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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13

- CF

- 615
B RANDON A NDREWS , A PPELLANT ,

V
. U NITED S TATES , A PPELLEE
. Appeal from the Superior Court of the District of Columbia ( CF1

- 16665

- 11 ) (Hon. Robert E. Morin , Trial Judge) (Argued February 26, 2015 Decided October 22, 2015) Daniel Gonen , Public Defender Service, with whom James Klein and Samia Fam , Public Defender Service , w ere on the brief, for appellant. John Cummings , Assistant United States Attorney , with whom Ronald C. Machen Jr. , Un ited States Attorney at the time the brief was filed , and Elizabeth Trosman and Shana Fulton , Assistant United States Attorneys, were on the brief, for appellee. Before G LICKMAN and F ISHER , Associate Judges , and S TEADMAN , Senior Judge

. G LICKMAN , Assoc iate Judge : This is a homicide case in which the accused, appellant Brandon Andrews, claimed that he killed the decedent, Leonard Bigelow , in self

- defense. There was bad blood between the two because appellant had been2

harassing Leonard Bigelow‟s sister , Katina Bigelow

. In a previous encounter, Leonard allegedly pulled a knife on appellant and threatened to kill him if he would not leave Katina alone. Three days later, appellant called and told Leonard he was coming over to see Katina

. Leonard responde d that appellant was not welcome at their house and that if appellant showed up, he (Leonard) would be waiting for him. Appellant was not deterred; a rm ed with a pistol, he went to the Bigelow residence

. When he arrived on the street outside the house , Le onard allegedly charged at him with a knife , and a ppellant shot and killed him

. Appellant maintained at trial that he went to see Katina for peaceful purposes , had every right
to be w here he was when Leonard attacked him , and had no choice but to shoot
Le onard to save himself from a deadly attack.

T he trial judge instructed the jury that one who deliberately puts himself in a position where he reasonably believes his presence will provoke trouble forfeits the right of self

- defense, and that appellant coul d not rely on self

- defense if he provoked Leonard Bigelow‟s alleged attack on him. Appellant contends on appeal that the evidence at trial did not justify t his instruction

. Under the settled law of this jurisdiction, however, we are bound to disagree wit h appellant‟s contention3

and affirm hi s conviction s for second

- degree murder and the other offenses he committed in connection with the shooting. 1

I.

According to evidence at trial, the circumstances culminating in the charges against appellant were as fol lows. Appellant began dating Katina Bigelow in October 2010. She lived with her father, Lacey Bigelow, and her brother, Leonard Bigelow. 2 Lacey dis like d appellant and barred him from the Bigelow home. Consequently, when appellant would go to meet Katin a, he would not go inside her house, but instead would wait for her on the street. At some point during their relationship, appellant moved into a homeless shelter and started storing some of
his clothing in Katina‟s car.

1 Appellant also contends there was insufficient evidence to support his conviction on a charge of felony threats to do bodily harm, which was b ased on conduct prior to and separate from the shooting. For reasons we discuss below, we disagree with appellant on this issue too, and we therefore affirm his threats conviction.

2 For clarity‟s sake, we shall refer to each of the Bigelows by their fi rst n ames hereinafter.4

By August 2011, Katina and appell ant‟s relationship was falling apart. On August 22, they got into a heated argument while Katina was driving him somewhere . Appellant became so agitated and intimidating that Katina attempted
to stop at a police station to request help

. According to Kat ina, appellant discouraged her from doing so and told her that if she tried to do that again, she would die

. F eeling “very scared,” Katina then managed to pull over and secure the aid of police in removing appellant from her vehicle. T hat evening, he app eared outside her house. She did not go outside to speak with him and instead called the police. Appellant left before the police arrived. Later that night, he sent Katina several menac ing text messages, which she did not answer . 3

The next morning, appe llant was waiting outside for Katina when she and
Leonard left their house to take her daughter to school. Katina did not respond when he called out to her , but Leonard confronted appellant

. Katina heard Leonard angri ly tell appellant that she did not wa nt to be with him. As t he two men began
to argue, Katina went back in the house to call the police. According to appellant , Leonard display ed a knife and threatened to kill him when he tried to speak to

3 Appellant was acquitted of threats charges based on the incident in the car and this set of text messages.5

Katina

. 4 A ppellant told him to fight him “like a m an.” A ppellant then departed

. Later in the day, Katina went to court to obtain a stay

- away order. (The order was never served on appellant, however.)

Throughout the rest of that day , Katina did not answer appellant ‟s repeated phone calls and text messag es. The following night, after further unsuccessful attempts by appellant to communicate with her, Katina text ed back that she was ignoring him “[b]ecause of the threats that you have said to me. I don‟t want to be in this relationship anymore so can you please stop calling and texting me.” In a series of subsequent text messages, appellant pressed Katina to return the clothing he had left in her car. She texted back that she would get his belongings to him as soon as she could.

At 8:00 o n the morning o f August 26 , Katina drove to the homeless shelter where appellant was staying in order to drop off his clothing

. On her way, she texted him to let him know she had his things with her

. When she arrived, Katina

saw appellant standing near the shelter at t he corner of 2nd and E Streets

4 Appellant testified that Katina was present when Leonard threatened him with the knife, but Katina denied hearing any thre ats or seeing either man wield a weapon.6

Northwest

. To avoid interact ing with him in person, she left his belongings at the bus stop on the corner of 3rd and E Streets and sent him a text message as she drove away, at 8:16 a.m., to let him know they were there. Th is elici ted an angry

re action from appellant, who (as he testified at trial ) saw people rifling through his belongings before he could get to them . Appellant sent Katina the following series of text messages , on which his conviction of felony threats to d o bodily harm was based ( Katina‟s sole response is shown in italics) :

8:18 a.m. “You better get my shit.” 8:20 a.m. “I swear to god I will fuck your car up.” 8:22 a.m. “You don‟t do people stuff like that.” 8:26 a.m. “Your car will be fucked. Up.” 8:26 a. m. “It‟s on now I wouldn‟t do it to you like

that.” 8:28 a.m. “You done fucked up now you stupid bitch.” 8:30 a.m. “That‟s your ass.” 8:35 a.m. “I can‟t wait till you get home.” 8:36 a.m. “You owe me.” 8:49 a.m. “That shit is staying [where] it‟s at yo u owe

me.” 9:49 a.m. [Katina:] “My apologies, That was the only

way that I could get it to you without seeing you. That’s definitely not something I wanted to do. I just wanted you to have your belonging so I can move on.” 9:53 a.m. “Someone went throug h the bags you owe

me.” 9:54 a.m. “I left the bag [where] it was.” 9:57 a.m. “I want some money today for my personal

belongings.” 10:00 a.m. “Did you get that.” 10:26 a.m. “You ignoring me.”7

Katina testified that she felt “scared” when she received the se messages and uncertain what appellant meant to do

. Other than texting him her apology quoted above , she took no immediate action. Later that day, though, appellant and Katina spoke on the phone and he demanded she pay him $1,000 or $1,500 for the clot hing he had lost

. A t trial, a ppellant testified that Katina agreed to compensate
him ; she could not re member whether she did so

.

At 9:37 p.m. (as indicated by phone records) , appellant called the Bigelow
house

. Leonard answered the phone. A ppellant said he would be coming over to the house around 10:00 p.m. and asked to speak to Katina. Katina heard Leonard
t ell appellant , in a raised voice, “she don‟t want to talk to you , ” “I‟ll meet you outside on the porch , ” and “You come on around here and I‟ll be w aiting for you.” 5 When Leonard got off the phone, he informed Katina that her “boyfriend” would be coming at 10 o‟clock. She responded that appellant was not her boyfriend but expressed no concern about his impending visit. She did not think to call the police at this point

.

5 Appellant testified that Leonard told him Katina did not want to speak to him. He did not remember what else Leonard said to him in their phone conversation.8

A few minutes later , at 9:43 p.m., appellant texted Katina to tell her , “I‟m coming to the house.” He arrive d shortly before 11:00 p.m. 6 Katina and her father, Lacey, were out on the front porch. When Katina saw appellant approach ing the house, she ran inside to tell Leonard and to call 911. Leonard ran past Katina and out the front door onto the porch . When Leonard exited the house, appellant was on the sidewalk in front of the Bigelow residence

.

At this point, one of two things happened. Katina and Lacey testified that they saw appellant raise his arm and sho o t Leonard

. They said Leonard was unarmed and standing on the porch when he was shot . According to Lacey , no words were exchanged between the two men. A ppellant , however , testified that Leonard came off the porch and charged at him in a threatening manner, holding

an unknown object in his hand that appellant thought was a knife

. Appellant said he drew his weapon and fired tw o shots in self

- defense when Leonard was within three feet of him

.

One of appellant‟s bullets hit Leonard in the chest. He turned back and fell dead in front of the door to his house

. Appellant left the scene immediately. A

6 Appellant testified that he delayed his arrival i n the hope that Leonard would have left the house to spend the night with his girlfriend.9

neighbor who looked out his window when he heard gunshots and screaming saw appellant walking “calmly” down the street.

When the police arrived, they foun d a switchblade and a butcher‟s knife on the front porch . Lacey and Katina testified that Leonard used the knives for fishing ; Katina said he often carried a knife on his perso n.

Appellant was arrested the next day . He had a handgun in his possession.
He told the police he shot Leonard with it in self

- defense.

A ppellant was found guilty of second

- degree murder while armed ; assault with a deadly weapon (“ADW”), based on the fact that Lacey was in the line of fire (though he had not been hit) ; two counts of possession of a firearm during a crime of violence (“PFCV” ) associated with the murder and the ADW, respectively; other firearm possessory offenses ; and one coun t of felon y threats to commit bodily injury , based on the text messages appellant sent Katina after she dropped off his belongings on the morning of August 26

.10
II.

Adapting the language of the pattern “Redbook” instruction on the subject, 7
the trial judge instructe d the jury that “[o] ne who deliberately puts himself in a position where he reasonably believes that his presence will provoke trouble
cannot claim self

- defense ,” and that if appellant “provoked the conflict upon himself,” he could not rely on self

- defense to justify his use of force against Leonard Bigelow

. Appellant contends it was error to give this instruction because there was no evidence he provoked Leonard to attack him; the government disagrees. 8 The sufficiency of the evidence to support the instr uction is a question of law, as to which our review is de novo

. 9

The challenged instruction comported with the proposition, now well

entrenched in our case law, that “[s]elf

- defense „is not available to one who finds

7 See Criminal Jury Instructions for the District of Columbia , No. 9.504(A) (5th ed. 2015 ).

8 Appellant objected to the provocation instruction at trial, albeit with out explaining why. We treat the objection as sufficient to preserve an argument challenging the sufficiency of the evidence to justify giving the instruction.

9 Appleton v. United States , 983 A.2d 970, 977 (D.C. 2009).11

trouble by going out of his way to look for it.‟” 10 “ T he fact that the deceased struck the first blow, fired the first shot or made the first menacing gesture does not legalize the self

- defense claim if in fact the claimant was the actual provoker.” 11 A legitimate claim of self

- defense is not a vailable to a defendant who voluntarily

— knowingly and unnecessarily

— place d himself in a position where he had reason to believe his presence would provoke the violence from which he then found it necessary to use deadly force to save himself. 12

As the for feiture

- of

- self

- defense

- by

- provocation doctrine has developed in this jurisdiction , the government is not required to prove that the defendant acted with the intent to provoke his adversary to violence. 13 Forfeiture ensues , we have

10 Nowlin v. United States , 382 A.2d 9, 14 n.7 (D.C. 1978) (quoting R. Perkins, Criminal Law 1008 (2d ed. 1969)).

11 Rorie v. United States , 882 A.2d 763, 772 (D.C. 2005) (quoting United States v. Peterson , 483 F.2d 1222, 1231 (D.C. Cir. 1973 ) ).

12 Sams v. United States , 721 A.2d 945, 953 (D.C . 1998) (citing , inter alia , Howard v. United States , 656 A.2d 1106, 1111 (D.C. 1995)) . It is immaterial that the person provoked was not justified in resorting to violence and was criminally liable for assault himself.

13 Sams , 721 A.2d at 952 (“That is n ot and has never been the law in the District of Columbia.”). Sams traces this aspect of the doctrine, and the jury instruction used in appellant‟s case, back to Laney v. United States , 294 F. 412 (D.C. Cir. 1923). The defendant in that case was a black man fleeing a lynch mob during a race riot. After escaping the mob by hiding in the back yard of a nearby (continued...)12

held, even if the defend ant‟s “purpose in putting himself in that position [where his
presence would trigger violence] was benign,” 14 and even if the area of confrontation was a public street or other place where the defendant had a right to be present

. 15 Rather, this jurisdiction ‟s rule is that “if one has reason to believe

(continued...) house, Laney made the mistake of leaving his position of (relative) safety while the mob was still rampaging, in order to go to work. On returning t o the street, Laney exposed himself again to the mob, and its members resumed shooting at him. To protect himself, Laney fired back, killing one of his assailants. His conviction for manslaughter was affirmed on appeal. Other jurisdictions, in accord wit h t he Model Penal Code, have required ( contra Laney ) that the putative provocateur must be shown to have intended to instigate or promote violence

. S ee , e.g. , State v. Hawkins , 563 A.2d 745, 749 (Conn. App. 1989) (holding that the provocation exception to the right to use force in self

- defense “carries with it the requirement that the actor act with the specific intent to elicit the use of physical force by another person in order to cause physical injury or death to that person by, for example, retaliatin g with force against that person”) ; Model Penal Code § 3.04(2)(b)(i) (use of deadly force not justifiable when the defendant, “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter”) . I t has been suggested that the District of Columbia is an outlier in not requiring proof of intent to incite violence as a component of its provocation doctrine. But whether or not we might think such a requirement to be desirable, it is not open to a divi sion of this court to adopt it in contravention of governing precedent. See M.A.P. v. Ryan , 285 A.2d 310, 312 (D.C. 1971). We note also that appellant did not request the trial court to instruct the jury that the government needed to prove he intended to provoke Leonard‟s attack on him.

14 Sams , 721 A.2d at 953.

15 See Mitchell v. United States , 399 A.2d 866, 869 (D.C. 1979) (“Our belief is in no way diminished by the fact that the position in which appellant placed himself was on a city street to which the public was generally welcome. A (continued...)13

that he will be attacked, in a manner which threatens him with bodily injury, he must avoid the attack if it is possible to do so.” 16 The rationale underlying this
stern doctrine lies in “the fundamental princi ple that a killing in self

- defense is excusable only as a matter of genuine necessity. Quite obviously, a defensive killing is unnecessary if the occasion for it could have been averted[.]” 17 In short, “one cannot support a claim of self

- defense by a self

- generated necessity to kill.” 18

Where a defendant claims to have acted in self

- defense and there is sufficient evidence to support a self

- defense instruction, the burden is on the government to disprove self

- defense beyond a reasonable doubt. 19 Thus,

assu ming, arguendo , that Leonard Bigelow was the first aggressor , the issue before

us comes down to whether the jury permissibly could have f ou nd , beyond a
reasonable doubt on the evidence before it, that appellant deliberately provoked the
(continued...) person‟s presence on a public street under similar circumstances has been found trouble

- provoking and hence contrary to his claim of self

- defense.”) (citing cases)

.

16 Tyler v. United States , 975 A.2d 848, 858 (D.C. 2009) ( quoting Laney , 294 F. at 414).

17 Peterson , 483 F.2d at 1231.

18 Id.

19 Rorie v. United States , 882 A.2d 763, 771

- 72 (D.C. 2005).14

fatal conflict by g oing to Leonard‟ s home on the night of August 26. If so, it was proper for the trial judge to instruct the jury on provocation.

We hold that the evidence at appellant‟s trial amply justified the instruction. According to appellant‟s own testimony , just three days before their fatal clash , Leonard pulled a knife on him and threatened to kill him if he did not leave Katina alone

. Appellant argues that he disengaged from this altercation, and that having done so, he did not forfeit his right to defend hims elf from a deadly attack “by merely going someplace where he might encounter someone he had an argument with days earlier.” 20 T hat argument overlooks the intervening events and misrepresents the nature of the final confrontation. Despite Leonard‟s threat to kill
him , appellant continued to pester Katina , and on the night of August 26, he told Leonard that he was coming to see her. In response, as Katina testified, Leonard warned appellant that he would be waiting for him

. T his was no friendly invitation

—

the jury could find it was a renewed threat by Leonard of physical violence, and that appellant (who professed to have been hoping Leonard would be gone by the time he got there) understood it as such. Yet immediately a fter

20 Brief for Appellant at 29.15

Leonard delivered this warning , appellant texted Katina to confirm that he was on his way to see her

.
Leonard‟s response to appellant‟s August 26 phone call put appellant on notice that if he came to the Bigelow residence that night to see Katina, he would have to go through Leonard first

. 21 Appellant chose to disregard the risk. T he jury could infer from the fact that appellant brought a loaded gun with him that he foresaw he was about to face a grave danger and prepared to meet it head

- on . Moreover, while appellant understandably may have been upset over the loss of his belongings and intent on obtaining compensat ion from Katina, t he jury could find that he easily could have avoided the fatal encounter with Leonard by refraining from going to Leonard‟s house that night

.

From all this evidence, the jury readily could have found that appellant deliberately chose to risk a deadly confrontation with Leonard by placing himself in a position where his presence would be likely to provoke exactly that

— and that appellant thereby forfeited his right to claim self

- defense even if he had a

21 Cf. Nowlin , 382 A.2d at 14 n.7 (holding that the accused , by going to the victim‟s home after the victim had threatened him , “had no legitimate claim to the defense of self

- defense, since he had voluntarily placed himself in a position which he could reasonably expect would result in violence”)

.16

legitimate reason to want to speak with Katina, and even if Leonard was at fault for being the initial aggressor

. 22

III.

Appellant ‟s convict ion for threatening to “injure the person” of Katina Bigelow in viol ati o n of D.C. Code § 22

- 1810 (2012 Repl.) was based on the text
messages he sent her on the morning of August 26 after she left his belongings at the bus stop

. Appellant argues that his text messages threatened only her car, not her person, and that the e vidence therefore was insufficient to support his

22 Appellant additionally argues that the provocation ins truction was inappropriate because, even if he did provoke a confrontation, Leonard‟s reaction was disproportionate to the provocation; that it was unforeseeable, in other words, that Leonard would employ (as appellant allegedly perceived) more than non

d eadly force against him. Actually, given appellant‟s testimony that Leonard had threatened to kill him with a knife three days earlier, and that appellant armed himself with a handgun, his claim that the danger of a deadly clash was unforeseeable is dubio us. Nor is it entirely clear that a provocateur, like a first aggressor, may regain the right of self

- defense if his adversary unjustifiably escalates the (reasonably anticipated) level of violence by employing deadly force. But even assuming the validit y of that proposition and its applicability to this case, that does not mean there was insufficient evidence for the provocation instruction. At most, it means only that appellant might have been entitled to some sort of escalation instruction had he requ ested one

— which he did not do. See Montgomery v. United States , 384 A.2d 655, 660 (D.C. 1978) (“[A] defendant is entitled to an instruction on his theory of the case when properly requested by counsel and when the theory is supported by any evidence. ”).17

conviction of the charged offense. 23 V iew ing the evidence, as we must, in the light most favorable to sustaining the jury‟s verdict, 24 we dis agree with a ppellant

.

Evidence is sufficient to sustain a convict ion so long as “ a ny rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt.” 25 While s ufficiency

- of

- the

- evidence review is not “toothless,” it necessarily is “ deferential

. . . „ to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts

. ‟” 26

To prove threats to do bodily harm in violation of D.C. Code § 22

- 1810 , the government m ust prove, inter alia , that the defendant‟s “ words were of such a

23 While it also is a violation of § 22

- 1810 to threaten physical damage to another‟s property, the indictment did not charge such a violation, and the jury consequently was instructed that the government had to prove appellant threatened harm to Katina hers elf.

24 See Rivas v. United States , 783 A.2d 125, 134 (D.C. 2001) (en banc).

25 Id. (quoting Jackson v. Virginia , 443 U.S. 307, 3 19 (1979) (emphasis in the original ) )

.

26 Id. (quoting Jackson , 443 U.S. at 319).18

nature as to convey fear of bodily harm or injury to the ordinary hearer.” 27 The words in question “ must be considered in the context in which they were used.” 28
The reference to the “ordina ry hearer” does not mean the actual hearer‟s situation
and re action are irrelevant , for “ t he ordinary hearer we posit is one aware of all the surrounding circumstances, including what the actual hearer knew.” 29 While the government does not need to prove t hat the actual hearer felt threatened, 30 the actual hearer‟s fear, or lack thereof, “may be probative as to whether the utterance, in the circumstances, was such as to convey fear of bodily injury to the „ordinary

27 Joiner

- Die v. United States , 899 A.2d 762, 7 64 (D.C. 2006); see also Postell v. United States , 282 A.2d 551, 554 (D.C. 1971) (“the serious promise of bodily harm or death”). There remains an unresolved conflict in our cases as to whether the utterance must threaten serious bodily harm (as opposed t o bodily harm of any magnitude) in order to be criminally actionable. See Aboye v. United States , No. 13

- CM

- 1219, 2015 D.C. App. LEXIS 360, at *12 n.18 (D.C. Aug. 6, 2015). Appellant‟s sufficiency challenge does not implicate this issue, however. We also note that this court has granted a petition for rehearing en banc in Carrell v. United States , 80 A.3d 163 (D.C. 2013), to consider the mens rea element of the offense of threats. That issue, too, is not before us in the present appeal.

28 Jenkins v. Unit ed States , 902 A.2d 79, 85 (D.C. 2006); see also, e.g. , Lewis v. United States , 95 A.3d 1289, 1291 (D.C. 2014) (“ Our cases have stressed that the context in which words are spoken is critical and that the circumstances and the relations between the parties may be taken into consideration .”) (internal quotation marks and ellipses omitted).

29 Gray v. United States , 100 A.3d 129, 13 4

- 3 5 (D.C. 2014)

. 30 Id. at 135 (citing Postell , 282 A.2d at 554).19

hearer.‟” 31 As this court observed in Gray , “ evidence 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. ” 32

A ppellant emphasizes that while hi s August 26 text messages c ertainly were hostile, and two of them undeniably th reatened damage to Katina‟s car, 33 they contained no explic it threat of any kind to Katina‟s person. T hat is not dispositive , however

. A threat can be conveyed by “innuendo or suggestion,” 34 and by words
that app ear ambiguous or even innocuous on their face

. 35 There may be all the more reason to construe an ambiguous statement as threatening when it is made “in the context of a volatile or hostile relationship.” 36 Th us, th e government argues , an

31 Aboye , 2015 D.C. App. LEXIS 360, at *14 n.22.

32 100 A.3d at 13 5.

33 The text message at 8:20 a.m. read, “I swear to god I will fuck your car up.” It was followed at 8:26 a.m. by a text message reading, “Your car will be fucked. Up.”

34 Clark v. United States , 755 A.2d 1026, 1031 (D.C. 2000).

35 See, e.g. , Jenkins , 902 A.2d at 86

- 87 (holding that the defendant‟s angry demands that victim “open the door” and “come out” were sufficient to support her threats conviction where she was kicking the victim‟s door while uttering them and she had threatened to kill the victim th ree weeks earlier).

36 In re S.W. , 45 A.3d 151, 157 (D.C. 2012).20

ordinary hearer in Katina‟s circumstances reasonably could interpret the messages “You done fucked up now you stupid bitch,” “That‟s your ass,” and “I can‟t wait till you get home,” as threatening her person , even if those messages were ambiguous and did not overtly threate n any action at all

.

Considering the context, we think the government has the better of the argument. Appellant‟s words may have been ambiguous, but they were susceptible to the meaning the government ascribes to them. The y we re angry and menacing.
The jury could find them to have been part of a pattern of hostility and intimidation: W ithin the preceding few days, appellant had stalk ed Katina , had heated confrontation s with both her and her brother, and had threatened her to her face with death if she t ried again to call on the police for help

. And w hen Katina

was asked at trial how she felt when she received appellant‟s August 26 text
messages , she testified that they made her scared and anxious. A ppellant ‟s rejoin der , that Katina could not have felt endangered by his text messages since
she did not call the police , is less than convincing given appellant‟s then recent threat to kill her if she did just that

.21

We conclude that a reasonable jury could find , beyond a reasonable doubt, that appellant‟s t ext messages on August 26 were of such a nature as to convey fear of bodily harm or injury to an ordinary hearer in Katina‟s circumstances.

IV.

For the above

- stated reasons, we hold that the trial court did not err by instructing the jury that appellant fo rfeited his right to claim self

- defense if he provoked Leonard Bigelow to attack him, and that there was sufficient evidence for the jury to find appellant threat ened Katina Bigelow with bodily harm in his August 26 text messages

. Accordingly, we affirm a ppellant‟s convictions and remand the case for the Superior Court to address merger issues. 37

So ordered.

37 Appellant‟s convictions on the two counts of PFCV merge, requiring that one of them be vacated on remand. See Heath v. United States , 26 A.3d 266, 285 n.65 (D.C. 2011) (“ The government agr ees that because it proved a „ single possession of a single weapon during a single violent act, ‟ the two [PFCV] convictions merge. ”) (quoting Nixon v. United States , 730 A.2d 145, 153 (D.C. 1999)).