AMENDED OPINION
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 04-CF-260
JESSE C. BAKER, APPELLANT ,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(F5271-03)
(Hon. Russell F. Canan, Trial Judge)
(Argued September 20, 2005
Decided January 26, 2006)*
Patrick T. Hand, appointed by the court, for appellant.
Thomas S. Rees, Assistant United States Attorney, with whom Kenneth L. Wainstein, United
States Attorney, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and
Elizabeth Trosman, Roy Austin, and Jeannie Rhee, Assistant United States Attorneys, were on the
brief, for appellee.
Before FARRELL and REID , Associate Judges, and KING , Senior Judge.
KING , Senior Judge: Jesse C. Baker was charged with stalking, threatening to injure a
person, assault, obstructing justice, criminal contempt, and two counts of destroying property.
Following a jury trial, Baker was acquitted of assault, but convicted on the remaining counts. He
* The court has granted appellee’s consent motion to amend the opinion filed on January
26, 2006.
2
now appeals claiming that his convictions for criminal contempt and destruction of property should
be reversed. We affirm.
I.
Baker had a romantic relationship with complainant Inti Boggs. Shortly after the couple
began dating in May 2001, Baker and Boggs started living together at Boggs’ home in Laurel,
Maryland. Baker was physically abusive throughout the relationship and Boggs filed several reports
detailing that abuse with Maryland police. Although Boggs left Baker a number of times, the two
eventually would reconcile. By August 2003, the relationship had soured beyond repair.
On August 20, 2003, Baker began sending threatening messages to Boggs on her cellular
phone, calling her between six and twelve times that day. Each message became increasingly more
threatening. Boggs played the messages to a co-worker at Ozio’s Cigar Bar and Lounge, located at
1813 M Street, N.W., which included statements that Baker knew where to find Boggs and that he
planned to kill her. Later that evening, Boggs played the same message for Officer Anthony Baker,
a member of the Metropolitan Police Department (MPD). On that same date, Boggs’ manager,
Frank Vinueza, noticed Baker drive past the establishment approximately twenty times during the
evening.1
1
Concerned that Baker might discover her place of work and attempt to harass her there,
Boggs had shown some of her co-workers a photograph of Baker.
3
Based on the threatening messages from Baker, MPD Detective Williams contacted Boggs
and requested that she press charges, but she indicated that she did not wish to do so. Detective
Williams then informed her that she would need to complete paperwork at the station whether she
pressed charges or not. While Boggs was on her way to the station, Baker phoned her, instructing
her to “undo” whatever she had done, or he would “make [her] life a living hell.” That same
afternoon, Vinueza discovered obscene and slanderous phrases regarding Boggs that had been spraypainted across the exterior walls of 1813 M Street, the lettering extending to the building next door.2
At trial, Boggs identified the spray-painted lettering as Baker’s distinctive handwriting.
On August 22, 2003, a day when Boggs was not working, Ozio’s security staff noticed Baker
inside the bathroom of the restaurant and they asked him to leave. He refused. The security staff
restrained Baker until the police arrived3 and placed him under arrest. After he was arrested, a black
marker pen was removed from his pocket. A staff member returned to the bathroom and discovered
language, similar to that which had been spray painted on the bar’s exterior walls, written in two
places in the bathroom.4 On August 25, Boggs sought a restraining order against Baker in the
District Court of Prince George’s County, Maryland and the court issued a stay-away order.
2
Vinueza removed some of the writing with graffiti remover and wire brushes. However,
he was unable to find an exact match to the original paint, consequently the result looked “patchy.”
3
During this encounter, Baker attempted to punch Vinueza, forming the basis for the assault
4
No charges were filed against Baker at that time and he was released the following day.
charge.
4
Sometime during the morning of August 29, Boggs filed threats charges in the District of
Columbia against Baker. That evening while Boggs was at work, Vinueza noticed Baker’s white
Lexus drive by the restaurant. Later, an employee saw Baker go into the nearby garage where Boggs
had parked her car. Police were summoned, and they discovered Baker inside the garage holding
a can of spray paint. The officers found obscene and slanderous phrases written in black spray paint
all over Boggs’ vehicle.5
On August 30, 2003, Baker was charged in the District with threatening to injure/kidnap
persons in violation of D.C. Code § 22-1810 (2001).6 On September 2, an amended complaint was
filed, charging Baker with destruction of property in excess of $200.7 At that time, the government
dismissed the felony threats charge. The trial court then conducted a pre-trial detention hearing, and
held Baker without bond. At the government’s request, the trial court preventively detained Baker
under D.C. Code § 23-1322 (b)(1)(C) and orally ordered Baker “to have no contact whatsoever
directly or indirectly” with Boggs. Subsequently a ten-count indictment was returned, which
included a contempt charge, based on Baker’s asserted violation of this order for sending letters to
Boggs while he was incarcerated.8
5
The parties stipulated the cost of repairs to the vehicle totaled $1,305.40.
6
All references to the District of Columbia Code are to the 2001 Edition unless otherwise
7
See D.C. Code § 22-303.
noted.
8
The December 8 indictment charged Baker with (1) stalking, in violation of D.C. Code
§ 22-404 (b); (2) threatening to injure a person, in violation of D.C. Code § 22-1810; (3) assault, in
violation of D.C. Code § 22-404; (4) obstructing justice, in violation of D.C. Code § 22-722 (a); (5)
destroying property in the amount of $200 or more, in violation of D.C. Code § 22-303 (spray
(continued...)
5
Cell phone records admitted into evidence showed that Baker had called Boggs’ cellular
phone or home telephone a number of times between August 18 and August 30. While incarcerated,
Baker also wrote Boggs several letters. Four of those letters were admitted into evidence, which
Boggs identified as being in Baker’s handwriting. These letters were the basis for the criminal
contempt charge.
At the close of evidence during the trial, the court questioned whether the contempt
instruction should contain language that Baker’s disobedience of the court’s order must have caused
an obstruction to the orderly administration of justice. Defense counsel argued that In re Gorfkle,
444 A.2d 934 (D.C. 1982), controlled and requested that the jury instructions contain language
stating that Baker must have committed a willful act that “show[ed] disrespect for the court or to
disrupt its proceedings.” The trial court ruled, however, that Grant v. United States, 734 A.2d 174
(D.C. 1999), was more apposite, distinguishing between a disruption or interference committed in
the presence of the court as was the case in Gorfkle, and disobedience of a court order outside the
presence of the court which occurred in Grant. Although the trial court noted that Grant did not
perfectly apply to the instant circumstances, it determined the principles set forth in Grant could be
extrapolated to Baker’s case.9 Defense counsel did not object, but later moved for judgment of
(...continued)
painting the exterior walls of Ozio’s); (6) destroying property in the amount of $200 or more, in
violation of D.C. Code § 22-303 (spray painting the exterior of Boggs’ vehicle); and (7) criminal
contempt, in violation of D.C. Code § 11-944 (a).
9
After the trial concluded, the trial court again raised the issue of whether the jury
instruction should have included the language “affecting the orderly administration of justice” and
(continued...)
6
acquittal on the basis that the letters were not “contemptuous.” The trial court denied the motion and
Baker was convicted of stalking, threats, contempt, and both counts of destruction of property. In
this appeal, he only challenges the convictions for contempt and destruction of property.
II.
In challenging the conviction for criminal contempt, Baker sets forth three grounds for
reversal. First, Baker contends that once the trial court ordered him preventively detained, it lacked
authority to issue a no-contact order because such orders are authorized by the pretrial release
statute10 only as a condition of release. The government responds that Baker failed to raise a timely
challenge to the validity of the order and contends that Baker should have sought a stay and appealed
its issuance. The government also argues that the trial court’s “inherent power” over pretrial
detention and release, predating the District’s bail reform statute, authorized the trial court to issue
the no-contact order in this case. We need not decide whether the order was validly issued under the
(...continued)
requested memoranda from both parties. The trial court again agreed with the government’s
argument that the letters themselves were violations of the no-contact order under Grant, and
therefore the disputed language was properly omitted from the instruction.
10
D.C. Code § 23-1321 (c)(1)(B) governs pretrial release and provides that a judicial officer
may condition a defendant’s release so as to ensure the safety of certain persons and the community.
It provides that the court may direct that the defendant “during the period of release shall: . . .
(v) Avoid all contact with an alleged victim of the crime and with a
potential witness who may testify concerning the offense.”
D.C. Code § 23-1321 (c)(1)(B)(v) (emphasis supplied).
7
bail statute, or whether the trial court possessed inherent authority,11 to issue the no-contact order
because: (1) Baker did not challenge or appeal the order below;12 and (2) the trial court’s no-contact
order was not patently unauthorized under In re (Iris) Banks, 306 A.2d 270 (D.C. 1973).
Compliance with court orders is required until they are reversed on appeal or are later
modified. Kammerman v. Kammerman, 543 A.2d 794, 798-99 (D.C. 1988). Court orders must be
respected and “disobedience of them is contempt of its lawful authority, to be punished.” Howat v.
Kansas, 258 U.S. 181, 190 (1922). Thus, even assuming for the sake of argument that the trial
court’s no-contact order was invalid, Baker’s conviction for contempt must be upheld for his failure
to comply with that order. See In re (Simon) Banks, 805 A.2d 990, 1001-02 (D.C. 2002); In re
Marshall, 445 A.2d 5, 7 (D.C. 1982); Walker v. City of Birmingham, 388 U.S. 307, 320-21 (1967).
Here, the record demonstrates that Baker contacted Boggs several times even after a
Maryland court issued a stay-away order.13 Concerned for the safety of the complainant, the trial
11
Although this case does not oblige us to resolve the issue, the notion that the statutory
authority to detain on grounds of dangerousness does not include the power to order a detainee to
avoid indirect contact – say, through telephone calls – with a person or persons to whom he presents
a potential danger is decidedly counter-intuitive. Cf. Oliver v. United States, 682 A.2d 186 (D.C.
1986) (reaffirming, in context of pretrial release, court’s power “to order a party to take action not
specifically prescribed by statute”).
12
Although defense counsel argued that his client should not be detained, he never
questioned the trial court’s authority to issue the stay-away order as recommended by the
government.
13
The Maryland stay-away order is not part of the record; therefore, we do not know exactly
what language the court used. Baker does not contest, however, that the Maryland court order
directed him to avoid contact with Boggs.
8
judge here denied bail and ordered Baker “to have no contact directly or indirectly” with Boggs.
Baker neither objected to that order nor requested a stay or challenged the validity of the order in any
way once it was issued. Without such a challenge, Baker’s refusal to obey the no-contact order was
undertaken at his own peril. See also In re Evans, 411 A.2d 984, 993 n.10 (D.C. 1980) (appellant
could be prosecuted for contempt when he failed to pay a $500 court-ordered fine, even though the
statute authorized a maximum fine of $300). Consequently, this claim fails.
Nor can Baker’s conviction for criminal contempt be challenged on the ground that the nocontact order was patently unauthorized under (Iris) Banks, supra, 306 A.2d at 274. In Banks, the
trial court judge ordered a juvenile to remain in the temporary custody of social worker Banks, rather
than detain the individual until suitable custodians were located. Id. at 272. The social worker
immediately objected, refusing to take custody of the juvenile after the trial judge was asked but
declined to reconsider his order. As a consequence, the trial court adjudged Banks in criminal
contempt and sentenced her to serve eight hours in the custody of the United States Marshals.14 On
appeal, we held that since Banks could in no way be considered a “custodian” under the relevant
statute,15 the trial court lacked the authority to punish a violation of its order which it had rendered
without jurisdiction. Id. at 273-74. Consequently, we concluded that Banks’ refusal to obey a court
14
15
The trial court allowed for a stay to note an appeal. Id.
The code defined a custodian as “a person or agency other than a parent or legal guardian,
to whom legal custody of a child has been given by court order and who is acting in loco parentis.”
D.C. Code § 16-2301 (12) (1972 Supp.). This court determined that simply labeling Banks a
“competent custodian” in a contempt order did not “transform” her into a custodian under the statute.
Id. at 273-74.
9
order would not be punishable by criminal contempt because it was patently unauthorized. We
cautioned, however, that “it is no light matter to defy an order of the court” and one who does so
risks a criminal contempt charge in most circumstances. Id. at 274.
The exceptional circumstances of Banks are not present here. The trial court’s stay-away
order did not impose the same type of burden or hardship as the order issued in Banks. In Banks, the
trial judge ordered a social worker to assume full responsibility and care of a teenager with “behavior
problem[s]” for three days. Id. at 271-72. In contrast, the trial court here, knowing that the
Maryland stay-away order would soon expire, simply directed that Baker have no contact with
Boggs. By doing so, the court essentially ordered Baker to refrain from engaging in further criminal
activity. Given these circumstances, we cannot say that the trial court’s order was patently
unauthorized, and thus Baker’s subsequent disobedience of the order does not escape punishment
because of our holding in Banks.
Baker next contends that he was not afforded the requisite notice about the criminal contempt
charge. In so arguing Baker relies on Super. Ct. Crim. R. 42 (b), which provides that “criminal
contempt shall be prosecuted on notice [to include] the time and place of hearing . . . and shall state
the essential facts constituting the criminal contempt charge.” We are satisfied that the notice
requirement is more than met by the filing of the indictment. First, the purpose of an indictment is
to apprise the accused of the charges against him, so that he may adequately prepare his defense.
Gaither v. United States, 134 U.S. App. D.C. 154, 159, 413 F.2d 1061, 1066 (1969). Second, in
Smith v. United States, 677 A.2d 1022, 1028-30 (D.C. 1996), we held that the plain words of Rule
10
42 (b) do not require that an indictment be filed. It follows that, although a formal indictment is not
necessary to satisfy the notice requirement of Rule 42, an actual indictment would in fact suffice.
The record shows that the October 29 indictment included the criminal contempt charge and the
events giving rise to that charge. A status conference was then set for December 2, affording Baker
ample time to prepare a defense. Thus, his contention of insufficient notice must be rejected.
In a related argument, Baker suggests that the trial court’s order lacked specificity and that
there was insufficient evidence to support his conviction for criminal contempt. Viewing the
evidence in the light most favorable to the government as we must, see Gayden v. United States, 584
A.2d 578, 580 (D.C. 1990), cert. denied, 502 U.S. 843 (1991), and drawing all inferences of fact in
its favor, we will affirm unless Baker establishes the trial court’s findings are “plainly wrong” or
without evidentiary basis. Mihas v. United States, 618 A.2d 197, 200 (D.C. 1992). The record
demonstrates that Baker responded “yes” when asked if he understood the court’s order to “stay
completely away from this woman . . . while the case is pending, you are to have no contact
whatsoever directly or indirectly” with the complainant. We are satisfied in these circumstances that
the jury could readily conclude that Baker understood that his campaign of letter-writing violated
the court’s prohibition. Finally, there is nothing unusual or ambiguous about this prohibition.16 For
these reasons we conclude there was sufficient evidence to support Baker’s convictions for criminal
contempt. See In re Richardson, 759 A.2d 649, 654 (D.C. 2000).
16
See Smith, supra, 677 A.2d at 1028 (where the trial court instructed the defendant to stay
away from the complainant, appellant could not reasonably infer from the order that she was
refrained from contacting complainant’s counsel).
11
Finally, Baker contends that the trial court erred when it failed to instruct the jury that it must
find that his actions “obstructed the orderly administration of justice.” Baker argues the trial court
erroneously relied on Grant when it decided not to include that language in the instruction. Grant
v. United States, 734 A.2d 174, 176 (D.C. 1999). We disagree.
In Grant, this court affirmed the appellant’s criminal contempt conviction for failing to
refrain from drug use, a condition of his pretrial release, based on a showing of “willful
disobedience.” See D.C. Code § 23-1329 (1999 Supp.). In so holding, the court rejected Grant’s
argument that a conviction for criminal contempt, for disobedience of a court order, required proof
that the disobedient act caused an obstruction of the orderly administration of justice. Grant, supra,
734 A.2d at 176. In Grant, however, we did not address the proof requirements for a court’s use
of the general criminal contempt statute, D.C. Code § 11-944 (a), rather than the more particular
statute applicable to pretrial release. Id. at 177. We do so now, and accordingly hold that the
elements of criminal contempt in these circumstances may be satisfied upon a showing of: (1)
conduct committed in the presence of the court that disrupts the orderly administration of justice;
or (2) willful disobedience of a court order, committed outside the presence of the court. See id. at
176-77. Accord People v. Totten, 514 N.E.2d 959, 965 (Ill. 1987) (affirming conviction of indirect
criminal contempt for the violation of a court order committed outside the presence of the court,
based on proof of: (i) the existence of a court order, and (ii) a willful violation of that order);
Commonwealth v. Pace, 15 S.W.3d 393, 395 (Ky. Ct. App. 2000) (stating evidence of criminal
contempt must demonstrate a willful disobedience toward, or open disrespect for, the rule or orders
of a court); Furtado v. Furtado, 402 N.E.2d 1024, 1032-33 (Mass. 1980) (holding a charge of
12
criminal contempt must include allegations that there was a clear, outstanding order of the court, that
the defendant knew of that order, and that the defendant intentionally disobeyed that order where
circumstances demonstrated he was able to obey it). Baker’s act of sending letters to Boggs after
he acknowledged that he understood the court’s order that he not have direct or indirect contact with
her plainly qualifies as an act of “willful disobedience.” See Grant, supra, 734 A.2d at 177. Thus,
the trial court properly instructed the jury on the elements of criminal contempt.
III.
Finally, Baker contends there was insufficient evidence to support his convictions for felony
destruction of property for damaging Boggs’ vehicle and misdemeanor destruction of property for
damaging the exterior walls of Ozio’s Cigar Bar and Lounge.17 To show felony malicious
destruction of property, the government must show (1) malicious injury (2) to an item not his or her
own and (3) the damage sustained totaled more than $200. The elements of misdemeanor
destruction of property are identical to those of its felony counterpart, but involve damage totaling
less than $200.
D.C. Code § 23-303. Although this court has not yet had occasion to define
“injures, breaks, or destroys” within the context of D.C. Code § 22-303, the record demonstrates
sufficient proof of injury and the amount of damages.
.
17
In a related argument, Baker contends that he should have been charged with defacing
property under D.C. Code § 22-3312.01. The choice to charge one offense over another is a matter
of prosecutorial discretion rarely reviewed by this court. Marrow v. United States, 592 A.2d 1042,
1047 (D.C. 1991). We see no reason to do so now.
13
First, the record clearly shows the damage to complainant’s vehicle totaled over $1300.
Second, using black spray paint to inscribe obscenities on walls and on an automobile causes damage
sufficient under the statute. “Injury” is defined as “detriment to, or violation of, person, character,
feelings, rights, property, or interests, or value of the thing.” WEBSTER ’S NEW INTERNATIONAL
DICTIONARY (2d ed. 1947). Applying this definition to the facts here demonstrates that the graffiti,
although temporary, caused sufficient “injury.” In order to repair Boggs’ vehicle, the paint had to
be removed and then replaced with a new layer of paint, otherwise, the vehicle would have been
significantly devalued. Thus, the government presented significantly more than sufficient proof of
the malicious destruction of Boggs’ vehicle.
The government also presented sufficient proof of misdemeanor destruction of property.
Here, the record demonstrates that Vineuza spent considerable time and $36 on graffiti removal
supplies. The nature of the injury – obscene phrases written in dark paint across light-colored walls
– made it difficult to restore the building to its original appearance. Thus, although no part of the
wall had to be removed or replaced, as was the case with Boggs’ vehicle, the splotchy appearance
resulting from the painting-over the graffiti necessarily caused a decrease in the building’s value.
People v. Sokoloski, 1997 Mich. App. LEXIS 454, 3-4 (Mich. Ct. App. 1997) (where evidence
demonstrated that the defendant spray-painted the word “slut” on his ex-girlfriend’s truck, the jury
could have concluded beyond a reasonable doubt that defendant maliciously caused over $100
damage to the pick-up and that defendant specifically intended to cause the damage). Therefore, we
conclude there was sufficient proof of “injury” under the statute to affirm Baker’s misdemeanor
conviction.
14
Accordingly, for the foregoing reasons, the judgment is
Affirmed.
