Appeal from the Superior Court of the District of Columbia (2011-DVM-139) (Hon. Stephen F. Eilperin, Trial Judge)
The opinion of the court was delivered by: Easterly, Associate Judge:
Before WASHINGTON, Chief Judge, and BECKWITH and EASTERLY, Associate Judges.
Appellant, Mosiah Grayton, was convicted of two counts of criminal contempt,*fn1 based on alleged violations of a preliminary injunction. The injunction was in the nature of a stay away order and prohibited Ms. Grayton from contacting Mary Jackson or coming within 100 feet of Ms. Jackson's home.*fn2 Ms. Grayton was charged with violating the preliminary injunction on August 3, 2010, and on January 14, 2011. In connection with the January 14, 2011, incident, Ms. Grayton was also convicted on one count of attempted threats.*fn3
On appeal, Ms. Grayton challenges her contempt conviction arising from the August 3, 2010, incident, arguing that the government's evidence that she violated the preliminary injunction on that date was insufficient and was founded on hearsay that was improperly admitted under the excited utterance exception. Ms. Grayton also challenges her contempt and threats convictions arising from the January 14, 2011, incident, arguing that the trial court erroneously denied her motion to suppress statements she made to her court supervision officer and to a third party she called on her cell phone. Finally, Ms. Grayton challenges the trial court's denial of her motion, at the close of evidence, for judgment of acquittal on both contempt charges. Ms. Grayton contends that since she was charged under D.C. Code § 23-1329, which criminalizes contempt of a pretrial release order, the government was obligated but failed to prove that she was on pretrial release. She further contends that when the absence of that proof was noted after the close of evidence the trial court impermissibly permitted the government to amend the information and to prosecute her under D.C. Code § 11-944, the District's general contempt statute, and that she was prejudiced as a result because she was denied the right to a jury trial that the District's general contempt statute affords.
We hold that the government's proof of Ms. Grayton's contumacious conduct on August 3, 2010, was legally insufficient*fn4 . Thus, we reverse that contempt conviction. We see no merit to Ms. Grayton's remaining arguments and otherwise affirm.
At a bench trial held on March 31, 2011, complainant Mary Jackson testified that she first met Mosiah Grayton in 2009, when Ms. Grayton appeared at Ms. Jackson's front door looking for Ms. Jackson's grandson Christopher. Christopher had lived with Ms. Jackson since birth. It was Ms. Jackson's understanding that Christopher and Ms. Grayton had attended the same high school, and that Ms. Grayton was "infatuated" with Christopher. Christopher had left home for college in North Carolina in 2008. Apparently, Ms. Grayton continued to try to contact him through Ms. Jackson. No evidence was presented regarding the nature of these communications, but on June 18, 2010, Ms. Grayton was ordered by the Civil Division not to "assault, threaten, harass or physically abuse [Ms. Jackson] in any manner"; to "stay at least 100 feet away from [Ms. Jackson's] person, home, and workplace"; and not to contact Ms. Jackson "in any manner, including, but not limited to: telephone, in writing, or in any other manner either directly or indirectly through a third party." The order did not prohibit contact between Ms. Grayton and Christopher.*fn5 The duration of the preliminary injunction was one year, from June 18, 2010, to June 18, 2011.The government alleged that Ms. Grayton violated the preliminary injunction on two occasions: August 3, 2010, and January 14, 2011.
A.Evidence Regarding the August 3, 2010, Incident
Ms. Jackson testified that on August 3, 2010, she was sitting in her living room when "all of a sudden the front door burst open and [Christopher] ran in."Christopher "looked a little uneasy. . . . like he had seen something that he didn't want to see." He was "talking pretty fast" and his tone of voice was "a little angry" and "a little loud."
Ms. Jackson testified that Christopher told her that "that girl is out there." When the prosecutor asked Ms. Jackson, "[W]hat else did he say?" she testified, "He didn't say anything else. I told him not to go back outside." The prosecutor then asked, "Could you explain, he said that girl is outside. Did he explain where she was outside?" Ms. Jackson then added that Christopher "said she was on B Street, which is about from where I'm sitting to that door."
The trial court estimated that this distance - from Ms. Jackson's house to B Street - was "[a]pproximately 35 feet." The assumption seemed to be that Christopher had seen Ms. Grayton on B Street where it intersected with Ms. Jackson's block, the 100 block of 49th Street, S.E., because the prosecutor then asked Ms. Jackson, "[H]ow wide of a street is B Street?" Ms. Jackson first responded that "[i]t's a two-lane street," but that she was "not sure of the width." Ms. Jackson then stated that she "would say it's about as wide as this courtroom, you know, with cars parked on it." Again, the trial court supplied an estimate: "Why don't we say 22 feet."Notwithstanding defense counsel's observation that the courtroom "seems bigger,"the court declined to revise its estimate:
"Bigger than 22 feet? Well, this is the width we're talking about. . . . I'm sticking with 22 feet."
Ms. Jackson testified that after speaking to Christopher she immediately called 911 to report that Ms. Grayton had violated the preliminary injunction. Even though Christopher never identified "that girl" by name, Ms. Jackson testified that there was "only one person" whose presence "close to" her house would prompt her to call 911, and that person was "Mosiah Grayton." ...