November 1, 2016
from the Superior Court of the District of Columbia
(CCC-12-15), Hon. Marisa J. Demeo, Trial Judge
M. Hart for appellant.
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.
Easterly and McLeese, Associate Judges, and Ruiz, Senior
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.
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.
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
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 showed the missed calls
displayed on her phone to an MPD officer who responded to her
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."
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) XXX-1491-the same number Officer Davis had seen on Ms.
testified to a different version of events. He stated that
Ms. Hollonquest called him on November 15, 2014, asking for
sixty dollars. Appellant admitted that both he and Ms.
Hollonquest knew appellant had a stay-away order, but
maintained that she promised not to call the police. Once he
arrived to give her the money, appellant saw Ms. Hollonquest
asking two men in the hallway whether she could "buy
some weed or something." When appellant questioned her
about how she planned to use the money she requested, she
became "upset" and "[v]ery hostile," and
retaliated by calling the police. Appellant left the building
when Ms. Hollonquest called 911, but then spoke with the
officers outside of the building once they arrived on the
trial court found that appellant violated the CPO
"voluntarily and on purpose, and not by mistake or
accident," in two respects: (1) by coming within 100
feet of Ms. Hollonquest and her home, and (2) by contacting
Ms. Hollonquest via telephone. He was sentenced to 180 days on
each count, with the sentence suspended. Appellant filed a
timely appeal challenging only the conviction on the second
count, based on the telephone calls.
Evidence of Missed Calls
challenges the trial court's admission of Officer
Davis's evidence of the missed calls over his hearsay
objection. We review the factual findings underlying
the trial court's evidentiary ruling for clear error and
"the decision whether to admit or exclude the proffered
statement, based on those factual findings" for abuse of
discretion, Odemns v. United States, 901 A.2d 770,
776 (D.C. 2006), "recognizing that it is necessarily
such an abuse for the trial court to employ 'incorrect