If a statement is made in the Home Depot and no one feels threatened, can it be a threat?

Myron O’Neal Gray v. United States, Nos. 12-CM-2045 and 12-CM-2050 (decided September 25, 2014).

Players:  Associate Judges Glickman and Fisher, Senior Judge Ruiz.  Opinion by Senior Judge Ruiz.  Rose Mary Drake for Mr. Gray.  Trial Judge Yvonne Williams.

Facts:  This case arose from an interaction between co-workers at a Home Depot.  Jonathan Lowery testified that Mr. Gray, whom he considered a friend, approached Mr. Lowery at work: “[He] was threatening me, said he will kill me, I’ll see you outside of work.  He pointed his finger at me in my chest, I will kill you I see you outside of work.”  Slip op. at 3.  Mr. Lowery also testified that he responded by walking away and reporting the incident to a supervisor, and that he was not frightened by Mr. Gray’s statement. 

Issue: When determining whether certain words or actions would constitute a threat to a reasonable person, to what degree should the trial court consider the actual hearer’s reaction to the purported threat?

Holding: “[A]ll the surrounding circumstances, including what the actual hearer knew” are relevant to determining whether a statement constitutes a threat.  Slip op. at 7. 

Of Note:

• While the government need not prove that the hearer actually felt fear or intimidation, the hearer’s response is still relevant.  The hearer’s reaction can be evidence of whether a reasonable person in that situation would interpret the statement to present a risk of serious bodily harm or injury: “[E]vidence about an actual person’s response to a situation is evidence, sometimes the best evidence available, of how a reasonable person would have responded under the circumstances.”  Slip op. at 9. 

• Here, it was not dispositive that Mr. Lowery said he did not feel Mr. Gray’s words presented a real threat of serious bodily harm.  The court noted that Mr. Lowery thought that his co-worker seemed “serious,” and that Mr. Lowery walked away to avoid further confrontation and reported the incident to a supervisor.  In addition, there was no evidence that Mr. Gray was joking.  Under these circumstances, there was sufficient evidence to conclude that Mr. Gray’s words would convey fear of serious harm or injury to the ordinary hearer.  Slip op. at 12-13.  NG

Read full opinion here.