Andre Holmon v. District of Columbia

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CT-335
ANDRE HOLMON, APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior
Court of the District of Columbia
(CCC-12-15)
(Hon. Marisa J. Demeo, Trial Judge)
(Argued November 1, 2016 Decided February 28, 2019)
Dennis M. Hart for appellant.
John W. Donovan, Special Assistant Attorney General, Office of the
Solicitor General, with whom Karl A. Racine, Attorney General for the District of
Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, and
Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee.
Before EASTERLY and MCLEESE, Associate Judges, and RUIZ, Senior Judge.
RUIZ, Senior Judge: This appeal requires us to consider the application of
evidentiary principles of hearsay to the admissibility of evidence obtained from a
cellphone and the use of such evidence as proof of criminal contempt for violating
a civil protection order (“CPO”) that prohibited appellant from having contact with
a specific person. We conclude that the trial court properly admitted evidence
from that person’s cellphone regarding appellant’s calls, and that there was
2
sufficient evidence to sustain the trial court’s finding that appellant’s conduct of
calling the specified person’s cellphone constituted contact and violated the terms
of the CPO. We affirm the judgment of the trial court.
I. The Trial
On March 24, 2015, Associate Judge Marisa Demeo presided over
appellant’s bench trial. The trial judge took judicial notice of a CPO, entered on
June 20, 2014, which provided that appellant “shall stay at least 100 feet away
from” Ms. Erie Hollonquest, her home, her workplace, her vehicle, and her father’s
nursing home. The CPO also stated that appellant “shall not contact [Ms.
Hollonquest] in any manner, including but not limited to” by telephone, in writing,
or “[i]n any other manner, either directly or indirectly through a third party.” The
government presented three witnesses at trial: Ms. Hollonquest and Officers
Richard Davis and Michael Daly of the Metropolitan Police Department (“MPD”).
Appellant testified in his defense.
Ms. Hollonquest testified that she had known appellant for three years and
once lived with him. On November 15, 2014, while the CPO was in effect, Ms.
Hollonquest checked her mail on the ground floor of her apartment building. As
she sat down on the bottom steps leading to the ground level, Ms. Hollonquest saw
3
appellant run into the building. Ms. Hollonquest testified that appellant then ran
toward her and said “I’m going to crush you.” After two people stepped in
between appellant and Ms. Hollonquest, she called 911.1
Ms. Hollonquest testified that appellant had called her cellphone “several
times” that day before the encounter in the building lobby. She did not answer
those calls, but knew it was appellant calling because “his name was in [her] phone
under his number,” and “[h]is name appeared” as the caller on her cellphone’s
screen. She always used this number “in [her] phone” to call appellant, and
appellant always called her from that number. Ms. Hollonquest could not
remember appellant’s phone number offhand, but believed that the last four digits
were either “1491” or “4191.” Ms. Hollonquest testified that she showed the
missed calls displayed on her phone to an MPD officer who responded to her 911
call. 2
Officer Davis responded to the 911 call and interviewed Ms. Hollonquest at
her apartment building. He testified that during this interview, she showed him the
1
Ms. Hollonquest testified that she was “distraught” and “scared” when
calling 911 because she felt like appellant was “in a rage.”
2
Ms. Hollonquest’s phone was stolen at some point prior to trial and could
not be introduced into evidence.
4
“missed calls” screen on her cellphone, which listed “a missed call with a cell
phone written on it.” Specifically, he saw the phone number and wrote it down in
his notes. At trial, Officer Davis could not recall how many missed calls were
listed, or the telephone numbers for the missed calls, but his contemporaneous
notes recording the phone number (XXX) XXX-1491 were admitted into evidence.
Defense counsel objected, based on hearsay, to admission of the telephone number
Officer Davis recorded from the cellphone’s “missed calls” screen. The trial judge
concluded that the “missed calls” screen evidence was not hearsay because the
screen was not a “person making an out-of-court statement.”
Officer Daly testified about his interactions with appellant when he went to
the apartment building after the 911 call. Officer Daly sat with appellant and also
took notes, which he consulted at trial. Looking at the notes, Officer Daly testified
that he recorded appellant’s phone number as (XXX) XXX-1491—the same
number Officer Davis had seen on Ms. Hollonquest’s phone.
Appellant testified to a different version of events. He stated that Ms.
Hollonquest called him on November 15, 2014, asking for sixty dollars.
Appellant admitted that both he and Ms. Hollonquest knew appellant had a stay-
away order, but maintained that she promised not to call the police. Once he
arrived to give her the money, appellant saw Ms. Hollonquest asking two men in
5
the hallway whether she could “buy some weed or something.” When appellant
questioned her about how she planned to use the money she requested, she became
“upset” and “[v]ery hostile,” and retaliated by calling the police. Appellant left the
building when Ms. Hollonquest called 911, but then spoke with the officers outside
of the building once they arrived on the scene.
The trial court found that appellant violated the CPO “voluntarily and on
purpose, and not by mistake or accident,” in two respects: (1) by coming within
100 feet of Ms. Hollonquest and her home, and (2) by contacting Ms. Hollonquest
via telephone. 3 He was sentenced to 180 days on each count, with the sentence
suspended. Appellant filed a timely appeal challenging only the conviction on the
second count, based on the telephone calls.
3
The trial court relied on three pieces of evidence: First, appellant’s
testimony that he answered Ms. Hollonquest’s phone call and “continued the
conversation” could have “transferred the initial call by [Ms. Hollonquest] into a
violation [by appellant] when he didn’t hang up.” Second, Ms. Hollonquest’s
testimony that appellant called her on November 15, 2014, using the same phone
number that he had always used to call her, the last four digits of which she knew
to be 1491, and the testimony of Officers Davis and Daly that they saw that
number on the “missed calls” screen and heard appellant provide this same
telephone number as his own. Finally, appellant’s admission that he went to Ms.
Hollonquest’s apartment building later in the day, which strengthened the inference
that he called Ms. Hollonquest in violation of the CPO because “[i]t actually
suggests that he was trying to reach her before coming over.”
6
II. Evidence of Missed Calls
A. Hearsay
Appellant challenges the trial court’s admission of Officer Davis’s evidence
of the missed calls over his hearsay objection. 4 We review the factual findings
underlying the trial court’s evidentiary ruling for clear error and “the decision
whether to admit or exclude the proffered statement, based on those factual
findings” for abuse of discretion, Odemns v. United States, 901 A.2d 770, 776
(D.C. 2006), “recognizing that it is necessarily such an abuse for the trial court to
employ ‘incorrect legal standards,’” In re C.A., 186 A.3d 118, 121 (D.C. 2018)
(quoting Mayhand v. United States, 127 A.3d 1198, 1205 (D.C. 2015)).
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered to prove the truth of the matter asserted.”
Little v. United States, 613 A.2d 880, 882 (D.C. 1992) (quoting Fed. R. Evid. 801
(c)). A “statement,” for hearsay purposes, is “(1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended by the person as an assertion.” Id.4
Appellant did not make a hearsay objection to the admission of Ms.
Hollonquest’s testimony that she knew appellant had called her cellphone because
his name (which she apparently had saved in conjunction with a phone number)
appeared on the screen when she received the call.
7
(quoting Fed. R. Evid. 801 (a)). 5 “The primary rationale for excluding hearsay is
the lack of an opportunity to cross-examine the out-of-court declarant whose
statements are admitted for the truth of the matter contained in them.” Steadman v.
United States, 358 A.2d 329, 331 (D.C. 1976)
Hearsay statements traditionally have been made, and usually are made,
directly by a person making an assertion out of court. But an assertion that is
“implied” or “conveyed only in substance” may nevertheless constitute a hearsay
statement. Young, 63 A.3d at 1044. Technological innovations, in particular, have
led courts to conclude that a machine-generated statement may imply hearsay if the
statement “depend[s] on” human inputs that “require judgment or permit
subjectivity.” Id. at 1046; see also 2 MCCORMICK ON EVIDENCE § 249 (Kenneth S.
Broun et al. eds., 7th ed. 2016) (“[C]areful analysis is required regarding the nature
of human involvement and extent of human judgment reflected in the results in
determining whether the machine response should be treated as nonhearsay.”).
This is the conclusion we reached with respect to testimony that relied on a
computer-generated calculation of DNA match probability that, in turn, depended
5
The Federal Rules of Evidence currently define a statement, for hearsay
purposes, as a “person’s oral assertion, written assertion, or nonverbal conduct, if
the person intended it as an assertion.” Fed. R. Evid. 801 (a); Garibay v. United
States, 72 A.3d 133, 137 n.6 (D.C. 2013).
8
on human intervention. In Young, the FBI collected a semen sample from a
vaginal swab of a sexual assault victim, and a second sample from a paper tissue
found at the crime scene. 63 A.3d at 1036. For each sample, FBI laboratory
technicians reportedly produced a DNA profile of the source of the semen. Id.
Years later, the FBI obtained a buccal swab of Mr. Young and generated a
corresponding DNA profile. Id. At the direction of FBI examiner Craig, who
testified at trial, a subordinate FBI employee entered data from Mr. Young’s DNA
profile into an FBI computer program that contained the DNA data derived from
the sexual assault evidence. Id. at 1038. After running the program, the
subordinate provided examiner Craig with a printout showing the calculation of the
random match probability (“RMP”) between the DNA profile derived from the
buccal swab and the DNA profiles derived from the vaginal swab and paper tissue.
Id. Based on the RMP, examiner Craig concluded, to a reasonable degree of
scientific certainty, that Mr. Young committed the sexual assault. Id. At Mr.
Young’s trial, and over his Confrontation Clause objection,6 examiner Craig
testified as an expert witness regarding the methodology she used to compare the
DNA profile derived from the buccal swab with the “DNA profiles derived from
[the victim’s] vaginal swabs and [the] tissue.” Id. at 1037, 1045.
6
A Confrontation Clause objection raises two questions: “(1) whether [the
challenged evidence] transmitted hearsay and, (2) if so, whether that hearsay was
testimonial.” Young, 63 A.3d at 1044. Only the first question concerns us here.
9
This court held that examiner Craig’s testimony contained hearsay because it
impliedly relayed, for their truth, at least two out-of-court assertions from other
FBI lab technicians: (1) that the two semen samples from which the DNA profiles
were generated came from the victim’s vagina and the paper tissue, and (2) that the
absent FBI lab technicians “employ[ed] certain procedures” to generate the DNA
profiles from these samples. Id. at 1045. These assertions were necessarily
implied, the court reasoned, because “[w]ithout them, what would have been left of
Craig’s testimony—that she matched two DNA profiles she could not herself
identify—would have been meaningless.” Id.
Applying the analysis employed in Young, we come to the opposite
conclusion, and hold that the statement in Officer Davis’s notes did not contain
hearsay. In this case, there were several layers of hearsay. As noted, Officer Davis
could not recall the number he saw on the “missed calls” screen from memory, and
relied on his contemporaneous notes. Officer Davis’s notes as to the number he
saw on Ms. Hollonquest’s cellphone were hearsay, but were admitted under the
exception for past recollection recorded. The hearsay issue presented in this appeal
is not whether the notes themselves were hearsay, but whether the notes implied
the further statement that (XXX) XXX-1491 originated the calls to Ms.
Hollonquest’s cellphone and, if so, whether that statement “depend[s] on [human]
inputs that require judgment or permit subjectivity,” or is “nothing more than raw
10
data produced by a machine.” Id. at 1046 (citations omitted). We have no
difficulty concluding that the statement in Officer Davis’s notes that the number
(XXX) XXX-1491 was displayed on the missed calls screen relayed the implicit
assertion that the phone associated with that number originated the calls to Ms.
Hollonquest’s cellphone. However, we conclude that because that assertion was
purely machine-generated and had no “author” who could have been cross-
examined in court, it was not hearsay.
Appellant conceded at trial that the telephone number that appeared on the
missed calls screen was not “manually typed” into Ms. Hollonquest’s cellphone by
a person.7 This is so because “[t]he invention of electronic switching systems in
telecommunications has eliminated the need for manual involvement” in recording
phone traffic. People v. Holowko, 486 N.E.2d 877, 879 (Ill. 1985) (quoting State
v. Armstead, 432 So.2d 837, 839 (La. 1983)). “Since the computer is actually
responsible for making the telephone connection, the computer can be programmed
to record the source of any incoming call.” Id. And because this recording does
7
Although appellant notes that Ms. Hollonquest appears to have entered
appellant’s name into her cellphone with that number, i.e., as a “contact,” as
explained above, appellant did not object to admission of Ms. Hollonquest’s
testimony that she saw his name appear when he called her phone. At trial as on
appeal, appellant challenged as hearsay only Officer Davis’s testimony that the
missed call screen displayed a telephone number, and he did not call the trial
court’s attention to the discrepancy between the testimony of the two witnesses.
11
not depend on human input, several jurisdictions have held that a witness’s
testimony regarding a caller identification system’s display of a phone number is
not hearsay. See, e.g., Tatum v. Commonwealth, 440 S.E.2d 133, 135-36 (Va. Ct.
App. 1994); Culbreath v. State, 667 So. 2d 156, 162 (Ala. Crim. App. 1995),
abrogated on other grounds by Hayes v. State, 717 So. 2d 30, 33 (Ala. Crim. App.
1997). 8 We are aware of no jurisdiction holding otherwise.
Appellant argues that information appearing on a telephone’s missed calls
display nonetheless constitutes hearsay because “somebody”—i.e., the phone
system designer and manufacturer—“had to program the phone for it to do that.”
However, the fact that a human being was involved at some point in developing the
automated system does not resolve the hearsay issue before us. “[T]here can be no
statements which are wholly machine-generated in the strictest sense; all machines
were designed and built by humans.” United States v. Lamons, 532 F.3d 1251,
1263 n.23 (11th Cir. 2008). Because “human agency is at some level necessarily
8
Some jurisdictions have gone further and held, in the context of automated
caller identification systems, that the system’s display of a caller’s name—not
simply the originating number—does not constitute hearsay. See, e.g., Bowe v.
State, 785 So. 2d 531, 532 (Fla. Dist. Ct. App. 2001); Inglett v. State, 521 S.E.2d
241, 245 (Ga. Ct. App. 1999). We decline to endorse or reject this conclusion here
because the question is not before us, see supra note 4, and because the display of
a caller’s identity on a cellphone might sometimes depend on human inputs (e.g.,
the entry of a “contact”) rather than solely “computer-generated data.” Inglett, 521
S.E.2d at 245.
12
involved” in producing any machine-generated statement, the inquiry turns on “the
nature of human involvement and extent of human judgment reflected in the results
in determining whether the machine response should be treated as nonhearsay.”
MCCORMICK ON EVIDENCE, supra, § 249. 9
The testimony in Young was deemed hearsay because it relayed the
assurances of other lab technicians that they had generated the crime scene DNA
profiles using proper procedures and from the relevant samples in that “particular
case.” Id. at 1045. It was critical to the factfinder’s assessment of examiner
Craig’s testimony that there was a DNA match with the defendant’s DNA to know
about the inputs and judgments these absent lab technicians made because correct
inputs have a direct relationship to the correctness of outputs, or, as the court
colloquially quoted, “garbage in, garbage out.” Id. at 1046 n.49. Here, by
contrast, there was no technician who input information that resulted in the number
displayed on Ms. Hollonquest’s cellphone and whose examination would have
been useful to assess the accuracy of the statement recorded in Officer Davis’s
9
The government asks us to liken “the data-driven programs that generated
the missed-call entries on Ms. Hollonquest’s phone” to “tool[s] to aid perception,
much like binoculars, a telescope, or glasses,” which are not capable of producing
hearsay statements. See Holmes v. United States, 92 A.3d 328, 331 (D.C. 2014).
We think that analogy is inapt. The programs that identify missed calls on
cellphones go beyond simply aiding human perception and generate information
that would not otherwise be available to a person by using the senses.
13
notes. Although “somebody” programmed the phone to recognize an incoming
number that was transmitted by a switching system built by another somebody—
many somebodies most likely—the developers of the underlying systems had no
direct involvement in the specific assertion at issue in this case: that (XXX) XXX-
1491 originated the calls to Ms. Hollonquest’s phone. Thus, even if they could
have been identified and brought to court, their testimony would have been
unhelpful to assess the specific implied assertion in Officer Davis’s notes that the
calls originated from appellant’s phone. 10 Therefore, we conclude that the trial
judge did not abuse her discretion in overruling appellant’s hearsay objection to the
evidence that the number (XXX) XXX-1491 called Ms. Hollonquest as displayed
on the “missed calls” screen of her cellphone.
B. Unreliability
That the missed call information on the cellphone screen is not properly
characterized as hearsay does not mean that its admissibility is immune from any
challenge. Appellant also questions the admissibly of data from a mobile phone’s
call identification system on grounds of unreliability, emphasizing that we cannot
be certain of the source of the telephone calls. Defense counsel did not specifically
10
However, their testimony could be relevant to a well-founded challenge
to the reliability of the underlying systems, see the next section.
14
object to the reliability of the missed calls display or telephone number
identification systems at trial; instead, while explaining the grounds for appellant’s
hearsay objection, defense counsel referred to the possibility that the service
provider or some person could have generated erroneous “missed calls”
information on Ms. Hollonquest’s cellphone. 11 We do not read counsel’s objection
as a separate challenge to the reliability of the underlying system because it was
embedded in the hearsay objection on which the court and counsel focused.
Counsel’s questioning of the system’s reliability, such as it was, lacked sufficient
specificity to alert the trial judge that appellant intended to raise a separate ground
for excluding the evidence. See Hunter v. United States, 606 A.2d 139, 144 (D.C.
1992) (noting that, to be sufficient, an objection must be “reasonabl[y] specific[];
the judge must be fairly apprised as to the question on which he is being asked to
rule”). As a result, counsel did not argue its merits and the trial court did not rule
on it. Therefore, we apply plain error review.
Plain error consists of four components: (1) an “error”; (2) that is “plain”;
(3) “affects [appellant’s] substantial rights”; and (4) “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Olano v. United States, 507
11
Defense counsel argued that “it could be from multiple sources. Either
from the phone company whose [sic] sending caller ID information to the phone or
it could have been the individual who just wrote this on the phone itself.”
15
U.S. 725, 732 (1993) (quoting United States v. Young, 470 U.S. 1, 15 (1985))
(alterations and internal quotations omitted).
The element of plain error review that weighs most heavily against appellant
is that an error, if any, must be “plain,” meaning “clear” or “obvious.” Id. at 734.
Here, appellant’s counsel referred to possible unreliability only in passing, and
provided no fleshed-out argument or evidence to substantiate an objection to the
reliability of the cellphone’s missed calls display or the service provider’s call
identification system. To the contrary, evidence at trial supported that the call
identification system was reliable as Ms. Hollonquest testified that appellant’s
name and number were in her phone, that appellant always called her using this
number, and that this was the only number she used to call appellant. Officer Daly
testified that appellant identified the number as his. Thus, error, if any, is not clear
on our review of the record. Therefore, admission of evidence of the missed calls
to establish that appellant had called Ms. Hollonquest was not plain error.
III. Sufficiency of the Evidence
A. Standard of Review
An appeal challenging whether conduct constituted a violation of a CPO
presents a “question of law, and we review the trial court’s resolution of that
16
question de novo.” In re Ferguson, 54 A.3d 1150, 1152 (D.C. 2012) (quoting Ba
v. United States, 809 A.2d 1178, 1182-83 (D.C. 2002)). In reviewing the
sufficiency of evidence in a bench trial, “this court will not reverse unless an
appellant has established that the trial court’s factual findings are ‘plainly wrong,’
or ‘without evidence to support them.’” Jones v. United States, 67 A.3d 547, 549
(D.C. 2013) (quoting Mihas v. United States, 618 A.2d 197, 200 (D.C. 1992))
(alteration omitted). The appellant bears the burden of showing that “the
government presented ‘no evidence’ upon which a reasonable mind could find
guilt beyond a reasonable doubt.” Mihas, 618 A.2d at 200 (quoting Robinson v.
United States, 506 A.2d 572, 573 (D.C. 1986)).
While this standard is “deferential,” it is not meant to be a “rubber stamp” of
the conviction. Swinton v. United States, 902 A.2d 772, 776 n.6 (D.C. 2006).
“Slight evidence is not sufficient evidence; a ‘mere modicum’ cannot ‘rationally
support a conviction beyond a reasonable doubt.’” Rivas v. United States, 783
A.2d 125, 134 (D.C. 2001) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307,
320 (1979)). “The evidence must support an inference, rather than mere
speculation, as to each element of an offense.” Lewis v. United States, 767 A.2d
219, 222 (D.C. 2001) (quoting Head v. United States, 451 A.2d 615, 622 (D.C.
1982)).
17
B. Analysis
“To establish the elements of a CPO violation, the government must present
evidence proving beyond a reasonable doubt that defendant engaged in: (1) willful
disobedience (2) of a protective court order.” Ba, 809 A.2d at 1183. “[C]onsent of
the petitioner [of a CPO] does not bar a conviction of criminal contempt for [the]
violation of a CPO.” In re Shirley, 28 A.3d 506, 513 (D.C. 2011). However, we
have suggested that a respondent might not “willfully” violate a CPO where the
“petitioner approached the respondent without his encouragement or consent,”
where the “contact was necessitated by an emergency,” or where there exists some
other compelling reason. Id. at 512. But even then, we have indicated that “the
respondent presumably would have an obligation to terminate the contact, if that is
possible.” Id. at 512 n.7.
Appellant does not contest the validity of the CPO or his knowledge of it.
Instead, appellant questions whether the evidence of his conduct presented at trial
amounted to a willful violation of the CPO, arguing that: (1) appellant was
charged with calling Ms. Hollonquest between 1:00 and 1:30 p.m. on November
15, 2014, but no evidence at trial established the times at which the missed calls
were made; (2) the government did not definitively establish that appellant made
18
those calls because some other person could have used his phone, or that he did so
voluntarily, citing “pocket dials” to contacts saved on one’s phone as a common
source of accidental or involuntary calls; and (3) a call that is made, but does not
actually connect with the person called, does not constitute actual “contact” via
telephone in violation of the CPO.
We begin by noting that the missed calls were not the only evidence
supporting a violation of the CPO’s prohibition on phone calls with Ms.
Hollonquest. Appellant testified that he answered a call from Ms. Hollonquest
during which Ms. Hollonquest asked him for money. He agreed to do so, even as
he said he was not supposed to be “around” her. Appellant’s willingness to engage
in this non-emergency conversation is some evidence of his contempt for the CPO
even if he did not initiate the contact. See In re Shirley, 28 A.3d at 512 n.7.
Turning to appellant’s challenge to the sufficiency of the missed calls
evidence, the exact times of the missed calls are irrelevant to appellant’s conviction
as the CPO does not specify times where calling is prohibited, but rather prohibits
all contact via telephone.12 Ms. Hollonquest testified that the missed calls
appeared on her cellphone’s screen on November 15, 2014, when the CPO was in
12
Appellant does not contend that he lacked notice or was in any way
prejudiced by the times specified in the information in this misdemeanor case.
19
effect. Appellant’s argument that the cellphone’s missed calls display fails to
prove conclusively that he was the source of those calls or that he made them
voluntarily ignores the trial judge’s reliance on other evidence to infer that
appellant intentionally made those calls. The trial judge noted that appellant’s
showing up at Ms. Hollonquest’s apartment building later that day “actually
suggests that he was trying to reach her [via telephone] before coming over.”
While it is possible that appellant’s phone “pocket dialed” Ms. Hollonquest, the
trial court was not required to infer that is what happened over the more likely
scenario that fits in with his other actions that day. See Jones v. United States, 716
A.2d 160, 162 (D.C. 1998) (explaining that “[t]he government need not disprove
every theory of innocence” for sufficient evidence to support a conviction).
The missed calls from appellant’s number that appeared on Ms.
Hollonquest’s cellphone support the conclusion that appellant “contacted” her in
violation of the CPO. We have not yet interpreted the meaning of “contact,” for
purposes of a CPO, in the context of telephone calls that are made, but where no
actual conversation ensues. But the plain language definition of “contact” suggests
that intentional actions that result in missed calls constitute contact. See State v.
McGee, 84 P.3d 690, 693 (N.M. Ct. App. 2003) (citing WEBSTER’S THIRD NEW
20
INTERNATIONAL DICTIONARY (2002)).13 In McGee, the court decided that a call,
even if unanswered, violated the “no contact” provision of a protection order
because such an order was not limited to “direct communication.” 84 P.3d at 692-
93. A CPO is designed to, among other things, protect a petitioner from emotional
violence, see Richardson v. Easterling, 878 A.2d 1212, 1217 n.6 (D.C. 2005), and
provide the petitioner “a measure of peace of mind,” Maldonado v. Maldonado,
631 A.2d 40, 43 (D.C. 1993). These purposes support interpreting “no contact” to
prohibit calls even if the recipient does not answer.
Other forms of prohibited contact in a CPO, such as writing or “any other”
method of contact, do not require the CPO petitioner to be aware of either the
attempted contact or its message. For example, in In re Sobin, 934 A.2d 372, 373
(D.C. 2007), a CPO prohibited Mr. Sobin from “contact[ing] [his son] . . . in any
manner, either directly or indirectly through a third party.” Mr. Sobin asked an
attorney, who was representing his son in an unrelated matter, to relay a message
to his son. Id. This court held that the CPO’s no contact provision put Mr. Sobin
13
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 490 (2002) defines
“contact” as “an instance of establishing communication with someone . . . or of
observing or receiving a significant signal from a person or object.” Appellant’s
competing definition of “contact” as “(1) the act or state of touching or meeting,
(2) the state or fact of being in touch, communication, or association” as a noun,
and “(1) to place in contact, (2) to come into contact with and (3) to get in touch or
communicate with” as a verb, is not inconsistent with this understanding.
21
“on notice” that he could not “attempt to contact his son” or “initiate contact with
[his son]” through the attorney. Id. at 374. Accordingly, this court affirmed Mr.
Sobin’s conviction of criminal contempt for violating the CPO because his request
to the attorney to communicate a message sufficed to violate the CPO’s no contact
provision. Id. at 374-75. This court’s decision did not depend on or discuss
whether Mr. Sobin’s son actually received Mr. Sobin’s message. Id. Although the
aim of a CPO is to protect the petitioner, a CPO is focused on controlling the
conduct of the person to whom the CPO is directed, and its terms should be
interpreted in that light.
Appellant recognizes that if Ms. Hollonquest “declined to answer after
viewing the incoming call screen, an argument could be made for a completed
contact.” Appellant maintains, however, that there is no evidence that supports
such a theory in this case. We disagree. Ms. Hollonquest testified that when
appellant called her on November 15, 2014, she chose not to answer because she
knew the call was from appellant. Therefore, her testimony qualifies the “missed”
phone calls as a “completed contact” under the theory acknowledged in appellant’s
brief. 14 Taken in the light most favorable to sustaining the trial court’s findings of
14
Ms. Hollonquest’s actions are also similar to those of the petitioner in In
re Dixon, 853 A.2d 708, 710 (D.C. 2004), where the petitioner hung up as soon as
she realized appellant was calling her in violation of the no contact provision of a
(continued . . .)
22
guilt, we conclude that the evidence is sufficient to establish a violation of the CPO
based on appellant’s unanswered telephone calls to Ms. Hollonquest.
For the foregoing reasons, we affirm the judgment of the trial court.
So ordered.
______________________________
(. . . continued)
CPO. While the appellant in Dixon was convicted of only one count of criminal
contempt, each of the eighteen phone calls placed to the petitioner, including those
where she hung up immediately after identifying the caller, amounted to a violation
of the CPO. Id. at 711.