In re Ferguson

WAGNER, Senior Judge,

concurring in part and dissenting in part:

I join the majority in reversing appellant’s conviction based upon his January 1st telephone call. However, the evidence was insufficient to prove beyond a reasonable doubt that appellant willfully disobeyed the terms of the CPO on December 24th. At that time, the CPO permitted appellant to contact petitioner (1) regarding the child, and (2) for announcement for pick up and return of the child for visitation.1 The evidence showed that on Christmas eve, appellant called petitioner, his two-year-old daughter’s mother, and told her that he had a gift for her that the child had purchased and inquired whether she would be at home.2 It cannot be found or reasonably inferred from this evidence that appellant’s call to attempt to arrange for his daughter to give her mother a Christmas present is not related to the child. Under the circumstances described, appellant’s contemporaneous inquiry about whether petitioner would be at home does not alter the nature of the call as one related to the child. According to the government, the trial court and the parties proceeded on the assumption “that the CPO prohibited all contact except calls relating to visitation.” This misapprehension, no doubt, accounts for defense counsel’s improvident concession of guilt and the trial court’s finding of guilt based on the December 24th telephone call. In my view, the evidence was insufficient to support the conviction.3 Therefore, I respect*1156fully dissent from that portion of the majority opinion that concludes otherwise.

. See Majority Opinion, footnote 4.

. In testimony, petitioner described this telephone call as follows:

Just a brief moment while he said how Angel [their child] had bought a present for me and was I going to be home. And I said no, and I said, how did Angel get a present for me because Angel don’t have a job. And I stated that no, I was not going to be home, and that was the end of the conversation.

The court questioned petitioner, and she responded as follows:

The Court: On the December 24, all that Mr. Ferguson said is that he had a gift for you that Angel purchased?
[Petitioner]: Yes.
The Court: Did he say anything else about the children?
[Petitioner]: No.

. See Hooks v. United States, 977 A.2d 938, 939 (D.C.2009) (citing Davis v. United States, 834 A.2d 861, 866 (D.C.2003)) (setting forth elements of proof required for a contemptuous violation of a CPO).