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Holmon v. District of Columbia

Court of Appeals of The District of Columbia

February 28, 2019

Andre Holmon, Appellant,
District of Columbia, Appellee.

          Argued November 1, 2016

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

          Dennis M. Hart 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.


         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 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) XXX-1491-the same number Officer Davis had seen on Ms. Hollonquest's phone.

         Appellant 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 scene.

         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.[3] 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.

         II. Evidence of Missed Calls

         A. Hearsay

         Appellant challenges the trial court's admission of Officer Davis's evidence of the missed calls over his hearsay objection.[4] 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 legal ...

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