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In Re Glenn Davis

February 23, 2012

IN RE GLENN DAVIS FERGUSON


Appeal from the Superior Court of the District of Columbia (CPO2919-08) (Hon. Zinora Mitchell-Rankin, Trial Judge)

Per curiam.

Submitted May 11, 2011

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and WAGNER, Senior Judge.

Opinion concurring in part and dissenting in part by Senior Judge WAGNER at p. 9.

After a bench trial, appellant Glenn Ferguson was found guilty of two counts of criminal contempt for violation of a civil protection order ("CPO"). On appeal, he argues that the evidence was insufficient to support his convictions. We agree that the evidence was insufficient as to one of the counts and reverse the conviction on that basis. We reverse the other conviction on the ground that the trial court erred in relying on a concession by defense counsel that was tantamount to a guilty plea, without assuring that appellant understood the consequences of that concession.

I.

The record shows that in September 2008, Bonita Keeton petitioned for a CPO against appellant, her former boyfriend and father of her two-year-old daughter, Angel. On October 22, 2008, the trial court issued a CPO ordering, inter alia, that appellant not contact Keeton "except under the following conditions: Only regarding the child and announcement for pick up and return of the child" (for visitation). At trial onAugust 31, 2009, Keeton testified that, on December 24, 2008, she received a phone call from appellant in which he asked whether she was "going to be home for Christmas because he had a present that Angel had bought" for Keeton. Keeton testified:

I told him that no, I wasn't going to be home and how did Angel get me a present when Angel don't have a job. . . . And he asked me was I going to be home and I told him, no, I wasn't going to be home. And so he said well,I'll just throw it in a box with everything else.

Keeton further testified that on January 1, 2009, appellant called her and said, "Happy New Year, or something." Keeton testified that there was "really no conversation because [she] told him, I'm not talking to you." She explained:

I didn't even want to listen to anything he had to say. My first response was, I'm not talking to you and you're not supposed to be calling me and I'm not talking to you. And that was it. He . . . said something about - I don't, I don't remember what he said, but I know I was adamant about, I'm not talking to you, I'm not supposed to talk to you, and that was it. It was - wasn't a whole lot of conversation on that day.

Keeton stated that appellant "didn't say anything about Angel," but added that she "did not give [him] . . . a[n] opportunity to state why he was calling."

At the close of the government's evidence, defense counsel made a motion for judgment of acquittal as to the contempt charges related to appellant's contact with Keeton on January 1, 2009 and another contact with her on January 3, 2009. However, counsel "concede[d]" appellant's guilt as to the December 24, 2008 phone call.*fn1 Counsel twice repeated that concession (answering "Yes[,] Yes" when the court asked, "And so you concede on the December date, yes?" and explaining that he "didn't argue about the December 24th" since appellant "kept talking" during the call he placed to Keeton that day).*fn2 After the court denied the motion for judgment of acquittal, appellant took the stand and testified regarding his defense to the contempt count that was based on the contact he had with Keeton on January 3, 2009 (as to which the court thereafter "decline[d] to find him guilty"). Appellant was asked no questions and gave no testimony about the December 24, 2008 and January 1, 2009 telephone calls. In the closing arguments that ensued, neither counsel argued with respect to the December 24 incident.

In finding appellant guilty of violating the CPO on December 24 and January 1, the court stated, "There is no dispute about December 24 and so the Government has met its burden [i]n that regard." The court stated that it was also "satisfied that the Government ha[d] met its burden" as to the January 1 telephone call, reasoning that January 1 was "not the day of [scheduled] visitation," and that appellant's rationale when he made that call was that "I know what the ...


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