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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CM-651

                         RICHARD C. JONES, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                               (CMD-17628-12)

                       (Hon. Robert E. Morin, Trial Judge)

(Submitted September 29, 2014                        Decided September 17, 2015)

      Nicholas Q. Elton was on the briefs for the appellant.
      Ronald C. Machen Jr., United States Attorney at the time the brief was filed,
and Elizabeth Trosman, Elizabeth H. Danello, and Ann K. H. Simon, Assistant
United States Attorneys, were on the brief for appellee.

      Before FISHER and BECKWITH, Associate Judges, and FARRELL, Senior
Judge.

      Opinion for the court by Associate Judge BECKWITH.

      Concurring opinion by Associate Judge BECKWITH at page 12.

      BECKWITH, Associate Judge: Appellant Richard Jones was convicted, after a
                                          2

bench trial, of attempted threats1 for a statement he made toward his daughter’s

guardian ad litem following a contentious family court hearing. Mr. Jones claims

four errors: that the trial court erred by denying his motion for a new trial, that

attempted threats is not a valid offense under D.C. law, that the record contains

insufficient evidence to support his conviction, and that he was denied his right to a

jury trial when the government amended the information from charging

misdemeanor threats to attempted threats just moments before trial. We affirm.


                                          I.


      Dennis Eshman, the complainant in this case, represented Mr. Jones’s

daughter as her guardian ad litem in a family court matter for nearly four years. At

a hearing in June 2012, Mr. Eshman recommended that Mr. Jones’s visits with his

daughter be supervised. Mr. Eshman testified that when he left the courtroom, Mr.

Jones stopped him in the hallway and said, “I’m going to smack the shit out of

you.” The statement was made “in pretty close to a normal tone of voice, maybe

just a little bit elevated.” Mr. Jones then expressed his displeasure with Mr.

Eshman’s recommendation of supervised visitation, and “his voice escalated so

that he got to the point where he was yelling at” Mr. Eshman. Mr. Eshman was

initially “taken aback” and eventually came to believe that his physical safety was
      1
          D.C. Code §§ 22-407 and -1803 (2012 Repl.).
                                          3

“in jeopardy.”


      The defense countered with testimony from Khadijah Ali, an attorney who

witnessed the incident while passing through the hallway of the courthouse. Ms.

Ali testified that she saw Mr. Jones “very angry and he was quite loud and he was

arguing with” Mr. Eshman. But she also testified that she could “hear clearly what

was being said” and she did not hear any threats. Specifically, she testified that she

did not hear Mr. Jones say, “I’m going to smack the shit out of you.”


      The trial judge found that both witnesses were credible and that their

testimony was not actually inconsistent. The judge found that while Ms. Ali did

not hear any threat, her attention was not drawn to the scene until Mr. Jones

became angry and loud, which occurred after he had already uttered the threat in a

normal tone of voice. The court convicted Mr. Jones of attempted threats. Mr.

Jones filed a motion for a new trial,2 which was denied, and this appeal followed.


                                         II.


      Mr. Jones first argues that the trial court erred by denying his motion for a

new trial. Mr. Jones’s motion contended, among other things, that his trial counsel

      2
        Mr. Jones first filed his motion pro se and then appointed counsel filed a
supplemental memorandum. That attorney was later removed and another attorney
submitted a third motion and argued it in court.
                                          4

was ineffective for failing to investigate and present evidence of Mr. Eshman’s

bias against Mr. Jones in order to impeach Mr. Eshman’s testimony. Having raised

these claims in a motion under Rule 33 of the Superior Court Rules of Criminal

Procedure, Mr. Jones argued—and the trial court agreed—that he need not

demonstrate a violation of his Sixth Amendment right to counsel pursuant to

Strickland v. Washington, 466 U.S. 668 (1984), to be awarded a new trial, but

needed only to show that a new trial was necessary in “the interests of justice.”

Super. Ct. Crim. R. 33. The trial court concluded that a new trial was unnecessary

because it had already heard testimony regarding the events that allegedly gave rise

to Mr. Eshman’s bias—a specific prior incident between the two men and the fact

that Mr. Jones had filed bar complaints against Mr. Eshman. More broadly, the

court stated that it was “aware of the hostility, frankly, generally, that Mr.

[E]shman testified to and acknowledged between Mr. Jones and Mr. [E]shman.”

The trial court determined that additional evidence of their prior relationship and

Mr. Eshman’s alleged bias would not have affected its determination that Mr.

Eshman’s testimony was credible.


      We review the denial of a Rule 33 motion for abuse of discretion. Austin v.

United States, 64 A.3d 413, 427 (D.C. 2013). Mr. Jones argues that the trial court

abused its discretion because the additional evidence proffered was “fundamental

to creating a full impression for [the] trier of fact.” The trial court stated that it
                                           5

examined the motion in detail, including the “extensive” attachments, and

compared that evidence to the testimony that had been elicited at trial. We have no

reason to second-guess the trial court’s conclusion that it was already well enough

informed of Mr. Eshman’s potential bias against Mr. Jones from the trial testimony

and that additional testimony regarding the relationship between the two men

would not affect the court’s decision. The trial court did not abuse its discretion by

denying Mr. Jones’s Rule 33 motion.


                                          III.


      Mr. Jones next argues that his conviction must be reversed because

attempted threats is not a valid statutory offense. This claim was not raised in the

trial court, so we review for plain error. Howerton v. United States, 964 A.2d

1282, 1286 (D.C. 2009). Mr. Jones must demonstrate that charging him with

attempted threats “was (1) error, (2) that is plain, (3) that affects substantial rights,

and (4) that seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. (quoting Coleman v. United States, 948 A.2d 534, 544 (D.C.

2008)). He cannot meet this rigorous standard. See Evans v. United States, 779

A.2d 891, 895 (D.C. 2001) (“To sum up, we hold that attempted threats is a valid

statutory offense under the laws of the District of Columbia.”).


      Mr. Jones argues that because misdemeanor threats is a general intent
                                         6

crime,3 see Carrell v. United States, 80 A.3d 163, 170-71 (D.C. 2013), vacated,

reh’g en banc granted; Holt v. United States, 565 A.2d 970, 971-72 (D.C. 1989)

(en banc), and because an attempt conviction requires the government to prove

“specific intent to commit the crime one is attempting,” Braxton v. United States,

500 U.S. 344, 351 n.* (1991) (citing Morissette v. United States, 342 U.S. 246, 263

(1952)),4 one cannot attempt a general intent crime and “there cannot be an

‘attempted threat.’” But Mr. Jones is incorrect in his assertion that one cannot be

      3
         The terms “specific” and “general” intent, though used routinely by courts
and treatise writers, are somewhat vague and “often confusing.” Judicial Council
of California Criminal Jury Instructions xxvi (2015) (explaining that the
instructions avoid using the terms for these reasons); see also Perry v. United
States, 36 A.3d 799, 809 n.18 (D.C. 2011) (noting that the terms “can be too vague
or misleading to be dispositive or even helpful”). Ideally, instead of describing a
crime as a “general intent” or “specific intent” crime, courts and legislatures would
simply make clear what mental state (for example, strict liability, negligence,
recklessness, knowledge, or purpose) is required for whatever material element is
at issue (for example, conduct, resulting harm, or an attendant circumstance such
as dealing drugs in a school zone or assaulting a police officer). Our decisions
have typically used the term “specific intent” to mean that the crime of attempt
requires proof of purpose or intent to commit the conduct or, in a result crime, to
cause the resulting harm. Thus, we have described attempted robbery as requiring
proof of a “specific intent to commit the offense of robbery.” See Johnson v.
United States, 756 A.2d 458, 463 n.3 (D.C. 2000) (defining the elements of
attempted robbery). Because our decisions have used this term, we use it here as
well.
      4
         Braxton noted that at common law, attempt requires a specific intent to
commit the unlawful act, and the Court held that to support a sentence for
“attempted killing,” the government must establish more than the fact “that
Braxton had shot ‘at the marshals’[;] it would also have to have established that he
did so with the intent of killing them.” 500 U.S. at 350-51 & n.*.
                                         7

convicted for attempting to commit a general intent crime,5 and thus he can show

no error. Mr. Jones similarly argues that one cannot be convicted of an attempt for

“[c]rimes that do not involve intent to do a criminal act,” Cox v. State, 534 A.2d

1333, 1335 (Md. 1988), stating that “[i]t makes no sense to speak of attempted

involuntary manslaughter or attempted negligence.” This maxim is irrelevant here

because the misdemeanor offense of threats does require intent to act—intent to

utter statements that constitute a threat. Joiner-Die v. United States, 899 A.2d 762,

764 (D.C. 2006).6



      5
         See, e.g., Dauphine v. United States, 73 A.3d 1029, 1033 (D.C. 2013)
(upholding conviction for attempting to commit a general intent crime); Smith v.
United States, 813 A.2d 216 (D.C. 2002) (same); Wormsley v. United States, 526
A.2d 1373, 1375 (D.C. 1987) (same).
      6
         Mr. Jones raises three additional arguments that are without merit. First,
he argues that one cannot be charged with an attempt for “substantive crimes that
are, themselves, in the nature of attempts.” The case he cites for this proposition,
Moore v. State, 882 A.2d 256, 269 (Md. 2005), provides simple assault as an
example. See also Dabney v. State, 858 A.2d 1084, 1097 (Md. 2004) (“Since a
simple assault is nothing more than an attempt to commit a battery, . . . an attempt
to commit an assault . . . is not a crime.”). Mr. Jones does not explain why
misdemeanor threats would fit into this category of crimes, however.

       Second, he argues that “[b]ecause the crime of threats as now enumerated in
D.C. Code § 22-407 (2001) was first enacted in 1912,” the general attempts statute
of D.C. Code § 22-1803 (2012 Repl.) “does not apply.” This argument was
rejected by Evans, 779 A.2d at 893-94.

      Third, Mr. Jones argues in passing that the charge of attempted threats “runs
afoul of First Amendment protections” by criminalizing speech that is “unspoken”
or “unheard.” Such concerns are not implicated in this case, however, where the
                                                                     (continued…)
                                           8

      For these reasons, attempted threats is a valid offense in the District, and the

trial court did not err in convicting Mr. Jones.


                                          IV.


      Mr. Jones argues that the record contains insufficient evidence that he was

guilty of attempted threats. Assuming that the government was required to prove

that Mr. Jones possessed specific intent to threaten,7 the record contains sufficient

evidence that Mr. Jones intended to threaten Mr. Eshman with bodily harm by


(…continued)

evidence showed that his threat was both spoken and heard. Because Mr. Jones
does not explain why his speech would be constitutionally protected, we need not
consider his claim in more depth.
      7
          As discussed above, Mr. Jones contends, when arguing that attempted
threats is not a valid crime in the District, that an attempt conviction requires
specific intent. He does not renew his contention that specific intent is necessary
when arguing that the government presented insufficient evidence to support his
conviction, and he even quotes Carrell, which indicates the contrary. We give Mr.
Jones the benefit of the doubt, however, and assume that the government must
prove specific intent to convict. And because we assume that specific intent is
required for an attempt conviction, we also need not consider in this case whether
specific intent is required for a threats conviction in accordance with the Supreme
Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), holding
that the federal threats statute requires the government to prove that the defendant
“transmits a communication for the purpose of issuing a threat, or with knowledge
that the communication will be viewed as a threat,” while leaving open the
possibility that recklessness would suffice as well. Id. at 2012. This court has
granted rehearing en banc in Carrell to address the level of intent required for a
threats conviction in the District.
                                           9

telling him, “I’m going to smack the shit out of you.” Mr. Jones’s insistence that

his statement was “rendered benign by [its] context,” In re S.W., 45 A.3d 151, 156

(D.C. 2012), is unavailing. Even if the statement was made in a “normal tone of

voice,” a reasonable factfinder could conclude that Mr. Jones possessed specific

intent to threaten Mr. Eshman with serious bodily harm given the tumultuous and

emotionally charged nature of their relationship and the fact that Mr. Jones later

started yelling and gesticulating at Mr. Eshman in the hallway. It also is not a

defense that Mr. Eshman was only startled by the threat because “[a] person can be

guilty of threats without causing the target of the threats to fear serious bodily

harm or injury.” Gray v. United States, 100 A.3d 129, 136 (D.C. 2014) (citation

omitted). Viewing the evidence in the light most favorable to the government, we

conclude that the evidence is sufficient to sustain Mr. Jones’s conviction.


                                          V.


      Mr. Jones argues that the trial court erred by allowing the government to

amend the information on the day of trial in order to deny his right to trial by jury. 8

Mr. Jones was first charged with misdemeanor threats in violation of D.C. Code

§ 22-407 (2012 Repl.), which carries a maximum penalty of six months
      8
       This claim is subject to plain error review. When the government moved
to amend the information prior to trial, defense counsel responded, “No objection,
Your Honor.”
                                         10

incarceration and triggers a defendant’s statutory right to a jury trial in the

District.9 See D.C. Code § 16-705 (b) (2012 Repl.); Turner v. Bayly, 673 A.2d

596, 602 (D.C. 1996). Moments before the trial began, the government amended

the information to attempted threats under D.C. Code §§ 22-407 and -1803. This

charge carries a maximum penalty of 180 days’ incarceration, which is not

sufficient to trigger one’s statutory right to a jury. D.C. Code § 16-705 (b). Ruling

on Mr. Jones’s claim of error in his motion for a new trial, the trial court rejected

Mr. Jones’s argument “based on [its] understanding of the law at this time [that]

the Government does have the right to amend even if that results in a denial of the

jury trial on the charge.”


      Rule 7 of the Superior Court Rules of Criminal Procedure specifies that an

information may be amended “at any time before verdict or finding if no additional

or different offense is charged and if substantial rights of the defendant are not

prejudiced.” Super. Ct. Crim. R. 7 (e); see Dyson v. United States, 485 A.2d 194,

197 (D.C. 1984). The question for us, then, is whether Mr. Jones suffered any


      9
          This charge does not, however, trigger Mr. Jones’s constitutional right to a
jury trial. See United States v. Nachtigal, 507 U.S. 1, 3 (1993) (citing Blanton v.
City of North Las Vegas, 489 U.S. 538, 543 (1989)) (“[O]ffenses for which the
maximum period of incarceration is six months or less are presumptively ‘petty.’”).
We therefore need only address whether Mr. Jones was improperly denied his
statutory right to a jury trial.
                                         11

prejudice—and in this case, prejudice substantial enough to reverse under the plain

error standard—from the government’s decision to amend the information

moments before trial.10


      This record reveals no such prejudice. While Mr. Jones argued that a jury

trial was necessary because “the complaining witness is an attorney . . . who has

appeared in front of almost every Judge in Superior Court,” his statutory right to a

jury trial was contingent upon demanding a jury trial in the first place, see D.C.

Code § 16-705 (b)(2), which he never did.11 And because Mr. Jones did not object

to the amendment, there is no indication in the record that the amendment in any

way altered the defense Mr. Jones was prepared to present.12




      10
          While the amendment here also charged a “different offense” of
attempted threats, it does not constitute reversible error for that reason. Dyson, 485
A.2d at 197 (citing Gov’t of the Canal Zone v. Burjan, 596 F.2d 690, 692-93 (5th
Cir. 1979)) (noting that amending the information to charge a lesser included
offense is a “technical violation of Rule 7(e) but harmless”).
      11
         While Mr. Jones argued in the trial court that he received ineffective
assistance of counsel because his trial counsel never demanded a jury trial, he has
not presented that claim to us on appeal.
      12
            We therefore need not address whether, in a case where the issue is
properly preserved, a particular defendant may be able to show prejudice under
Rule 7 from an amendment that results in his losing his right to a jury trial. See,
e.g., State v. Kroll, 107 P.3d 1201, 1203 (Haw. Ct. App. 2005).
                                        12

                                        VI.


      Because we reject each of Mr. Jones’s claims of error, his conviction is

affirmed.


                                                   So ordered.




      BECKWITH, Associate Judge, concurring: In arguing that attempted threats is

not a valid crime in the District, Mr. Jones relies on the Supreme Court’s decision

in Braxton v. United States, 500 U.S. 344 (1991), which stated that the elements

“for an ‘attempt’ at common law . . . include a specific intent to commit the

unlawful act.” Id. at 351 n.* (citing Morissette v. United States, 342 U.S. 246, 263

(1952)). I write separately to make note of an inconsistency in our case law

regarding the extent to which this common law proposition applies in the District

of Columbia.


      In Sellers v. United States, 131 A.3d 300 (D.C. 1957), the Municipal Court

of Appeals for the District of Columbia defined the elements of attempt as follows:

“any overt act done with intent to commit the crime and which, except for the

interference of some cause preventing the carrying out of the intent, would have

resulted in the commission of the crime.”       Id. at 301 (quoting 14 Am. Jur.,
                                         13

Criminal Law, § 65, p. 813). Thirty years later, in Wormsley v. United States, 526

A.2d 1373 (D.C. 1987), this court upheld the appellant’s conviction for attempted

taking property without right after concluding that the record contained sufficient

evidence that she intended to steal a dress because of her “apparent dissemblance

in folding the blue dress and concealing it inside her sweater, as well as her change

of story about what she had done with the dress.” Id. at 1375. Appellant’s specific

intent to commit a crime was central to the court’s holding, even though the

underlying crime required only general intent to commit the act constituting the

crime. See Fogle v. United States, 336 A.2d 833, 835 (D.C. 1975).1


      Then in Ray v. United States, 575 A.2d 1196 (D.C. 1990), we stated that

“[e]very completed criminal offense necessarily includes an attempt to commit that

offense.” Id. at 1199 (holding that appellant was guilty of the “attempted-battery”

type of assault even though the evidence showed a completed battery). 2            In



      1
        Fogle held that the government did not need to prove “an intent to violate
the law” to be guilty of taking property without right, upholding a conviction based
on unauthorized removal of automobiles even though the appellant “believed that
he had been authorized by the property managers to do so.” Id.
      2
        Ray relied in part on United States v. Fleming, 215 A.2d 839 (D.C. 1966),
which rejected “the rule that a defendant charged with an attempt must be acquitted
if shown to have committed the full offense.” Id. at 841-42. But Fleming did not
state—as Ray did—that any completed offense necessarily includes the attempt.
Fleming simply stands for the proposition that failure is not an essential element of
                                                                       (continued…)
                                           14

reaching this conclusion, Ray did not grapple with Wormsley’s premise that an

attempt requires specific intent. We later applied Ray to an attempted threats

charge under D.C. Code §§ 22-407 and -1803 in Evans v. United States, 779 A.2d

891 (D.C. 2001), holding that the government could charge attempted threats

“even though it could prove the completed offense.” Id. at 894. In other words,

the government needed only to prove general intent to sustain a conviction for

attempted threats. See also Jenkins v. United States, 902 A.2d 79, 87 (D.C. 2006)

(noting that Evans analyzed threats as a general intent crime). While the court in

Evans acknowledged Wormsley’s holding on attempt, Wormsley did not control its

analysis. Relying principally on Ray, the court explained that “[o]ur decisions

have repeatedly held that ‘a person charged with an attempt to commit a crime may

be convicted even though the evidence shows a completed offense, not merely an

attempt.’” Evans, 779 A.2d at 894 (quoting Ray, 575 A.2d at 1199).


      In Smith v. United States, 813 A.2d 216 (D.C. 2002), this court recognized

the difficulty of the attempt issue, stating that “[t]o speak of ‘specific intent’ in the

context of a prosecution for attempted anything is, in our view, somewhat

misleading.” Id. at 219. The court reiterated Wormsley’s premise that “[t]he only

(…continued)

an attempt; it neither discussed nor implied what mens rea is required when the
government charges an attempt as opposed to the completed charge.
                                             15

intent required to commit the crime of attempt is an intent to commit the offense

allegedly attempted.” Id. (citing Wormsley, 526 A.2d at 1375). But the court also

stated that “[o]ur decision in Evans necessarily means that when an attempt is

proven by evidence that the defendant committed the crime alleged to have been

attempted, the intent required to commit the crime of attempt can be no greater

than the intent required to commit the completed crime.” Id. (citing Evans, 779

A.2d at 894). The court then held that there was sufficient evidence of attempted

second-degree cruelty to children when the appellant “intended to commit the acts

which resulted in . . . the grave risk of injury” to the child, even though he did not

intend to injure the child. Id. at 219-20.


      Yet while Evans continues to feature prominently in our case law,3 other

recent cases have required specific intent for an attempt conviction. For example,

in Brawner v. United States, 979 A.2d 1191 (D.C. 2009), the court held that for an

attempted escape conviction, the government must prove “the mental state of

intending to commit the underlying offense,” that is, “intent to escape,” even

though a charge for a completed escape did not involve such intent. Id. at 1194.

And in Dauphine v. United States, 73 A.3d 1029 (D.C. 2013), this court held that


      3
      See, e.g., Lewis v. United States, 95 A.3d 1289, 1291 (D.C. 2014);
Newman v. United States, 49 A.3d 321, 324 (D.C. 2012).
                                           16

animal cruelty is a general intent crime but nonetheless stated that “where the

government charges an individual with attempt, as it did here, the government

must demonstrate that the defendant possessed the intent to commit the offense

allegedly attempted.” Id. at 1033 (citation and internal quotation marks omitted).

We held that the record contained sufficient evidence that the “appellant acted with

intent to commit the crime of cruelty to animals,” and we affirmed her conviction.

Id.


      The Wormsley-Brawner-Dauphine line of cases requiring the government to

prove specific intent to commit the crime intended appears to be in direct tension

with the Evans-Smith line of cases that does not require such proof.4 Because Mr.

Jones’s case arises on plain error review, however, we need not resolve this tension

in our jurisprudence, and we need not decide whether Mr. Jones is correct that the

common law intent element for attempt as articulated by the Supreme Court in

Braxton is the law of this jurisdiction.


      4
        As the elements of a crime are determined by what offense the
government charges, not by what evidence it presents at trial, Evans and Smith
cannot be distinguished from Wormsley, Brawner, and Dauphine on the ground
that the government proved a completed offense in the former cases and an
attempted offense in the latter. Cf. United States v. Gaudin, 515 U.S. 506, 522-23
(1995) (“The Constitution gives a criminal defendant the right to have a jury
determine, beyond a reasonable doubt, his guilt of every element of the crime with
which he is charged.”).
