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Holmon v. District of Columbia

Court of Appeals of The District of Columbia

February 28, 2019

Andre HOLMON, Appellant,

         Argued November 1, 2016

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[Copyrighted Material Omitted]

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          Appeal from the Superior Court of the District of Columbia (CCC-12-15) (Hon. Marisa J. Demeo, Trial Judge)

         Dennis M. Hart, Washington, for appellant.

         John W. Donovan, Special Assistant Attorney General, Office of the Solicitor General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, and Rosalyn C. Groce, Deputy Solicitor General, were on the brief, for appellee.

         Before Easterly and McLeese, Associate Judges, and Ruiz, Senior Judge.


         Ruiz, Senior Judge:

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          This appeal requires us to consider the application of evidentiary principles of hearsay to the admissibility of evidence obtained from a cellphone and the use of such evidence as proof of criminal contempt for violating a civil protection order ("CPO") that prohibited appellant from having contact with a specific person. We conclude that the trial court properly admitted evidence from that person’s cellphone regarding appellant’s calls, and that there was sufficient evidence to sustain the trial court’s finding that appellant’s conduct of calling the specified person’s cellphone constituted contact and violated the terms of the CPO. We affirm the judgment of the trial court.

          I. The Trial

          On March 24, 2015, Associate Judge Marisa Demeo presided over appellant’s bench trial. The trial judge took judicial notice of a CPO, entered on June 20, 2014, which provided that appellant "shall stay at least 100 feet away from" Ms. Erie Hollonquest, her home, her workplace, her vehicle, and her father’s nursing home. The CPO also stated that appellant "shall not contact [Ms. Hollonquest] in any manner, including but not limited to" by telephone, in writing, or "[i]n any other manner, either directly or indirectly through a third party." The government presented three witnesses at trial: Ms. Hollonquest and Officers Richard Davis and Michael Daly of the Metropolitan Police Department ("MPD"). Appellant testified in his defense.

         Ms. Hollonquest testified that she had known appellant for three years and once lived with him. On November 15, 2014, while the CPO was in effect, Ms. Hollonquest checked her mail on the ground floor of her apartment building. As she sat down on the bottom steps leading to the ground level, Ms. Hollonquest saw appellant run into the building. Ms. Hollonquest testified that appellant then ran toward her and said "I’m going to crush you." After two people stepped in between appellant and Ms. Hollonquest, she called 911.[1]

         Ms. Hollonquest testified that appellant had called her cellphone "several times" that day before the encounter in the building lobby. She did not answer those calls, but knew it was appellant calling because "his name was in [her] phone under his number," and "[h]is name appeared" as the caller on her cellphone’s screen. She always used this number "in [her] phone" to call appellant, and appellant always called her from that number. Ms. Hollonquest could not remember appellant’s phone number offhand, but believed that the last four digits were either "1491" or "4191." Ms. Hollonquest testified that she

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showed the missed calls displayed on her phone to an MPD officer who responded to her 911 call.[2]

          Officer Davis responded to the 911 call and interviewed Ms. Hollonquest at her apartment building. He testified that during this interview, she showed him the "missed calls" screen on her cellphone, which listed "a missed call with a cell phone written on it." Specifically, he saw the phone number and wrote it down in his notes. At trial, Officer Davis could not recall how many missed calls were listed, or the telephone numbers for the missed calls, but his contemporaneous notes recording the phone number (XXX) XXX-1491 were admitted into evidence. Defense counsel objected, based on hearsay, to admission of the telephone number Officer Davis recorded from the cellphone’s "missed calls" screen. The trial judge concluded that the "missed calls" screen evidence was not hearsay because the screen was not a "person making an out-of-court statement."

          Officer Daly testified about his interactions with appellant when he went to the apartment building after the 911 call. Officer Daly sat with appellant and also took notes, which he consulted at trial. Looking at the notes, Officer Daly testified that he recorded appellant’s phone number as (XXX) ...

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