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In Re Herschel D. Shirley

April 16, 2011


Appeal from the Superior Court of the District of Columbia (CPO3622-08) (Hon. Heidi M. Pasichow, Trial Judge)

The opinion of the court was delivered by: Thompson, Associate Judge:

Submitted April 12, 2011

(Amended June 23, 2011)

Before THOMPSON, Associate Judge,REID,*fn1 Associate Judge, Retired, and FARRELL, Senior Judge.

After a bench trial, appellant Herschel Shirley was found guilty of three counts of criminal contempt for violation of a civil protection order ("CPO") sought by complainant Tashi Brown and issued by the Superior Court on December 10, 2008.*fn2 On appeal, his argument is twofold: (1) the trial court erred in finding him in contempt of a civil protection order when Brown consented to his contacts (in light of their "ongoing romantic relationship"); and (2) the trial court did not have jurisdiction to find him in contempt because the government failed to show that "Brown reside[d], live[d], work[ed], or attend[ed] school in the District of Columbia" at the time of the violations and that the violations occurred in this jurisdiction. Unpersuaded by the arguments, we affirm the judgment of conviction.

I. Factual Background

The record shows that in December 2008, Tashi Brown filed a petition and affidavit for a CPO against appellant Shirley, then her boyfriend of a year. On December 10, 2008, Shirley signed a Consent CPO Without Admissions, which by its terms was effective for the ensuing twelve-month period. The CPO ordered Shirley not to "assault, threaten, harass, or stalk [Brown], or destroy [Brown's] property[,]" and to "stay at least 100 feet away from [Brown's] person, home, workplace, vehicle[,]" and prohibited Shirley from contacting Brown "in any manner, including but not limited to: by telephone, in writing, in any other manner; either directly or indirectly through a third party[.]" It also ordered Shirley not to "call [Brown's] workplace . . . email or text message [Brown]." The CPO further explicitly warned, in bold lettering, that "FAILURE TO COMPLY WITH THIS ORDER IS A CRIMINAL OFFENSE" and that"ONLY THE COURT CAN CHANGE THIS ORDER."

Brown testified at a hearing on August 18, 2009, that (notwithstanding the CPO that was in place) she and Shirley had been "in a [romantic] relationship together for about a year and a half" and that, although Brown had obtained two CPOs against Shirley (one in October 2008 and one in December 2008),*fn3 the couple had continued to attempt to "work things out." On April 3, 2009 - while the December 2008 CPO remained in effect - appellant and Brown attended "couples counseling" and then agreed to "go out to lunch" the next day, April 4. On April 4, Shirley picked-up Brown in his truck and the couple went to lunch at a restaurant in the District, where they stayed for three to four hours. According to Brown, as they were leaving the restaurant's parking lot, the couple "got into an argument" and appellant told Brown to "get the F out of his truck." Brown got out of the truck and "started walking away from the truck" when appellant said "he was sorry . . . he didn't want to argue, he just wanted to have a good day." Brown got back into the truck, and the couple "ended up going to Anacostia Park . . . [to] talk[] about what just happened." While they were there, according to Brown, "[t]hings just got heated all over again."

Appellant then got a call from his sister who lives in Oxon Hill, Maryland, asking him to pick up his dog from the sister's house. According to Brown,she asked appellant to take her home before picking up the dog, but he kept driving toward Oxon Hill. Brown "continuously asked and told [appellant] that she wanted to go home" (but acknowledged that, when they arrived at the sister's apartment complex and appellant stopped the car, she (Brown) did not signal for help). Brown testified that as they left the apartment complex with the dog, she again insisted that appellant take her home, but instead appellant "pulled over . . . on the shoulder," "grabbed [Brown] by the neck and . . . pushed [her] against the passenger side window," started "banging [her] head on the passenger side window," and "threaten[ed] to kill [her]" and to "burn [her] body so that no one would ever be able to find [her]."

Then appellant "circled through 495 South like past Tyson's and Dulles and loo[p]ed back around going to 495 North" and made "a lot of other threats . . . during that time" and twice "choked [Brown] again." Appellant denied these allegations.

Appellant eventually stopped at a park in Fairfax County, Virginia "to go walk the dog." Brown remained in the truck until she spotted a police officer in the park and approached him. According to the officer, Brown told him that "she needed some help" because "her boyfriend wasn't letting her leave or wasn't taking her home." Appellant explained to the officer that he and Brown "were trying to reconcile their relationship" and "at some point in time . . . [appellant] advised [the officer] that he had a restraining order out." The officer searched for the CPO in his computer but could not find it. Thereafter, the officer left to respond to an emergency and took both appellant's and Brown's identifications with him and instructed them not to have any contact with each other. When the officer returned, "[e]verything seemed fine" and Brown said to the officer, "It's okay. I'll just get back in the truck with [appellant]." The officer, however, insisted that they go their separate ways; he allowed appellant to leave and called a taxi for Brown.*fn4

While Brown and the officer waited for the taxi, appellant "continued to call [her] and he also had sent [her] text messages." At trial, three text messages were admitted into evidence. The text messages stated, "[W]here do you need to be picked up at . . . [C]an you ask the officer to call . . . and . . . [C]an I speak to the officer." That evening when Brown was at home, appellant called her and left a voice mail message asking her "to pick up [the phone] because apparently there was some issue with him getting back in his house . . . and his sister . . . was not helping him." Brown never responded to that message. Appellant also called the next day, April 5, and left a voice mail message asking Brown to answer because he did not have any place to live. Again, Brown did not respond to his message and instead called the police.

Appellant testified that Brown had obtained the December CPO against him to take "control of [his] life," and that once they left court with the CPO, he was "back at her house . . . living together." Appellant admitted to sending Brown the text messages and leaving her voice mail messages in violation of the CPO, but stated that he was not "purposely trying to, and willfully trying to violate the civil protection order."

The trial court found appellant guilty of three counts of contempt for having contacted Brown by text message at approximately 8:00 p.m. on April 4, 2009, telephoned Brown at 10:29 p.m. on April 4, 2009, and telephoned Brown at approximately 1:13 p.m. on April 5, 2009. Addressing appellant's consent defense, the court stated that appellant "was fully aware of the civil protection order . . . [and] there is no case law in the District that indicates that the Petitioner may . . . consent to a violation of the civil protection order and I don't find that she did, particularly at that point." The trial court found appellant not guilty of the count of the government's criminal contempt motion that related to the alleged threats to assault Brown and confine her in his car. The ...

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