Drexel v. Commonwealth

900 S.E.2d 524

80 Va.App. 720

Michael Jason DREXEL

v.COMMONWEALTH of Virginia

Record No. 1805-22-4

Court of Appeals of Virginia, Fredericksburg.

May 7, 2024

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA James C. Clark, Judge¹

Meghan Shapiro, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Katherine Q. Adelfio, Senior Assistant Attorney General (Jason S. Miyares, Attorney General; Francis A. Frio, Senior Assistant Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges O’Brien and AtLee

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

₇₃₁Michael Jason Drexel appeals his conviction for threatening to damage a building in violation of Code § 18.2-83. He presents six assignments of error challenging the admission of evidence, jury instructions, the sufficiency of the evidence, and his sentence.

This appeal requires us to consider the threat and mens rea components of Code § 18.2-83. We hold that Counterman v. Colorado, 600 U.S. 66, 143 S. Ct. 2106, 2114-17, 216 L.Ed.2d 775 (2023), establishes that, for purposes of the First Amendment of the Constitution of the United States, there is a distinction between a "true threat" and the speaker’s intent. The First Amendment requires a communication to be a "true threat" in order to be punishable in addition to requiring that the speaker acted with some subjective intent. We also hold that a conviction under Code § 18.2-83 does not require a showing of malice. Based on this interpretation of the First Amendment and Code § 18.2-83, Drexel’s challenges to the admission of certain evidence and the rejection of his proposed jury instructions on "true threats" and malice must fail. We further conclude that the trial court did not err by urging the jury to continue deliberations after it expressed difficulty reaching a unanimous decision. In addition, we hold the evidence was sufficient to support the conviction. Finally, we do not reach the merits of Drexel’s challenge to his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because any error in not submitting the question of his age to the jury was harmless beyond a reasonable doubt. For these reasons, we affirm the conviction.

Background²

[1, 2] In early 2021, Drexel was undergoing therapy with Amanda Gill. On March 8, 2021, he telephoned Gill and ₇₃₂complained about the IRS. Drexel was angry and made some "homicidal statements" but did not express an intent to act on them. He agreed to call Gill again if his violent thoughts intensified.

Drexel called Gill again later that day. When the two spoke, Drexel was angrier, "persistently repeat[ed] lots of homicidal" thoughts, and told her that he was "ready to act on these plans." At that time, he agreed to call her if he needed her to be his "safe person."

In the early evening, the two spoke a third time. Drexel sounded more agitated than earlier and spoke very quickly. During that conversation, he "had some very specific ideas and plans for how to harm others." He expressed a desire to kill Alexandria law enforcement officers and bomb city hall. Drexel "adamantly repea[ed] that he was going to act on these thoughts." Gill attempted to have Drexel evaluated by an emergency services clinician for possible hospitalization. She also contacted the Alexandria Police Department to warn them about Drexel.

Based on Gill’s report, Detective Jason Marable and Officer David Smith of the Alexandria City Police Department telephoned Drexel. During that conversation, Drexel expressed frustration with the City of Alexandria Department of Taxation. He was angry about his wages being garnished. He told the officers that he would burn down city hall. Drexel also proclaimed that "he was going to be the next Timothy ₇₃₃McVeigh" and "he wanted to send a message." He made other statements about killing law enforcement officers, judges, and judges’ families. Detective Marable was "very concerned" because he believed that Drexel "meant" "the words he was saying."

The next morning, the officers obtained an emergency custody order to hospitalize Drexel for mental health purposes. Detective Marable and other officers located Drexel and attempted to take him into custody. Drexel refused to comply and ended the interaction by driving away.

Officers then obtained a criminal warrant and arrested Drexel for feloniously threatening to bomb, burn, or damage a place of assembly or building in violation of Code § 18.2-83. Officers also searched Drexel’s SUV and found an icepick, a bag of tools, and a plastic bottle of gasoline.

A grand jury indicted Drexel for feloniously making threats to bomb, burn, or damage a place of assembly or building. At trial, the Commonwealth presented evidence of the statements Drexel made to Gill, as well as those made to Detective Marable and Officer Smith.³

Drexel sought to have the jury instructed on the constitutional definition of threat for purposes of safeguarding his First Amendment protections of his freedom of speech. He also asked the court to instruct the jury that malice was an element of the crime. The court declined to give these instructions.

On the second day of jury deliberations, after a total of about seven hours, the jury asked the court, "What do we do if we cannot come to a unanimous agreement? That is the stance ₇₃₄of the jury at this time." Defense counsel suggested that the jury was "hung" and asked for a dismissal. Over the defense’s objection, the court instructed the jurors generally to reconsider and try to come to a unanimous verdict. After further deliberations, the jury found Drexel guilty as charged in the indictment.

After the guilty verdict, Drexel filed a motion for misdemeanor sentencing or, in the alternative, to set aside the verdict. He argued that the evidence supported only a misdemeanor conviction because the jury did not make a finding regarding his age, a necessary element of the felony under the statute. The trial court denied the motion.

Drexel was sentenced to twelve months of incarceration, with all time suspended except time already served.

Analysis

Drexel raises six assignments of error related to his conviction for threatening to damage a building in violation of Code § 18.2-83. At its core, this appeal requires consideration of two elements of the offense: threat and mens rea. Therefore, we first address the foundational questions of what is required to prove each of these two elements. This analysis involves both statutory application and consideration of Drexel’s argument that his conviction violates the constitutional protections of his freedom of speech.

I. Code § 18.2-83: Threat and Mens Rea

[3–5] Code § 18.2-83, in relevant part, prohibits a person from "mak[ing] and communicat[ing] to another by any means any threat to bomb, burn, destroy or in any manner damage any place of assembly, building, or other structure." A conviction under Code § 18.2-83 requires proof both that the communication included a threat made by the defendant and that he acted with the necessary intent. Howard v. Commonwealth, 74 Va. App. 739, 756, 872 S.E.2d 212 (2022). We interpret these provisions in light of the freedom-of-speech protections provided by the First Amendment of the Constitution of the United ₇₃₅States.⁴ See Va. Marine Res. Comm’n v. Chincoteague Inn, 287 Va. 371, 380, 757 S.E.2d 1 (2014) (explaining that courts construe statutes to avoid constitutional conflict); Turner v. Commonwealth, 67 Va. App. 46, 56-57, 792 S.E.2d 299 (2016) (analyzing the proscription of Code § 18.2-423.2 on certain communications through the lens of the First Amendment); Summerlin v. Commonwealth, 37 Va. App. 288, 295-97, 557 S.E.2d 731 (2002) (interpreting the mens rea standard of Code § 18.2-83). Defining these elements involves both statutory and constitutional interpretation, questions that we review de novo. See Turner, 67 Va. App. at 56, 792 S.E.2d 299.

A. Threat

[6, 7] This Court has already defined the threat element of this offense. "[A] threat is ‘a communication avowing an intent to injure another’s person or property.’" Howard, 74 Va. App. at 756, 872 S.E.2d 212 (quoting Perkins v. Commonwealth, 12 Va. App. 7, 16, 402 S.E.2d 229 (1991)) (considering Code § 18.2-83); see Summerlin, 37 Va. App. at 297, 557 S.E.2d 731. To constitute a threat, the communication must also "reasonably cause the receiver to believe that the speaker will act according to his expression of intent." Howard, 74 Va. App. at 756, 872 S.E.2d 212; Summerlin, 37 Va. App. at 297, 557 S.E.2d 731 (quoting Perkins, 12 Va. App. at 16, 402 S.E.2d 229). Because Drexel argues that his conviction punished constitutionally protected free speech, we must consider the ₇₃₆parameters of First Amendment protections of threatening communications.

[8–11] The First Amendment protects the freedom of speech generally but does not protect " ‘[t]rue threats’ of violence." See Counterman, 143 S. Ct. at 2113-14 (quoting Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 1547-48, 155 L.Ed.2d 535 (2003)); see Turner, 67 Va. App. at 57, 792 S.E.2d 299. "The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow …. " Counterman, 143 S. Ct. at 2114 (quoting Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 1401-02, 22 L.Ed.2d 664 (1969) (per curiam)). "True threats are ‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.’ " Id., (alteration in original) (quoting Black, 538 U.S. at 359, 123 S.Ct. at 1547-48); see Wise v. Commonwealth, 49 Va. App. 344, 355, 641 S.E.2d 134 (2007). Whether a communication is a threat turns on " ‘what the statement conveys’ to the person on the other end." Counterman, 143 S. Ct. at 2114 (quoting Elonis v. United States, 575 U.S. 723, 733, 135 S.Ct. 2001, 2008, 192 L.Ed.2d 1 (2015)). In contrast, "[w]...