State v. John

• Decision Date: 16 September 2005
• Docket Number: No. 2003-332-CA.,2003-332-CA.
• Citation: 881 A.2d 920
• Parties: STATE v. Gary JOHN.
• Court: Rhode Island Supreme Court

881 A.2d 920

STATE v. Gary JOHN.

No. 2003-332-CA.

Supreme Court of Rhode Island.

September 16, 2005.

Jane M. McSoley, Providence, for Plaintiff.

Robert B. Mann, Providence, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

PER CURIAM.

This case came before the Supreme Court for oral argument on March 1, 2005, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that this case should be summarily decided.

Facts and Travel

The defendant, Gary John,¹ had been married to Deborah John for twenty years before Deborah initiated divorce proceedings in August of 2001. At that time she obtained a no-contact order against defendant (dated August 20, 2001) from the District Court pursuant to G.L.1956 § 12-29-4. A subsequent no-contact order was issued on September 23, 2001.

On February 27, 2002, defendant pleaded nolo contendere to charges of domestic disorderly conduct and violation of the August 20, 2001 no-contact order. On the date of defendant's nolo plea, the District Court issued yet another no-contact order. The defendant met with his probation officer the next day, at which time they discussed the terms and conditions of the no-contact order.

Shortly after the February 27, 2002 no-contact order was issued, defendant mailed Deborah John two birthday cards — one postmarked March 12, 2002 and the other March 13, 2002. Each of the cards contained brief messages handwritten by defendant.² After receiving the cards, Deborah John contacted her local police department in Charlestown, and defendant was arrested and charged with two counts of violating the February 27, 2002 no-contact order.

On the basis of the fact that he had pleaded nolo contendere on February 27 of that year to (1) a charge of domestic disorderly conduct and (2) a charge of violating a no-contact order, defendant was charged with a felony pursuant to § 12-29-5.³

The defendant was tried before a jury on September 24 and 25, 2002. During the trial, Deborah John testified (over defendant's objection) that defendant had contacted her on a number of occasions between August 20, 2001 and February 2002. According to Deborah John's testimony, on October 4, 2001, defendant had gone to her place of work in order to discuss some of their differences, and an argument occurred. Later, on October 13, 2001, defendant went to Deborah John's home for the purpose of picking up their son.⁴ When Deborah John told defendant that their son did not want to go with him, an argument ensued, and she asked defendant to leave the premises. From November 2001 until February 2002, defendant telephoned Deborah John several times a week, and he once approached her at a family wedding in Virginia. The prosecution also introduced (over defendant's objection) the existence of the two previous no-contact orders (dated August 20, 2001 and September 23, 2001) which the District Court had issued against defendant.

At the close of the prosecution's case, defendant moved for judgment of acquittal, which motion the trial justice denied. After the trial justice charged the jury, defendant's counsel objected to the justice's failure to include two instructions that he had proposed, which objection the trial justice overruled.

The jury returned guilty verdicts on both counts; and, as a result, defendant was convicted of a felony pursuant to § 12-29-5. The defendant was sentenced to two concurrent ten-year terms, with the first fifteen months to be served; the remaining time on each count was suspended with probation. The defendant timely appealed.

On appeal, defendant argues that the trial justice erred in several respects. First, defendant asserts that the trial justice erred in finding that he was a third-time offender who thus fell within the ambit of § 12-29-5. Second, defendant argues that the trial justice erred in denying defendant's Super. R.Crim. P. 29 motion for judgment of acquittal, which motion defendant made at the close of the prosecution's case. Third, he asserts that the trial justice acted erroneously in light of Rule 404(b) and Rule 403 of the Rhode Island Rules of Evidence when he admitted evidence of three prior incidents of interaction between defendant and Deborah John in violation of previously issued no-contact orders.⁵ The defendant further alleges that the trial justice erred in light of Rule 404(b) and Rule 403 when he admitted the actual prior no-contact orders which prohibited defendant from contacting Deborah John. Finally, defendant argues that the trial justice's instructions to the jury were insufficient because they did not comport with the criteria endorsed by this Court in Sunbeam Corp. v. Ross-Simons, Inc., 86 R.I. 189, 134 A.2d 160 (1957) or with our law as to the type of notice to which defendant was entitled.

Analysis

I. The Effect of State v. Martini

Pursuant to our recent decision in State v. Martini, 860 A.2d 689 (R.I.2004), it is clear that defendant's felony conviction under § 12-29-5 must be vacated, and a sentence should be imposed in accordance with the jury's finding of guilt on the two lesser-included misdemeanor counts of violating the February 27, 2002 no-contact order.⁶

In Martini, this Court noted that the crime of disorderly conduct is statutorily classified as a petty misdemeanor (as distinguished from a misdemeanor) under Rhode Island law (G.L.1956 § 11-45-1) and then proceeded to hold that a conviction for disorderly conduct is not subject to the enhancement provisions contained in § 12-29-5 (the Domestic Violence Prevention Act). Martini, 860 A.2d at 692.

The defendant's sentence in this case was based on a finding that he was a third-time offender for purposes of the provisions of § 12-29-5. One of the previous offenses that supported this finding was his plea of nolo contendere on February 27, 2002, to a charge of domestic disorderly conduct. In view of our holding in Martini, however, defendant's conviction for domestic disorderly conduct cannot be a basis for subjecting him to a felony conviction pursuant to § 12-29-5. Therefore, the conviction must be vacated, and the case must be remanded for entry of judgments of conviction for the lesser included misdemeanor offenses of twice violating the February 27, 2002 no-contact order.

II. The Denial of the Motion for Judgment of Acquittal

The defendant further alleges that the trial justice erred in denying his motion for judgment of acquittal. In his motion defendant argued that the criminal information under which he was charged referred only to the February 27, 2002 no-contact order whereas he claimed to have had no notice of that particular no-contact order.⁷

The defendant also argued that the February 27, 2002 no-contact order did not specifically proscribe mailings and, further, that no evidence had been presented to show that Deborah John had read the birthday cards or was harassed by them. The trial court denied defendant's motion for judgment of acquittal, ruling that there was evidence that defendant had received adequate notice of the February 27, 2002 no-contact order from his probation officer and that the order was broad enough to include mailings. The trial court further noted that Deborah John had testified that she recognized defendant's handwriting, and it found that the sending of the cards could constitute a subtle form of harassment.

We have stated that "[i]n reviewing a claim of legal sufficiency of the evidence in the context of a motion for a judgment of acquittal, this Court applies the same standard as that applied by the trial court, namely, `[we] must view the evidence in the light most favorable to the state, * * * giving full credibility to the states witnesses, and draw therefrom all reasonable inferences consistent with guilt.'" State v. Otero, 788 A.2d 469, 475 (R.I.2002) (quoting State v. Snow, 670 A.2d 239, 243 (R.I.1996)).

The defendant's contention that the sending of two birthday cards did not actually violate the no-contact order is, in our judgment, not a frivolous argument, and it is one that we have considered seriously. In the end, however, we have concluded that the trial justice did not err in finding that sufficient evidence existed to establish that the order prohibited such conduct.⁸

We fully appreciate (and we do not retreat from) the principle that due process requires that there be reasonable clarity and specificity in court orders. See, e.g., State v. Eckert, 120 R.I. 560, 567, 389 A.2d 1234 (1978)

("The general rule is that to be enforceable by a contempt proceeding, an injunction must be clear and certain, and its terms must be sufficiently detailed to enable one reading the injunctive order to understand therefrom what he may not do thereunder."); Sunbeam Corp.,

86 R.I. at 194,

134 A.2d at 162-63 ("The terms of the order should be specific, clear and precise so that one need not resort to inference or implications to ascertain his duty or obligation thereunder. * * * As the respondent must obey the order at his peril it should be clear, definite and explicit so that an unlearned man can understand its meaning."); see also Biron v. Falardeau, 798 A.2d 379, 382 (R.I.2002); Ventures Management Co. v. Geruso, 434 A.2d 252, 254 (R.I.1981).

Nevertheless, having carefully considered the no-contact order in light of the requirement that such orders be reasonably clear and specific, we conclude that there was no violation of that important principle in this case. In the pellucid language of the no-contact order,⁹ the defendant was expressly "enjoined and restrained from any contact with the alleged victim * * *." (Emphasis added.) The words "any contact" in the order are as unequivocal as they are broad. It is clear to us that defenda...