Like "finders, keepers; losers, weepers," another childhood "truth" is exposed when you get to law school and read the casebooks and statutes. Words can harm you, if the words are threatening and you are the one who says them. Then you go to district court and discover that belief in this childhood cliché isn’t limited to children at all – your client is astounded that the words he said during a shouting match over who owns a piece of property led to a warrant for his arrest. Now he faces up to a year in jail for having an argument with someone else who really deserves to be put in jail (but, of course, nobody will write him a warrant).

Chances are this case is going to be dismissed on the condition of no further unlawful contact between your client and the "victim" for a year, especially if this is the first or second time in court. (I often tell the County Attorney that my client would be his complaining witness and vice-versa but for his witness winning a foot race to the courthouse, and that the county ought not to be choosing sides in a petty argument over a property line where no one ever gets hurt.) Eventually, though, the prosecutor is going to get tired of seeing your client in the courtroom, and insist that he serve six months in jail, else he takes the case to trial.

In the event you and your client opt for the latter, this article attempts to a resource guide for anyone defending terroristic threatening cases, and at the same time, an invitation for comment, correction and criticism from those who have additional or other insights. It begins with defining the offense of terroristic threatening, and then discussing available defenses, both those which have actually been used in court, and those which are applicable, at least in theory. Finally, this article discusses in depth Thomas v. Commonwealth, 574 S.W.2d 903 (Ky. Ct. App. 1978),, a case which I believe is under-utilized by criminal defense attorneys and which stands for far more than which is contained in the annotations of WestGroup’s Criminal Law of Kentucky, hereinafter the "blue book."

1. The Offense of Terroristic Threatening

KRS 508.080(1)(a) covers the most commonly encountered form of terroristic threatening and requires (1) a threat to commit any crime, which is (2) likely to result in death, serious physical injury, or substantial property damage to another person. "Crime" means any misdemeanor or felony⁴. "Person" includes any human being, corporation, partnership or governmental authority⁵. "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ⁶."Physical injury" means substantial physical pain or any impairment of a physical condition⁷.

KRS 580.080(2) covers the "public threat," and makes it an offense for a person to intentionally make false statements for the purpose of causing evacuation of a building, place of assembly, or facility of public transportation. Phoning in a bomb threat to a school, or shouting "fire" in a crowded theatre immediately come to mind as examples.

Terroristic threatening is a Class A misdemeanor punishable by up to 12 months in jail and/or up to a $500 fine.

 
2. Defending the Terroristic Threatening Case: What’s Out There?

1. Knocking a Leg Out from the Prosecution’s Table – Exploiting the Limits of Terroristic Threatening

1. Likely to Result in "Serious Physical Injury?"

While there are few terroristic threatening cases upon which to rely, there are several assault cases where the courts have shown the difficulty of proving serious physical injury. In Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977), the Supreme Court found that a police officer who had been shot in the chest with birdshot from a shotgun was not so seriously injured so as to justify a first degree, rather than second degree, assault. In Souder v. Commonwealth, 719 S.W.2d 730 (Ky. 1986), the Court held that in the absence of proof that a three year old child was in danger of death from cigarette burns intentionally inflicted upon him, serious physical injury was not established. If serious physical injury was not established in these cases, how can a vague and speculative "busted mouth" or "stomp in the ground" meet this standard? If the victim did not even hear the threat, or take it seriously, a dismissal should be requested. If the judge doesn’t dismiss, maybe the jury will be persuaded in closing argument.

Sometimes, if the prosecutor has evidence that the intended victim was placed in reasonable apprehension of imminent physical injury, he will amend the charge to "menacing."⁹ If he doesn’t, request an instruction and question on "menacing" as a lesser included offense. A Class B misdemeanor, carrying a sentence of up to 90 days in jail and/or a $250 fine, menacing differs from terroristic threatening only in that it requires a threat of "physical injury" as opposed to "serious physical injury", and that the victim must be placed in "reasonable apprehension" of immediate injury¹⁰.

Even when the facts adduced at trial do not support a question on menacing, I still tender the definition of "physical injury" along with the definition of "serious physical injury." This request is always granted because "physical injury" appears in the definition of "serious physical injury," and a jury has to understand the former to understand the latter. Really, the value of having "physical injury" defined for the jury is that it shows them what isn’t a "serious" physical injury: "Even if you believe that had this threat been carried out, [the victim] would have suffered substantial pain or an some impairment to his physical condition, that still isn’t enough to convict [defendant] of terroristic threatening. The threat has to be terroristic, not mere ‘fighting words’….etc., etc."

2. Likely to Result in "Substantial Property Damage?"

Assuming, however, that a property damage threat is brought under subsection (1) (e.g., "I’ll huff, and puff, and blow your house down"), "substantial property damage" at the least ought to be damage equal to or in excess of $1,000. After all, the offense criminalizes threats to commit crimes likely to result in "death or serious physical injury….or substantial property damage" to another person. The first two results in this triad are crimes which would be prosecuted as felonies. By analogy, a threat to cause substantial property damage ought also to be a threat to cause felonious property damage. Other property crimes used $1000.00 as a benchmark separating felony damage from misdemeanor damage. Criminal mischief in the first degree is a Class D felony which requires causing property damage equal to or in excess of $1,000.00, while criminal mischief in the second degree is a Class A misdemeanor and requires damage of $500 or more, up to $1,000.00. Criminal mischief in the third degree is a Class C misdemeanor, and covers property damage less than $500.00.

If terroristic threatening can be sustained on damage of less than $1,000.00, then the result is an anomaly in the law: a threat to destroy property carries the same or a lesser penalty as actually destroying that property. It ought not to be the law that a person can chop up a $400 television set and serve 90 days in jail, but just threaten to do it and get a year.
 

3. Idle Talk or Jesting

While "idle talk or jesting" will not constitute the offense of terroristic threatening, what constitutes a joke is the province of a jury. Usually, if a statement was truly intended as a joke¹¹, the circumstances and context will so indicate. It is far more likely that a jury will believe that a threat toward an individual was a joke more than it would a threat to bomb a school or torch a building – some things are just considered not joking matters. Nevertheless, the defense counsel should argue for the right to argue that the threats were a joke, since Thomas holds that jesting is a defense. More problematic is the statement which lies somewhere between an obvious joke and a true threat, made by someone who did not actually intend to threaten anyone. This scenario is discussed in part III.

Arguably, "idle talk and jesting" is not a redundancy, but two different concepts. A threat which not intended as a jest may be portrayed as idle talk, as in the situation where no one could reasonably believe the utterer could carry out his threat, no matter how serious he was. Imagine the scrawny client who shouts to three offensive lineman-sized "victims" that he is going to "break their necks with his bare hands" and all who witness are absolutely convinced he was dead serious. Or the student who claims that he has a vial of the "Ebola virus" and is going to unleash it during first period class tomorrow. It’s worth arguing to the judge (or jury) that, in these cases, there could be no better example of "idle" talk, and that the appropriate punishment is for him to be ridiculed, not sent to jail.

In appropriate cases, the judge may grant a request for a question on lesser offenses of disorderly conduct,¹² harassment¹³ or harassing communications¹⁴. Briefly, a person is guilty of disorderly conduct when in a public place and with intent to cause public inconvenience, annoyance or alarm, or wantonly creating a risk thereof, he "engages in fighting or in violent, tumultuous or threatening behavior.¹⁵" A person is guilty of harassment when, with intent to harass, annoy or alarm another person, he, among other things, makes an "extremely coarse utterance, gesture, or display, or addresses abusive language to any person present.¹⁶" A person is guilty of harassing communications when, with intent to harass, annoy or alarm, he communicates by telephone, telegraph, mail or other mode of communication in a manner which annoys or causes alarm¹⁷. These three offenses are all Class B misdemeanors, and also apply to conduct other than that described above. They are worth a look.
 

4. The Conditional Threat

"[T]he mere fact that the harm is made upon a condition….does not prevent it from being anything less than a real threat under KRS 508.080(1)(a).¹⁸" Thus, theoretically, it is not a defense that the client threatened to slit someone’s throat only if that someone talked to the client’s girlfriend again. However, the very case which held that a conditional threat is still a threat also stated: "A statement of an intention to inflict harm on another, conditioned upon a future happening would tend to generate fear in direct proportion to the likelihood that the condition would be fulfilled.¹⁹" Thus, the more unlikely that the condition will be fulfilled, the closer the threat comes to being "idle talk."
 

2. Trumping the Prosecutor’s Ace – Affirmative Defenses

As recently proven by Mark Stanziano, Somerset criminal defense attorney and past president of KACDL, virtually any justification listed in KRS Chapter 503 can be tailored to a terroristic threatening case, given the right set of facts. Three are specifically discussed here – self protection, choice of evils, and protection of others. However protection of property and others are also out there. Affirmative defenses applicable to any misdemeanor, such as statute of limitations, are too general to be discussed in this article, but they too, are out there.
 

1. Self-protection

Coincidentally, as I began writing this article, Jeff Sherr, The Advocate’s District Court Column Editor, shared with me a note from Mark Stanziano concerning a recent terroristic threatening case where Mark had achieved an acquittal. In that case, Mark’s client was charged with threatening his 19 year old stepson. The client told the stepson to leave the home, and after the boy refused, he told his stepson that he was going to kill him if he didn’t leave. The client was holding a gun at the time, although it was not pointed at his stepson. The incident occurred after a long history of verbal fights between the two, and a few physical altercations in which the client had been bested by the stepson.

The judge granted a self-protection instruction submitted by Mark (and co-drafted by Katie Woods), tailored after the self-protection statute at KRS 503.050, printed in its entirety below:

Even though the Defendant might otherwise be guilty of terroristic threatening under Instruction No. ___, if at the time the defendant made the threat, he believed either that there was an impending danger that [the complaining witness] was about to use physical force upon the defendant, or, was otherwise acting in a manner which the defendant believed to be threatening, then the defendant was privileged to make such threats as he believed necessary in order to respond to and end the threat. If the defendant was not so privileged, you shall find him not guilty.

Mark notes that there is no proportionality requirement for a threat – you can basically threaten to do anything in order to stop an aggressor from using force upon you.

2. Choice of Evils / Protection of Others

Even though the threat is conditional in nature, the prosecutor can still prosecute for terroristic threatening. But the choice of evils defense (or protection of others) is applicable. KRS 503.030 provides in pertinent part:

1. [C]onduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged,…
2. When the defendant believes that conduct which would otherwise constitute an offense is necessary for the purpose described in subsection (1), but is wanton or reckless in having such belief,….the justification afforded by this section is unavailable….

3. Double Jeopardy

According to Commonwealth v. Watson²¹, a defendant cannot be convicted of terroristic threatening after he has been convicted of wantonly endangering the same victims. "Simply put, the terroristic threat is included in the wanton endangerment.²²" This holding is premised on KRS 505.020, which provides in pertinent part that "[w]hen a single course of conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for each such offense…[except when]…[one] offense is included in the other…"

The Court reasoned that terroristic threatening is included within wanton endangerment because:

3. Thomas v. Commonwealth: Beyond the "Blue Book"

Thomas v. Commonwealth is the most important case that has been decided concerning terroristic threatening. It has been cited several times already in this article on the issues of idle talk and jesting, and conditional threats. Moreover, it is annotated twice in the "blue book" on issues not yet discussed in this article. Some of the issues could have been included in Section II, but because of the importance of this case I have reserved Section III entirely to itself. I believe this case should be copied and carried to court every single time a terroristic threatening case is scheduled on the docket.

Thomas is cited in the "blue book" first as authority that the Kentucky statute is not unconstitutionally vague or overbroad and second for the proposition that "the motive that prompts an accused to make threatening statements is immaterial." The unconstitutionality argument having been lost, it is the second annotation that most lawyers on both sides cite during a terroristic threatening trial.
 

1. Existence of Motive to Carry Out a Threat is Immaterial

If there is a serious question as to whether the defendant actually made the threats, the defense attorney sometimes cites Thomas to prevent the Commonwealth from producing testimony or evidence which shows the defendant may have been motivated to make threats e.g., "the victim was dating the defendant’s daughter, and the defendant told everyone he didn’t like it". I have made this objection and had it sustained. On the other hand, especially when there is no doubt that the threats were made, the prosecutor relies upon Thomas to exclude or strike any statements by the defendant which attempt to establish a motive which justifies making the threats e.g., "the only reason I threatened him was because he threatened me the day before".

While both the defense lawyer and prosecutor may have their objections sustained after quoting the blue book blurb, in truth, both objections properly should be overruled. This is because sometimes the distinction made by evidence professors in law school between materiality and relevancy is either lost or forgotten by judges, prosecutors and defense counsel alike. To state that "motive is immaterial" is merely to state that the prosecution does not have to prove motive to establish the offense of terroristic threatening. That is true of every crime – anyone who ever tried a criminal case, or who watches Matlock, or who saw the O.J. Simpson trial on television, knows the prosecution loves to tell the jury that they never have to establish motive to prove its case. They say this whether or not they have proof of motive – I think they teach that at prosecutor’s school.

However, that does not mean that motive is irrelevant. In fact, it is precisely when there is a question of whether threats were actually uttered that proof of motive is most relevant. Prosecutors should still attempt to get in evidence of motive under KRE 402 and if applicable, KRE 404.

Likewise, defense counsel should still attempt to put in evidence of motive, especially if the result is exculpatory, if not legally exculpatory, at least maybe in the court of human opinion. This should not be a problem in district court, since there the guilt or innocence phase and the sentencing phase of the trial are combined, and evidence of motive is admissible for purposes of seeking leniency from the jury.

As far as the blue book annotation is concerned, Thomas offers pitiful help to the defense counsel; but the case is more important to defendants for the premises of law for which it is not cited.
 

2. Existence of an Intention to Carry Out a Threat is Immaterial

Thomas, quoting a Maine case which it adopts by reference,states:

An elementary school teacher and a principal testified that my client said he was going to "blow this school off the hill" and again, that he would "blow this school up." Later, the arresting officer testified that he searched the defendant’s property and "there was some dynamite discovered at [his] residence." There is no doubt that the fact that the defendant had explosives at his residence had an extremely prejudicial effect on the case, especially since the defense was that he did not threaten to blow up the school. As I recall, one of the juror’s gasped when she heard about the dynamite. At this point in the trial, the case was no longer about whether my client had made the threats, but whether and when he was going to carry them out and blow up the school. Since under Thomas this fact is immaterial, and yet undoubtedly inflammatory, I argued that any probative value was substantially outweighed by the danger of undue prejudice, and that the statement was excludable under KRE 403, and that a mistrial should be ordered. At trial, the judge sustained my objection, but overruled my motion for a mistrial, opting instead to give an admonition to the jury to disregard the officer’s testimony. The failure to grant a mistrial is presently on appeal.

Thomas is far more valuable to the defense lawyer for the proposition that "intention is immaterial" than for "motive is immaterial" because evidence of the former, in my opinion, will almost always present a KRE 403 opportunity than will evidence of motive.
 

3. Terroristic Threatening is a Specific Intent Crime

Thomas raises and resolves the question of whether terroristic threatening is a specific intent crime, an issue discussed by Lawson and Fortune in their book, Kentucky Criminal Law:

Finally, in case there is need for further support, KRS 501.040 provides:

1. Intent to Make a Threat (As Opposed to Intent to Carry Out a Threat) Becomes Material

• The prosecutor may object, move to strike, and ask for a jury admonition that intent to make a threat is not relevant, and that "they must only consider whether the threat was made, not whether Reggie was serious about carrying out the threat." As support for the objection, the prosecutor may point out the absence of any specific intent language in the statute, and worse, may make the point to the judge that the model code did have the specific intent language, and the failure of the legislature to put it in the Kentucky version illustrates its intent to remove specific intent as a requirement. Without Thomas (or at least Fortune and Lawson’s book), the judge is going to sustain that objection and might give the admonition, which would be fatal to the case under these facts.

• Alternatively, the prosecutor may not object at all, but wait until closing to tell the jury that they need not consider whether he intended the words he said to be a threat, but only whether he said the words. This provides the excellent opportunity to object and request an admonition of your own, to the effect of "you must consider not only whether he intended to say the words, but also whether he intended them to be a threat."

• Finally, there is an opportunity to take the initiative and put the issue before the court yourself. Request a jury question which puts the word "intentionally" before the word "threatened," and the definition of "intentionally." You probably won’t get them – neither is contained in the pattern jury charges – but you can cite Thomas and refer Fortune & Lawson’s book to the judge, and then ask the judge if you can at least argue to the jury that the threat has to be intended as a threat by your client. Worst case scenario is you have another appeal point if your client is convicted. Pattern jury charges are not infallible, and if you prove to the Circuit Judge’s satisfaction that specific intent is in fact an element of the crime, you might also persuade her that the jury ought to be informed of that fact.

2. Voluntary Intoxication Becomes a Defense

Intoxication is a defense to a criminal charge only if such condition either:

1. Negatives the existence of an element of the offense; or
2. Is not voluntarily produced and deprives the defendant of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

In McGuire v. Commonwealth²⁶, a theft and burglary case, the Kentucky Supreme Court held:

Once the prosecutor or judge has conceded specific intent as an element of the offense, the defense applies, so it is important not to mention the defense until you get a ruling on the specific intent issue. Ideally, this ruling comes after the close of evidence when the defense attorney presents to the court a jury instruction and question based on voluntary intoxication. If you wait until this time to raise the issue, chances are the Commonwealth’s own witnesses have already proven intoxication of the defendant, usually in the mistaken belief that evidence of drunkenness is damning, not vindicating.
 

4. Conclusion

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