COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Alston
UNPUBLISHED
Argued by teleconference
LISA ALEXANDER
MEMORANDUM OPINION * BY
v. Record No. 0126-12-4 JUDGE ROBERT P. FRANK
APRIL 30, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Sarah L. Deneke, Judge
G. Price Koch (Spencer, Mayoras, Koch & Cornick, PLC, on brief),
for appellant.
Aaron J. Campbell, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Lisa Alexander, appellant, was convicted, by a jury, of assault and battery, in violation of
Code § 18.2-57 1; interfering with a 911 phone call, in violation of Code § 18.2-164; and two
counts of making threatening/obscene phone calls in violation of Code § 18.2-427. On appeal,
she challenges the sufficiency of the evidence. For the reasons stated, we affirm in part and
reverse in part.
BACKGROUND
The facts are not controverted. Appellant’s husband, Martinez Alexander (husband), was
temporarily living with W.F. and M.F. because he and appellant were having marital trouble
arising from appellant’s son’s legal problems.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant’s appeal of the assault and battery conviction was denied at the petition stage
and is not before us.
On August 12, 2010, husband went to the marital residence to retrieve his clothing.
During an argument, appellant threw a drinking glass at husband, shattering it against husband’s
head. The injury resulted in blood flowing from husband’s head and into his eyes.
Husband called 911 with his cell phone. Appellant told him not to call 911 and attempted
to take the phone from husband’s hand. Husband was able to give the 911 dispatcher his home
address and phone number and ask for an ambulance. Husband yelled “send the police” as
appellant grabbed the phone and left the residence. The line remained open for 44 minutes.
During this time, the 911 dispatcher attempted to communicate with husband but was unable to
do so. Emergency responders arrived shortly after the 911 call.
Husband obtained a protective order, resulting in appellant and her daughter being
evicted from her residence. Appellant blamed W.F. and M.F. for husband’s obtaining the
protective order and for interfering with her relationship with her husband.
After being evicted, appellant left two voicemail messages directed at W.F. and M.F. and
their thirteen-year-old daughter, A.
Both messages were replete with cursing and contained extensive and graphic name
calling. The messages repeatedly accused W.F. and M.F. and their thirteen-year-old daughter,
A., of engaging in sexual acts. Additionally, appellant accused W.F. of ruining her life and
warned him to leave her child alone. Appellant expressed anger that W.F. and M.F. betrayed
their friendship. Appellant admonished W.F. and M.F. to leave her alone.
Among the statements contained in the voicemails were the following (not edited for
spelling or grammar), on which the Commonwealth relied to demonstrate appellant’s alleged
threats:
1. You know what, you little fucking punk, you’re a fucking
punk ass bitch mother fucker, ok?
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2. Y’all gonna get every mother fucking thing that’s coming
back to you because karma is a fucking bitch.
3. Y’all are going to fucking hell with gasoline drawers on.
4. Check your mother fucking selves because you done
fucking crossed the line . . . .
5. All y’all mother fuckers going down with me because I’m
telling it all, everything mother fucking thing I know . . . .
6. Y’all gonna meet fucking ghetto because guess what, it’s
all going down. You’re going down, she’s going down, all
the mother fucking truth coming out.
7. Now, you answer the mother fucking phone, you be a
mother fucking man but you ain’t a man you’re a fucking
bitch, just like Al was a fucking bitch, and your wife is a
fucking bitch . . . . 2
This appeal follows.
ANALYSIS
I. Obscene/threatening phone calls
Code § 18.2-427 states in part:
Any person who uses obscene, vulgar, profane, lewd, lascivious, or
indecent language, or makes any suggestion or proposal of an
obscene nature, or threatens any illegal or immoral act with the
intent to coerce, intimidate, or harass any person, over any
telephone or citizens band radio, in this Commonwealth is guilty of
a Class 1 misdemeanor. 3,4
2
In our analysis, we will refer to these statements by number.
3
Appellant does not challenge the intent component of the statute.
4
This statute states three offenses in the disjunctive. The Supreme Court of Virginia has
noted that the first two offenses “are qualified by the word ‘obscene,’” but the third, prohibiting
threats, is not. The Court concluded that the legislature, “having required that the first two
offenses must meet the test of obscenity, deliberately chose to omit that limitation in the case of
threatening language.” Rives v. Commonwealth, 284 Va. 1, 3, 726 S.E.2d 248, 250 (2012).
-3-
Appellant contends the words spoken were not obscene, nor did they threaten any illegal
or immoral acts. 5 We first address the “threats” component of the statute.
In Rives v. Commonwealth, 284 Va. 1, 726 S.E.2d 248 (2012), the Supreme Court of
Virginia affirmed a conviction under Code § 18.2-427. Rives telephoned his former lover and
said “Hey bitch! You want to wonder why you don’t have any friends? Bitch! I’m going to
fuck you in the worst fucking way. You understand me? . . . Hope you’re having a good time
with this shit. And what’s going to happen is not going to be pretty.” The Supreme Court of
Virginia concluded the above language was sufficient “to enable a rational fact-finder to
conclude that [Rives] was threatening [the victim] with physical injury in the form of a sexual
offense . . . .” Id. at 4, 726 S.E.2d at 250.
Among the statements relied upon by the Commonwealth to prove an alleged threat, we
see nothing in statements 1, 3, 4, and 7 to even suggest a threat of an illegal or immoral act. The
Commonwealth does not indicate what illegal or immoral acts were threatened.
As to the facts set forth in numbers 1, 3, 4, and 7, we find as a matter of law there were
no threats. Finding that no ordinary, reasonable recipient who is familiar with the context of the
voicemails would interpret them as a threat, it was not for the jury to determine whether those
words constituted a threat.
We cannot say the same for numbers 2, 5, and 6. Statement number 2 could be
interpreted in several ways. It could threaten W.F.’s person, or it could mean merely that fate
will punish W.F. and M.F.
5
Appellant argues that because she made the statements out of anger and frustration, they
are not threatening. To support her argument, she relies on Lofgren v. Commonwealth, 55
Va. App. 116, 684 S.E.2d 223 (2009). Lofgren, an obscenity case, found the language was not
obscene because it simply expressed Lofgren’s “frustration, anger, contempt or disgust.” Here,
appellant’s intent or motivation is not relevant to whether her language constituted threats.
Unlike obscenity cases, we do not address the “dominant theme” of the statements, but only
whether they threaten illegal or immoral conduct.
-4-
In her brief, referring to number 5, appellant states: “While this could possibly constitute
a threat, the action that accompanies it shows that this language does not fall in the statute.” It is
the role of the fact finder to determine whether this language could possibly constitute a threat,
including the context in which the statements were made.
Number 6 could be interpreted as a threat to commit an illegal act – “You’re going down,
she’s going down” or it could simply imply that when the truth comes out, W.F. and M.F. will be
shown to be liars. Again, this is for the jury to decide.
We note that appellant was indicted under Code § 18.2-427 for using obscene language
or threatening an illegal or immoral act. The jury instruction, noting that appellant was charged
with “telephone threats,” listed the elements of that offense as using “indecent or vulgar, or
profane language” OR “threatened an illegal or immoral act.”
Both the attorney for the Commonwealth and defendant’s counsel argued each of the
statute’s components to the jury.
The jury verdict read “We the jury, find the defendant guilty of telephone threats . . . .”
In accordance with the general verdict, the trial court found appellant guilty of two counts of
telephone threats. The conviction order and sentencing order refer to the offense as “telephone
threats.”
The correct interpretation of appellant’s voicemail statements must be determined by the
fact finder, based on whether a reasonable recipient would interpret her remarks as threats. This
is a jury issue.
Thus, our sufficiency analysis need only determine whether the evidence is sufficient to
raise a jury issue. The issue is not whether the language in question constitutes a threat, but
whether these statements create a jury issue as to threats. See Allmon v. Commonwealth, 43
Va. App. 104, 111, 596 S.E.2d 531, 535 (2004).
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United States v. Maisonet, 484 F.2d 1356 (4th Cir. 1973) is instructive. There, Maisonet,
an inmate in a federal prison, wrote his sentencing judge “I may have to go all my ten (10) years,
but if I ever get out of here and nothing happen[s] to me while I am in here, you will never be
able to be prejudice [sic] and racist against another Puerto Rican like me.” The letter was
addressed to the judge at his home address. Maisonet was convicted under 18 U.S.C. § 876
(1970), which prohibits mailing a letter “containing . . . any threat to injure the person of the
addressee.” Id. at 1357. In affirming the conviction, the Fourth Circuit held:
If there is substantial evidence that tends to show beyond a
reasonable doubt that an ordinary, reasonable recipient who is
familiar with the context of the letter would interpret it as a threat
of injury, the court should submit the case to the jury. Maisonet’s
letter itself and the following facts established that the
government’s proof was sufficient to enable the jury to find
beyond a reasonable doubt that the letter constituted a threat and
Maisonet intended it as such: Maisonet had been sentenced to
prison by the judge to whom he addressed the letter; he considered
the sentence to be illegal; he charged that the judge was motivated
by prejudice and racism; he addressed the letter to the judge’s
home.
Id. at 1358.
The Commonwealth only had to prove the existence of one component of the statute, as
the statute is written in the disjunctive. In enacting Code § 18.2-427, the General Assembly
chose to use the disjunctive “or,” rather than the conjunctive “and.” “‘[T]he use of the
disjunctive word “or,” rather than the conjunctive “and,” signifies the availability of alternative
choices.’” Rose v. Commonwealth, 53 Va. App. 505, 514, 673 S.E.2d 489, 493 (2009) (quoting
Lewis v. Commonwealth, 267 Va. 302, 314-15, 593 S.E.2d 220, 227 (2004)).
Having found the evidence of threats was sufficient to go to the jury, we need not address
appellant’s other argument as to obscenity. Even assuming, arguendo, that the evidence was
insufficient to prove obscene language, there was adequate evidence in the record to send the
issue of threats to the jury. We therefore decline to disturb the jury’s verdict. See generally
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United States v. Townsend, 924 F.2d 1385, 1414 (7th Cir. 1991) (holding that on appeal, a jury’s
verdict will not be negated on the chance “that the jury convicted on a ground that was not
supported by adequate evidence when there existed alternative grounds for which the evidence
was sufficient”). See also Fields v. Dinwiddie County Dep’t of Soc. Servs., 46 Va. App. 1, 8,
614 S.E.2d 656, 659 (2005) (holding that when a trial court’s judgment is made on alternative
grounds, we need only consider whether any one of the alternatives is sufficient to sustain the
judgment of the trial court and, if we so find, need not address the other grounds).
The evidence before the jury constitutes a “freestanding basis” to support appellant’s
conviction for telephone threats. See Johnson v. Commonwealth, 45 Va. App. 113, 117, 609
S.E.2d 58, 60 (2005).
For the reasons stated, we affirm the judgment of the trial court convicting appellant of
Code § 18.2-427.
II. Interfering
Appellant next challenges her conviction for interfering with a 911 phone call. She
alleges the evidence was insufficient, maintaining that she did not interfere with the 911 call, nor
did she disable or destroy the telephone. She argues that the 911 call made by her husband was
completed when he informed the 911 dispatcher of his home address and phone number and
asked for an ambulance.
The facts in this case are uncontroverted. Because this is a question of law involving the
construction of Code § 18.2-164, we review the trial court’s determination de novo. Questions of
pure statutory construction are considered de novo. See Conkling v. Commonwealth, 45
Va. App. 518, 520-21, 612 S.E.2d 235, 236-37 (2005) (citing Mattaponi Indian Tribe v. Dep’t of
Envtl. Quality ex rel. State Water Control Bd., 43 Va. App. 690, 707, 601 S.E.2d 667, 675
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(2004)); see Copeland v. Commonwealth, 42 Va. App. 424, 437, 592 S.E.2d 391, 397 (2004)
(holding that when the facts are not in dispute, the Court will analyze the legal issue de novo).
Code § 18.2-164 states in part:
B. If any person, with the intent to prevent another person from
summoning law-enforcement, fire, or rescue services:
1. Commits any act set forth in subsection A; or
2. Maliciously prevents or interferes with telephone
or telegraph communication by disabling or
destroying any device that enables such
communication, whether wired or wireless, he is
guilty of a Class 1 misdemeanor. 6
The elements of subsection B are: 1) malicious prevention of or interference with
telephone or telegraph communication, and 2) disabling or destroying any device that enables
such communication. We first address whether appellant disabled or destroyed the
communication device. The Commonwealth argues that appellant disabled the phone by taking
the victim’s cell phone and leaving the line open for 40 minutes, preventing the victim from
using the phone. The Commonwealth equates disabling the phone itself with interfering with the
victim’s ability to use the phone. This argument ignores the language of the statute.
It is apparent from the language of the statute that appellant must disable or damage the
actual device, not simply make it more difficult for the user to use the device. Part (B)(2)
proscribes the disabling or destroying of “any device that enables such communication . . . .”
The plain, unambiguous language of the statute requires that the device itself must be disabled or
destroyed by appellant.
6
At trial, the Commonwealth’s case was premised on a violation of Code
§ 18.2-164(B)(2), and the jury was so instructed. Thus, our analysis is limited to that subsection
and does not include Code § 18.2-164(A) or Code § 18.2-164(B)(1).
-8-
While we acknowledge that “penal statutes are to be strictly construed against the
Commonwealth, Harward v. Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985), courts
are nevertheless bound by the plain meaning of unambiguous statutory language and ‘may not
assign a construction that amounts to holding that the General Assembly did not mean what it
actually has stated.’” Gunn v. Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327 (2006)
(quoting Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003)).
Where bound by the plain meaning of the language used, we are
not permitted “to add or to subtract the words used in the statute.”
Posey v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771
(1918). This canon flows from the principle that “[w]e must . . .
assume . . . the legislature chose, with care, the words it used when
it enacted the relevant statute.” Barr v. Town & Country
Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990).
Because we assume the legislature carefully chose the words used,
it is our duty “to give reasonable effect to every word.” Jones v.
Conwell, 227 Va. 176, 180-81, 314 S.E.2d 61, 64 (1984); Moyer v.
Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000)
(en banc). In giving reasonable effect to every word, we presume
the legislature used the word in its ordinary sense in the absence of
a specific, statutory definition. Moyer, 33 Va. App. at 35, 531
S.E.2d at 593.
Coles v. Commonwealth, 44 Va. App. 549, 557-58, 605 S.E.2d 784, 788 (2004).
Webster’s Third New International Dictionary 615 (1993), defines “destroy” as “to ruin
the structure, organic existence, or condition of; to ruin completely or injure or mutilate beyond
possibility of use.” The term is further defined as “to reduce (an object) to useless fragments, a
useless form, or remains, as by rending, burning, or dissolving; injure beyond repair or renewal;
demolish; ruin; annihilate.” http://www.dictionary.reference.com/browse/destroy (last visited
March 19, 2013).
“Disable” is defined as “to make incapable or ineffective;” Webster’s, supra, at 642, “to
make unable or unfit; weaken or destroy the capability of; cripple; incapacitate,”
http://www.dictionary.reference.com/browse/disable (last visited March 19, 2013).
-9-
Here, the Commonwealth does not contend the phone call itself was rendered unfit,
crippled, or incapacitated, only that the victim was unable to use the cell phone. As stated
earlier, the physical condition of the phone is the subject of the statute. We further note the
Commonwealth never argued the cell phone was destroyed.
Extending the Commonwealth’s disability argument would create a violation of Code
§ 18.2-164(B)(2) if the perpetrator locked the cell phone in a closet, thus preventing the user
from accessing the device. Code § 18.2-164(B)(2) does not include a situation where a
perpetrator prevents the victim from calling 911 by threats of bodily harm, when the telephone is
not compromised. This scenario ignores the literal reading of the words, “destroy” or “disable.”
It is interesting to note that Code § 18.2-164(A)(4) proscribes willfully or maliciously
preventing, obstructing or delaying by any means telephonic or telegraphic communications.
This subsection does not limit the means of interference nor is it limited to emergency calls.
However, under Code § 18.2-164(B)(2) the prevention or interference with such communication
is not sufficient for a conviction. Additionally, the perpetrator must disable or destroy the
device. Such did not occur here.
Having found appellant did not disable or damage the victim’s cell phone, we need not
address whether appellant interfered or prevented the emergency call. See Luginbhyl v.
Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc) (holding that “we
decide cases ‘on the best and narrowest ground available’” (quoting Air Courier Conference v.
Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring))).
CONCLUSION
The evidence supporting Code § 18.2-427 was sufficient to send the issue to the jury,
thus we will not disturb their verdict. However, the evidence was insufficient to show that
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appellant destroyed or disabled the cell phone, so we will reverse her conviction under Code
§ 18.2-164(B)(2) and dismiss the indictment.
Affirmed, in part,
and reversed and
dismissed, in part.
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Alston, J., concurring, in part, and dissenting, in part.
I concur in the majority’s analysis of appellant’s appeal of her conviction under Code
§ 18.2-164. However, because I disagree with the majority’s affirmance of appellant’s
convictions under Code § 18.2-427, I respectfully dissent from the majority opinion regarding
this assignment of error.
Essentially my disagreement with my learned colleagues relates to the consideration of
the context of appellant’s voicemails. In my view, the majority isolates the “threatening”
portions of the comments and considers them apart from the voicemail messages as a whole.
Respectfully, only by doing so is it possible to interpret appellant’s statements as threats to
commit illegal acts. Because I find that no ordinary, reasonable recipient who is familiar with
the context of appellant’s voicemails would interpret them as a threat, I conclude that it was not
for the jury to determine whether appellant’s statements constituted “threat[s] of any illegal or
immoral acts.” Code § 18.2-427. Accordingly, I would reverse appellant’s convictions under
Code § 18.2-427.
In interpreting appellant’s statements, the majority considers the voicemail messages at
issue herein in their factual context but does not, in my view, equate enough significance to the
context of appellant’s statements. In short, husband obtained a protective order that resulted in
appellant and her daughter being evicted from their residence. Appellant believed that her
friends, W.F. and M.F., encouraged husband to obtain the protective order and, consequently,
blamed W.F. and M.F. for the dissolution of her marriage and her eviction from her home. It is
in that factual backdrop that appellant left the two voicemail messages directed at W.F. and M.F.
Respectfully, I submit that to assess the criminality of appellant’s statements, they must
be viewed in their complete context, which would also include the parts of appellant’s statements
that preceded and followed the alleged “threatening” comments. It is my view that the majority
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isolates words, thus diminishing context. Moreover, by considering appellant’s “threatening”
statements as isolated comments, without any reference to appellant’s broader message,
appellant’s statements considered in their factual context and in the context in which they were
spoken, as a matter of law, could not be interpreted as threats of illegal or immoral acts. With all
due regard to the province of the factfinder to weigh the facts and consider the evidence, it still
must be determined as a matter of law by this Court, whether in its context, the language was
threatening the victim with illegal or immoral acts. Contrary to the majority, I would give more
significance to the context of the purported threats in addition to the “illegal or immoral” aspect
of the purported threat. I respectfully submit that on appellate review a statement should not be
parsed to support its factual and or legal sufficiency. Is this nasty language? Yes. Is this
communication foul and repugnant? Absolutely. But in full context, does the language satisfy
the requirements of Code § 18.2-427? I would conclude that it does not. In appellant’s first
message (which includes what the Commonwealth and the majority label statement #2) she
expressed her anger at the role she perceived W.F. and M.F. played in the dissolution of her
marriage and her eviction. Appellant’s message stated, in relevant part,
[y]ou are the one that . . . you and your fucking wife tried to
destroy my fucking life . . . . I’m tired of y’all bitches fucking with
me, now you want to destroy my fucking mother fucking life.
Y’all gonna get every mother fucking thing that’s coming back to
you because karma is a fucking bitch . . . . Now you live with that
and you deal with that . . . . [A]ll y’all can go to mother fucking
hell, after everything I did for y’all all the fucking years. Fuck
you, and the horse you rode in on.
The statement, “Y’all gonna get every mother fucking thing that’s coming back to you
because karma is a fucking bitch,” read apart from the sentences that preceded and followed it,
could be interpreted as a vague threat. But what the assembled words could mean in isolation
does not address what an ordinary, reasonable recipient familiar with the context of the
voicemail message would understand the statement to mean. In essence, appellant’s message
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drew a moral comparison, contrasting W.F. and M.F.’s alleged attempts to “destroy [her] . . .
life” with (what she believed to be) her kindness toward them. Appellant then admonished W.F.
and M.F. for their behavior toward her and tasked them with having to live with the knowledge
of what they did to her. Appellant’s language is vulgar and at times offensive, but appellant did
not threaten to harm W.F. or M.F. herself, and no ordinary, reasonable recipient familiar with
this context could interpret appellant’s statement regarding karma as threatening physical harm
to W.F. or M.F. 7
The majority also concludes that appellant’s second message included statements that
were susceptible to two interpretations, one of which constituted a threat of illegal acts, and it
was the role of the factfinder to determine which interpretation was applicable considering the
circumstances of this case. 8 Specifically, the majority reasons that appellant’s statement,
“You’re going down, she’s going down,” could be interpreted as either a threat to commit an
illegal act or could simply imply that W.F. and M.F. will be exposed as liars. I disagree.
The second message states, in relevant part,
[C]heck your mother fucking selves because you done fucking
crossed the line and I’m going down . . . all y’all mother fuckers
going down with me because I’m telling it all, everything mother
fucking thing I know, every mother fucking thing you said to me
about [M.F.], every mother fucking thing [M.F.] said to me about
you, I’m fucking telling you fucking judge, I’m telling my God
7
Whether appellant’s statements could be construed as threatening illegal or immoral
acts is an objective inquiry. Nevertheless, I find the recipients’ subjective views consistent with
what I believe to be the only interpretation of appellant’s statement. Neither W.F. nor M.F.
testified that they felt threatened by appellant’s messages. Rather, when asked for her initial
reaction to the voicemail messages, M.F. testified simply, “I was hurt.”
8
The majority notes that appellant stated on brief that statement number 5-- “All y’all
mother fuckers going down with me because I’m telling it all, everything mother fucking thing I
know”-- “could possibly constitute a threat,” but that contracts the theory of appellant’s
argument as well as our inquiry on appeal. As appellant argues on brief, it is not enough to
simply point out that appellant’s statements could be interpreted as threats, the statements must
“threaten[] an[] illegal or immoral act with the intent to coerce, intimidate, or harass a[] person.”
Code § 18.2-427 (emphasis added).
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damn attorney. Y’all got me and my fucking child displaced, after
all the love I’ve showed you and your fucking children over the
years . . . . [Y]’all decide you’re gonna fuck up my mother fucking
life, but guess what, y’all gonna meet fucking ghetto because guess
what, it’s all going down. You’re going down, she’s going down,
all the mother fucking truth coming out.
(Emphasis added).
I see nothing in appellant’s second message that could be interpreted as threatening an
illegal act. As is clear from the transcript of the voicemail message, appellant specified what she
meant by the statement, “You’re going down, she’s going down,” by going on to say in the same
sentence, “all the . . . truth coming out.” 9 But even if that statement was ambiguous, the context
9
If the context was different and appellant had simply stated, “You’re going down, she’s
going down,” then appellant’s statement could have a number of meanings, one of which could
constitute a threat of an illegal or immoral act. That appellant explicitly stated what she meant
by “You’re going down,” however, precludes a reasonable recipient of her message from
interpreting the statement as a threat of physical violence. Appellant’s additional explanation
differentiates this case from United States v. Maisonet, 484 F.2d 1356 (4th Cir. 1973), which the
majority cites as instructive, as well as our previous decision in Witts v. Commonwealth, No.
0078-94-1, 1995 Va. App. LEXIS 317 (Apr. 4, 1995).
In Maisonet, the Fourth Circuit considered the defendant’s conviction under 18 U.S.C.
§ 876 (1970), which prohibits mailing a letter “containing . . . any threat to injure the person of
the addressee.” 484 F.2d at 1357. At issue was a letter written by the defendant to the trial judge
who sentenced him to prison in which the defendant stated, “I may have to do all my ten
(10) years, but if I ever get out of here and nothing happen[s] to me while I am in here, you will
never be able to be prejudice[d] and racist against another Puerto Rican like me.” Id. At trial,
the defendant asserted that “he did not mean the letter to threaten physical harm to the judge,
rather he intended to seek the judge’s removal from office.” Id. The Fourth Circuit affirmed the
defendant’s conviction and held that the evidence presented an issue of fact for the jury. Id. at
1359. In reaching that conclusion, the court noted that the defendant “said nothing in the letter
about having the judge investigated or about seeking his removal.” Id. at 1358.
Similarly, in Witts, we affirmed a defendant’s conviction under Code § 18.2-427. No.
0078-94-1, 1995 Va. App. LEXIS 317. There, the defendant had been involved in a personnel
dispute with his employer that culminated in the defendant being fired. Id. at *1-2. After
receiving the news that he was being let go, the defendant phoned his personnel manager and
told him that “[he] had some fireworks [for him]” and that he was going to “bring [him] down.”
Id. at *2. At trial, the defendant asserted that he intended the statement to mean that “he was
going to get an attorney and fight his termination,” but he did not mention hiring an attorney and
fighting his termination, and the personnel manager interpreted the statement as a threat. Id. at
*3. In affirming the defendant’s conviction, we held that “when a statement is made over a
telephone that is subject to being interpreted as harassment or an illegal threat, even though the
sender claims a different meaning was intended, a question for the factfinder is presented as to
which is applicable considering the particular circumstances.” Id. at *4-5.
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of the second voicemail message clarifies its meaning. Appellant stated earlier in the message
that if she went down, then W.F. and M.F. were going down with her because she was going to
tell her attorney and the judge everything she knew and everything W.F. and M.F. said about one
another. In my view, there is nothing in this record that identifies what illegal or immoral act
this statement could be construed as threatening. The Commonwealth, in turn, simply asserted
that “the jury was able to weigh the evidence against the testimony and determine whether
[appellant] threatened the illegal and immoral acts of telling untruths about [W.F. and M.F.] in
court.” However, appellant explicitly threatened to tell the truth, so even viewed in the light
most favorable to the Commonwealth, there is nothing in the record to support the jury’s finding
that appellant threatened such an illegal or immoral act. Accordingly, I find that no reasonable
juror could conclude that appellant threatened illegal or immoral acts with the intent to coerce,
intimidate, or harass either W.F. or M.F.
For these reasons, I respectfully dissent.
In contrast to both of these cases, appellant in the instant case did more than make a
simple statement that, by itself, could constitute a threat. Instead, appellant went on to explain
her statement, making clear that she was not threatening an illegal or immoral act. Therefore, the
case at bar is distinguishable from Maisonet and Witts.
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