Appeal from the Superior Court of the District of Columbia (M-5442-00) (Hon. Tim Murphy, Trial Judge)
Before Reid and Glickman, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge
Appellant Alassane Ba was convicted of violating a civil protection order ("CPO") under D.C. Code §§ 16-1004, -1005 (2001) at a bench trial. *fn1 On June 9, 2002, this court issued an opinion affirming Mr. Ba's conviction. *fn2 Ba v. United States, 800 A.2d 692 (D.C. 2002). Subsequently, after receiving petitions for rehearing or rehearing en banc, the court vacated its opinion; granted rehearing; requested new briefing directed at the following issue: "Under the circumstances of appellant's case, was consent a defense to the Civil Protection Order"; and scheduled the matter for oral argument. *fn3 On rehearing, Mr. Ba continues to contend that his reconciliation with the complainant after the issuance of the CPO effectively vacated that order and provided him with a valid defense, or at least precluded a finding that he wilfully violated the CPO. Invoking the equitable doctrine of "unclean hands" and the concept of consent, the Public Defender Service, as amicus, argues that: "This [c]court should recognize consent as a defense given the [complainant's] conduct in this particular case, preclude enforcement of the CPO against Mr. Ba as a matter of equity, and reverse Mr. Ba's conviction." We affirm appellant's conviction, holding that on the facts of this case, the government proved beyond a reasonable doubt that Mr. Ba willfully violated the CPO.
The record before us reveals that in December 1999, Ms. Lashance Howard filed a petition and affidavit for a CPO against her ex-boyfriend of four years, Mr. Ba. On December 29, 1999, Mr. Ba signed a Consent CPO Without Admissions, which was effective for a twelve-month period. The CPO ordered Mr. Ba not to "assault, threaten, harass, or physically abuse [Ms. Howard] in any manner," to "stay at least 100 feet away from [Ms. Howard], [her] home [and her] workplace[,]" and prohibited him from contacting her "in any manner." The CPO further explicitly warned that: "Any and every failure to comply with this order is punishable as criminal contempt and/or as a criminal misdemeanor and may result in imprisonment for up to six months, a fine of up to $1,000, or both."
Subsequently, Mr. Ba was charged with one count of violation of a CPO, which allegedly occurred on May 13, 2000. A hearing on this charge took place on July 14, 2000. At the July 14 hearing, the government (represented by an Assistant United States Attorney) presented the testimony of Ms. Howard, and Officer Wayne David of the Metropolitan Police Department. Mr. Ba testified for the defense.
Ms. Howard's direct, cross and redirect examination revealed that sometime after December 29, 1999, she and Mr. Ba lived together while the CPO still was in effect, and when they were attempting to work out problems in their relationship. During this period, Ms. Howard and Mr. Ba sometimes stayed at his place of residence and sometimes at Ms. Howard's home. The two continued to reside together until March 2000. Mr. Ba's testimony confirmed that he and Ms. Howard reconciled after the CPO took effect on December 29, 1999. He testified that he and Ms. Howard lived together, at times, from January 2000 to late March 2000.
Ms. Howard stated that: "As of March, the end of March, [Mr. Ba] knew [their relationship] was completely over." She also pinpointed the moment the relationship ended as "[m]id-March." Furthermore, she recalled that after the relationship ended in March, Mr. Ba "showed up at [her] job. [She] called the police, and the next day Mr. Ba issued a restraining order against [her]."
Ms. Howard's testimony addressed the specific incident which led to the one count charge against Mr. Ba, alleging his violation of the CPO dated December 29, 1999. That event occurred on May 13, 2000. On that day, Ms. Howard received a phone call at approximately 2:20 a.m. The caller hung up without speaking. Ms. Howard's caller identification box informed her that the call came from a pay phone; she then "beeped" Officer Wayne David who had previously responded to her complaint about Mr. Ba. When Officer David returned her call, she "asked him if he would, on his way off duty, . . . stop by [her] home just to make sure everything was okay. While she was waiting for Officer David, she looked out of a window of her residence and observed a car that resembled Mr. Ba's; she "saw a male in the car."
Ms. Howard continued recounting the events of May 13, saying that: "[A]fter maybe 20 or 30 minutes had passed with nothing . . . well, I saw a black car drive up to the driveway. And I peered out of the window again, and the person just sat in the car." The person in the unmarked car was Officer David. Ms. Howard went outside when she recognized the officer as he illuminated his unmarked vehicle, and told him that she thought she saw Mr. Ba's car, but "had heard nothing from him for the last 20 minutes or so."
After Officer David left, and as Ms. Howard "was putting the key in the lock of the gate" to re-enter, Mr. Ba appeared, approached and came "within six feet" of Ms. Howard. As Ms. Howard "tried to get in the door," Officer David returned and inquired whether the man standing near Ms. Howard was Mr. Ba. When Ms. Howard "replied yes," the officer "pulled out his weapon." At that time, Mr. Ba was about "ten feet, twelve feet" from Ms. Howard. Officer David arrested him.
During his testimony, Mr. Ba also explained why he sought a CPO against Ms. Howard in March 2000, and why he ...