DCCA announces a new rule for when harassing conduct can be charged as separate counts of stalking

Joy Whylie v. United States, No. 13-CO-480 (decided August 28, 2014)

Players:  Associate Judges Blackburne Rigsby and Thompson, Senior Judge King.  Opinion by Senior Judge King.  Andrew R. Szekely for appellant.  Trial Judge Robert I. Richter.  

Facts:  When Melody Parker began working at the Psychiatric Institute of Washington, she was warned that Joy Whylie had a penchant for making crank calls to the facility.  Ms. Whylie apparently proceeded to focus her attention on Ms. Parker, and made thousands of harassing phone calls to her between June of 2010 and February of 2011.  On July 16, 2010, Ms. Parker obtained a protective order that prohibited Ms. Whylie from contacting her.  A Superior Court judge entered a criminal stay-away order on December 3, 2010.  Ms. Whylie continued to call Ms. Parker.  In February of 2011, she also called Ms. Parker’s step-mother using “Spoofcard,” a service that made the call look as if it originated from Ms. Parker’s phone.  These phone calls made it appear to authorities that Ms. Parker was violating a separate no-contact order that she had with her step-mother, and led to the mistaken initiation of criminal prosecution against Ms. Parker in Maryland.   Ms. Whylie was convicted of, among other charges, four counts of felony stalking and one count of misdemeanor stalking.  

Issue: Under what circumstances does stalking behavior constitute a separate “course of conduct,” that can be charged as a unique violation of D.C. Code § 22-3133?  

Holding:  Stalking conduct that “could reasonably cause a victim to be frightened in a different way from previous or succeeding conduct (or not to be frightened at all) . . . should be deemed to constitute a separate course of conduct.”  Slip op. at 14.  In addition, “stalking that post-dates a no-contact order can be charged separately from conduct that precedes that court order.”  Id.

Of Note:

• The government was justified in charging the following acts as separate counts of stalking: 
• The more than 1400 calls to Ms. Parker at PIW between June 14 and July 16, 2010, could be charged as one count of misdemeanor stalking.  The conduct that followed the July 16 restraining order could be charged separately, as it constituted conduct post-dating a no-contact order. 
• The nearly 150 calls that Ms. Whylie made to Ms. Parker between December 4 and December 30, 2010, in violation of the December 3 no-contact order.  This conduct could also be charged separately, as it constituted conduct post-dating a no-contact order. 
• The calls that Ms. Whylie made to Ms. Parker’s step-mother between February 5 and February 28, 2011, using the Spoofcard service.   This conduct could be charged separately because they were “designed to engender a different type of fear than the previous calls caused,” slip op. at 17, and therefore “reflected a purpose different from appellant’s purpose in making the previous calls and to have ‘invaded a different interest,’” id. (quoting Gray v. United States, 544 A.2d 1255, 1257 (D.C. 1988)). 

• However, the government did err in dividing the following acts into two separate charges: 
• The more than 800 calls that Ms. Whylie made between September 12 and October 24, 2010. 
• The more than 700 calls that Ms. Whylie made between November 1 and December 2, 2010. 
• These groups of calls could be charged separately from the pre-restraining order conduct, but could not be charged separately from each other.  There was nothing distinguishing these month-long periods of stalking conduct other than that they each lasted a month, but the Court held that duration alone is insufficient to establish that a series of acts constitutes a separate course of conduct.  Slip op. at 18.  NG
•  Read full opinion here