                           District of Columbia
                            Court of Appeals
No. 14-CM-1011
                                                             MAY 12 2016
MARK E. LEWIS,
                                        Appellant,

      v.                                             DVM-1153-14


UNITED STATES,
                                        Appellee.


            On Appeal from the Superior Court of the District of Columbia
                                 Criminal Division

       BEFORE: BLACKBURNE-RIGSBY and THOMPSON, Associate Judges; and REID,
Senior Judge.


                                  JUDGMENT

               This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the appellant’s convictions of second-
degree theft and attempted threats are affirmed.

                                         For the Court:




Dated: May 12, 2016.

Opinion by Associate Judge Anna Blackburne-Rigsby.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 14-CM-1011
                                                                     5/12/16

                          MARK E. LEWIS, APPELLANT,

                                       v.

                           UNITED STATES, APPELLEE.

                     Appeal from the Superior Court of the
                             District of Columbia
                               (DVM-1153-14)

                    (Hon. Jennifer M. Anderson, Trial Judge)

(Submitted November 10, 2015                             Decided May 12, 2016)

      Charles Burnham was on the brief for appellant.

      Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief
was filed, and Elizabeth Trosman, Suzanne Grealy Curt, John B. Timmer, and Ann
K. H. Simon, Assistant United States Attorneys, were on the brief for appellee.

      Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and REID,
Senior Judge.

      BLACKBURNE-RIGSBY, Associate Judge: Following a bench trial, appellant

Mark Lewis was convicted of second-degree theft and attempted threats.1 The trial


      1
        See D.C. Code §§ 22-3211, 3212 (b) (2012 Repl.) and D.C. Code §§ 22-
407, -1803 (2012 Repl.), respectively.
                                         2

court found him guilty of stealing money from and later threatening a romantic

acquaintance, Lavonda Brown.        On appeal, appellant argues that there was

insufficient evidence to sustain either of his convictions. Principally, he argues

that his uttered words would not have reasonably caused Ms. Brown to fear

“serious bodily harm,” which appellant claims is a required element of our

misdemeanor threats offense, as opposed to just “bodily harm.” He also argues

that his theft conviction should be reversed because no one actually saw him take

Ms. Brown’s money. We affirm appellant’s convictions and clarify that the crime

of misdemeanor “threats to do bodily harm” under D.C. Code § 22-407 does not

require proof that a defendant threatened “serious bodily harm.” Rather, all that is

required is that the uttered “words were of such a nature as to convey fear of bodily

harm or injury . . . .” Joiner-Die v. United States, 899 A.2d 762, 764 (D.C. 2006).2


      2
          In full, Joiner-Die and some of our other cases state that the crime of
threats requires the government to prove “(1) [that] the defendant uttered words to
another person; (2) that the words were of such a nature as to convey fear of bodily
harm or injury to the ordinary hearer; and (3) that the defendant intended to utter
the words which constituted the threat.” 899 A.2d at 764 (citing Evans v. United
States, 779 A.2d 891, 894 (D.C. 2001)). On January 26, 2015, the en banc court
heard arguments on whether the Supreme Court’s recent decision in Elonis v.
United States, 135 S. Ct. 2001 (2015), which clarified the mens rea element of the
federal threats statute, impacts the interpretation of the intent element of the
District of Columbia’s threats statute, D.C. Code § 22-407, which admittedly has
been the subject of ambiguity for some years. See Carrell v. United States, 80
A.3d 163 (D.C. 2013) vacated and en banc rehearing granted by No. 12-CM-523,
2015 WL 5725539, at *1 (June 15, 2015). While the pending en banc opinion will
impact the mens rea of D.C. Code § 22-407, it will not impact our analysis of
                                                                      (continued…)
                                        3

                              I.    Factual Background



      On the night of March 13, 2014, appellant slept at Ms. Brown’s apartment,

located at 2900 14th Street, Northwest, Washington, D.C. Before going to sleep,

Ms. Brown placed her wallet containing $736 underneath her pillow. The next

morning, appellant woke up Ms. Brown because her friend, Conovia Eddie, was at

the door. Ms. Brown greeted Ms. Eddie, and the two sat down on the couch in the

living room to chat while appellant went back by himself into the bedroom,

supposedly to watch a movie. A little later, appellant walked out of the bedroom

and took out the trash and never came back. Approximately thirty to forty-five

minutes later, Ms. Brown walked into her bedroom, observed her pillows in a state

of disarray, and found her wallet underneath the bed with the money missing.

Panicked, Ms. Brown ran out of the apartment, saw a police officer, and reported

that appellant had stolen her money. At trial, Ms. Brown explained that appellant

knew that she had “hundreds” in her wallet after he saw her pay for carryout the

night before the theft.




(…continued)
whether the crime of threats requires “serious bodily harm” or just “bodily harm,”
which is a distinct element of the offense of threats not at issue in Carrell.
                                          4

      Later, on March 20, 2014, Ms. Brown spoke with appellant on the phone

about the missing money. During the call, Ms. Brown asked for her money back,

and appellant in response denied taking it and threatened to hurt her, stating: “I

didn’t take your money. Stop playing with me, b****. I’ll smack the s*** out of

you” and “[g]et you f***ed up.” The trial court credited Ms. Brown’s testimony as

to both the theft and the threats, and found appellant guilty as charged. This appeal

followed.



                                    II.       Discussion



      A. Attempted Threats



      Appellant’s primary argument is that the evidence was insufficient to

convict him of attempted threats because the charge requires proof that he

threatened “serious bodily harm” and “not just any kind of harm.” In making this

argument, appellant urges that this court define “serious bodily harm,” a phrase

which has appeared in some of our previous cases in the threats context,3 by


      3
         See Gray v. United States, 100 A.3d 129, 133 (D.C. 2014) (explaining that
the offense of threats requires the words uttered “to convey fear of serious bodily
harm or injury . . .”); Lewis v. United States, 95 A.3d 1289, 1291 (D.C. 2014)
(same); Evans, supra note 2, 779 A.2d at 894 (same).
                                          5

looking to the definition of “serious bodily injury” that applies in the context of

aggravated assault.4 He claims that his statements did not meet this definition of

“serious bodily harm” when he threatened to “smack the s*** out” of Ms. Brown

and “get [her] f***ed up.” We review this question de novo. Sutton v. United

States, 988 A.2d 478, 482 (D.C. 2010).



      Under D.C. Code § 22-407, it is a crime to utter or convey “threats to do

bodily harm.” We have defined threats as requiring the following: “(1) that the

defendant uttered words to another person; (2) that the words were of such a nature

to cause the ordinary hearer reasonably to believe that the threatened harm would

take place; and (3) that the defendant intended to utter the words as a threat.” In re

S.W., 45 A.3d 151, 155 (D.C. 2012) (emphasis added) (citations, internal quotation

marks, and brackets omitted); see also Joiner-Die, supra, 899 A.2d at 764 (same

except for the third element, which the court described as “the defendant intended

to utter the words which constituted the threat”).




      4
         In the aggravated assault context, serious bodily injury is defined as a
“bodily injury that involves a substantial risk of death, unconsciousness, extreme
physical pain, protracted and obvious disfigurement, or protracted loss or
impairment of the function of a bodily member, organ or mental faculty.” Nixon v.
United States, 730 A.2d 145, 149 (D.C. 1999) (quoting D.C. Code § 22-4101 (7),
republished as D.C. Code § 22-3001 (7) (2012 Repl.)).
                                          6

      In contrast, appellant relies on language found in Griffin v. United States,

861 A.2d 610, 615 (D.C. 2004), and some of our other cases, see supra note 3,

where we have characterized the crime of misdemeanor threats as requiring that

the uttered words (or conduct) convey fear of “serious bodily harm.” For example,


             To satisfy its burden [of proving threats], the government
             must present credible evidence:

                1. That the defendant uttered words to another;

                2. That these words were of such a nature as to
                   convey fear of serious bodily harm of injury to the
                   ordinary hearer; and

                3. That the defendant intended to utter these words as
                   a threat.


Griffin, supra, 861 A.2d at 615 (emphasis added) (citations and footnotes omitted).

Additionally, the current Criminal Jury Instructions define threats as causing a

person to reasonably believe that he or she would be “seriously harmed.” Criminal

Jury Instructions for the District of Columbia, No. 4.130 (5th ed. rev. 2013). We

are confident that usage of the phrase “serious bodily harm,” as opposed to just

“bodily harm,” in some of our cases does not indicate a requirement of proof that a

defendant threatened a particular degree or severity of injury.
                                             7

       As far as we can tell, no case from this court has ever squarely considered

whether the crime of threats requires proof of a threat to do bodily harm (of any

type) or a threat to do serious bodily harm. It is well-established 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.” District of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C. 1996)

(quoting Murphy v. McCloud, 650 A.2d 202, 205 (D.C. 1994)) (emphasis added).

Consequently, because there is no case law deciding the issue raised by appellant

and “[a] point of law merely assumed in an opinion, not discussed, is not

authoritative,” this division has the authority to decide the question now without

running afoul of M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“[N]o division of

this court will overrule a prior decision of this court . . . .”).5



       Our threats statute does not mention the word “serious.” Because it is a

well-established principle that the “definition of the elements of a criminal offense

is entrusted to the legislature,” the absence of the word “serious” from our threats

statute (since at least the 1967 codification, see Gurley v. United States, 308 A.2d

       5
         For example, in Jones v. United States, 124 A.3d 127, 131 (D.C. 2015),
this court did not consider whether appellant’s similar threat to “smack the s[***]
out of [the complainant]” constituted a threat to do “serious” bodily harm, as
opposed to just bodily harm, even though it used the “serious bodily harm”
formulation of the crime.
                                          8

785, 787 (D.C. 1973)) is a strong indicator that the legislature never intended to

distinguish between threats to do “serious bodily harm” and threats to do “bodily

harm.” See Hood v. United States, 28 A.3d 553, 559 (D.C. 2011) (“Generally

speaking, if the plain meaning of statutory language is clear and unambiguous and

will not produce an absurd result, we will look no further.” (footnote and internal

quotation marks omitted)).



      A further review of the case law supports this view.          The government

observes, and appellant does not dispute, that the “serious bodily harm” language

seems to have first appeared in a footnote in a 1982 case, Campbell v. United

States, 450 A.2d 428, 431 n.5 (D.C. 1982). In characterizing the crime of threats

as requiring that the “words were of such a nature as to convey fear of serious

bodily harm or injury to the ordinary hearer,” Campbell cites two sources: an

earlier case, Gurley, and an earlier version of the Criminal Jury Instructions for the

crime of “threats to do bodily harm,” see Criminal Jury Instructions for the District

of Columbia, No. 4.17 (3d ed. 1978). The court in Gurley, however, did not

include any mention of “serious bodily harm” when defining the crime. See

Gurley, supra, 308 A.2d at 787 (“All that the statute proscribes is a threat to do

bodily harm.”).    While the earlier version of the Criminal Jury Instructions

admittedly did include the “serious bodily harm” language, the instructions include
                                         9

comments that make clear that the language was adapted from Postell v. United

States, 282 A.2d 551 (D.C. 1971), the first case interpreting our threats statute,

which, like Gurley, did not mention “serious bodily harm” when defining the

crime. Id. at 553 (“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.”). The

“serious bodily harm” language appears to have been inadvertently added into

some of our cases based on the following passage found in Postell: “[W]hether

under the circumstances the language used by appellant when heard by the

ordinary person would be understood as being spoken not in jest, but as carrying

the serious promise of bodily harm or death.”        Id. at 554 (emphasis added).

However, what the court in Postell was speaking to when referencing the word

“serious” was that the threat had to be seriously made (as opposed to a joke), not

that the defendant needed to threaten serious bodily harm.



      Finally, while appellant claims that we should adopt the definition of

“serious bodily injury,” an element of our aggravated assault crime, see supra note

4, for “serious bodily harm” in the threats context, there is a compelling difference

between an assault and a threat that counsels against reading “serious bodily harm”

into our threats statute by incorporating the “serious bodily injury” definition. Our

assault statute criminalizes violent physical behavior against another. See Mungo
                                         10

v. United States, 772 A.2d 240, 245 (D.C. 2001).          Ordinarily, it is relatively

straightforward to prove the degree or amount of violence that a defendant has

inflicted onto another and punish him or her accordingly. 6 For example, to prove

aggravated assault, the evidence must show that the victim suffered a “serious

bodily injury,” defined as a “bodily injury that involves a substantial risk of death,

unconsciousness, extreme physical pain, protracted and obvious disfigurement, or

protracted loss or impairment of the function of a bodily member, organ or mental

faculty.” Nixon, supra note 4, 730 A.2d at 149 (quoting D.C. Code § 22-4101 (7),

republished as D.C. Code § 22-3001 (7)).



      Our threats statute, on the other hand, criminalizes speech that

communicates to a listener “a serious expression of an intent to commit an act of

unlawful violence[.]” Virginia v. Black, 538 U.S. 343, 359 (2003). Applying the

definition of “serious bodily injury” from the aggravated assault context in the


      6
          Simple assault is a misdemeanor and ordinarily requires proof that the
defendant used unlawful force to cause “injury to another” or “attempt[ed] to cause
injury with the present ability to do so.” Mungo, supra, 772 A.2d at 245. Felony
assault, the intermediate level, allows for up to three years in prison and requires
proof that the assault caused “significant (but not grave) bodily injury.”
Quintanilla v. United States, 62 A.3d 1261, 1263-64 (D.C. 2013) (citation,
footnote, and internal quotation marks omitted). Lastly, aggravated assault allows
for up to ten years in prison and requires proof that the assault caused “serious
bodily injury.” Id. at 1263 (citation, footnote, and internal quotation marks
omitted).
                                         11

threats context is unworkable, because there would in many instances be no way to

determine whether a threat conveyed “serious bodily harm” or just “bodily harm,”

unlike the circumstances we confront in the more objective assault context.7



      Even in the case at hand, it is unclear and possibly unknowable whether

appellant’s statements to Ms. Brown that he was going to smack the “s***” out of

her and get her “f***ed up” threatened “serious bodily harm,” under the definition

appellant advocates (“[A] substantial risk of death, unconsciousness, extreme

physical pain, protracted and obvious disfigurement, or protracted loss or

impairment of the function of a bodily member, organ or mental faculty.” Nixon,

supra note 4, 730 A.2d at 149 (citations omitted)).8



      7
         For example, the defendant in Clark v. United States, 755 A.2d 1026, 1028
(D.C. 2000), threatened a police officer by saying, “You won’t work anywhere
after I tell the boys,” which the officer took to mean that the defendant would
arrange for his “boys” “to do something to her so that she would be physically
incapacitated from working.” In this context, there is no way of knowing whether
this threat by the defendant threatened “serious bodily harm.” Similarly, the same
issue arises in the context of hand gestures conveyed to another in a threatening
fashion. Cf. Ebron v. United States, 838 A.2d 1140, 1151-52 (D.C. 2003)
(appellant’s hand movement from his “chin to his throat” was a threat towards a
witness that was admissible to show consciousness of guilt).
      8
        In fact, we have avoided similar arguments previously made that “serious
bodily harm” should track the definition of “serious bodily injury” found in our
aggravated assault cases. See, e.g., Jenkins v. United States, 902 A.2d 79, 86-87
n.10 (D.C. 2006) (“In using the phrase ‘serious bodily harm’ . . . we did not
                                                                    (continued…)
                                        12

      For these reasons, we hold that the crime of misdemeanor threats does not

require proof that a defendant threatened “serious bodily harm,” as opposed to

“bodily harm.” Usage of the phrase “serious bodily harm” found in some of our

case law and in the Criminal Jury Instructions does not impose a different burden

of proof. Rather, “our statements appear to be no more than particularly well-

entrenched dicta, and we are not bound by them.” Buchanan v. United States, 32

A.3d 990, 1001-02 (D.C. 2011) (citations, footnote, and internal quotation marks

omitted). Appellant’s attempted threats conviction is thus affirmed.



      B. Second-Degree Theft



      Appellant next argues that his theft conviction should be reversed because

no one actually saw him take the money. In reviewing appellant’s sufficiency

claim, we “view the evidence in the light most favorable to the government . . . .”

Cannon v. United States, 838 A.2d 293, 296 (D.C. 2004). In so doing, “we do not

draw any distinction between direct and circumstantial evidence.” Id. at 297. To

prove second-degree theft, the government must present evidence “(1) [that the

defendant] wrongfully obtained the property [of another], (2) that at the time he

(…continued)
necessarily mean that the threatened bodily harm had to be as serious as we have
subsequently required it to be in aggravated assault cases.”).
                                         13

obtained it, he specifically intended either to deprive [the owner] of a right to the

property or a benefit of the property or to take or make use of the property for

himself . . . without authority or right, and (3) that the property had some value.”

Nowlin v. United States, 782 A.2d 288, 291 (D.C. 2001) (citations, internal

quotation marks, and original brackets omitted).



      Here, the trial court credited Ms. Brown’s account of the incident. Thus,

even though no one directly observed appellant take the money, the strong

circumstantial evidence provided by Ms. Brown is sufficient to prove appellant’s

guilt beyond a reasonable doubt. See Graham v. United States, 12 A.3d 1159,

1163 (D.C. 2011) (“We have repeatedly held that the testimony of one witness is

sufficient to sustain a conviction.”). Specifically, Ms. Brown testified that she had

$736 in her wallet before she went to bed, and that she placed her wallet

underneath her pillow for safekeeping.         Appellant knew Ms. Brown had

“hundreds” in her wallet after seeing her pay for carryout the night before. In the

morning, Ms. Brown chatted with Ms. Eddie in the living room, while appellant

retreated to the bedroom by himself for a significant period of time.          After

appellant left the apartment and never came back, Ms. Brown walked into her

bedroom and noticed that her wallet was out of place, and that the money was

missing. Taken together, the evidence established that appellant was the only
                                             14

person who had the opportunity and means to steal Ms. Brown’s money. And

because the trial court credited Ms. Brown’s version of events, the court could

have further inferred that the fact that appellant never came back to the apartment

after throwing away the trash and later verbally threatened Ms. Brown for bringing

up the money evidenced his guilt. See, e.g., Ebron, supra note 7, 838 A.2d at 1148

(evidence of threats relevant to show consciousness of guilt).          Accordingly,

appellant’s theft conviction is affirmed.9




      9
          Relatedly, appellant also challenges the trial court’s decision to discredit
his testimony that he decided not to return to the apartment after taking out the
trash because he saw someone associated with a man who had previously shot him.
He claims that the trial court was required to credit his testimony because Ms.
Brown had “confirmed” appellant’s story when she testified that appellant had left
her a voicemail about someone who came over to Ms. Brown’s apartment (Ms.
Brown: “He was talking about the dude that came over. He said y’all good for
each other”). We are unpersuaded by appellant’s argument that a voicemail about
some unknown individual that appellant claims came over to Ms. Brown’s
apartment corroborates his testimony. The trial court was not required to
speculate, as appellant contends, and did not clearly err in not deciding, that the
individual appellant claimed to have seen is the same person as the one referenced
in the voicemail. See, e.g., Perez v. United States, 968 A.2d 39, 63 (D.C. 2009)
(“This court . . . reviews the trial court’s [credibility] findings only for clear
error.”).
                                         15

                                  III.    Conclusion



      Based on the foregoing reasons, appellant’s convictions of second-degree

theft and attempted threats are



                                                  Affirmed.
