In re Richardson

273 A.3d 342

IN RE Willie RICHARDSON, Appellant.

No. 20-CM-241

District of Columbia Court of Appeals.

Argued Feb. 17, 2022

Decided March 24, 2022^*

Annamaria Kimball, appointed by this court, for appellant. Christine Pembroke was on the brief for appellant.

Caroline Tan for appellee. Janice Y. Sheppard, Assistant Attorney General, Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time, Caroline S. Van Zile, Principal Deputy Solicitor General, and Ashwin P. Phatak, Deputy Solicitor General, were on the brief for appellee.

Before Glickman, Easterly, and Deahl, Associate Judges.

Deahl, Associate Judge:

Willie Richardson was convicted of four counts of contempt for violating a temporary protection order (TPO). The TPO directed Richardson not to contact his ex-girlfriend, Michelle Hargrove, and he was found guilty of contempt for each of four Facebook messages he sent to Hargrove over the course of a single day. On appeal, Richardson argues that his convictions should merge because sending four messages on a single day amounts to just one offense, not four. He also argues that the trial court abused its discretion by improperly admitting prior bad acts evidence in the form of several hostile voicemails he had left on Hargrove's phone before the issuance of the TPO. We are unpersuaded by Richardson's arguments and affirm.

I.

Richardson and Hargrove were in a relationship from January 2018 until May 2019. Shortly after their relationship ended, Hargrove sought and the Superior Court issued a TPO ordering Richardson "not [to] contact [Hargrove] in any manner," including via "electronic or social media." Weeks later, and while the TPO was in effect, Hargrove received four messages via Facebook Messenger, all sent on a single day from Richardson's Facebook account. The messages were time-stamped 2:09 PM, 3:39 PM. 7:49 PM, and 9:34 PM, and read as follows:

[2:09 PM] So you in a relationship with your new boo and you got pictures all over [your Facebook] page you and him been here and there? Damn I was a fool for you but God bless you so you got his picture on both page as your profile huh? I waste my time and pain over you and then you gave him my things and sit at the patio with him like he or you brought it but what woman you know of can say that she are around something that you brought me or gave me not none because I loved you enough to respect your things I'm not being around another woman with it on or at my house. Have a blessed day and then the law suit I put you down with you share and spend it on another man and your kids wow [ ] but that's the thanks that I get and favor for being a dumb old ass for you

[3:39 PM] Damn I missing your ass

[7:49 PM] Look I love you more then anything and I have not been with nobody I just wish you would had really believed me but I know your new number I just did not call it? It's 883 25 ha ha I'm not telling you the last two of your number I just gave you your space and his respect as your man because I do not want you to cheat on him just like you did me and treated me! My love for you is so powerful to me!

[9:34 PM] I'm not here against you or betrayed you either but why you won't text back huh I love you I'm not on your time in turning people in to the law like you do I love you once again with all my heart ?

Hargrove testified that the first message referred to a patio furniture set that Richardson insisted he had purchased for her and was angry about her using with another man. The partial phone number in the third message was from a number Hargrove acquired after the TPO was issued—a number she did not know Richardson had and did not want him to have. Hargrove understood the fourth message ("turning people in to the law") to refer to her obtaining a TPO against him.

Richardson was charged with four counts of contempt under D.C. Code § 16-1005(f)(1) (2021 Supp.). Before trial, the government notified Richardson of its "intent to use evidence of other crimes or prior bad acts pursuant to Drew v. United States , 331 F.2d 85 (D.C. Cir. 1964)." Specifically, the government sought to introduce portions of three voicemails that Richardson left on Hargrove's phone between the end of their relationship and the issuance of the TPO. The government argued the voicemails were admissible as evidence of Richardson's identity as the person who sent the Facebook messages. It contended that the voicemails were relevant to Richardson's identity because, like the Facebook messages, they show the speaker was "upset by Ms. Hargrove's new relationship, and by Ms. Hargrove's continued use of the patio furniture." The government also argued the voicemails were admissible as evidence of motive because "[c]omparing these voicemails to the charged Facebook messages will demonstrate the defendant's determination to contact Ms. Hargrove to express these feelings despite her requests to end all contact." The court ruled that the voicemails were admissible as evidence of identity and motive. The court stressed that the question of identity was of particular importance because Richardson planned to argue that the Facebook messages, though concededly sent from his account, were written by somebody else.¹ Three excerpts from the voicemails were eventually introduced at trial.²

After the close of evidence, Richardson moved to merge the four counts of contempt into a single count, contending that the four messages—"sent within a single day, within a fairly short amount of time"—amounted to a single offense. The court denied Richardson's motion, noting that although the messages were sent on the same day, they remained "distinct messages that were sent at these four different times .... at least an hour apart." After a two-day bench trial, Richardson was convicted of four counts of contempt for violation of a TPO. He was sentenced to four concurrent 180-day terms of incarceration.

II.

Richardson argues that the trial court erred by failing to merge the four contempt convictions into one, and abused its discretion by admitting Richardson's voicemails into evidence. We consider these arguments in turn.

A.

On merger, Richardson makes two arguments. First, he argues that the four Facebook messages were part of a "single continuous episode" and should be charged as one offense under our traditional fork-in-the-road analysis. Second, and more ambitiously, he argues that the relevant provision of the Intrafamily Offenses Act prohibits multiple convictions for separate violations of a single protection order.

i.

"There is no double jeopardy bar to separate and cumulative punishment for separate criminal acts, even if those separate acts do happen to violate the same criminal statute." Sutton v. United States , 140 A.3d 1198, 1205 (D.C. 2016) (quoting Brown v. United States , 795 A.2d 56, 63 (D.C. 2002) ). Criminal acts are "factually separate" when they "have occurred at different times and were separated by intervening events, when they occurred at different places, when the defendant has reached a fork in the road and has decided to invade a different interest, or when the first act has come to an end and the next act is motivated by a fresh impulse." Gray v. United States , 544 A.2d 1255, 1257 (D.C. 1988) (internal citations omitted). "An interval of time between two criminal episodes may be quite brief but still show that a defendant had reached a fork in the road or had acted in response to a fresh impulse." Cullen v. United States , 886 A.2d 870, 873 (D.C. 2005) (quotation marks omitted); see also Maddox v. United States , 745 A.2d 284, 294 (D.C. 2000) ("[W]hen there is an appreciable period of time between the acts on which two criminal convictions are based, there is no merger, even if the interval is quite brief." (quotation marks omitted)). However, when a series of criminal actions are so close together as to become "a continuous stream"—for example, a "continuous stream of threats against a single person" or "a succession of physical blows in a continuing attack on a single victim"—those actions "coalesce into a single ... offense." Williams v. United States , 981 A.2d 1224, 1227 n.8 (D.C. 2009). "Whether two charged offenses merge into one is a question of law," which we review de novo. Ellison v. United States , 919 A.2d 612, 615 (D.C. 2007).

We find that Richardson's messages were not part of a "continuous stream" of communication so as to constitute only one offense. The messages were separated by an "appreciable period of time," Maddox , 745 A.2d at 294, with each message following the preceding message by an hour-and-a-half or more. Richardson cites to no case where we have found that actions committed so far apart constituted a "continuous stream." See Ellison , 919 A.2d at 616 (declining to merge two counts of sexual abuse where the two sex acts were committed about fifteen minutes apart). Moreover, nothing about the content of the messages suggests that they expressed a single, continuous thought (in the way a series of punches might constitute a single, continuous attack). See Williams , 981 A.2d at 1227 n.8. We agree with the trial court that after Richardson sent each message he had completed a criminal act and stood at a "fork in the road" as to whether to commit another. Gray , 544 A.2d at 1257. He could have chosen to stop contacting Hargrove, but instead each time acted on a fresh impulse to contact her again. Id. Thus, under our traditional analysis, each of Richardson's messages is punishable as a separate offense, and his convictions do not merge.

ii.

Our analysis does not end there because Richardson also argues that our traditional analysis does not apply to this case. In his view, the Intrafamily Offenses Act is ambiguous on the question of whether violating a single court order multiple times amounts to one or multiple offenses. The provision at issue states that "[v]iolation of any temporary protection order or civil protection order...