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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 17-CF-431

                        LAMONT D. ROBERTS, APPELLANT,

                                        v.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF3-14048-15)

                      (Hon. Juliet J. McKenna, Trial Judge)

(Argued May 1, 2019                                  Decided September 26, 2019)

      Deborah A. Persico for appellant. Sydney J. Hoffman also filed briefs for
appellant.

      Elizabeth Gabriel, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, Youli Lee, and
Jessica Brooks, Assistant United States Attorneys, were on the brief, for appellee.

      Before GLICKMAN, THOMPSON, and MCLEESE, Associate Judges.

      Opinion for the court by Associate Judge MCLEESE.

    Opinion concurring in part and dissenting in part by Associate Judge
THOMPSON at page 40.

      MCLEESE, Associate Judge: Appellant Lamont Roberts was found guilty at

trial of stalking, threats, assault, and unlawful disclosure of sexual images. Mr.
                                          2


Roberts argues that his unlawful-disclosure convictions must be reversed due to

instructional error and that his unlawful-disclosure and threats convictions were not

supported by sufficient evidence.     We hold that in one respect the jury was

erroneously instructed on the elements of unlawful disclosure. On that basis, we

vacate four of Mr. Roberts’s unlawful-disclosure convictions but affirm the fifth, as

to which the instructional error was harmless. We hold that there was sufficient

evidence to support all of the unlawful-disclosure convictions, and we therefore

remand for further proceedings as to the convictions vacated for instructional error.

Finally, we affirm the threats convictions.



                                          I.



      In pertinent part, the evidence at trial was as follows. Mr. Roberts and L.H.

first met in 2013 and then became romantically involved.          L.H. enjoyed the

relationship at first. Over time, however, the relationship began to change. Mr.

Roberts started to engage in controlling behavior. He stopped taking L.H. to social

gatherings, told her not to wear certain clothing that might attract attention, and

began to check in frequently on her whereabouts. When L.H. did not quickly return

Mr. Roberts’s calls or text messages, he would show up unannounced at her work or

at the row house she shared with her mother and children and honk his car horn until
                                         3


she came out. Quite a few times, L.H. became so uncomfortable with and annoyed

by Mr. Roberts’s behavior that she broke up with him. These breakups did not last

for long. Mr. Roberts would apologize and beg for L.H. to take him back and L.H.,

who loved Mr. Roberts and wanted him to change, would agree to get back together.



      After a particularly uncomfortable altercation in December 2013, L.H. wanted

to end the relationship with Mr. Roberts permanently and therefore obtained a civil

protection order against him. In July 2014, Mr. Roberts showed up at the parking

lot at L.H.’s place of work. As L.H. was getting into her car, Mr. Roberts pulled in,

and the two argued through their car windows. When L.H. pulled out of the parking

lot, Mr. Roberts followed her and eventually pulled up alongside her. The two had

a heated exchange that ended with Mr. Roberts throwing a soda can from his car into

the open driver’s side window of L.H.’s car before speeding off. Although L.H.

reported this incident to the police, she also decided shortly thereafter to get back

together with Mr. Roberts.



      Later in July 2014, after L.H. and Mr. Roberts had resumed their relationship,

Mr. Roberts pulled up in front of L.H.’s home while L.H. was sitting in a car with a

male family friend. Mr. Roberts asked L.H. to get out of the car, saying that the two

of them needed to talk. When L.H. refused, Mr. Roberts retrieved a baseball bat
                                            4


from his trunk and told L.H., “You’re going to get out of the car. Bitch, you think

this is a joke, you’re going to get out of the car.” L.H. still did not get out of the car

and her mother, who had heard the commotion and had come out of the house, called

the police. Mr. Roberts appeared to be so mad when he approached the car with the

bat that L.H.’s mother feared that he would have done “terrible bodily damage” to

L.H. had L.H.’s family friend let Mr. Roberts open the car door.



      L.H. continued to be romantically involved with Mr. Roberts for some time

after this incident, but by May or June 2015 she decided to end the relationship for

good. At first, Mr. Roberts did not appear to take the breakup seriously and engaged

in the same sort of calling, apologizing, and randomly showing up at L.H.’s home

that he had engaged in during the couple’s previous breakups. After Mr. Roberts

saw L.H. arrive home with another man, however, Mr. Roberts’s behavior changed.

Mr. Roberts started calling and texting L.H. more frequently, sometimes as many as

150 to 200 times a day. He also sent her text messages and emails, and left her

voicemails, with angry and aggressive language.



      On August 22, 2015, Mr. Roberts left L.H. a voicemail in which he stated:

“When I see you baby, I’m a try to kill you Bitch. You gonna sleep with another

n**a, don’t talk to nobody else. You the only girl I love, watch when I see you.”
                                              5


(This communication was the basis for the first threats count.) On August 28, 2015,

Mr. Roberts left L.H. another voicemail:

             So fuck me, right, so fuck me and you with another
             fucking n**a, I’m-a tell you . . . , you better have all my
             money, the purse and all of that. I’m going to make your
             life a living fucking hell. Watch man. I went and got your
             name on me about 8 times, thinking you with another
             n**a. You going to answer, watch.

(This communication was the basis for the second threats count.) On October 3,

2015, Mr. Roberts sent L.H. an email that read: “So u have been to party with him

rite I’ll see u tomorrow bitch die with your mother and kids.” (This communication

was the basis for the third threats count.)



      Around this same time period, Mr. Roberts began telling L.H. that he was

going to post nude photos that he had taken of her with his phone during their

relationship. L.H. described the photos as follows. The first photo was a close-up

of L.H.’s vagina. The second was of L.H. from behind while she was lying on her

stomach across a bed with her legs crossed. The third was from the same angle as

the second but without L.H.’s legs crossed and with her vagina visible. (It is unclear

whether, in describing the photos, L.H. was using the term “vagina” in its precise

anatomical sense or more colloquially to refer to the vulva.)
                                           6


      Although L.H. had been aware that Mr. Roberts had taken the photos, she had

told him to delete them immediately after they were taken and believed that she had

seen him do so. L.H. only learned that Mr. Roberts had not in fact deleted the photos

when he included them as attachments to numerous text messages and emails he sent

her in September and October 2015.



      On the morning of October 3, 2015, L.H. received an email from Mr. Roberts

which said, “Enjoy it on bitch[.]” A short time later, L.H.’s mother heard a knock

at the front door. When she opened the door, she found a sexually explicit photo of

L.H. taped to the door. L.H.’s mother removed the photo from the door and gave it

to L.H., who in turn gave it to the police. L.H. identified the photo as being one of

the photos that Mr. Roberts took of her from behind while she was nude. (This

incident was the basis for the first unlawful-disclosure count.)



      On the following day, L.H. went to a laundromat near her home to do laundry.

After bending down to transfer clothes from the washing machine to the dryer, L.H.

looked up to find Mr. Roberts standing over her. L.H. told Mr. Roberts to leave and

warned him that he could not do anything to her in the laundromat where other

people were present. After Mr. Roberts left, L.H. went out to the parking lot and

found an explicit picture of herself -- which she identified as “the butt one” -- on the
                                          7


windshield of her car. The picture had L.H.’s name written on it. She immediately

took the picture off the window, and as she did so she saw Mr. Roberts sitting in his

car in the parking lot. L.H. yelled at Mr. Roberts and took pictures of him with her

phone as he rolled down his window, laughed at her, and waved a stack of extra

copies of the explicit images he had taken of her. L.H. testified that she was yelling

and hysterical during this interaction and that people other than her and Mr. Roberts

were watching. L.H. told Mr. Roberts that she was calling the police and then did

so. A police officer arrived about ten minutes later, by which time Mr. Roberts had

left. The incident left L.H. angry and in tears. (This incident was the basis for the

second unlawful-disclosure count.)



      The police officer stayed with L.H. for about fifteen minutes, until L.H. was

nearly done with her laundry, and then left. A few minutes later, L.H. left the

laundromat and saw Mr. Roberts drive up in his car as she pulled out. Mr. Roberts

made a U-turn and began to follow L.H. When L.H. stopped at a traffic light, Mr.

Roberts pulled up alongside her and held a stack of explicit photos of her out of his

open driver-side window. L.H. took pictures of Mr. Roberts as he did this. There

were other cars around, and the light at which L.H. and Mr. Roberts were stopped

was right next to the shopping center where the laundromat was located. When the
                                            8


light turned green, Mr. Roberts drove off. (This incident was the basis for the third

unlawful-disclosure count.)



      The following evening, on October 5, 2015, L.H. received an email from Mr.

Roberts which said, “Bring my stuff outside or get pic off pole.” One of the explicit

photos of L.H. was attached to the email. L.H. looked outside and saw that a piece

of paper was folded and tucked into her front gate. L.H.’s gate, which is about

twenty feet from her front door, opens onto the sidewalk of the residential street

where she lives. The piece of paper was stuck in the gate in the same way that

someone might place a “carry-out flyer,” and was accessible to anyone walking by.

L.H. retrieved the piece of paper, saw that it was an explicit photo of her, took it

inside her house, tore it up before her children could see it, and then called the police.

(This incident was the basis for the fourth unlawful-disclosure count.)



      Two days later, on October 7, 2015, at around 8 a.m., L.H. was leaving her

house to take her children to school when she noticed a white sheet of paper on the

windshield of her car. L.H. told her children to go back into the house and then

crossed the street to where her car was parked. After recognizing that the paper on

the windshield was an explicit image of her, she took a photo of how the image was

placed on her car and then removed the image and saved it. L.H. testified that she
                                          9


had last seen her car the preceding night and that she was not sure when the image

had been placed on the windshield.             A police officer who patrols L.H.’s

neighborhood testified that traffic is “very heavy” on L.H.’s street during the

morning commute from as early as 6 a.m. onward. (This incident was the basis for

the fifth unlawful-disclosure count.)



                                         II.



      We turn first to Mr. Roberts’s challenges to the jury instruction defining the

elements of unlawful disclosure. Mr. Roberts raises two objections: that the

instruction erroneously defined the term “disclose” and that the instruction failed to

state that any disclosure had to be to someone other than L.H. We agree with Mr.

Roberts’s second claim of error but not his first. We further conclude that the error

requires vacation of four of Mr. Roberts’s five unlawful-disclosure convictions.



                                         A.



      The unlawful-disclosure statute, D.C. Code § 22-3052 (2019 Supp.), provides

in pertinent part that
                                         10


            (a) It shall be unlawful in the District of Columbia for a
            person to knowingly disclose one or more sexual images
            of another identified or identifiable person when:

            (1) The person depicted did not consent to the disclosure
            of the sexual image;

            (2) There was an agreement or understanding between the
            person depicted and the person disclosing that the sexual
            image would not be disclosed; and

            (3) The person disclosed the sexual image with the intent
            to harm the person depicted or to receive financial gain.

The term “disclose” is defined to mean “transfer or exhibit to 5 or fewer persons.”

D.C. Code § 22-3051(1) (2019 Supp.).



      The trial court in this case instructed the jury as follows with regard to the

elements of unlawful disclosure:

            The elements of unlawful disclosure of a sexual image,
            each of which the government must prove beyond a
            reasonable doubt are that; one, Lamont Roberts exhibited
            a sexual image of [L.H.]; two, Lamont Roberts exhibited
            the sexual image to another person or exhibited the sexual
            image in a place where it is viewable to another person;
            three, he did so voluntarily and on purpose, not by mistake
            or accident; four, [L.H.] was identified or identifiable in
            the sexual image; five, the sexual image did not result from
            [L.H.’s] voluntary exposure in a public or commercial
            setting; six, [L.H.] did not consent to the exhibition; seven,
            there was an understanding between [L.H.] and Lamont
            Roberts that the sexual image would not be exhibited; and
            eight, when [] Lamont Roberts exhibited the sexual image,
            he did so with the intent to harm [L.H.] . . . . The term
                                         11


             “disclosure” means transferring or exhibiting to five or
             fewer people.


      Assessing Mr. Roberts’s claims of instructional error requires us to interpret

the unlawful-disclosure statute. We decide issues of statutory interpretation de novo.

Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019). “We first look to see

whether the statutory language at issue is plain and admits of no more than one

meaning.” Id. (internal quotation marks omitted). “We will give effect to the plain

meaning of a statute when the language is unambiguous and does not produce an

absurd result.” Id. (internal quotation marks omitted). We consider statutory context

and structure, evident legislative purpose, and the potential consequences of

adopting a given interpretation. E.g., J.P. v. District of Columbia, 189 A.3d 212,

219 (D.C. 2018). “We may also look to the legislative history to ensure that our

interpretation is consistent with legislative intent.” Facebook, 199 A.3d at 628

(brackets and internal quotation marks omitted).



      Whether a challenged jury instruction was correct is a question of law that we

decide de novo. Buskey v. United States, 148 A.3d 1193, 1205 (D.C. 2016).

Misinstruction on an element of an offense violates the Sixth Amendment jury-trial

guarantee. Carrell v. United States, 165 A.3d 314, 327 n.33 (D.C. 2017) (en banc).
                                          12


Such an error therefore requires reversal unless we can determine that the error was

harmless beyond a reasonable doubt. Id. at 328.



                                          B.



      Mr. Roberts first objects to the instruction that unlawful disclosure includes

exhibition of a sexual image “in a place where it is viewable to another person.” We

find no error in this instruction.



      The unlawful-disclosure statute defines “disclose” as “to transfer or exhibit to

5 or fewer persons.” D.C. Code § 22-3051(1). Although the jury instruction in this

case referred at one point to “transferring,” the instruction stated the elements of the

offense as requiring that the sexual images at issue have been “exhibited.” The

United States also relied at trial solely on the theory that the images had been

exhibited. We therefore focus in this opinion primarily on the term “exhibit.”



      In interpreting statutory text, we generally “give the words used the meaning

ordinarily attributed to them.” Coleman v. United States, 202 A.3d 1127, 1138 (D.C.

2019) (internal quotation marks omitted). Because the unlawful-disclosure statute

does not further define “exhibit,” we look to dictionary definitions to help determine
                                         13


that word’s ordinary meaning. 1618 Twenty-First St. Tenants’ Ass’n v. Phillips

Collection, 829 A.2d 201, 203 (D.C. 2003). A standard definition of the verb

“exhibit” is “to present to view: SHOW, DISPLAY.” E.g., Webster’s Third New

International Dictionary 796 (2002). That definition can be understood to suggest

that a person who places an image so that it could be seen by others has “exhibited”

the image, even if as things turn out no one actually sees the image. Cf. State v.

Johnson, 964 S.W.2d 465, 468-69 (Mo. Ct. App. 1998) (defendant “exhibited”

weapon by making “open and visible use” of weapon, even though no one else saw

weapon); State v. Carter, 681 S.W.2d 587, 589 (Tenn. Crim. App. 1984) (“The

defendant’s open and visible use of the blackjack was a display of the weapon,

regardless of whether the victim or any of the witnesses saw it. The weapon was

there to be seen had anyone happened to look in that direction.”).



      We do not, however, view the standard definition of “exhibit” to be by itself

dispositive. We must consider that word in context. The disclosure statute defines

“disclose” as including “exhibit to 5 or fewer persons.” D.C. Code § 22-3051(1)

(emphasis added). The prepositional phrase “to 5 or fewer persons” at least arguably

could be understood to suggest that some specific person or persons must actually

have seen the image at issue. Cf. Home Loan Servs., Inc. v. Moskowitz, 920 N.Y.S.2d

569, 570 (App. Div. 2011) (per curiam) (nailing notice to quit on door of property
                                          14


did not suffice to meet statutory requirement that notice be “exhibited to” occupant).

On the other hand, one could reasonably interpret this language as requiring only

that the image at issue have been made viewable to at least one person, even if that

person did not actually see the image. (We note that we accept for purposes of this

opinion the parties’ agreement that the statute requires disclosure to at least one

person other than the defendant and the person depicted in the image at issue; we

also note that there is no dispute in this case as to the mens rea requirements of the

unlawful-disclosure statute, and we therefore have no occasion to address those

requirements.)



      Because the phrase “exhibit to” in isolation does not resolve our inquiry, we

turn to other relevant considerations. We initially consider three other contextual

indications as to the meaning of “exhibit to.” First, as previously noted, the

disclosure statute also defines “disclose” to include “transfer.” A standard definition

of “transfer” is “to carry or take from one person or place to another.” Webster’s

Third New International Dictionary 2426-27. Cf., e.g., Long v. United States, 623

A.2d 1144, 1147 (D.C. 1993) (for purposes of statute prohibiting distribution of

controlled substances, “transfer” means “to carry or take from one person or place

to another”) (internal quotation marks omitted). Thus, a defendant can violate the

unlawful-disclosure statute by transferring possession of a sexual image to a third
                                          15


party, and when that is done the offense is complete before the third party views the

image and even if the third party never does actually view the image. That being so,

one could reasonably think that “exhibit to” should be interpreted similarly, to reach

conduct that creates a risk that a third party would view the image but that has not

caused actual viewing to occur.



      Second, we look to the ordinary meaning of the defined term “disclose.” Cf.

generally, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (in interpreting provisions

defining “crime of violence,” courts “cannot forget that we ultimately are

determining the meaning of the term ‘crime of violence’”); Porter v. Harden, 891

N.W.2d 420, 427 (Iowa 2017) (“[W]hen the legislative definition of a term itself

contains ambiguity, we should hesitate before veering too far from the common

meaning of that term.”). Standard definitions of “disclose” include “to expose to

view” and “to make known.” Webster’s Third New International Dictionary 645.

The first of these definitions points in favor of imposing liability under the unlawful-

disclosure statute where a defendant places an image in public view, even if no one

can be proven to have actually seen the image. See Senne v. Village of Palatine, Ill.,

695 F.3d 597, 601-03 (7th Cir. 2012) (en banc) (police officer “disclose[d]” personal

information, within meaning of 18 U.S.C. § 2721(a) (2012), by placing parking

ticket containing personal information on windshield of parked car “in plain view
                                         16


on a public way,” “regardless of whether another person viewed the information”).

The latter definition, though, arguably tends to suggests that someone has to actually

become aware of the image.        Thus, the term “disclose” by itself also is not

dispositive.



      Third, we consider the broader statutory context. Unlawful disclosure is one

of three offenses created by the Criminalization of Non-Consensual Pornography

Act of 2014, D.C. Law 20-275, 62 D.C. Reg. 6646 (May 22, 2015) (now codified as

D.C. Code § 22-3051 et seq. (2019 Supp.)). The other two offenses are first-degree

unlawful publication, D.C. Code § 22-3053, which is a felony, and second-degree

unlawful publication, D.C. Code § 22-3054, which is a misdemeanor. For current

purposes, the key difference between unlawful publication and unlawful disclosure

turns on the meaning of “publish.”        Under the unlawful-publication statute,

“publish” is defined as “to transfer or exhibit to 6 or more persons, or to make

available for viewing by uploading to the Internet.” D.C. Code § 22-3051(5). That

definition also seems to point against interpreting “exhibit to” to require actual

viewing, because violation of the unlawful-publication statute does not require proof

that anyone actually viewed the image at issue. If an image is uploaded to the

Internet, the offense is complete even if the image is removed from the Internet
                                         17


before anyone actually views the image. That being so, it would seem incongruous

with the overall statutory scheme to interpret “exhibit to” to require actual viewing.



      We next turn to the legislative history of the Act. The Committee Report

discusses an illuminating hypothetical example, in which an ex-boyfriend tapes a

sexual photo of his ex-girlfriend to the front door of the elementary school where

she is a teacher. D.C. Council, Report on Bill 20-903 at 5-6 (Nov. 12, 2014). The

Report explains that the offense of felony publication “would be complete upon the

taping of the photo on the door where many people could view it. It would not matter

if the school janitor saw the photograph and removed it before others saw it.” Id.

As noted above, “publish” is defined as “to transfer or exhibit to 6 or more persons,

or to make available for viewing by uploading to the Internet.” D.C. Code

§ 22-3051(5). The example in the Committee Report clearly does not involve

uploading to the Internet. The example also does not involve a transfer to more than

six people. Thus, the example must be an instance of exhibiting to six or more

persons, which indicates that the Council did not view the phrase “exhibit to” as

requiring that an image be actually viewed by each person to whom an image is

made available for viewing.
                                          18


      Finally, we turn to considerations of statutory purpose and the consequences

of the competing interpretations. Mr. Roberts used sexual images of L.H. to coerce

and frighten L.H., leaving L.H. understandably angered and deeply upset. Mr.

Roberts’s conduct thus went directly to interests the Act was intended to protect.

See, e.g., Report on Bill 20-903 at 3 (citing testimony that “non-consensual

pornography is used as a weapon to shame, embarrass, degrade, control, and

punish”) (internal quotation marks omitted). We think it unlikely that the Council

intended to permit such conduct under the disclosure statute as long as no one (other

than the defendant and the person depicted in the image) ended up seeing the images.



      Taken as a whole, the foregoing considerations lead us to conclude that the

trial court correctly refused to instruct the jury that the unlawful-disclosure statute

(and more specifically “exhibit[ing] to” under the disclosure statute) requires proof

that someone other the defendant and the person depicted actually viewed the sexual

image at issue.



      We are not persuaded by Mr. Roberts’s arguments to the contrary. First, Mr.

Roberts points out that the Committee Report’s examples of violations of the

unlawful-disclosure statute involve instances in which a third party actually viewed

a sexual image. The Report explains, however, that the examples in the Report are
                                           19


not intended to be exhaustive. Report on Bill 20-903 at 4 n.16 (“Please note that all

hypotheticals provided in this report are for explanatory purposes only and should

not be construed as an exhaustive example of all the ways in which the elements of

the offenses created by Bill 20-903 may be satisfied.”). See also, e.g., Pittston Coal

Grp. v. Sebben, 488 U.S. 105, 115 (1988) (“It is not the law that a statute can have

no effects which are not explicitly mentioned in its legislative history . . . .”).



      Second, Mr. Roberts argues that if “exhibit to” includes making images

available for viewing, then the language about uploading to the Internet in the

unlawful-publication statute is surplusage, because it would already have been clear

that uploading images to the Internet makes the pictures available for viewing. We

disagree. Including the language about the Internet in the unlawful-publication

statute makes explicit something that otherwise would not necessarily have been

entirely clear:    that uploading images to the Internet violates the unlawful-

publication statute, and thus is potentially a felony, without the need for a case-

specific inquiry into the number of people to whom the images were made available

for viewing.



      Finally, although Mr. Roberts does not invoke the rule of lenity, we have

considered that rule. “The rule of lenity . . . is a secondary canon of construction,
                                           20


and is to be invoked only where the statutory language, structure, purpose, and

history leave the intent of the legislature in genuine doubt.” J.P., 189 A.3d at 222

(internal quotation marks omitted). For the reasons we have explained, the rule of

lenity does not tip the balance in this case.



      In sum, we hold that unlawful disclosure can include making a sexual image

available for viewing even if the image is not actually viewed by anyone other than

the defendant and the person depicted in the image. The trial court’s instruction on

this point was therefore not erroneous.



                                           C.



      Mr. Roberts’s second objection is that the unlawful-disclosure instruction did

not make clear that the unlawful-disclosure statute requires that the defendant have

disclosed the sexual image at issue to a person other than the person depicted in the

image. The United States agrees that a defendant must have disclosed a sexual image

to a third party to violate the unlawful-disclosure statute but argues that the jury

instructions did not suggest otherwise. We agree with Mr. Roberts.
                                           21


       Assuming without deciding that the unlawful-disclosure statute would be

violated only by disclosure to someone other than L.H., we find that the jury

instructions did not adequately convey that principle. When reviewing a claim of

instructional error, we examine the instructions “in their entirety.” Buskey, 148 A.3d

at 1205-06 (internal quotation marks omitted). By way of background, the unlawful-

disclosure instruction was initially proposed by the United States, which at the time

took the position that disclosure solely to L.H. was sufficient to prove that Mr.

Roberts had violated the unlawful-disclosure statute. Mr. Roberts’s counsel objected

to the instruction in part on the ground that it suggested that disclosure solely to L.H.

would suffice. The trial court overruled that objection, stating that it did not think

that violation of the unlawful-disclosure statute required that the images have been

shown to a third person. The unlawful-disclosure instruction thus apparently was

drafted to permit the jury to find guilt if the images at issue were exhibited only to

L.H.



       In our view, that is also the most natural reading of the part of the jury

instructions focused most directly on this issue. That passage stated, “two, Lamont

Roberts exhibited the sexual image to another person or exhibited the sexual image

in a place where it is viewable to another person.” A juror could quite reasonably
                                           22


conclude that “another person” in that passage meant “a person other than Mr.

Roberts,” who was the only person named in the passage.



      As the United States notes, however, we must consider the instructions as a

whole. The United States points out that L.H. was mentioned by name in other parts

of the unlawful-disclosure instruction. Therefore, the United States argues, the jury

would naturally have inferred that “another person” in the second element of the

unlawful-disclosure instruction meant “someone other than Mr. Roberts or L.H.,”

who were the two people named in the unlawful-disclosure instruction as a whole.

That interpretation is possible, but we have no particular reason to suppose that the

jury adopted it. To the contrary, we think the more likely outcome is that the jury

would have given this instruction the meaning that was apparently intended: that

“another person” meant someone other than Mr. Roberts, the person whose name

was most proximate to “another person” in the instruction on this particular element.

Cf., e.g., Cherry v. District of Columbia, 164 A.3d 922, 926 (D.C. 2017)

(“[O]rdinarily, qualifying phrases are to be applied to the words or phrase

immediately preceding and are not to be construed as extending to others more

remote.”) (internal quotation marks omitted).      We therefore conclude that the

instruction on this point was erroneous.
                                          23


                                          D.



      We next consider whether the error was harmless beyond a reasonable doubt.

Carrell, 165 A.3d at 328. We conclude that, as to all but one of the unlawful-

disclosure counts, the United States has failed to establish that the error was harmless

beyond a reasonable doubt.



      Mr. Roberts was convicted of five counts of unlawful disclosure: Count 7

(the image taped to L.H.’s door and discovered by L.H.’s mother); Count 8 (the

image placed on L.H.’s car at the laundromat); Count 9 (the image held up out of

Mr. Roberts’s car window at the traffic light); Count 10 (the image folded and placed

in L.H.’s gate); and Count 11 (the image placed on L.H.’s car outside her home).



      We find that the instructional error was harmless for Count 7. L.H.’s mother

testified that she saw the sexual image of L.H. taped to the front door, and that

testimony was not meaningfully disputed at trial. We are confident beyond a

reasonable doubt that the jury’s guilty verdict on Count 7 did not rest on the theory

that the image at issue was exhibited only to L.H.
                                          24


      The same cannot be said of the remaining counts. As discussed in greater

detail infra, the evidence presented on the remaining counts would permit a

reasonable jury to conclude that the images at issue in those counts were made

available for viewing by persons other than L.H. The evidence on that point,

however, was far from overwhelming.            Although L.H. noted the presence of

bystanders and the public nature of some of the areas where the images were shown,

no witness other than L.H. testified to having seen these images or to having been in

a position to do so. Conversely, there was overwhelming evidence that the images

were exhibited to L.H. Moreover, the United States’s closing argument was at best

ambiguous as to whether a conviction for unlawful disclosure could rest on

exhibiting images only to L.H. The United States did not explicitly disavow that

theory to the jury, which is unsurprising given that the United States had successfully

advocated the theory to the judge only minutes before. The United States did refer

to the public nature of several of the incidents, but also used language that in

isolation seemed to imply that disclosure to L.H. would suffice: “We have to show

you that the defendant exhibit[ed] the image to another person or in a place that is

viewable to another person. Her front door. Her gate. Her windshield.”




      We note in particular that the jury instructions required the jury to find beyond

a reasonable doubt that Mr. Roberts exhibited the images at issue to another person
                                         25


“on purpose.” The jury was not told that “another person” could not include L.H.,

and the jury could reasonably have believed that it sufficed that Mr. Roberts intended

to make the images viewable to L.H. There was evidence that would have permitted

the jury to infer that Mr. Roberts also intended to make the images viewable to

others, but that evidence too was not overwhelming. L.H. testified that the photo

left in the gate was tucked and folded and “not . . . visible”; there was no explicit

testimony that the photo left on L.H.’s car windshield when her car was in the

laundromat had been placed on the windshield face up; there was no specific

evidence that Mr. Roberts would have been aware that nearby pedestrians or drivers

were close enough that they could have seen the photo that appellant briefly held

outside his driver’s side window and that L.H. could see from her car that was

stopped alongside appellant’s car; and there was no evidence as to how long the

photo left on L.H.’s windshield near her house had been there or whether appellant

would have had specific reason to expect that someone other than L.H. would see

the photo before L.H. retrieved the photo. In our view, the jury could have had a

reasonable doubt as to whether Mr. Roberts intended to make the images at issue in

the remaining counts viewable to persons other than L.H. Under the circumstances,

we cannot say beyond a reasonable doubt that the jury’s verdict on the remaining

counts would have been the same had the jury been instructed that disclosure had to

be to a person other than L.H.
                                          26




      This error cannot be rectified, as the United States suggests, by remanding the

remaining unlawful-disclosure counts for entry of judgment on the lesser-included

offense of attempted unlawful disclosure. Given the nature of the instructional error,

it is not clear beyond a reasonable doubt that the jury would have found that Mr.

Roberts attempted to exhibit the images at issue to anyone other than L.H.

Remanding for entry of judgment on the attempted offense would thus be

unwarranted. We therefore vacate Mr. Roberts’s convictions on counts 8-11.



                                          III.



      Mr. Roberts contends there was insufficient evidence to support his

convictions for unlawful disclosure. We disagree.



                                          A.



      When assessing the sufficiency of the evidence, we “view the evidence in the

light most favorable to the verdict, giving full play to the right of the fact-finder to

determine credibility, weigh the evidence, and draw justifiable inferences of fact.”

Miller v. United States, 209 A.3d 75, 77 (D.C. 2019) (brackets and internal quotation
                                         27


marks omitted). “The evidence is sufficient if, after viewing it in the light most

favorable to the verdict, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Id. (brackets and internal

quotation marks omitted). Even where a conviction is vacated on other grounds, we

consider challenges to the sufficiency of the evidence, to ensure that retrial is not

barred by the Double Jeopardy Clause. Hobbs v. United States, 18 A.3d 796, 802

(D.C. 2011).



                                         B.



      In part, Mr. Roberts’s sufficiency arguments rest on his contentions regarding

the proper interpretation of the unlawful-disclosure statute. To the extent that Mr.

Roberts argues that there was insufficient evidence that some of the images were

actually viewed by someone other than L.H., that argument is foreclosed by our

holding earlier in this opinion that unlawful disclosure can include making an image

available for viewing. Supra at 12-20. The key question is thus whether there was

sufficient evidence at trial for the jury to conclude that Mr. Roberts made the images

available for viewing by people other than L.H. We conclude the evidence on this

point was sufficient on all of the unlawful-disclosure counts.
                                         28


      With regard to Count 7, Mr. Roberts acknowledges L.H.’s mother’s testimony

that she saw the sexual image of her daughter taped to the door. A reasonable juror

could find that in this incident Mr. Roberts made a sexual image available for

viewing by L.H.’s mother.



      For Count 8, L.H. testified that there were other people at the laundromat

when she found the explicit image on her car in the parking lot; that other cars were

parked in the parking lot; and that people outside the laundromat were watching as

she confronted Mr. Roberts and took photos of him while he laughed and held a

stack of explicit images of her out of his car window. The police officer who

responded to the scene corroborated L.H.’s testimony, stating that there were at least

five cars in the parking lot and at least ten people inside the laundromat. A

reasonable juror could find that in this incident Mr. Roberts made a sexual image

available for viewing to a number of bystanders.



      For Count 9, L.H. testified that the intersection where Mr. Roberts held the

explicit image of her out of his car window was near to the shopping center where

the laundromat was located. She stated that there were cars stopped behind her and

Mr. Roberts and other cars passing through the intersection. L.H. also took photos

of Mr. Roberts while he held the images of her out of his window, and those photos
                                         29


were admitted into evidence. A reasonable juror could find that in this incident Mr.

Roberts made a sexual image available for viewing to a number of bystanders.



      For Count 10, L.H. testified that the explicit image she found in her front gate

was not immediately visible. Still, the gate itself opened onto the public sidewalk

of a residential street which had “some” foot traffic in the evening. The paper with

the image, while folded, was visible from the street and could have been grabbed by

anyone walking by. Moreover, the piece of paper with the image could easily have

been taken and viewed by any of the other occupants of L.H.’s home, including

L.H.’s mother and children. A reasonable juror could find that in this incident Mr.

Roberts at a minimum made a sexual image available for viewing to the other

occupants of L.H.’s home.



      Finally, for Count 11, L.H.’s car was parked on the public residential street

where she lives when she found the explicit image on her windshield. The piece of

paper on which the image was printed was prominently enough placed that L.H. was

able to see it from across the street when she opened her front door at around 8 a.m.

L.H.’s street has “very heavy” morning traffic from as early as 6 a.m. onward. A

reasonable juror could find that in this incident Mr. Roberts made a sexual image
                                          30


available for viewing to a number of bystanders as well as to the other occupants of

L.H.’s home.



      In sum, viewing the evidence in the light most favorable to the verdict, a

rational trier of fact could find beyond a reasonable doubt that Mr. Roberts made the

images at issue available for viewing by individuals other than L.H. We note that

the trial court, although not the factfinder in this case, reached the same conclusion.

In discussing the jury instructions with counsel, the trial court noted that the places

in which the images were displayed by Mr. Roberts were “clearly public places” and

that there was “not a question” as to whether the images were “visible to the public

view.” A reasonable jury could reach the same conclusion.



                                          C.



      Mr. Roberts also argues that (1) L.H. was not sufficiently “identified or

identifiable” with respect to the images at issue and (2) the images for Counts 8-11

were not adequately identified at trial. We find neither argument persuasive.
                                          31




                                          1.



      We first consider whether there was adequate evidence that L.H. was

“identified” within the meaning of the unlawful-disclosure statute. The unlawful-

disclosure statute prohibits disclosure of a sexual image of another “identified or

identifiable person.” D.C. Code § 22-3052(a). As to each unlawful-disclosure

count, either L.H., her mother, or both identified L.H. as the person depicted in the

image at issue. For Count 7, L.H. and her mother both identified L.H. as the

individual depicted in the sexual image that was taped to the door of their home. For

Count 8, L.H. testified that the picture she pulled off of her windshield was a sexually

explicit image of her, that Mr. Roberts had written her name on the picture, and that

the stack of explicit pictures Mr. Roberts held out his window in the laundromat

parking lot were also of her. For Count 9, L.H. testified that the explicit picture Mr.

Roberts held out of his car window at the intersection was of her. For Count 10,

L.H. testified that the explicit image she found folded and placed on her front gate

was one of the pictures that Mr. Roberts had previously shown her. Although L.H.

did not state which specific sexual image of her had been placed on the gate, she

testified at other points that Mr. Roberts had taken three sexually explicit photos of

her and she identified herself in all three. Finally, for Count 11, L.H. testified that
                                         32


the photo she found on her windshield was one of the sexually explicit pictures of

her.



       In sum, for all of the counts, there was direct testimony by L.H. identifying

herself as the person depicted in each of the sexually explicit images at issue.

Presented with this testimony, as well as the other contextual evidence that L.H. was

the person depicted in the images (including, for example, L.H.’s mother’s testimony

that the image in Count 7 was of L.H.; the fact that L.H.’s name was written on some

of the images; and the fact that some of the images were displayed on L.H.’s car or

on or near her home), a reasonable jury could conclude that the person depicted in

the images displayed by Mr. Roberts was “identified” within the meaning of the

unlawful-disclosure statute.



       We are not persuaded by Mr. Roberts’s arguments to the contrary. At times

Mr. Roberts has seemed to suggest that a sexual image can be “identified or

identifiable” for purposes of the unlawful-disclosure statute only if the person

depicted in the image is or can be identified from the image itself, without regard to

the context in which the image is disclosed. At oral argument, however, Mr. Roberts

acknowledged that the context in which an image was disclosed may be considered

in determining whether the image was “identified or identifiable.” We agree with
                                          33


Mr. Roberts’s acknowledgment at oral argument.           Nothing in the text of the

unlawful-disclosure statute suggests that the person depicted in a sexual image must

be identified or identifiable based on the image itself rather than based on the

combination of the image and the circumstances surrounding the disclosure of the

image. We would be reluctant to read in such a limitation without any textual basis.

Cf. generally, e.g., Gomez v. United States, 490 U.S. 858, 874 (1989) (“It is

incongruous to assume that Congress implicitly required such review for jury

selection yet failed even to mention that matter in the statute.”). More importantly,

such a limitation would lead to absurd consequences. Under that view of the statute,

a defendant could with impunity disclose a sexual image that by itself was not

identifiable, but then tell everyone orally who was depicted in the image. We decline

to read in an implicit limitation that would permit easy circumvention of the

unlawful-disclosure statute’s evident purpose. See generally, e.g., Wade v. United

States, 173 A.3d 87, 95 (D.C. 2017) (“When interpreting statutes, we assume that

the legislature acted logically and rationally and we avoid interpretations of statutes

which lead to implausible results.”) (internal quotation marks omitted).



      Mr. Roberts argues that the image at issue must have been identified or

identifiable to someone in addition to the person depicted in the image. We hold to

that contrary that it suffices that the person depicted in a sexual image can identify
                                          34


himself or herself in the image. (We express no view about the proper disposition

of cases in which the image is identified or identifiable only by the defendant.)



      Nothing in the text of the unlawful-disclosure supports imposition of a

requirement that the image be identified or identifiable by someone in addition to

the person depicted in the image. As previously noted, we would be reluctant to

read in such a limit in the absence of textual support in the statute. Gomez, 490

U.S.at 874. We also are uncertain as to how such a limitation would operate. In the

present case, for example, once L.H. identified herself to law enforcement (and later

to the jury) as the person depicted in the images, persons in addition to L.H. could

identify the images as depicting L.H. Thus, either (1) the proposed limitation would

have no practical significance or (2) there is an as-yet-unarticulated limitation on the

types of contextual information that could be considered in determining whether a

sexual image is “identified or identifiable” by someone in addition to the person

depicted in the image. We acknowledge that the interests the unlawful-disclosure

statute is designed to protect are at their zenith when third parties would know who

was depicted in the disclosed sexual images. But even if third parties would not

necessarily know who was depicted in such images, public disclosure of such images

would doubtless cause anguish to the person who knew that he or she was depicted

and thereby could be used to “shame, embarrass, degrade, control, and punish” that
                                           35


person. Report on Bill 20-903 at 3 (internal quotation marks omitted). We thus see

no basis for failing to interpret the statute, as it is written, to permit conviction when

the disclosed images are identified by the person depicted in the images.



                                           2.



      We also are satisfied that the images at issue were adequately identified at

trial. L.H.’s testimony, as described above, provided a sufficient basis for the jury

to conclude, on each count, that Mr. Roberts disclosed a sexual image depicting L.H.

To the extent that Mr. Roberts suggests that a physical copy of the actual image

alleged to have been disclosed must be introduced into evidence, a victim’s

testimony alone can be sufficient to support a conviction even in the absence of

corroborating evidence. McCoy v. United States, 781 A.2d 765, 769 (D.C. 2001).

To the extent that Mr. Roberts suggests that there may have been procedural errors

in the admission of certain photographic exhibits, any such errors would not affect

the sufficiency of the evidence. See Best v. United States, 66 A.3d 1013, 1019 (D.C.

2013) (“We evaluate sufficiency based on the evidence that was before the trial

court, even if it was admitted erroneously.”). Moreover, Mr. Roberts did not object

at trial to the admission of these exhibits, so we could reverse on this basis only if

the trial court had committed plain error warranting reversal despite the absence of
                                          36


objection in the trial court. See generally, e.g., Miller, 209 A.3d at 78 (claims raised

for first time on appeal are subject to plain-error review, which permits reversal only

if error was plain, affected substantial rights, and “seriously affect[ed] the fairness,

integrity, or public reputation of judicial proceedings”) (internal quotation marks

omitted). We see no such plain error in this case.



       In sum, we conclude that a rational jury assessing the evidence admitted at

trial could find Mr. Roberts guilty beyond a reasonable doubt on all five unlawful-

disclosure counts.



                                          IV.



       Finally, we address Mr. Roberts’s assertion that the evidence was insufficient

to support his three threats convictions.       We conclude that the evidence was

sufficient.



       To support a threats conviction, the prosecution must prove beyond a

reasonable doubt that the defendant (1) communicated with another person in a

manner that an “ordinary hearer would reasonably” understand to be a threat to do

bodily harm and (2) “acted with the purpose to threaten or with knowledge that [the
                                         37


defendant’s] words would be perceived as a threat.” Carrell, 165 A.3d at 319-20,

325 (brackets and internal quotation marks omitted). (Carrell left open whether it

would suffice that the defendant acted recklessly with respect to the possibility that

the communication at issue would be taken as a threat, id. at 324, and we also have

no occasion to address that issue.)



      Two of the communications at issue facially threaten bodily harm to L.H. The

August 22, 2015 voicemail stated “When I see you baby, I’m a try to kill you Bitch.”

The October 3, 2015 email sent by Mr. Roberts to L.H. stated “I’ll see u tomorrow

bitch die with your mother and kids.” Even if it is true, as Mr. Roberts argues, that

“die bitch” can be “a common urban phrase” said to persons one does not like, a jury

could still reasonably conclude that an ordinary person in L.H.’s position would read

both of these communications as intentional threats to do bodily harm.            See

generally, e.g., Rose v. United States, 49 A.3d 1252, 1259 (D.C. 2012) (“When two

or more inferences can be reasonably deduced from the facts, the reviewing court is

without power to substitute its deductions for those of the [factfinder].”) (internal

quotation marks omitted). That is particularly true given that the jury was required

to consider those communications in light of the entire course of Mr. Roberts’s prior

conduct, which had been threatening and violent. See generally, e.g., Gray v. United

States, 100 A.3d 129, 134, 136 (D.C. 2014) (jury assessing how ordinary hearer
                                          38


would interpret statements must consider the “full context in which the words are

spoken,” including “the relationship between the speaker and hearer, and their

shared knowledge and history”) (internal quotation marks omitted).



      The third communication, on August 28, 2015, is a slightly closer call. Mr.

Roberts’s statements in that voicemail -- “I’m going to make your life a living

fucking hell” and “You going to answer, watch” -- do not in isolation unambiguously

threaten bodily harm. Here too, however, the jury could view the remark as an

intentional threat to inflict bodily harm, given Mr. Roberts’s prior conduct. See, e.g.,

Andrews v. United States, 125 A.3d 316, 325 (D.C. 2015) (“There may be all the

more reason to construe an ambiguous statement as threatening when it is made in

the context of a volatile or hostile relationship”; concluding that reasonable jury

could find text messages stating “You done fucked up you stupid bitch,” “That’s

your ass,” and “I can’t wait till you get home,” would have conveyed reasonable fear

of bodily harm) (internal quotation marks omitted).



      Mr. Roberts argues that L.H.’s responses to his communications indicated that

L.H. did not actually understand his words to threaten bodily harm. Whether L.H.

subjectively felt such fear, however, is not determinative of whether Mr. Roberts’s

words would convey fear of bodily harm to the ordinary hearer under the
                                          39


circumstances. Gray, 100 A.3d at 135. Moreover, there was evidence that L.H. was

frightened by Mr. Roberts’s conduct and communications to her. L.H. also testified

that Mr. Roberts was “getting angrier and angrier” and gave the impression that he

would not give up and would “do anything he [could] to make [her] life a living

hell.” Presented with this evidence, a jury could reasonably conclude that all three

of the communications at issue would have conveyed fear of bodily harm to an

ordinary person in L.H.’s circumstances.



      Finally, Mr. Roberts argues that he lacked the requisite mens rea. Specifically,

he asserts that his communications were intended only as threats to “embarrass,

humiliate, or upset [L.H.]” and that L.H.’s responses supported his reasonable belief

that she was not taking him seriously and did not believe he posed any physical threat

to her or her family. Viewing all of the previously discussed evidence in the light

most favorable to the verdict, we are confident that a reasonable jury could conclude

otherwise and find beyond a reasonable doubt that Mr. Roberts acted with the

purpose to threaten bodily harm to L.H.



      For the above reasons, we affirm Mr. Roberts’s conviction for unlawful

disclosure on Count 7. We vacate Mr. Roberts’s convictions for unlawful disclosure
                                         40


on Counts 8-11 and remand for further proceedings as to those convictions. We

affirm Mr. Roberts’s threats convictions.



                                So ordered.



      THOMPSON, Associate Judge, concurring in part and dissenting in part: I join

Judge McLeese’s opinion for the court except for the portion thereof that vacates

appellant’s conviction based on the incident in which he left one of the images of

L.H., apparently face up, on the windshield of appellant’s car in the parking lot of

the busy laundromat in the busy Penn-Branch Shopping Center (Count 8 of the

indictment). The evidence was that other cars and other people were in the parking

lot. I see no reasonable probability that reasonable jurors, properly instructed that

to find appellant guilty of unlawful disclosure they must find that he made the image

available for viewing by a third party (and not just available for viewing by

complainant L.H.), could have failed to find that appellant made the image available

for viewing by third parties who were outside in the area of the laundromat (even if

no third party actually saw the image). In other words, “it appears beyond a

reasonable doubt that the [instructional] error complained of did not contribute to

the verdict obtained.” Neder v. United States, 527 U.S. 1, 15 (1999) (internal
                                    41


quotation marks omitted). I would therefore affirm appellant’s conviction on

Count 8.
