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)
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.
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 order says, but I'm calling you based upon these 15 odd years that we've been together, and I'm saying Happy New Year."
In CPO violation cases, "[w]e must view the evidence in the light most favorable to sustaining the judgment." Ba v. United States, 809 A.2d 1178, 1182-83 (D.C. 2002) (citation and internal quotation marks omitted). "However, whether the acts in which the defendant was found to have engaged constitute [a CPO violation] . . . is a question of law, and we review the trial court's resolution of that question de novo." Id. (citations and internal quotation marks omitted). "[W]e have an obligation to take seriously the requirement that the evidence in a criminal prosecution must be strong enough that a trier of fact behaving rationally could find it persuasive beyond a reasonable doubt." Davis v. United States, 834 A.2d 861, 866 (D.C. 2003) (internal brackets omitted).
"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 civil protection order." Hooks, 977 A.2d at 939 (citing Davis, 834 A.2d at 866). "The offense requires both a contemptuous act and a wrongful state of mind." Id.
Appellant contends that notwithstanding defense counsel's concession that appellant's December 24 phone call to Keeton "was a violation of the CPO," "the trial court erred in finding [appellant] guilty, as the action did not violate the language of the CPO as written." We cannot agree. Even if we interpret the CPO to have permitted - as a contact "regarding the child" - a call from appellant to Keeton that was genuinely about "a present that Angel had bought" for Keeton,*fn3 there remains appellant's repeated question to Keeton about whether she was "going to be home" (what counsel recognized as appellant's having "kept talking"). We think the evidence presented was sufficient to permit the trial court to find that appellant's further question to Keeton was not genuinely "regarding the child," but instead represented an effort to have contact with Keeton outside the bounds permitted under the CPO.
Nevertheless, we conclude that appellant is entitled to a reversal of his conviction. Defense counsel's concession that appellant violated the CPO when he "kept talking" during the December 24 call was equivalent to a guilty plea, entered without appellant having been afforded any of the requisite safeguards. It has long been recognized that in a criminal case, "where a stipulation is tantamount to a guilty plea the trial court must be careful to ensure, by analogy to [Super. Ct. Crim.] Rule 11 that the defendant understands the consequences of a stipulated trial. . . ." Glen v. United States, 391 A.2d 772, 776 (D.C. 1978) (affirming conviction although appellant's stipulation was tantamount to an admission of guilt where prior to its acceptance the court had in fact advised him of his rights in accordance with Rule 11); Wiley v. Sowders, 647 F.2d 642, 649 (6th Cir. 1981) (defense counsel may not admit his client's guilt, contrary to his earlier plea of not guilty, nor stipulate to facts which are the equivalent of a guilty plea).*fn4 In this case, there is nothing to show that appellant was apprised of the consequences of counsel's concession of guilt. Having pleaded not guilty, appellant preserved his constitutional right to a fair trial, including a weighing of the evidence by the trier of fact and "the right to hold the government to strict proof beyond a reasonable doubt as to the offense charged." Id. at 650. Because of counsel's concession, that did not happen. Although appellant took the stand in his own defense, defense counsel elicited no testimony concerning the December 24 charge and made no argument about it. Similarly, it is not clear, having heard counsel's concession, the trial court made an independent assessment of the evidence presented. On this record, we cannot affirm the conviction.
With regard to his contempt conviction based on the January 1 call, appellant argues that the government did not prove that he violated the CPO since the evidence was that Keeton "hung up the telephone . . . abruptly before finding out the reason for [appellant's] call, . . . since there was no evidence at trial as to the purpose of his call," and since the CPO allowed for some telephone calls. We agree that the evidence was insufficient to establish beyond a reasonable doubtthat appellant willfully violated the terms of the CPO when he made the January 1 call.
As described above, the CPO expressly prohibited appellant from contacting Keeton except "regarding the child."*fn5 On the evidence presented, it is unclear for what purpose appellant called Keeton on January 1, and therefore unclear whether appellant contacted Keeton with "a wrongful state of mind" and in fact violated the terms of the CPO. Keeton testified that when she answered her telephone, appellant greeted her with "Happy New Year" or something to that effect, and Keeton immediately hung up the telephone after telling him not to call her. The trial court reasoned that, had he been calling for a legitimate purpose, appellant should have said, "I need to say something about the child," or something to that effect, before allowing Keeton to hang up the telephone. Keeton testified, however, that she "did not give Mr. Ferguson . . . a[n] opportunity to state why he was calling." The evidence afforded the trial court no way of discerning, other than through speculation, what appellant's intention was when he placed the January 1, 2009 call to Keeton. See Hooks, 977 A.2d at 941 ("The evidence is insufficient if, in order to convict, the finder of fact is required to cross the bounds of permissible inference and enter the forbidden territory of conjecture and speculation."); cf. Commonwealth v. Consoli, 792 N.E.2d 1007, 1011 (Mass. App. Ct. 2003), and cases cited therein (suggesting that if a greeting by a defendant to the beneficiary of a protective order is a routine civility that is "incidental" to the defendant's exercise of a right not prohibited by a protective order, the greeting would not violate the order). Even when we view the record in the light most favorable to the government, as we have done, there is a lack of evidence to show that Ferguson violated the CPO when he began his January 1 call to Keeton with, "Happy New Year," and (as far as the record reveals) said nothing more.*fn6 Cf. Hooks, 977 A.2d at 940--41 ("Even viewed in the light most favorable to the government, this exchange is much too ambiguous to prove beyond a reasonable doubt that appellant acted willfully."). "To sustain a conviction on these facts, we would have to reach out to find justification for doing so. This is not our task, especially in a criminal case." In re Jones, 898 A.2d at 922 (citing Vaas v. United States, 852 A.2d 44, 48 (D.C. 2004) (Schwelb, J., concurring)). For these reasons, we reverse the conviction that was based on appellant's January 1, 2009 call to Keeton.
For the foregoing reasons, the judgments of conviction are
WAGNER, Senior Judge, concurring, in part, and dissenting in part: I agree with the majority that appellant's convictions require reversal. However, I depart from the opinion insofar as it decides that, absent defense counsel's improvident concession of guilt, the evidence related to the December 24th incident is sufficient for conviction. First, when reviewing for evidentiary sufficiency, this court's deference to the trial court's finding of guilt presupposes that the trier of fact has weighed the evidence, drawn justifiable inferences, and determined credibility.*fn1 That did not happen here. The trial court made no independent assessment of the evidence and made no factual findings supporting the guilty verdict on this count. Rather, in finding appellant guilty, the court relied upon the concession of guilt to the charge made by defense counsel. According to the evidence, on Christmas eve, appellant called his two-year-old daughter's mother (petitioner) and told her that he had a gift for her that the child had purchased and inquired whether she would be at home.*fn2 Whether the trial court would have credited this evidence, recounted further in the margin, and made the inferences necessary to reach the conclusion that appellant willfully violated the CPO's mandate prohibiting contact unless it was regarding the child or for visitation, we do not
know on this record. Such determinations, quintessentially for the trier of fact, cannot be supplied by this court.*fn3 While a remand for further findings is sometimes sufficient to address such situations, it is inadequate here because but for the concession of guilt, the record might have developed differently with, for example, opposing evidence and argument. Appellant should have an opportunity, at the very least, to offer a defense without an uninformed concession of guilt and to have the trial court weigh the evidence, make factual determinations and determine his guilt or innocence.
Finally, I do not agree that the evidence that was presented, absent
the concession, was adequate to prove beyond a reasonable doubt that
appellant willfully disobeyed the terms of the CPO.*fn4
Put another way, it cannot be found or reasonably inferred
from this evidence that appellant's call to attempt to arrange for his
daughter to give her mother a Christmas present, a common occurrence,
is not related to the child.*fn5
For the foregoing reasons, I respectfully dissent from that portion of the majority opinion as indicated above. Otherwise, I concur.