In re Curtis

• Decision Date: 28 April 2022
• Docket Number: 17-CM-655
• Citation: 273 A.3d 841
• Parties: IN RE Michael CURTIS, Appellant.
• Court: D.C. Court of Appeals

273 A.3d 841

IN RE Michael CURTIS, Appellant.

No. 17-CM-655

District of Columbia Court of Appeals.

Submitted November 8, 2018

Decided April 28, 2022

Emily E. Cunniff, Rockville, MD, for appellant.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time the brief was filed, Rosalyn Calbert Groce, Deputy Solicitor General, and Janice Y. Sheppard, Assistant Attorney General, for the District of Columbia.

Before Glickman, Beckwith, and McLeese, Associate Judges.

Dissenting opinion by Associate Judge Beckwith at page ––––.

Per Curiam:

Appellant Michael Curtis was convicted of criminal contempt for violating a civil protection order (CPO) by communicating with his ex-wife, Priscilla Johnson. Mr. Curtis argues that there was insufficient evidence to support his conviction. We affirm.

I.

Except as otherwise noted, the following appears to be undisputed. Mr. Curtis and Ms. Johnson had three children together. They divorced in 2014 or 2015, and Ms. Johnson obtained a CPO against Mr. Curtis in 2016. The CPO generally required Mr. Curtis not to contact Ms. Johnson by telephone, in writing, electronically, or in any other manner, directly or indirectly through a third party. The CPO did, however, permit Mr. Curtis to text Ms. Johnson "ONLY to discuss matters related to the children in common."

Mr. Curtis's contempt conviction is based on the following exchange of texts in early 2017:

MR. CURTIS: Pri its not on court papers that i cant talk to the children...u have taken all rights and respect from mothers who r truly in need of help... Its ur fault young ladies r hurt..

MS. JOHNSON: Please stop texting this. I have given u two options n u refused both. So it's ur choice. The end of conversation please. I will no longer debate over this.

MR. CURTIS: Sorry for trying to my children and it should never be 2 choices...so im given u 3 Choices..

MS. JOHNSON: I'm not being spiteful. This is wat I can afford.

MR. CURTIS: That's one... It don't cost for my children to talk to me... U passed spiteful...

MS. JOHNSON: It's a monthly cost to pay a phone bill. Our minutes are limited since u turned of [name of daughter] phone we have to share n I need to be sure I'm able to reach them. But u won't understand so please this is the end. I'm trying to allow u to communicate but I'm having second thoughts now because u are constantly trying to cause confusion. I will say for a final time I need help with the bill to extend the minutes or u can get them a line for u to contact them. f u can't wait nderatand then I won't allow u to waste my text allowance n I'm going to have to ask u to stop contacting me period. It's ur fault u refuse to help so please don't blame me. If you can't text appropriately then I will not allow u to text me at all. Thx n goodnight.

MR. CURTIS: I don't care about phone bills. ... I'm 14 houses away... but u have hurted me for 4 yrs. Now and now all will be revealed...Be sure to tell them about ur cousin... even my babys no about it and who he was. Supposed to be so I will be calling. Them in fack I got a better idea...

MS. JOHNSON: Thx. Please don't text me again at all. I've asked u not to threaten me and this is not a conversation related to the well being of our children. Do not contact me again please.

MR. CURTIS: I did not treat... I promise u someone going to. Jail for the pain i been. Through over 4 yrs

MS. JOHNSON: Ok. That's it. No more. I'm trying to sleep.

At trial, Ms. Johnson acknowledged that some parts of that exchange had to do with the children. Ms. Johnson also testified, however, that the exchange included threats and other comments that Ms. Johnson did not understand. According to Ms. Johnson, the "dominant issue" in the texts was Mr. Curtis becoming angry.

The trial court found Mr. Curtis guilty. The trial court focused on three specific statements: (1) "its ur fault young ladies r hurt"; (2) "u have hurted me for 4 yrs. Now and now all will be revealed"; and (3) "I promise u someone going to. Jail for the pain I been. Through over 4 yrs." The trial court noted that those statements were in the midst of other statements about the children and might have reflected frustration relating to the children. Nevertheless, the trial court found that those three specific statements were not about the children and thus violated the CPO.

II.

To establish the elements of criminal contempt for violating a CPO, the evidence must prove beyond a reasonable doubt that the defendant "engaged in (1) willful disobedience (2) of a protective court order." Holmon v. District of Columbia , 202 A.3d 512, 521 (D.C. 2019) (internal quotation marks omitted). Mr. Curtis argues that the evidence did not establish that his texts were in violation of the CPO. We disagree.

The trial court focused on three statements in concluding that Mr. Curtis violated the CPO. Under our case law, we cannot affirm Mr. Curtis's conviction unless all three statements violated the CPO. See, e.g. , In re Kraut , 580 A.2d 1305, 1313-14 (D.C. 1990) (reversing where trial court based single count of contempt on three grounds and evidence was insufficient as to at least one ground). It is not entirely clear whether we should review the trial court's conclusions about the three statements deferentially or de novo. Compare, e.g. , Thomas v. United States , 934 A.2d 389, 392 (D.C. 2007) (In criminal-contempt cases, "[j]udicial review 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 reasonable inferences from basic facts to ultimate facts.") (internal quotation marks omitted), with, e.g. , id. ("Whether the acts in which the defendant was found to have engaged constitute [criminal contempt] is a question of law, and we review the trial court's resolution of that question de novo .") (brackets and internal quotation marks omitted). We need not decide that question, because we agree with the trial court that the three statements violated the CPO.

The first statement at issue is "its ur fault young ladies r hurt." Considered in isolation, that statement bears no apparent relation to the children. The statement must be understood in context, however. Cf., e.g. , Andrews v. United States , 125 A.3d 316, 324 (D.C. 2015) (in determining whether words constituted threat, "[t]he words in question must be considered in the context in which they were used") (internal quotation marks omitted). It is true that the statement is part of a text message that starts with Mr. Curtis stating his view of his legal right to communicate with the children. Mr. Curtis immediately veers, however, from that specific topic to more general statements that have no apparent logical relationship to the children. Mr. Curtis states, without explanation, that Ms. Johnson has taken away "all rights and respect" from mothers in need. Then, more ominously, Mr. Curtis states without explanation that it is Ms. Johnson's fault that "young ladies" are hurt. We agree with the trial court that the latter statement was not "ONLY to discuss matters related to the children in common."

This court has affirmed a conviction for criminal contempt in circumstances comparable to those of the present case. In re Ferguson , 54 A.3d 1150 (D.C. 2012) (per curiam). In Ferguson, the CPO permitted communication "[o]nly regarding the child and announcement for pick up and return of the child." Id. at 1151. In a phone call on Christmas Eve, Mr. Ferguson said that their child had bought a present for the complainant. Id. Mr. Ferguson asked if the complainant would be home to receive it, and, after the complainant said she would not, Mr. Ferguson asked again whether complainant would be home. Id. This court held that "[t]he evidence presented was sufficient to permit the trial court to find that [Mr. Ferguson's] further question to [the complainant] was not genuinely ‘regarding the child,’ but instead represented an effort to have contact with [the complainant] outside the bounds permitted under the CPO." Id. at 1153.

Courts outside of this jurisdiction have come to similar conclusions in analogous cases. See Jordan v. State , 77 N.E.3d 1271, 1273-74 (Ind. Ct. App. 2017) (upholding conviction for violating CPO permitting contact about parenting order; voicemail containing ad hominem attacks including that defendant would "really tear [complainant's] ass up in court" and would tell court "everything that has [gone] on" exceeded the scope of what was necessary to communicate with complainant about parenting time); State v. Peric , Nos. 2018-L-089, etc., 2019 WL 1424626, at *2, *8 (Ohio Ct. App. Mar. 29, 2019) (upholding conviction for violating CPO that permitted contact "for all issues concerning minor children," where Mr. Peric sent message that referenced parenting time but also called complainant "evil hateful bitch"; CPO did not "extend to personal attacks"; limited-contact provision's "intent is not to allow [Mr.] Peric to send messages threatening lawsuits and prison time based on a perceived underlying conflict over the children. This is an unreasonable interpretation of the order. Under this interpretation, [Mr.] Peric would have license to say anything to [complainant] provided he mentioned the children in the message."); State v. Putman-Albright , Nos. 26679, etc., 2016 WL 525863, at *7-8 (Ohio Ct. App. Jan. 29, 2016) (upholding conviction for violating CPO that permitted contact "concerning parenting issues," where, during dispute about parenting issue, Ms. Putman-Albright called complainant "punk ass" and asked if complainant was afraid of Ms. Putman-Albright's brother).

We are not persuaded by Mr. Curtis's arguments that his statements did not violate the CPO. First, Mr. Curtis appears to suggest that the relevant question is whether the text messages as a whole were primarily about the children. We disagree. The CPO limits communication to a single topic. In our...