HOLLAND, Justice:
Erin Lowther ("Lowther") was arrested on April 24, 2013, following an altercation with her sister-in-law, Trisha Lowther ("Trisha"). On December 9, 2013, the New Castle County grand jury issued a
Lowther has raised two arguments in this direct appeal. First, Lowther contends that the evidence presented during the State's case-in-chief was not sufficient to allow the jury to find Lowther guilty of Terroristic Threatening. According to Lowther, the State did not present sufficient evidence that her threat to "f* * *ing kill" Trisha was a "true threat". We have concluded that, viewing the evidence in the light most favorable to the State, a rational jury could conclude beyond a reasonable doubt that Lowther had a subjective intent to threaten Trisha when she said she would "f* * * kill her." Therefore, the trial judge properly denied Lowther's motion for a judgment of acquittal.
Second, she contends that the Superior Court committed plain error in instructing the jury on the charge of Terroristic Threatening. We have determined that, when read as a whole, Superior Court's instructions were reasonably informative, not misleading and allowed the jury to perform its duty.
Accordingly, both of Lowther's arguments are without merit. Therefore, the Superior Court's judgment must be affirmed.
On the evening of April 23, 2013, Lowther picked up her brother, Michael Lowther ("Michael"), from work in West Grove, Pennsylvania. Lowther was approximately twenty minutes late picking up Michael and the two began to argue on the way home. The two arrived at Michael's home in Newark, Delaware, and the argument escalated into a physical altercation.
Upon arriving at Michael's home, Lowther went into the kitchen and grabbed a pair of scissors and threatened Michael with them. Lowther then put down the scissors and grabbed a broom and broke it over Michael's back. Lowther next entered the living room, grabbed a cane that belonged to Michael's wife, Trisha, and began to hit Michael on the back with it. Lowther then turned to Trisha and started to hit her with the cane. Lowther then got on top of Trisha and started hitting Trisha with her hands. Lowther eventually stopped and went upstairs.
Michael called the police. Shortly thereafter, Officer John O'Hara ("Officer O'Hara") of the New Castle County Police Department arrived at Michael's home. After briefly speaking with Michael, Officer O'Hara went inside Michael's home and asked Lowther to come downstairs. Officer O'Hara then handcuffed Lowther and placed her in the back of a patrol car. Trisha was transported to the hospital by ambulance.
Lowther complained of stomach and vaginal pain and was also transported to the hospital. While Lowther was in the police car, she stated that if she saw Trisha at the hospital, she was going to "F* * * kill her." At the hospital, Officer O'Hara read Lowther her Miranda rights and asked her questions. Lowther repeatedly told the officer to, "go f* * * yourself."
This Court reviews a trial judge's denial of a motion for judgment of acquittal de novo.
Under 11 Del. C. § 621, "[a] person is guilty of terroristic threatening when that person ... to commit any crime likely to result in death or in serious injury to a person or property."
When determining whether these elements are present, the utterance must not be placed in a vacuum, but rather should be viewed in light of its context and the totality of the circumstances.
Lowther argues that the State did not present evidence which proved beyond a reasonable doubt that she had the appropriate subjective intent to threaten Trisha at the time she made the statement. In doing so, Lowther makes three arguments. First, she argues that when she made the statements, she was handcuffed and in the back of the police car, and therefore, it was impossible for her to have any contact with Trisha, let alone kill her.
Lowther's first argument is without merit. This Court has held that intent to
In addition, the statutory language of § 621 does not support Lowther's argument. The text of the statute states, "[t]he person threatens to commit any crime likely to result in death or in serious injury to person or property."
Lowther's second argument — that there was no evidence suggesting that she knew Trisha was going to the hospital — is also without merit. Again, the intent to actually carry out the threat is not necessary.
Further, when viewing the evidence in the light most favorable to the State, the record reflects that Lowther knew that Trisha was going to the hospital. Officer O'Hara testified that he placed Lowther in a police car outside of Michael's home. Officer O'Hara further testified that Trisha was "being lead [sic] to the ambulance." As a result, the jury could have inferred that Lowther saw Trisha walking to the ambulance and knew that she was being transported to the hospital.
Lowther's third argument is that this type of statement is not within the category of statements that the statute penalizes.
Pennsylvania explicitly acknowledges that threats made in anger are not true threats. Delaware's statute, however, does not include an official comment indicating that spur-of-the-moment comments are exempt from the statute.
Nevertheless, this Court's construction of the statute exempts statements that were not true threats by requiring that the speaker intend to actually make a threat, not merely intend to utter the words.
Lowther argues that she could not have had the required intent to threaten Trisha, in the sense of engendering fear in her, because Lowther made her statement to a police officer when under arrest, when Trisha was not present, and when Lowther supposedly had no reason to believe Trisha would be going to the hospital. But as noted, from the facts presented at trial, the jury had a basis to infer that Lowther knew that Trisha was going to the hospital, not just because Lowther's own statement implied that she suspected that was the case, but because Lowther had beaten Trisha severely and caused injuries in need of treatment. Further, Lowther was sitting in a police car outside of Michael's home at the same time Trisha was led to an ambulance for those injuries, which Lowther was capable of observing.
Moreover, the jury could have inferred that Lowther knew that the police would likely tell Trisha about this statement so that Trisha knew to be wary of Lowther. The jury could also have inferred that the statement, when communicated to Trisha, would frighten her, because Trisha had just suffered a violent attack at Lowther's hands. Based on these facts, a reasonable jury could conclude that Lowther had the subjective intent to threaten Trisha when making her statement.
Lowther's three arguments regarding her motion for judgment of acquittal on the Terroristic Threatening charge are without merit. Accordingly, we hold that the Superior Court properly denied Lowther's motion for a judgment of acquittal.
In reviewing whether the trial judge incorrectly formulated an un-objected to jury instruction, this Court reviews for plain error.
When reviewing for plain error it is important to note that "[a] defendant is not entitled to a particular instruction, but has an `unqualified right to a correct statement of the substance of the law.'"
Lowther argues that the Superior Court erred in instructing the jury on the mens rea required for terroristic threatening.
Lowther correctly states that § 621 requires a subjective intent to make a threat.
In Andrews, however, this Court further stated:
Accordingly, the issue before this Court is whether there was plain error in the jury instruction because the instruction was inadequate for the jury to consider Lowther's subjective intent to threaten, which may be proved by the State by showing Lowther intentionally, knowingly or recklessly made a threat.
"A trial court's jury charge will not serve as grounds for reversible error if it is `reasonably informative and not misleading, judged by common practices and standards of verbal communication.'"
Considering the instruction in its entirety, the jury was properly instructed that they needed to find Lowther had a subjective intent to make a threat, and merely uttering the words or using an objective standard was not enough. The jury was also instructed that they needed to determine whether Lowther intentionally or knowingly acted. They were further instructed that the act in question was the threat to commit a crime — not the act of uttering the words. Accordingly, the record reflects no plain error.
The Superior Court's judgment is affirmed.