Lawrence Davis v. U.S.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 00-CM-479 L AWRENCE D AVIS, A PPELLANT, v. U NITED S TATES, A PPELLEE. Appeal from the Superior Court of the District of C olumbia (M5622-99) (Hon. Patricia A. Broderick, Trial Judge) (Submitted October 9, 2003 Decided October 30, 2003) David S . Stein was on th e brief for app ellant. Roscoe C. Howard, Jr., United States Attorney, and John R. F isher, Elizab eth Trosman, and Mary R. Pipitone, Assistant United States Attorneys, were on the brief for appellee. Before SCHWELB and G LICKMAN, Associate Judges, and PRYOR, Senior Judge. S CHWELB, Associate Judge: Following a bench trial, Lawrence Davis was found guilty of violation of a civil protection order by failing to complete a Domestic Violence Intervention Program (D VIP). See D.C. Code §§ 16-1005 (f) and (g) (2001). The prosecution was precipitated by Davis failure to attend a DVIP class a few days after the death of his wife, wh o was alleg ed to have been m urdered. O n appeal, Davis claims that the evidence was insufficient to support his conviction. We agree and reverse. I. THE TRIAL COURT PROCEEDINGS 2 On September 23, 1998 , a judge of th e Superio r Court en tered a C onsent C ivil Protection Order W ithout Admissions in the case of Elizabeth S ingleton v. L awrenc e Davis, IF No. 2488-98. The petitioner, Ms. Singleton, now deceased, was Davis estranged wife. The typed portion of the order provided, in pertinent part, as follows: Respondent shall enroll in and complete a counseling program for . . . dome stic viole nce . . . . Respon dent shall enroll in the designated program(s) TODAY, in the Probation Office, Room 4206 of th e D.C. Su perior Co urt. [1] On April 21, 1999, the United States Attorney filed a criminal information alleging that on or about M arch 11, 19 99, Dav is willfully vio lated the provision of the civil protection order requiring him to enroll in and successfully complete the [DVIP], contrary to Section 16-1004, 16-10 05, Dis trict of C olum bia Co de. 2 Davis entered a plea of Not Guilty, and the case was tried on March 27, 2000. The prosecution presented th e testimony of two witnesses: Bernard Matthew s, a parttime domestic violence interve ntion counselor at Fam ily and Child Services (F ACS), and Barba ra Bord inaro, F ACS Direc tor of M ental H ealth Se rvices. Matthews first described the operation of the DVIP program. He explained that each participant was required to attend twenty-two classes, and that an individual, upon missing 1 Handwritten to the right of the foregoing text were the words When Respondent is released from jail. The word TODAY was not crossed out. No issue has been raised with regard to the apparent contradiction in the order. 2 On August 5, 1999, the information was dismissed for want of prosecution because the government was not ready for trial. The information was refiled on November 12, 1999. 3 four classes, is to be terminated from the class. He elaborated: If three classes are missed, it s understood that the fourth class will result in termination. Now, should, however, an individual miss four classes . . ., if an individual would provide some reason for having missed those four classes and if the excuse is a valid on e, such as I was h aving to go out of the co untry to visit a loved one or something like that. And it depends on how a person has been progressing within the class. Matthews testified that the classes met onc e a week for 1½ to 2 hours, and that in order to monitor attendance, he maintained a sign-in sheet. According to Matthews, each class member was required to take an orientation [at] the Superior Court, [a]t [which] they are told when they are to attend and the requirements of the training. Matthews then provided the members of the class with a mini-orientation on the first day of the program. Matthews testified, on the basis of the sign-in sheets, that [Davis] attended January the 20 th , January the 27th , he was absent February the 3 rd , he attended February the 10 th , absent February the 17th , present February the 24 th , absent March 3rd . Classes were canceled on March 10 th , he was absent on March 17 th , present on March 24th , absent on March 31st. Q What happened after March 31st, sir? A After March 31 st, there was a series of absences in which Mr. Davis did not show [up for] class. Q How many times w as he abse nt after this? W as he still enrolled in the class, or had he been terminated from the class? A Well, at that point, since he had missed three full classes, then he was terminated from the class. 4 The parties then stipulated, at the suggestion of the prosecution, that as of the date of March 11 [th] . . . the defe ndant h ad mis sed thre e classe s. 3 Matthews was als o ques tioned r egardin g the de ath of D avis w ife. He testified that, some time in March 1999, he had a discussion with Davis about Davis recent bereavem ent. 4 He stated that the death of a spouse could be an extenuating circumstance when a participant missed a class. According to Matthews, Mr. Davis did return to class. And I was concerned about, after knowing about the d eath of his w ife, I did not w ant him discussing issues relative to abusive situations that might cause some pain for him, so I was sensitive to that, and that is why I approached him and said to him, should we have a discussion like this? Is this something you feel you can deal with? And he said he could. Q How many classes had he missed at the time of that conversation? A Up to that time he had missed, I think, three classes. It had to be three classes. Matthews testified that he did not recall excusing Davis from any classes. Ms. Bordinaro testified that the DVIP was one of three programs that she supervised. She explained that participan ts in the program attend a four-week orientation at the Superior 3 It is undisputed that after March 30, Davis could not attend classes because he was incarcerated for parole violation. 4 Matthews assumed that this conversation took place on March 24, 1999, which was the last date on which Davis attended a class. 5 Court at which all the rules and regulations are laid out. She ind icated that she was personally unfamiliar with the do cuments used to monitor attendance at the DVIP. In response to the prosecutor s question regarding what happens if a participant misses classes, she stated that [i]t s complicated, so I m going to think it through as I am speaking. She continued: The 22 sessions are divided into semesters, half and half, 11 and 11. The person who comes to the course can have up to tw o excuses during the first 11 weeks, but they have to make those classes up. . . . No-shows are very serious in the program, because if you have no-shows you get dropped from the program, and it s been set up not by Family Services, but rather by the [c]ourt system, and we follow the rules that they have. . . . But if the m en miss more than two times each se mester, they are dropped from the program, which is the [c]ourt s rule, not ours. Ms. Bordinaro did not testify that she had explained these rules to Davis, and, as far as the record reflects, she had no personal contact with him.5 She indicated that if the client would call in, say somebody died, something like that[,] [t]hat s very different [from] someone who ju st doesn t show up. At the conclusion of Ms. Bordinaro s testimony, Davis attorney moved for a judgment of acquittal (MJOA ), which the judge de nied. Davis then testified that his wife died at the beginning of March 1999.6 He stated that around March 3, he talked to Mr. 5 Ms. Bordinaro was asked whether she knew about the death of Davis wife. She responded: I know about it now, but I didn t then. 6 His testimony as to the date in March on which his wife died is described in the transcript as (continued...) 6 Matthews about my wife s passing and me not coming to class. According to Davis, Matthews said it was okay, and if anything they can do, get with him and let him know, oh and let him know where the funeral will be so he can co me to the f uneral. Q And as far as you r next appearance, did he tell you that you must attend, or did he excuse you? A He excused me. Davis further stated that he was excused from attending two classes.7 He attended class on March 24, but did not attend on March 31 because he had been arrested on the previous day for parole violation. Davis testified that he has been detained ever since. The defense rested and, when the prosecutor said that he had no re buttal, 8 the judge immed iately asked for the parties closing arguments. After counsel s arguments had been concluded,9 the judge found, without further elaboration, that Davis was guilty of violating 6 (...continued) indiscernible. It appears from his other testimony, however, that she must have died prior to March 3. 7 Davis also claimed, however, that Matthews said to come back whenever I felt better. 8 The lack of any rebuttal left the state of the testimony as to excused absences as follows: Davis claimed that there were at least two, and Matthews did not recall any. 9 During his oral argument, after contending that Davis was guilty because he missed more than two classes during the first eleven-week semester, the prosecutor made the following rather unusual representation: And I d just like to address briefly, Your Honor. I can tell you have some concern about the fact that his wife passed away and he s now being prosecuted, and I do concede, Your Honor, that it s certainly (continued...) 7 the CPO. The judge subsequently sentenced Davis to serve 180 days, with all but sixty days suspended pending a one-year period of probation, and she ordered Davis to pay $50 to the Crime Victims Compensation Fund.10 This appeal followed. II. LEGA L ANA LYSIS A. Statutory background and elements of the offense. At all times relevant to this appeal, our CPO statute provided in pertinent part as follows: Violation of any tempora ry or permanent order issued und er this subchap ter . . . shall be pun ishable as co ntempt. 9 (...continued) unusual that the Government would prosecute a case that appears in that posture, where he missed a class after his wife passed away. It s obviously a question of prosecutorial discretion, Your Honor, and I ll say only that we do have our reasons for going forward with this case, and I do believe we ve made out a violation. And although typically we d be quite sympathetic to a person in a situation like that, in this particular case we have decided to [exercise] our discretion and go forward. Davis attorney then made an equally unusual representation; he told the court that his client s wife had been murdered on March 1, 1999. 10 At the sentencing proceeding, the judge asked Davis attorney if the alleged murder was related to the case. Counsel responded that Davis had not been indicted and that nobody else had been indicted either. 8 D.C. Code § 16-1005 (f) (2001 ). Any person who violates any protection order issued und er this subchapter shall be chargeable with a misdemeanor and upon conviction shall be punished by a fine not exceeding $1,000 or by imprisonment for not more than 180 days, or both. D.C. Code § 16-1 005 (g) (2001). 11 The criminal information filed by the United States Attorney in this case does not specify whether Davis was being prosecuted under subsection (f) or subsection (g). We do not believe, however, that the appeal turns on this distinction, for the elements of a CP O viola tion are t he sam e unde r the tw o subse ctions. Ba v. United States, 809 A.2d 1178, 1182 n.6 (D.C. 2002). Although subsection (g) does not use the word conte mpt, subsection (f) d oes. Id. at 1182. For all practical purposes, this is a criminal contempt case in w hich Davis has be en charged w ith intentionally violating a court order. To establish the e lements of a CPO violation, the government must present evidence proving beyond a reasonable doubt that defendants engaged in: (1) willful disobedience (2) of a [civil protection] order. Id. at 1183. In a criminal contempt case, as in any other criminal prosecution, each element m ust be prov ed beyon d a reason able doub t. Bethard v. District of Colum bia, 650 A.2d 651, 653 (D.C. 1994) (per curiam) (citing In re Gor fkle, 444 A.2d 934, 93 9 (D.C . 1982)); Thompson v. United States, 690 A.2d 479 , 482 (D.C. 1997 ). The offense requires both a contemptuous act and a wrongful state of mind. Swisher v. United States, 572 A.2d 85, 89 (D .C. 1990) (p er curiam ); Fields v. United States, 793 A.2d 11 Both subsection (f) and subsection (g) have been amended subsequent to Davis prosecution to include in their coverage violations of protection orders issued by courts of other jurisdictions. See D.C. Code §§ 16-1005 (f) and (g) (Supp. 2003). These amendments have no bearing on this case. 9 1260, 1264 (D.C. 2002) (quoting Gorfkle, 444 A.2d at 939 ).12 B. Standard of review. Our standard of review of any criminal conviction for evidentiary insufficiency is a familiar one, and it applies with equal force here. W e may not reve rse the trial court s findings of a CPO violation unless they are withou t evidentiary support or plain ly wro ng. Ba, 809 A .2d at 11 82 (citat ions an d intern al quota tion m arks om itted). In CPO violation cases, Ba, 809 A.2d at 1182, a s in crim inal con tempt c ases, In re Vance, 697 A.2d 42, 44 (D.C. 1997), and in crimin al cases genera lly, Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc), we must view the evidence in the light most favorable to sustaining the judgme nt. Judicial rev iew is deferential, giving full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonab le inferences from basic facts to ultimate facts. Rivas, 783 A.2d at 134 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The proof of guilt is sufficient if, after viewing the evidence in the light most favorable to the prosec ution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S . at 319 (em phasis in orig inal); Rivas, 783 A.2d at 134. It is important to note, however, that appellate review of [the] sufficiency of the evidence is [not] toothless. Rivas, 783 A .2d at 13 4. As an appellate court, [w]e have an 12 A third element of criminal contempt is causing an obstruction of the administration of justice. Thompson, 690 A.2d at 482 (citing Bethard, 650 A.2d at 653) (citing Gorfkle, 444 A.2d at 939). No party has raised any issue regarding the applicability of this element to prosecutions for a CPO violation, and we do not address the question. 10 obligation to take seriously the requirement that the evidence in a criminal prosecution must be strong enough that a [trier of fact] behaving rationally could find it persuasive beyond a reasonable doubt. Id. C. Sufficiency of the evidence. Applying the foregoing standards to the eviden ce in this case , we are co nstrained to conclude that even if the government showed that Davis violated the CPO, it did not prove beyond a reasonable doubt that he did so willfully. Davis missing of three classes did not warrant removal from the program under the standards described by Ma tthews, the o nly witness with wh om D avis had an y direct dea lings. Matth ews testified that a total of four absences was required. Although Davis was shown to have missed en ough clas ses to sustain his removal if the standard was as M s. Bordinaro understood it no more than two missed classes in either of the two eleven-session parts of the program there was no evidence that this standard was ever communicated to Davis. Thus, if Davis was informed that the rules were what Matthews testified that they were, he could reasonably believe that missing three classes before M arch 11 the date specified in the criminal information13 would not result in his removal from the program. An impartial trier o f fact could re asonably consider th e testimon y of Ma tthews and Ms. Bordinaro together, and could fairly conclu de that Da vis was not allowed to miss four 13 It is true that Davis missed a fourth class on March 17. This occurred, however, after March 11, and, in light of the date of the offense alleged by the government, Davis was not on notice that he had been charged with this absence. In its brief in this court, the government reiterates that, the March 11 date was correct, but relies on Ms. Bordinaro s version of the rules to argue that three unexcused absences prior to March 11 were sufficient to warrant Davis removal from the program. 11 classes in the entire twenty-two w eek period (M atthews), or more than two in either half of the program (Bordina ro). But M atthews m ade no m ention in his testimony of the no more than two in the first eleven weeks requirement. There is simply no evidence that he was even aware of it. When Matthews provided D avis with a mini-orientation, there is no reason to believ e that he told Da vis any thing th at he (M atthew s) did no t himse lf know . It is, of course, possible that the rules, as understood by Ms. Bordinaro, were explained to Davis at the Superior Court orientation. The prosecution presented no evidence at all, however, as to wh at Davis was told at that orien tation. Moreover, M s. Bordinaro herself testified that the rules as to missed classes were co mplicated; she and M r. Matthews evidently u nderstood them diffe rently. It is difficult to ascrib e know ledge to D avis that even Matthews evidently did not have, especially when it was Matthews, and not Ms. Bordinaro, who had direct dealings with Davis. The government was required to establish beyond a reasonable doubt that Davis violated the ord er willfu lly, i.e., that he h ad a w rongfu l state of m ind. Fields, 793 A.2d at 1264. Beyond a reasonable doubt is the most exacting standard known to the law. As the en banc court explained in Rivas, it requires the factfinder to reach a subjective state of near certitude of the guilt of the accused. Jackson[, 443 U.S. at 315]. Proof of a fact beyond a reasonable doubt is thus more powerfu l than proof that the fact is more lik ely true than not; more powerful, even, than p roof that its truth is highly probable. (Darius) Smith v. United States, 709 A .2d 78, 82 (D.C. 1998) (en banc) (app roving form ulation of rea sonable doubt as the kind of doubt that would ca use a reaso nable person, after careful and thoughtful reflection, to hesitate to act in the graver or more important matters in life ). This 12 requirem ent, a component of due process, p lays a vital role in the American scheme of criminal proced ure, because it operates to give concrete substance to the presumption of innocen ce, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. Jackson, 443 U.S. at 315 (quoting In re Winship , 397 U.S. 358, 363 (1970)). 783 A.2d at 13 3. No im partial trier of fact could, in ou r view, find b eyond a r easonab le doubt that Davis knew or understood, or should have known or understood, h is responsibilities as described in Ms. Bordinaro s testimony, when these responsibilities differed from those known to and testified to by Matthews. Accordingly, the judgment of conviction is reversed, and the case is remanded to the trial court with directions to enter a judgment of acquittal. The mandate shall issue forthwith. So ordered.
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