Spring Valley-Wesley Heights Citizens Association and Westover Place Homes Corporation v. District of Columbia Zoning Commission*
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 11-FM-561
IN RE ANTHONY JONES, APPELLANT.
Appeal from the Superior Court of the
District of Columbia
(CPO-1928-10)
(Hon. Fern Flanagan Saddler, Trial Judge)*
(Hon. Brian F. Holeman, Trial Judge)
(Submitted April 3, 2012
Decided September 13, 2012)
(Amended September 27, 2012)
Raymond J. Rigat was on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant
United States Attorney at the time the brief was filed, and Chrisellen R. Kolb,
Adrienne Moran, and Sarah J. Schall, Assistant United States Attorneys, were on
the brief for appellee.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and
FARRELL, Senior Judge.
WASHINGTON, Chief Judge: Anthony Jones argues that the trial court plainly
erred in finding him guilty of criminal contempt for his failure to comply with a
*
Judge Saddler issued the Civil Protection Order in this case but did not preside
over the contempt proceeding that is at issue in this appeal.
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Civil Protection Order (“CPO”). Appellant argues that the specific requirement
that he abstain from using illegal substances as contained in the CPO was a
condition relating only to his ability to have unsupervised visitation with his son,
and therefore, his use of drugs generally could not serve as a basis for finding him
guilty of criminal contempt. We agree and reverse.
I.
Appellant and Ms. Leslie Akinola, the mother of his son, were involved in a
domestic altercation, which led to Ms. Akinola‟s filing of a petition for a CPO.
Judge Saddler held a hearing and in June 2010 issued a CPO, which ordered
appellant to stay away from Ms. Akinola and her mother, and not assault, threaten,
harass, or stalk Ms. Akinola and her family or destroy her property. Finding that
appellant loved his child and would do him no harm, Judge Saddler provided that,
“[appellant] may have unsupervised visitation with the parties‟ minor child so long
as [appellant] does not use illegal drugs.” After appellant explained that when
dealing with the petitioner, “I‟m going to need everything on paper,” Judge
Saddler informed the parties that the CPO would read in the following manner:
“[appellant] may have unsupervised visitation with the parties‟ minor child as long
as [appellant] does not use illegal substances around the child or otherwise.” The
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trial court also ordered that appellant participate in a drug testing program
administered by the D.C. Court Services and Offender Supervision Agency
(“CSOSA”) and then commented, “[y]ou shouldn‟t being using illegal substances
anyway.”
Later that year, CSOSA issued an Alleged Violations Report, which alleged
that appellant violated the conditions of the CPO by failing to abstain from
substance abuse, report for scheduled drug testing, and obey all laws. In its report,
CSOSA recommended that appellant be held in contempt for violating the terms of
the CPO. The matter was assigned to Judge Holeman who held a violations
hearing and found appellant guilty of two counts of criminal contempt—one for his
failure to abstain from substance abuse and the other for his failure to report for
scheduled drug testing. Appellant was sentenced to sixty days incarceration for
each count, to run consecutively, and payment of a $200 fine. Appellant then
noted an appeal.1
II.
1
Appellant concedes that the trial court could reasonably have found that he
violated the CPO for failing to report for drug testing, as he did not challenge the
allegation that he had missed testing appointments. Therefore, appellant only
challenges his conviction for criminal contempt based on his failure to abstain
from substance abuse.
4
Appellant does not argue that he abstained from using illegal substances.
Instead, he argues, for the first time on appeal, that the CPO required him to
abstain from using illegal substances only as a condition of his right to
unsupervised visitation with his son and that, although this right could be
withdrawn if he was found to have used drugs, the CPO by its terms did not subject
him to a contempt adjudication for drug usage.
“To establish the elements of a criminal violation of a CPO, the government
must present evidence beyond a reasonable doubt that the defendant engaged in (1)
willful disobedience (2) of a protective court order.” In re Sobin, 934 A.2d 372,
374 (D.C. 2007). “Willful . . . means [] that the person charged with the duty
knows what he is doing.” Id. (citation omitted) (internal quotation marks omitted).
This court may not reverse the trial court‟s findings of a violation of a CPO unless
they are without evidentiary support or plainly wrong. Ba v. United States, 809
A.2d 1178, 1182 (D.C. 2002).
We must view the evidence in a light most
favorable to sustaining the judgment, “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 reasonable inferences from basic facts to ultimate facts.” Rivas v. United
States, 783 A.2d 125, 134 (D.C. 2001) (en banc) (citation omitted) (internal
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quotation marks). “[P]roof of guilt [is] sufficient if, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.”
Id.
(emphasis in original ) (citation omitted) (internal quotation marks).
In applying the foregoing standards to the evidence in this case, we are
satisfied that Judge Holeman‟s finding that appellant violated the terms of the CPO
is plainly wrong and that no rational fact finder could have found appellant guilty
of criminal contempt beyond a reasonable doubt. Our conclusion is not a difficult
one to reach because the government wholly failed to produce any evidence that
appellant willfully disobeyed the CPO. In this case, Judge Holeman found that
appellant had violated the terms of the CPO by using marijuana on several
occasions based on positive drug tests that were administered periodically by the
probation office. However, by its express terms, the CPO only required appellant
to abstain from the use of illegal substances as a condition of his continued right to
visit with his child. It carried no free-standing requirement that he abstain from
drug use under pain of criminal contempt.
“[C]riminal contempt is „a special situation.‟” In re Robertson, 940 A.2d
1050, 1057 (D.C. 2008) on reh’g, 19 A.3d 751 (D.C. 2011) (quoting United States
6
v. Dixon, 509 U.S. 688, 742 (1993) (Blackmun, J., concurring in part and
dissenting in part)). Unlike general criminal laws that aim to punish an offense
against the community at large, “[t]he purpose of contempt is . . . to punish the
specific offense of disobeying a court order.” Id. Therefore, before a defendant
can be convicted of criminal contempt, constitutional due process requires that he
be on notice of the type of conduct that constitutes a violation of the court‟s order.
In our cases addressing the revocation of probation, where a probationer‟s
release is revoked for violating court-imposed conditions, we have made it clear
that, “probation may not be revoked in the absence of a threshold determination
that there has been a violation of the express conditions of probation, or of a
condition so clearly implied that a probationer, in fairness, can be said to have
notice of it.” Resper v. United States, 527 A.2d 1257, 1260 (D.C. 1987) (citation
omitted) (internal quotation marks). Applying these same principles of notice to
the contempt case at hand, we hold that no reading of the CPO expressly or by
clear implication required appellant to abstain from use of illegal substances or risk
contempt; and no evidence was presented that he reasonably should have known
that use of drugs would subject him to a contempt adjudication rather than likely
revocation of his right to unsupervised visitation with his son.
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Our review of the record supports our reading of the CPO. At the time the
CPO was issued, Judge Saddler‟s only expressed concern was appellant‟s use of
drugs when visiting with his child. In fact, after setting forth the condition that
appellant not use drugs around the child during unsupervised visitation, Judge
Saddler commented, “[appellant] shouldn‟t be using illegal substances anyway.”
This admonishment by the trial court reveals that CPO did not contemplate that the
CPO would prohibit all drug use under pain of contempt. Had the court intended
contempt—rather than or in addition to withdrawal of unsupervised visitation—to
be a sanction for drug use, it surely would have known how to draft that order.
Therefore, for these reasons, we reverse appellant‟s conviction for criminal
contempt.
So ordered.
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