circumstances in which it is spoken
             and words that are innocuous in themselves may take on
             a sinister meaning in the context in which they are
             recited.‖) (citation omitted).      Whether a particular
             statement constitutes a threat is a question of fact for the
             jury. See United States v. Fulmer, 108 F.3d 1486, 1492
             (1st Cir. 1997) (―Whether a given [statement] constitutes
             a threat is an issue of fact for the trial jury. The use of
             ambiguous language does not preclude a statement from
             being a threat. While the statement on its face may be
             susceptible to more than one interpretation, some factors
             . . . such as the tone of the defendant‘s voice or the
             credibility of the government‘s and [defendant‘s]
             witnesses, may legitimately lead a rational jury to find
             that this statement was a threat‖; citing cases) (internal
             quotation marks and citations omitted); United States v.
             Malik, 16 F.3d 45, 49 (2nd Cir.), cert. denied, 513 U.S.
             968, 115 S.Ct. 435, 130 L.Ed.2d 347 (1994); United
             States v. Schneider, 910F.2d 1569, 1570 (7th Cir. 1990).


Id. at 1031 (footnotes omitted).
                                           12

      We thus began to discuss the analysis a fact finder must undertake in seeking

to determine whether the words that were spoken constituted a threat as

distinguished from words that do not fall within the statutory prohibition. We

elaborated more extensively on this in our most recent decision concerning threats

to do bodily harm, In re S.W., 45 A.3d 151 (D.C. 2012), an opinion about which

we will say more anon.



      After Clark, we decided Evans v. United States, 779 A.2d 891 (D.C. 2001).

There we cited to Campbell for the elements of the offense, id. at 894 (―. . . that the

defendant intended to utter the words which constituted the threat.‖), and to Baish

for another proposition—that a threat is consummated only when communicated,

id. Our subsequent decision in United States v. Joiner-Die, 899 A.2d 762, 764

(D.C. 2006), cited to Evans and Campbell for the same elements and made no

mention of Baish or its progeny. That decision, analyzing both the offenses of

threats and intent-to-frighten assault, also states that intent-to-frighten assault, like

threats to do bodily harm, requires only a general intent. Id. at 765.5


      5
        The defendant in Joiner-Die was charged both with attempted threats to do
bodily harm and intent to frighten assault; we held:

                   To establish intent-to-frighten assault, the
             government must prove:         (1) that the defendant
             committed a threatening act that reasonably would create
                                                                           (continued…)
                                         13

       Next came Jenkins v. United States, 902 A.2d 79 (D.C. 2006). There, the

defendant claimed that her words were innocuous, neutral, and could not be found

to constitute a threat to do bodily harm. Quoting the passage from Clark on

contextual analysis we have quoted supra, we cited Baish and Clark for the

proposition that the words uttered must have been intended by the defendant to

constitute a threat. Id. at 86 (―. . . that appellant intended to utter the words as a

threat.‖).



       In a footnote, we noted that the government‘s brief argued that Baish and its

progeny erred by including a ‗requirement‘ that the defendant must have intended

his words to be a threat, since that does not comport with prior decisions on this

point such as Campbell and the cases on which we relied in Campbell. Id. at 87

(…continued)
             in another person a fear of immediate injury; (2) that,
             when he/she committed the act, the defendant had the
             apparent present ability to injure that person; and (3) that
             the defendant committed the act voluntarily, on purpose,
             and not by accident or mistake. D.C. Code § 22-404; see
             also Frye v. United States, [926 A.2d 1085, 1100 n.9
             (D.C. 2005)].

899 A.2d at 765. Accord Smith v. United States, 593 A.2d 205, 206-07 (D.C.
1991) (―Therefore, we hold that the offense of assault, whether the ‗attempted-
battery‘ type or the ‗intent-to-frighten‘ type, remains a general intent crime which
may be proved by a showing that a defendant intended to do the acts which
constitute the assault.‖).
                                         14

n.11 (arguing the earlier articulation of the elements in Campbell controls (citing

Thomas v. United States, 731 A.2d 415, 420 n.6 (D.C. 1999))). We found no need

to resolve this contention at that time because, as we said, under either formulation

a reasonable fact finder could find guilt beyond a reasonable doubt. Id.



      Our most recent decision on this question is In re S.W., 45 A.3d 151 (D.C.

2012). There, we were confronted with the issue of ―whether words threatening on

their face can be rendered benign by their context.‖ Id. at 155-56. Recognizing

the First Amendment implications of a threats statute, we said:



                    Indeed, even when statements are threatening on
             their face, it is essential to consider and give full weight
             to context in order to ensure that the District‘s threats
             statutes are applied within constitutional parameters. As
             the Supreme Court held in Watts v. United States, and
             this court acknowledge in Jenkins, ―[A] statute . . . which
             makes criminal a form of pure speech, must be
             interpreted with the commands of the First Amendment
             clearly in mind. What is a threat must be distinguished
             from what is constitutionally protected speech.‖ 394
             U.S. at 707, 89 S.Ct. 1399. It is a cornerstone of our
             democracy that the First Amendment generally ―bars the
             government from dictating what we see or read or speak
             or hear.‖ Ashcroft v. Free Speech Coal., 535 U.S. 234,
             245, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). ―True
             threats‖ are an exception to this rule and may be
             criminalized without violating the First Amendment.
             Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155
             L.Ed.2d 535 (2003). But speech is only a ―true threat‖
             and therefore unprotected under the Constitution if an
                                        15

            ―ordinary reasonable recipient who is familiar with the[]
            context [of the statement] would interpret‖ it as a
            ―serious expression of an intent to cause a present or
            future harm.‖

            ....

                   In short, a determination of what a defendant
            actually said is just the beginning of a threats analysis.
            Even when words are threatening on their face, careful
            attention must be paid to the context in which those
            statements are made to determine if the words may be
            objectively perceived as threatening.


Id., at 156, 157 (footnotes omitted). We held that singing a version of a song by

the hip-hop rapper Lil‘ Wayne as a taunt to a neighbor, when taken in full context

by an ―ordinary hearer,‖ was not sufficient to cause that hearer a reasonable belief

that the threatened harm would take place. Id. at 160.



      In this case, as it did in Jenkins, the United States notes the difference

between the formulation in the Campbell line of cases and the Baish line of cases.

The United States urges that these lines of cases are in conflict and that our

decisions in M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), and Thomas, supra,

731 A.2d at 420 n.6, compel us to follow the Campbell formulation rather than that

of Baish. To address this contention, we must first determine whether there is in

reality legal difference between the two formulations.
                                          16

          Baish is indeed in conflict with Campbell and the authorities on which

Campbell relies. In Campbell, the focus is upon the ―ordinary hearer‖ in the full

context in which the words are spoken, an objective test. In Baish, the focus is

both upon the ―ordinary hearer,‖ an objective test, and additionally upon whether

―the defendant intended to utter the words as a threat,‖ a subjective test of specific

intent.



          As the United States Court of Appeals for the Sixth Circuit has said in

construing a federal ‗threats‘ statute, 18 U.S.C. § 875 (c)6:



                      The issue in the present case is whether the second
               element—―the communication containing a threat‖—
               requires general intent or specific intent. If the statute
               contains a general intent requirement in regard to the
               threat element of the offense, the standard used to
               determine whether or not the communication contained
               an actual threat is an objective standard, i.e., would a
               reasonable person consider the statement to be a threat.
               If the statute contains a specific intent requirement, the
               standard is a subjective standard i.e., did the particular
               defendant have the subjective knowledge that his
               statement constituted a threat to injure and did he
               subjectively intend the statement to be a threat.


        ―Whoever transmits in interstate or foreign commerce any communication
          6

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.‖ 18 U.S.C. § 875 (c) (2012).
                                          17

United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992).              That court

concluded the federal statute ―does not require specific intent in regard to the threat

element of the offense, but only general intent.‖ Id. at 150. All other Circuit

Courts, except the Ninth Circuit, that have examined the issue have held the same.

See, e.g., United States v. Elonis, No. 12-3798, 2013 WL 5273118, at *8 (3d Cir.

Sept. 19, 2013); United States v. Nicklas, 713 F.3d 435, 440 (8th Cir. 2013);

United States v. White, 670 F.3d 498, 508 (4th Cir. 2012); United States v. Stewart,

411 F.3d 825, 828 (7th Cir. 2005); United States v. Morales, 272 F.3d 284, 287-88

(5th Cir. 2001); United States v. Francis, 164 F.3d 120, 122 (2d Cir. 1999); United

States v. Whiffen, 121 F.3d 18, 21 (1st Cir. 1997). But see United States v.

Sutcliffe, 505 F.3d 944, 953 (9th Cir. 2007).



      The formulations in both the Postell, Gurley, Campbell line of cases and the

Baish line of cases are seeking to ensure that only ―true threats‖ within the

constitutional limitations described in such cases as Doe v. Pulaski Cnty. Special

Sch. Dist., 306 F.3d 616, 622 (8th Cir. 2002), Alexander v. United States, 418 F.2d

1203, 1206 (D.C. Cir. 1969), and In re S.W., supra, 45 A.3d at 156-57—a

determination made after a full contextual analysis—are held to be within the

statutory prohibition. Specific intent, unless admitted by the defendant, must be

proved by the same circumstantial evidence used to prove general intent in a full
                                          18

contextual analysis. See Massey v. United States, 320 A.2d 296, 299 (D.C. 1974).

In our view, either formulation is adequate to this task; there is no jurisprudential

justification that both general and specific intent apply to the same ‗threats‘

offense.



      Our en banc holding in Holt v. United States, 565 A.2d 970 (D.C. 1989),

itself resolves the conflict between Campbell and Baish. Holt reaffirmed this

court‘s holding in United States v. Young, 376 A.2d 809, 814 (1977), that both our

felony and misdemeanor threats statutes have identical elements and that the intent

required is ―general intent.‖ See 565 A.2d at 971, 972 (―The plain language of

D.C.‘s felony threats prohibition does not include any intent element.‖). This

clearly vitiates the contrary prior holding in Baish if not indeed overruling it, albeit

sub silentio. Additionally, our holding in Thomas v. United States, supra, 731

A.2d at 420 n.6, compels us to follow Young, Gurley, Postell, and Campbell, all of

which preceded Baish, even if the issue had not been resolved by Holt alone.



      We do so and reiterate the elements of the offense as we did in Campbell:



             that the defendant uttered the words to another person;
             that the words were of such a nature as to convey fear of
             serious bodily harm or injury to the ordinary hearer; that
                                         19

             the defendant intended to utter the words which
             constitute the threat.


Campbell, supra, 450 A.2d at 431 n.5. Neither more nor less is required.



      Finally we note that in a bench trial, the trial court is required to make

specific findings when delivering its verdict only upon request of a party made

prior to the verdict. Super. Ct. Crim. R. 23 (c); Markowitz v. United States, 598

A.2d 398, 407 n.9 (D.C. 1991). Carrell made no such request. Additionally, after

the trial judge made some specific findings, sua sponte, Carrell made no objection

or request for additional findings. Thus, his claim of error here is subject to plain

error review, at best. Tyson v. United States, 30 A.3d 804, 806-07 (D.C. 2011)

(―Even if we were to conclude that appellants entitlement to specific findings was

not waived . . . he must demonstrate plain error in order to prevail on appeal‖).

There being no error at all, perforce there is no plain error. See United States v.

Olano, 507 U.S. 725, 732 (1995).



                                              Affirmed.
                                        20

      SCHWELB, Senior Judge, dissenting: ―This is the kind of case that could

persuade the cynical reader who believes he has seen it all that something new and

different may still be lurking around the corner.‖ Homan v. Goyal, 711 A.2d 812,

814 (D.C. 1998). At issue is whether the trial judge correctly stated the elements

of the crime of threats to do bodily harm. D.C. Code § 22-407 (2001). According

to the judge, the government was required to prove beyond a reasonable doubt that

the defendant, Lee Carrell, (1) spoke words or otherwise communicated to the

complaining witness words (2) that would cause a person to reasonably believe

that he or she would be seriously harmed if the event occurred; and (3) that he

intended to utter the words that constituted the threat. (Emphasis and numerals

added.) Carrell has no quarrel with the judge‘s statement of the first and second

elements, but he contends that the third was incorrect, and that the government

should instead have been required to prove that Carrell ―intended to utter these

words as a threat.‖



      The unusual feature of this case is that over a thirty-year period, this court

has used the language advocated by Carrell on five occasions and the competing

articulation urged on us by the government and adopted by the trial judge in only

three. Because the earliest of these eight cases – Campbell v. United States, 450

A.2d 428, 431 n.5 (D.C. 1982) – used the phrase ―intended to utter the words that
                                         21

constituted the threat‖ but did not specify that the defendant must have ―intended

to utter these words as a threat,‖ the government contends, and the majority

apparently agrees, that the court is required by M.A.P. v. Ryan, 285 A.2d 310, 312

(D.C. 1971), to adhere to the Campbell articulation and to reject the alternative

language used in five of our seven post-Campbell decisions, beginning with United

States v. Baish, 460 A.2d 38, 42 (D.C. 1983), decided one year after Campbell.

For the reasons set forth in some detail below, I do not agree with this contention,

and I conclude, to the contrary, that the issue is an open one under District of

Columbia law and that we should now adopt the Baish articulation.



      My colleagues also maintain that the Campbell language is correct because

threats to do bodily harm should be treated as a general intent offense and that

proof of specific intent should not be required. Although I find this issue difficult

in light of some of the federal decisions cited by the majority, I nevertheless

conclude that affirmance is not warranted.



                                         I.



      I begin by addressing a preliminary issue. The court holds, and I agree, that

whether one applies the ―intent to utter the words‖ standard advocated by the
                                         22

government or the ―intent to utter these words as a threat‖ standard favored by the

defendant, the evidence, as described in the majority opinion, was sufficient to

establish Carrell‘s guilt beyond a reasonable doubt. In addressing a claim of

evidentiary insufficiency, we must of course view the record in the light most

favorable to the prosecution. In re S.W., 45 A.3d 151, 154 (D.C. 2012). Although

the words used by Carrell: ―I could kill you. I could kill you. I could fucking kill

you right now‖ do not explicitly describe what Carrell proposed to do in the future,

as a threat ordinarily would, I do not doubt that under the circumstances, including

Carrell‘s simultaneous assault on Ms. Ringenburg (and the unambiguously

threatening remarks he made the previous evening to the effect that he would kill

her friends or family if she called them to defend her) could reasonably be viewed

by an impartial trier of fact as an implicit threat. This would be true even if the

government is required to prove, as I believe that it should be, that Carrell intended

his words as a threat.



      This does not mean, however, that it is of no consequence whether the judge

applied the ―intent to utter the words‖ standard or the more exacting ―intent to utter

the words as a threat‖ test. It would not be accurate to say that the government

necessarily wins either way. On the contrary, the result of the appeal could well

turn on which of the two articulations was applied in the court‘s analysis. If the
                                          23

government had to prove only that Carrell intended to utter the words, then the

judge‘s affirmative credibility finding as to Ms. Ringenburg‘s testimony

effectively disposed of the case.      If, on the other hand, the prosecution was

required to prove that Carrell intended to utter the words as a threat, it is not at all

obvious that a reasonable trier of fact, whether judge or jury, would inevitably

convict him. Guilt or innocence is a question for the trier of fact, and at this stage

of the proceeding, the judge need not – indeed, she may not – view the record in

the light most favorable to the prosecution. Rather, she must presume innocence

and acquit unless the government proves the defendant‘s guilt beyond a reasonable

doubt. ―The reasonable doubt standard of proof requires the factfinder to reach a

subjective state of near certitude of the guilt of the accused.‖ Rivas v. United

States, 783 A.2d 125, 133 (D.C. 2001) (en banc). In this case, the judge having

believed that the relevant events had occurred as Ms. Ringenburg described them,

there was no plausible way to acquit Carrell of the assault charge against him.

Whether, however, ―I could fucking kill you right now,‖ despite its phrasing as to

what Carrell would be able to do, was intended to threaten Ms. Ringenburg

regarding what he would do, is far less obvious and strikes me as a classic question

of fact for the jury (or, in this case for the judge). We therefore cannot decide the

appeal, in my judgment, without first determining whether the trial judge‘s
                                          24

statement of the elements of the offense was consistent with the law of this

jurisdiction.



                                          II.



      As noted above, an astonishing feature of this case is that in addressing the

question whether the prosecution was required to prove ―intent to utter as a threat‖

rather than only ―intent to utter the words,‖ both parties have been able to cite

apparently impressive supportive District of Columbia precedent. Over the past

three decades, there have been at least eight decisions by our court purporting to

recite the elements of the offense.      Only three of these decisions, including

Campbell, the earliest of the eight, use the government‘s articulation in setting

forth the intent element of threats to do bodily harm. See also Evans v. United

States, 779 A.2d 891, 894 (D.C. 2001) (citing Campbell); Joiner-Die v. United

States, 899 A.2d 762, 764 (D.C. 2006) (citing Evans and Campbell).1 In none of



      1
         The government also cites Gurley v. United States, 308 A.2d 785, 787
(D.C. 1973), but as I read that opinion, it neither explicitly nor implicitly addresses
the precise issue here presented. Further, in my view, Tolentino v. United States,
636 A.2d 433, 435 (D.C. 1994); Beard v. United States, 535 A.2d 1373, 1378
(D.C. 1988); and Smith v. United States, 337 A.2d 499, 503 (D.C. 1975), cited by
the majority, likewise did not address the question in dispute here, but concerned
                                                                         (continued…)
                                          25

the three, however, was there any issue raised as to whether the prosecution must

prove intent to threaten or merely intent to utter. Campbell dealt primarily with the

admission of ―other crimes‖ evidence; Evans concerned the question whether

―attempted threats‖ is a crime; and Joiner-Die addressed the sufficiency of the

evidence and the allegedly improper curtailment of cross-examination. Because

the issue presented in the present appeal did not arise in any of these cases, it could

not have been authoritatively decided.



      In five of the eight cases, including the three most recent ones, the court

stated that ―the government must prove . . . that the defendant intended to utter

these words as a threat.‖       Baish, 460 A.2d at 42 (emphasis added) (citing

Campbell and Gurley); Clark v. United States, 755 A.2d 1026, 1030 (D.C. 2000)

(citing Baish); Jenkins v. United States, 902 A.2d 79, 86 (D.C. 2006) (citing Clark

and Baish); Hunter v. United States, 980 A.2d 1158, 1163 (D.C. 2009) (citing

Jenkins); In re S.W., 45 A.3d at 155 (citing Clark and Baish). In none of these five

cases, however, just as in the three which adopt the Campbell language, was the

court presented with the issue now before us. Baish primarily involved territorial


(…continued)
the second element of the offense of threats, rather than the third, which deals with
the required intent.
                                          26

jurisdiction; Clark raised the question whether evidence of a threat made following

an unlawful arrest should be suppressed as fruit of the poisonous tree; the issue in

Jenkins was whether ostensibly harmless words constituted a threat because of the

context in which they were spoken; Hunter raised an issue of merger; and In re

S.W. dealt largely with First Amendment questions that may arise in construing the

threats statute. Use of the language in Baish rather than that in Campbell would

not have affected the result in any of the five.



      Finally, although Campbell was decided in 1982 and Baish in 1983, no

opinion in either line of cases contains any expression of disagreement with the

language of the other group.         Indeed, Baish cited Campbell as precedent.

Evidently, although the court in S.W. observed that the intent element ―has been

subject to controversy‖ due to the two ―competing formulation[s]‖ described

above, 45 A.3d at 155 n.10, no judge of this court had suggested in any published

opinion that we confront the apparent difference between the two articulations until

this case came along.2      The two lines of cases have thus coexisted in our

jurisprudence for three decades.      There has been no ―adversarial crossing of


      2
          In Jenkins, 902 A.2d at 87 n.11, the government made the same argument
based on M.A.P. v. Ryan as it makes in this case, but we found it unnecessary to
reach it.
                                        27

swords,‖ Murray v. District of Columbia, 870 A.2d 25, 27 (D.C. 2005), in any of

our cases with respect to which of the two competing statements of the intent

element correctly applies the law of this jurisdiction. Under these circumstances, I

am unable to agree with the government or with my colleagues in the majority that

we are required by M.A.P. v. Ryan, or by Thomas v. United States, 731 A.2d 415,

420 & n.6 (D.C. 1999), to adhere to the language of Campbell and to reject that of

Baish and of the four decisions that have followed Baish.



      Nothing in M.A.P. v. Ryan requires a division of this court to follow

language in a prior case which is unnecessary for the decision of that case.

Albertie v. Louis & Alexander Corp., 646 A.2d 1001, 1005 (D.C. 1994) (citations

omitted). In District of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C. 1996),

we stated that ―[t]he rule of stare decisis is never properly invoked unless in the

decision put forward as precedent the judicial mind has been applied to and passed

upon the precise question‖ (quoting Fletcher v. Scott, 277 N.W. 270, 272 (Minn.

1938) (citations omitted)). ―Questions which merely lurk in the record, neither

brought to the attention of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.‖ Id. (quoting Webster v. Fall,

266 U.S. 507, 511 (1925)); see also Thompson v. United States, 546 A.2d 414, 423

n.14 (D.C. 1988) (quoting Webster). There is, moreover, no consensus among the
                                         28

judges of our court as to which of the two articulations – Campbell or Baish –

would have been more appropriate here (although the Baish language has been

used more often).3 If we were nevertheless required to follow Campbell and not

Baish, this would have to be because M.A.P. v. Ryan and Thomas should be

deemed so inflexible that no distinction may be made between issues contested in

the earlier case and those not contested. We would also be required to ignore the

apparent rejection of the language of Campbell in a majority of our decisions since

that case was decided. Albertie and Sierra Club establish that the doctrine of

M.A.P. v. Ryan was not intended to be so expansive and rigid.


      3
           Perhaps this is not a case in which ―statistics . . . tell much, and courts
listen,‖ cf. Harris v. District of Columbia Comm'n on Human Rights, 562 A.2d
625, 632 (D.C. 1989) (quoting State of Alabama v. United States, 304 F.2d 583,
586 (5th Cir. 1962)), but it is interesting to note that while six judges have written
or joined opinions adhering to the Campbell phrasing (a seventh concurred only in
the result in Campbell), thirteen have written or joined opinions adopting the Baish
articulation (a fourteenth judge concurred only in part in Hunter). Three of the six
judges who have written or joined Campbell language opinions, including one of
the two judges in the majority in Campbell itself, have also written or joined
opinions approving the language from Baish. This suggests that several judges –
perhaps most – may believe that there is not a great difference between the
analyses in Campbell and Baish, especially as the court in the latter case cited the
former as authority. In any event, if the votes of the three judges who have agreed
to both alternative phrasings, are excluded from my somewhat unorthodox ―poll,‖
then we have, as it were, ten votes for the Baish language and only three for
Campbell. I do not suggest that these numbers are dispositive, but they do add a
little potentially instructive context.
                                            29

      It is true that in Thomas, 731 A.2d at 420, we stated that ―the rule is

fundamental in our jurisprudence that no division of this court will overrule a prior

decision of this court.‖ Washington v. Guest Servs., 718 A.2d 1071, 1075 (D.C.

1998) (quoting M.A.P. v. Ryan, 285 A.2d at 312) (internal quotation marks

omitted). ―This court will not lightly deem one of its decisions to have been

implicitly overruled and thus stripped of its precedential authority.‖ Lee v. United

States, 668 A.2d 822, 828 (D.C.1995). Where a division of this court fails to

adhere to earlier controlling authority, we are required to follow the earlier

decision rather than the later one. See Taylor v. First Am. Title Co., 477 A.2d 227,

230 (D.C. 1984); Thomas, 731 A.2d at 420 n.6. In most circumstances – arguably

in all circumstances, my colleagues perhaps assume — that would be that.

Nevertheless, I know of no case in which the rule of M.A.P. v. Ryan has been

applied to a situation comparable to the one before us here, in which not a single

one of the decisions relied on arose in a case presenting the question as to which of

the two articulations of the intent element is correct, so that this issue has never

previously been litigated in this jurisdiction. Further, over the years, there appears

to have been more support in the court for the 1983 articulation than for the one in

1982. Accordingly, I disagree with the government and the majority opinion as to

the applicability here of M.A.P. v. Ryan.
                                          30

                                         III.



      If, as I believe, neither Campbell nor Baish resolves the issue before us, then

it surely remains an open question in this jurisdiction. As I see it, the notion that

one can threaten another without intending that the words be uttered as a threat is,

at least, counter-intuitive. As far as I am aware, folks threaten others intentionally,

not inadvertently (except perhaps in situations in which nobody was meant to hear

the threat). As this court observed in Baish, 460 A.2d at 42, and the majority

reiterates here, ante at 9, BLACK‘S LAW DICTIONARY defines ―threat‖ as ―a

communicated intent to inflict harm on any person or on property.‖ Intent to

threaten is thus the essence of the concept. In Postell v. United States, 282 A.2d

551, 553 (D.C. 1971), which the majority also quotes, ante at 8, we concluded that

―the gist of the crime is that the words used are of such a nature as to convey a

menace or fear of bodily harm to the ordinary hearer.‖ To ―convey a menace‖

surely brims with intent to threaten. As a practical matter, to require proof only of

intent to utter, and not of intent to threaten, would take any intent requirement out

of the statute, for it would be a rare case indeed in which threatening words were

uttered inadvertently or by accident, rather than intentionally. Yet although the

statute does not state what intent is required, all of our cases, whether they follow

Campbell or Baish, recognize that intent is the third element of the offense.
                                            31

       My colleagues in the majority insist that our en banc court has resolved the

issue now before us in Holt v. United States, 565 A.2d 970, 971-72 (D.C. 1989) (en

banc). I disagree. The issue in Holt was whether intent to extort was an element of

our felony threats statute. A majority of the court4 held that it was not. In the

present case, Holt would support a holding that the government was not required to

prove that Carrell intended to kill Ms. Ringenburg, or perhaps to do her physical

harm. The decision does not mean, however, that the prosecution need not prove

that the threat was made intentionally. It is worth noting that the government does

not rely on Holt, or even cite that case in its brief.5




       4
           Whatever goes around comes around, but not always as might be
anticipated. In Holt, decided almost a quarter of a century ago, I voted with the en
banc majority to affirm the defendant‘s conviction, while Judge Newman joined
Judge Julia Cooper Mack‘s powerful dissent. Now it is I who am outvoted! Sic
transit gloria!

       5
           Aside from its failure to cite the principal authorities relied on by my
colleagues in support of their decision, the government has not treated the issue of
intent in this context as one of major importance. In its brief, it has devoted only a
single paragraph to the issue, primarily to argue that M.A.P. v. Ryan controls and
nullifies the Baish line of cases. Moreover, in In re S.W., 45 A.3d at 155 n.10,
which was decided in 2012, and which is the last of the relevant cases to reach this
court, the government did not contest, in the trial court or on appeal, the
proposition that proof of intent to threaten was required.
                                           32

      Despite what I regard as the common sense of the issue – with few if any

exceptions, threats are, by definition, intended to threaten – this case is difficult for

me in light of the federal appellate decisions cited by the majority, ante at 16-17.

See, e.g., United States v. DeAndino, 958 F.2d 146, 148-50 (6th Cir. 1992). These

decisions construe 18 U.S.C. § 875 (c) (2012), which is similar (though not

identical) to our statute in relevant respects, and a majority of them support the

government‘s position in this case, largely on the theory that threats are a ―general

intent‖ crime.6 There is, however, contrary authority as well. See, e.g. United

States v. Sutcliffe, 505 F.3d 944, 953 (9th Cir. 2007) (§ 875 (c) requires proof of

intent to threaten); United States v. Sovie, 122 F.3d 122, 125 (2d Cir. 1997) (it is

not necessary to prove that the defendant had the specific intent to carry out the

threat, but only that he intended to communicate a threat); Robinson v. United

States, 506 A.2d 572, 574 (D.C. 1986) (in analogous prosecution for ―intent to

frighten‖ assault, i.e., threats, prosecution must prove that the defendant intended

either to cause injury or to create apprehension in the victim by engaging in some

threatening conduct); Com. v. Spencer, 663 N.E. 2d 268, 271 (Mass. Ct. App.

1986) (in case of a threatened assault, ―there must be an actual intention to cause
      6
          In its brief, the government alludes to what it calls the ―well-accepted
understanding that threats are a general-intent crime.‖ The only authority it cites
for that proposition is Jones v. United States, 477 A.2d 231, 239 (D.C. 1984), a
first-degree murder case that did not involve the threats statute at all.
                                          33

apprehension.‖) Further, although the phrasing of statutes prohibiting threats of

bodily harm (as a form of assault, or as an independent offense) varies widely, ―the

gravamen of the offense is the intentional placing of a person in fear, [and] the

intent to cause fear is an essential element of the crime.‖ 31A Am. Jur. 2d

Extortion, Blackmail and Threats § 48 (2013).



      Because the intent of the threats statute with respect to the precise question

before us is not at all clear, I believe that this is an appropriate occasion to include

in our calculus the venerable but fundamentally just ―rule of lenity.‖ As the

Supreme Court explained in United States v. Bass, 404 U.S. 336, 347 (1971)

(quoting United States v Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22

(1953)):


                    In various ways over the years, we have
                    stated that ‗when choice has to be made
                    between two readings of what conduct
                    Congress has made a crime, it is appropriate,
                    before we choose the harsher alternative, to
                    require that Congress should have spoken in
                    language that is clear and definite.‘



Accord, Ruffin v. United States, No. 12-CF-596, 2013 WL 4746792, at *4 (D.C.

Sept. 13, 2013) (discussing the District‘s felony threats statute) (―criminal statutes

are to be strictly construed and should not be interpreted to extend criminal liability
                                         34

beyond that which [the legislature] has plainly and unmistakably proscribed‖).

Accordingly, ―[t]he rule of lenity requires ambiguous criminal statutes to be

interpreted in favor of the defendants subjected to them.‖ United States v. Santos,

553 U.S. 507, 514 (2008); accord, McBoyle v. United States, 283 U.S. 25, 27

(1931) (per Holmes, J.); United States v. Wiltberger, 18 U.S. 76, 95 (1820) (per

Marshall, C.J.). In this case, as in Lemon v. United States, 564 A. 2d 1368, 1381

(D.C. 1981) we are obliged to ―consider the rule of lenity, which provides that

criminal statutes should be strictly construed and genuine ambiguities resolved in

favor of the defendant.‖ To be sure, the rule of lenity is a ―secondary canon of

construction.‖ Washington v. District of Columbia Dep’t of Pub. Works, 954 A.2d

945, 948 (D.C. 2008). It ―serves as an aid for resolving an ambiguity [and] is not

to be used to beget one.‖ Callanan v. United States, 364 U.S. 587, 596 (1961).

Simply put, it is the last resort, not the first. When, however, the intent of the

statute cannot be determined from its language, purpose, or legislative history, any

remaining ambiguity is to be resolved in favor of the accused, in conformity with

the rule. Washington, 954 A.2d at 948-49.



      In this case, the language of the statute does not answer the issue before us,

no pertinent legislative history has been cited to us, and the coexistence for thirty

years of the two competing lines of authority itself suggests that with respect to
                                           35

what is required to prove intent, resort to the rule of lenity is warranted and, in my

view, should carry the day. Surely, the legislature has not ―unmistakably

proscribed,‖ Ruffin, supra, alleged threats where no intent to threaten has been

shown.



      In sum, there being no binding authority either way, I would hold, for the

reasons stated above, that the prosecution must prove, in a threats case such as this,

that the defendant intended to utter the words as a threat. I would affirm Carrell‘s

conviction for assault, vacate his conviction for attempted threats, and remand the

case to the trial court for further proceedings. I would not necessarily require the

judge to hold a new trial, for she could, in the exercise of her discretion, make what

I regard as the requisite finding as to Carrell‘s intent on the existing record.



      I respectfully dissent.7




      7
          At the conclusion of its opinion, the court states that by failing to request
certain specific findings, Carrell has waived the claim that the judge erred by
failing to do so. See Super. Ct. Crim. R. 23 (c). I agree. I believe, however, that
although Carrell‘s brief could be clearer on the point, his basic contention is that
the judge applied the wrong legal standard.
    36

1
