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Violation of a Protection Order


District of Columbia

In Re Herschel D. Shirley, 2011 D.C. App. LEXIS 307

The victim was granted a CPO against the defendant, her then boyfriend of a year. Among other orders, the CPO enjoined the defendant from calling the victim’s workplace, email, or text message the victim, and explicitly warned, in bold lettering, that “failure to comply with this order is a criminal offense” and that “only the court can change this order.” The defendant then phoned the victim twice and text-messaged her once. The defendant was convicted of three counts of contempt after violating the CPO. He appealed, contending that the conviction could not stand because the victim consented to a violation of the CPO by participating in the couple’s efforts to reconcile. The court rejected this argument, explaining that the victim’s consent could not modify a CPO. The court upheld the conviction.


Kansas

State v. Hardy, 279 P.3d 147 (2012)

The defendant was convicted of stalking and appealed his conviction based on lack of evidence introduced at trial. The defendant was convicted of violating K.S.A. 2009 Supp. 21-3438(a)(3), that after being served with, or otherwise provided notice of, any protective order included in K.S.A. 21-3843, that prohibits contact with a targeted person, intentionally or recklessly engaging in at least one act listed in subsection (f)(1) that violates the provisions of the order and would cause a reasonable person to fear for such person’s safety, or the safety of a member of such person’s immediate family and the targeted person is actually placed in such fear. In this case, the protective order indicated that the defendant could not have contact with the victim directly or indirectly except to communicate about their joint children. The state did not produce a transcript of the messages that the defendant had sent to the victim. The defendant testified that all of the text messages he sent to the victim concerned their joint children. The court held that the state failed to produce any evidence of the presence of a protective order stating that the defendant was prohibited from having any contact with the victim. The protective order that was in place did not prohibit any and all contact. Instead, the protective order allowed contact concerning the joint children.


Montana

Stacy Lear, Petitioner and Appellee, v. Carrie A. Jamrogowicz, Respondent and Appellant, 2013 MT 147; 370 Mont. 320; 303 P.3d 790; 2013 Mont. LEXIS 193

Appellant, Carrie A. Jamrogowicz appealed the District Court’s ruling dismissing the civil temporary protection order against Jamrogowicz without prejudice. At issue is whether the District Court abused its discretion by dismissing the action without prejudice. The Montana Supreme Court affirmed the District Court’s ruling.

Stacy Lear had obtained a civil temporary protection order against Jamrogowicz which prohibited Jamrogowicz to be within 1,500 feet of Lear and not to have any contact with Lear. Prior to the hearing for the permanent protection order, Jamrogowicz moved to compel discovery from Lear. Amongst other items, Jamrogowicz obtained personal information on Lear including employment information, served 500 interrogatories on Lear, and requested several depositions with Lear. Lear failed to appear for two of the requested depositions. Jamrogowicz was subsequently charged with criminal stalking in which she entered a plea of nolo contendere (no contest) and was issued a no contact order through the criminal court. In light of this, Lear moved to dismiss the civil protection order without prejudice, allowing Lear to bring forth another civil protection order case in the future using the same facts.  Jamrogowicz asked the court to dismiss the protection order with prejudice so that it could not be refiled at a future time and cited Lear’s failure to appear for two scheduled depositions as the basis under the discovery rules.
The Montana Supreme Court affirmed the District Court’s ruling to dismiss the protection without prejudice indicating that, “[T]he clear purpose of Title 40, chapter 15, MCA, is “to promote the safety and protection of all victims of partner and family member assault, victims of sexual assault, and victims of stalking.”” Particularly, the Court notes that no reference to discovery of any kind is made under the protection order statute. The Court goes on to say that, “The breadth of discovery the District Court allowed Jamrogowicz, including pursuit of personal information about Lear, was wholly antithetical to the purpose of a TOP [temporary protection order]”. Ultimately the Court held, “[T]hat unless extraordinary circumstances justify it, courts should not compel a petitioner in a stalking matter to be subjected to discovery at the hands of the respondent.”


New York

People v. Welte, 2011 N.Y. Misc. LEXIS 1439

The defendant was charged with Criminal Contempt in the Second Degree in violation of P.L. 215.50(3) and Stalking in the Fourth Degree in violation of P.L. 120.45(2). The complaint alleged that the defendant violated a no contact protection order, which stated that the defendant have no contact with the mother of his children, “including personal or through third person.”  The defendant gained access to her friend’s list on Facebook and utilized it to contact and communicate with her friends and family members. In these communications, he accused the mother of using their children against him to prevent him from seeing or communicating with the children. In turn, the mother alleged that the defendant was intentionally indirectly contacting her because she would hear of the allegations from those friends and families. The court rejected these arguments, concluding that communications to a person’s friend’s list on Facebook does not constitute a violation of a no contact order of protection. It reasoned that this behavior would not normally violate any provision of law, that the defendant was not directed to stay away from her friends and family, and that a friend’s list is distinct from a third person. The court also rejected the argument for the stalking charge because the government failed to establish the four elements of Stalking in the Fourth Degree: lack of legitimate purpose, course of conduct, material harm, and a previous demand to cease the specific conduct. The charges against the defendant were therefore dropped.


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