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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CF-814

                       JARRELL A. GAYDEN, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                        Appeal from the Superior Court
                          of the District of Columbia
                                (CF2-15105-12)

                        (Hon. John McCabe, Trial Judge)

(Submitted October 10, 2014                          Decided October 29, 2014)*

      George E. Rickman was on the brief for appellant.

       Ronald C. Machen Jr., United States Attorney, Elizabeth Trosman,
Chrisellen R. Kolb, Tejpal Chawla, and Stephen F. Rickard, Assistant United
States Attorneys, were on the brief for appellee.

      Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and REID,

      *
           The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court’s
grant of appellant’s motion to publish. The official citation to Gray v. United
States has been added, as well as a footnote which discusses Lewis v. United
States, a case cited in Gray. Finally, a clause has been added at the end of the
opinion to make it clear that on remand the trial court should enter judgment of
acquittal as to the APO offense.
                                          2

Senior Judge.

      REID, Senior Judge: After a bench trial, appellant, Jarrell A. Gayden, was

convicted of assault on a police officer (APO), and attempted threats.1 For the

reasons stated below, we affirm in part and reverse in part.



                             FACTUAL SUMMARY



      The government presented the testimony of MPD Officer Arthur Kimball

who stated that he was conducting his regular patrol on August 28, 2012, in the

4400 block of Ponds Street in the Northeast quadrant of the District of Columbia,

when he saw Mr. Gayden standing in the alley between Ponds and Quarles Streets.

Due to several complaints about drug activity in that alley, he approached Mr.

Gayden and told him that “he needed to move along” and “not to loiter in [that]

area.” Mr. Gayden walked away and began cursing at the officer. As Officer

Kimball followed Mr. Gayden out of the alley, he called for additional police

assistance because he was working without a partner; Mr. Gayden “was being loud


      1
        The applicable code provisions are: D.C. Code § 22-405 (b) (2012 Repl.)
(APO), and D.C. Code §§ 22-407, -1803 (attempted threats). The trial court
sentenced Mr. Gayden under the Youth Rehabilitation Act to concurrent terms of
180 days of incarceration on each offense, and an assessment of $100.00 for the
Victims of Violent Crime Compensation Fund.
                                          3

and boisterous,” and several people were in the area “who were getting a little riled

up.” He also heard Mr. Gayden say, “Are you calling for back-up, I would if I

were you before what happen[ed] to your partner happens to you[;] you can get

hit.”2 Officer Kimball explained that based on his experience and knowledge of

the community, “get hit” referred to someone getting murdered. In light of Mr.

Gayden’s statement, Officer Kimball believed that Mr. Gayden was threatening to

take his life.



       Upon the arrival of five additional officers, Mr. Gayden was arrested for the

alleged threat made against Officer Kimball. Mr. Gayden did not resist when

Officer Kimball and another officer placed him in handcuffs. At that point, Mr.

Gayden’s mother appeared in the alley “with at least 20 to 30 other individuals . . .,

started screaming obscenities and yelling.” According to Officer Kimball, Mr.

Gayden “continually tried to pull away from [the officers] and was inciting the

crowd, telling, screaming, get off me, get them off me, and other obscenities.”


       2
          On January 26, 2012, Officer Kimball and his former partner, Officer
Robinson, attempted a stop of Mr. Gayden and his brother, Kelsey Pixley, in that
same alley; they were standing near a dumpster known to be a “stash spot for
narcotics.” The attempted stop led to a foot chase of Mr. Pixley by Officer
Robinson and ultimately resulted with Mr. Pixley on top of Officer Robinson
pointing two guns to his head. When Mr. Pixley took flight, Officer Robinson shot
him in the leg. Mr. Pixley entered a guilty plea to the offense, and was
incarcerated at the time of Mr. Gayden’s trial.
                                        4

Officer Kimball put his hand on Mr. Gayden’s bicep.           Mr. Gayden “was

continually trying to pull away from [the officers], struggling, shrugging his

shoulders . . ., screaming, . . . just screaming at the crowd.” Mr. Gayden said

“[s]omething to the effect of, f**k the police, f**k you, Kimball, he’s always

f**k**g harassing me, I didn’t do s**t.” In response to the prosecutor’s question

about what the crowd was doing, Officer Kimball declared, “They were getting

increasingly agitated. His mother was . . . screaming at us. There were several

other younger females who were screaming at us, some males in the area who were

yelling, again, just cursing at us, telling us we were doing too much, . . . we’re

f**k*d up, things like that.” The officers placed Mr. Gayden on the ground.

Shortly afterwards, a transportation vehicle arrived and Mr. Gayden was taken to

the police station.3



      The trial court credited Officer Kimball’s testimony that when he was

      3
         Mr. Gayden testified on his own behalf and also presented testimony from
Ms. Dickey Nelson, his mother’s friend and neighbor, and Yolanda Gayden, his
mother. Ms. Nelson stated that after the police handcuffed Mr. Gayden, the police
were “pushing him” and Mr. Gayden was “wiggling his body” or “twisting his
body sort of at the hips” and “moving . . . [his] shoulders back and forth.” Mr.
Gayden testified that when Officer Kimball approached him he was sitting in the
alley by his house and the basketball court. He walked away from the officer but
Officer Kimball grabbed him. He denied making a statement about his brother and
Officer Kimball’s partner, or saying anything to the crowd. He claimed that
Officer Kimball pushed him into another officer, pushed his shoulder, and he (Mr.
Gayden) “turned back and hit the officer.”
                                          5

calling for backup, Mr. Gayden said to him, “are you calling for backup, I would if

I were you, [before] what happened to your partner happens to you, you can get

hit.” The court determined that Officer Kimball’s interpretation of Mr. Gayden’s

words about the incident between Mr. Gayden’s brother and Officer Kimball’s

partner was reasonable. Consequently the trial court found Mr. Gayden guilty of

attempted threats.



      With respect to the APO charge, the trial court credited the testimony of

Officer Kimball as to what Mr. Gayden was doing and saying and what the crowd

was saying. The court declared that “there was a closer call on the assault of a

police officer count because the testimony was kind of limited to pulling away with

his arms while being held by Officer Kimball.” The court recognized that “just

speech is generally not considered an assault on a police officer.” Nevertheless,

the court declared, “certainly, the speech can be considered in determining whether

all of the actions constitute resisting or intimidating an officer.” Thus, the court

concluded,


             even the little bit of sort of wiggling and pulling away
             somewhat from Officer Kimball, who had his … hand …
             on Mr. Gayden’s bicep, and that sort of small amount of
             wiggling that was described by Officer Kimball and Ms.
             Nelson, combined with the cursing and loudly screaming
             at the crowd and the police officers, in the [c]ourt’s view,
             does constitute assault on a police officer.
                                         6



Therefore, the trial court found Mr. Gayden guilty of the APO charge.



                                     ANALYSIS



      Mr. Gayden raises sufficiency of the evidence claims for both offenses. He

 argues that his APO conviction was based on mere speech and “conduct that was

 the result of justifiable cause.”    He claims that the trial court erroneously

 combined these two insufficient theories, which do not meet the standard of proof

 beyond a reasonable doubt. Mr. Gayden also argues that his attempted threats

 conviction was based on conditional language, and lacked any indication that he

 actually planned to harm Officer Kimball.



      “In a sufficiency challenge we view the evidence in the light most favorable

 to the government, draw all reasonable inferences in the government’s favor, and

 defer to the factfinder’s credibility determinations.” Ruffin v. United States, 76

 A.3d 845, 849 (D.C. 2013) (quoting In re J.S., 19 A.3d 328, 330 (D.C. 2011)).

 “Where the fact-finder is a trial judge, we will not reverse a conviction unless ‘an

 appellant has established that the trial court’s factual findings are plainly wrong
                                          7

 or without evidence to support them.”’ Jones v. United States, 16 A.3d 966, 970

 (D.C. 2011) (quoting In re D.T., 977 A.2d 346, 356 (D.C. 2009)).



 APO Claim



      The government was required to prove that Mr. Gayden’s conduct violated

D.C. Code § 22-405 (b), which states, in part, that “[w]hoever without justifiable

and excusable cause, . . . assaults, . . . resists, . . . impedes, . . . opposes, . . .

intimidates a law enforcement officer . . . while [he] is engaged in the performance

of his . . . official duties shall be guilty of ” APO. See Dickens v. United States, 19

A.3d 321, 323 (D.C. 2011) (“The relevant language in D.C. Code § 22-405 (b)

authorizes imprisonment for someone who ‘assaults, resists, opposes, intimidates,

or interferes with a law enforcement officer.’”). In this case, the trial court based

its finding of an APO violation on the theory that Mr. Gayden both “resisted” and

“intimidated” Officer Kimball.



      “The District’s APO statute does not criminalize every refusal to submit to a

police officer or every prevention or hindrance of an officer in his duties.” Ruffin,

supra, 76 A.3d at 850 (quoting In re J.S., 19 A.3d 328, 331 (D.C. 2011)). “To

constitute ‘resisting’ a police officer, a person’s conduct must go beyond speech
                                         8

and mere passive resistance or avoidance, and cross the line into active

confrontation, obstruction or other action directed against an officer’s performance

in the line of duty by actively interposing some obstacle that precluded the officer

from questioning him or attempting to arrest him.”       Id. (citation and internal

quotation marks omitted)). “Intimidation, by definition, generates fear or employs

various forms of coercion short of physical force or injury.” Dickens, supra, 19

A.3d at 324 (footnote omitted). To determine whether a defendant has intimidated

an officer within the meaning of D.C. Code § 22-405 (b), we ask whether “any

police officer in [the officer’s] situation would have reasonably been in fear of –

and thus intimidated by” – some obstacle that prevented the officer from

performing his duties. Id. at 325.



      In light of our case law we are constrained to reverse Mr. Gayden’s APO

conviction. We note at the outset that the trial court believed the APO finding was

a close call because “there wasn’t any testimony about a huge amount of physical

movement by Mr. Gayden,” and “the testimony was kind of limited to pulling

away with his arms while being held by Officer Kimball.” Nevertheless, the trial

judge declared,


             even the little bit of sort of wiggling and pulling away
             somewhat from Officer Kimball, who had … his hand …
             on Mr. Gayden’s bicep, and that sort of small amount of
                                           9

             wiggling that was described by Officer Kimball and Ms.
             Nelson, combined with the cursing and loudly screaming
             at the crowd and at the police officers, . . . does constitute
             assault on a police officer.


We conclude that “the little bit of sort of wiggling and pulling away” after Mr.

Gayden had already been restrained in handcuffs without any resistance was

insufficient to constitute “resisting” under the APO statute. Furthermore, under the

circumstances of this case, the combination of the “little bit of . . . wiggling and

pulling away” combined with the words spoken by Mr. Gayden and the onlookers,

was insufficient, in our view, to establish intimidation.



      This case is unlike Dickens, supra, where appellant yelled to his pit bull,

“get them, get him,” and the pit bull bit the officer. There we concluded that

appellant’s words were designed “to interpose the obstacle of his pit bull using an

attack command.” 19 A.3d at 323. We further said appellant was guilty of APO

because he intimidated the officer, that is, “any police officer in [the officer’s]

situation would have reasonably been in fear of – and thus intimidated by – a pit

bull attack from appellant’s words of incitement.” Id. at 325. But here, at the time

Mr. Gayden’s mother and 20 to 30 other individuals appeared on the scene, five

additional officers had arrived to assist Officer Kimball and Mr. Gayden had been

placed in handcuffs, without a struggle. The government’s theory, accepted by the
                                        10

trial court, was that Mr. Gayden used the crowd as an obstacle and to aid Mr.

Gayden’s attempt to resist and to get away from the custody of the officers.

Although Mr. Gayden yelled to the crowd, “get off me, get them off me,” and

cursed the police, and Officer Kimball testified that Mr. Gayden’s mother, several

younger females, and some males were yelling and cursing, the officer did not

indicate that the crowd had moved in any way in the direction of the officers, and

we cannot say that, under the totality of the circumstances, the crowd was incited

by Mr. Gayden to try to aid him in becoming free from custody; nor can we say

that any police officer in Officer Kimball’s situation (especially with the presence

of five additional officers and with no indication of crowd movement toward the

officers) would have reasonably been in fear of the persons who had gathered, or

would have been intimidated by the possibility of a crowd attack due to Mr.

Gayden’s words.



      In short, on this record we are unable to say that Mr. Gayden’s conduct went

“beyond speech and mere passive resistance or avoidance and cross[ed] the line

into active confrontation” or “active[] interposing [of] some obstacle” that

precluded Officer Kimball from, or “thwart[ed]” him in performing his duties; nor

can we conclude under the circumstances of this case, that the government’s proof

established Mr. Gayden’s resistance or intimidation of Officer Kimball in the
                                        11

performance of his official duties. Ruffin, supra, 76 A.3d at 850; Dickens, supra,

19 A.3d at 324-25; see also Coghill v. United States, 982 A.2d 802, 806 (D.C.

2009) (citing In re C.L.D., 739 A.2d 353, 357-58 (D.C. 1999)). Consequently, we

reverse Mr. Gayden’s APO conviction.



Attempted Threats



      We are satisfied that the government’s proof was sufficient to prove Mr.

Gayden guilty under the attempted threats statutes. He contends that the statement,

“are you calling for back-up, I would if I were you before what happens to your

partner happens to you, you can get hit” only expressed a possible or conditional

outcome.



      Under the threats to do bodily harm statute, the government must prove the

following elements beyond a reasonable doubt: “that the defendant uttered the

words to another person; that the words were of such a nature as to convey fear of

serious bodily harm or injury to the ordinary hearer; that the defendant intended to

utter the words which constitute the threat.” Carrell v. United States, 80 A.3d 163,

167 (D.C. 2013) (citing Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C.

1982)). Here, Mr. Gayden’s words were explicit, (a) invoking a prior incident in
                                         12

which his brother held Officer Kimball’s partner on the ground while his brother

pointed two guns toward the partner’s head, and (b) telling Officer Kimball that

what happened to his partner in that incident could happen to him – meaning that

he “could get hit,” that is, murdered; and there was no evidence that he was joking

when he uttered the words. Applying the legal principle governing threats to do

bodily harm, there is no doubt that Mr. Gayden uttered the words attributed to him

and the trial court credited Officer Kimball’s testimony. Nor is there any doubt on

this record that Mr. Gayden’s words were of such a nature as to convey fear of

bodily harm to the ordinary hearer, and that Mr. Gayden intended to utter the

words that constituted the threat to Officer Kimball. Hence, we agree with the trial

court’s finding that Mr. Gayden was guilty of a violation of the attempted threats

statutes, based on Officer Kimball’s credited testimony and the context in which

Mr. Gayden’s statement was made, including the prior interaction between Mr.

Gayden, Officer Kimball, and Officer Robinson. See Jenkins v. United States, 902

A.2d 79, 86-87 (D.C. 2006) (the words “open the door” and “come out” were

sufficient to sustain attempted threats conviction in the context of a prior threat to

shoot); see also Carrell, supra, 80 A.3d at 164, 166, 171 (appellant properly

convicted of attempted threats when he placed both hands around the victim’s

throat and yelled, “I could kill you right now, I could f**k**g kill you.”); Gray v.

United States, 100 A.3d 129, 136-137 (D.C. 2014) (“There was no evidence that
                                         13

appellant was joking” when he said “‘I’m going to kill you,’ and made ‘a gun

motion’ with his fingers.”).4



      Accordingly, for the foregoing reasons, we affirm Mr. Gayden’s conviction

on the attempted threats offense. However, we reverse his conviction on the APO

charge and remand the case, with instructions to enter judgment of acquittal as to

the APO charge and to resentence appellant, as necessary.


                                              So ordered.




      4
         In Lewis v. United States, 95 A.3d 1289 (D.C. 2014), we reversed a
misdemeanor attempted threats to do bodily harm conviction. There, after
appellant had been arrested and placed in handcuffs, he told a police officer that he
“was lucky that [appellant] didn’t get him when [appellant] had his gun on him,
because he would have blown [his] g**d***ned head off.” This court declared
that the context of appellant’s statement – made after arrest and handcuffing –
revealed that appellant “no longer posed a physical threat” to the police officers.
Id. at 1291. Here, however, Mr. Gayden made his statement to the police officer
prior to arrest and handcuffing, and his words were much more specific and
threatening in context since Mr. Gayden referenced his brother who, on a prior
occasion, had held Officer Kimball’s partner on the ground while pointing two
guns toward the partner’s head.
