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Svetlana Kozlovska, A/K/A Lauren Holmstadt v. United States

November 3, 2011

SVETLANA KOZLOVSKA, A/K/A LAUREN HOLMSTADT, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CMD-11962-10) (Hon. Marisa J. Demeo, Trial Judge)

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

Submitted September 22, 2011

Before OBERLY, Associate Judge, RUIZ, Associate Judge, Retired, and KING, Senior Judge.

Svetlana Kozlovska, also known as Lauren Holmstadt, was convicted of one count of unlawful entry, in violation of D.C. Code § 22-3302 (2001), in a bench trial. Appellant challenges her conviction, arguing that the trial court erred in admitting into evidence over objection, the hearsay statements of the property maintenance staff that contradicted her defense. For the reasons that follow, we conclude that the error was harmless and affirm.

I. Facts

Ms. Leona Loukota, the property manager for 2400 Pennsylvania Avenue Apartments, testified that she found appellant sleeping in the stairwell of the apartment building in midApril of 2010.*fn1 Ms. Loukota escorted appellant outside and told her that she was not permitted to return to the building, to which appellant nodded in agreement. Approximately one month later, Ms. Beverly Avelar, the leasing consultant for the apartment building, encountered appellant sitting in the lobby. Ms. Avelar contacted Ms. Loukota and, upon her direction, called the Metropolitan Police Department (MPD). MPD officers arrived and informed Ms. Avelar that she should draft a barring notice to be issued against appellant. Ms. Avelar typed the barring notice. Appellant initially refused to sign the barring notice, but did so after speaking to the police. On June 17, 2010, Ms. Loukota was informed by a contractor that he and the maintenance engineer, Jeffrey Gordon, had found a "young lady in the apartment," with several pieces of luggage. Ms. Loukota immediately called the police, who arrived shortly thereafter and arrested appellant for unlawful entry and removed her from the building.

At trial, appellant did not contest that she had previously been barred from the apartment building, but asserted that she was later allowed to enter the apartment by "the apartment manager's super," named "Jeffrey," to store her luggage in a vacant apartment, and was provided a laundry card to the building. Ms. Loukota testified that she had not authorized any staff personnel to allow appellant to enter the building and confirmed with her staff that they did not do so.

At the close of the bench trial, the judge credited Ms. Loukota and incorporated her testimony as findings of fact regarding "her authority at the building, in terms of her observations of the appellant in mid-April, as well as on the date in which the appellant was arrested, June 17th." The court found Ms. Avelar to be an equally credible witness and incorporated her testimony as findings of fact, specifically regarding "her process in terms of typing up the barring notice . . . her authority to be able to bar individuals . . . [and] her not giving any authority to the appellant to be on the premises." The trial judge also found MPD Officer George Ellison to be credible and incorporated his testimony as findings of fact regarding his interactions with appellant and appellant's statements on the day when she was found on the property and was placed under arrest. The court did not credit the testimony of appellant because it was "inconsistent," and appellant "jump[ed] from one time period to another, to at times reference things that she says happened in the spring and then later said they happened at the time she was arrested."

The trial court found beyond a reasonable doubt that appellant entered the property voluntarily and on purpose, not by mistake or accident, and against the will of the persons lawfully in charge of the premises. The court found appellant guilty of one count of unlawful entry in violation of D.C. Code § 22-3302, and sentenced her to thirty days in jail (execution of sentence suspended), with one year of supervised probation, and $50 to be paid to the Victims of Violent Crime Compensation Fund. Appellant filed a timely notice of appeal.

II. Hearsay Testimony

We review evidentiary rulings for abuse of discretion, and a trial court's ruling may be reversed only if the trial court's exercise of discretion is clearly erroneous. See Brown v. United States, 840 A.2d 82, 88 (D.C. 2004) (citing Pickett v. United States, 822 A.2d 404, 405 (D.C. 2003); Malloy v. United States, 797 A.2d 687, 690 (D.C. 2002)). However, whether a statement satisfies a particular hearsay exception is a question of law that we review de novo. See Blackson v. United States, 979 A.2d 1, 6 (D.C. 2009) (citing Dyson v. United States, 848 A.2d 603, 611 (D.C. 2004)). Appellant contends that the trial court erred in admitting, over defense counsel's objection, the hearsay statement testified to by Ms. Loukota, that her staff confirmed that they did not allow appellant to enter the building. The relevant testimony, objection and ruling, were as follows:

PROSECUTOR: To your knowledge, what authority, if any, did any employee of yours give to let the defendant stay -- ? MS. LOUKOTA: They didn't gives her any because I, I asked them. Because there was a statement made that our maintenance person had let the young lady in the apartment and I asked them and they said no.

DEFENSE COUNSEL: I'd object as to hearsay, your honor. THE COURT: Well, when you say a statement was made by whom? You said there was a statement made ...


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