RICHARD C. JONES v. UNITED STATES
RICHARD C. JONES v. UNITED STATES
Opinion of the Court
Appellant Richard Jones was convicted, after a bench trial, of attempted threats
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 “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
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 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to be awarded a new trial, but needed only to show that a new trial was necessary in “the interests of justice.” Super. CtCrim. 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, fi’ankly, generally, that Mr. [Ejshman 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 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
Mr. Jones argues that because misdemeanor threats is a general intent crime,
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,
. 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.
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. CtCrim. 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 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.
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.
VI.
Because we reject each of Mr. Jones’s claims of error, his conviction is affirmed.
So ordered.
Concurring opinion by Associate Judge BECKWITH at page 132.
. D.C.Code §§ 22-407 and -1803 (2012 Repl.).
. 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.
. 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,
. 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 gov-erpment 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. *, 111 S.Ct. 1854.
. 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).
. 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, 388 Md. 623, 882 A.2d 256, 269 (2005), provides simple assault as an example. See also Dabney v. State, 159 Md.App. 225,-858 A.2d 1084, 1097 (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.
.As discussed above, Mr. Jones contends, when arguing that áttempted 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 Car-retl, 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, -U.S.-, 135 S.Ct. 2001, 192 L.Ed.2d 1 (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.
. 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.”
. 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, 113 S.Ct. 1072, 122 L.Ed.2d 374 (1993) (citing Blanton v. City of North Las Vegas, 489 U.S. 538, 543, 109 S.Ct. 1289, 103 L.Ed.2d 550
.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”).
. 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.
. 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, 106 Hawai'i 528, 107 P.3d 1201, 1203 (Ct.App. 2005).
Concurring Opinion
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, 111 S.Ct. 1854, 114 L.Ed.2d 385 (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. *, 111 S.Ct. 1854 (citing
In Sellers v. United States, 131 A.2d 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., 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).
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).
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
Yet while Evans continues to feature prominently in our case law,
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.
. 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.
. 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 an attempt; it neither discussed nor implied what mens rea is required when the government charges an attempt as opposed to the completed charge.
. 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).
. 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 com.pleted offense in the former cases and an attempted offense in the latter. Cf. United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (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.”).
Reference
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