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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 13-CO-480

                             JOY WHYLIE, APPELLANT,

                                         V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (CF2-367-11)

                        (Hon. Robert I. Richter, Trial Judge)
(Argued June 12, 2014                                   Decided August 28, 2014)

      Andrew R. Szekely for appellant.
        Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald
C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P.
Mannarino, and Thomas S. Rees, Assistant United States Attorneys, were on the
brief, for appellee.
      Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and KING,
Senior Judge.


      THOMPSON, Associate Judge: Following a jury trial, appellant Joy Whylie

was found guilty of second-degree identity theft, four counts of felony stalking,

one count of misdemeanor stalking, ten counts of felony contempt, and three
                                         2


counts of misdemeanor contempt.1 After she was sentenced, she filed a motion to

correct an illegal sentence, arguing that her harassing phone calls, which occurred

over an eight-month period, constituted a single course of conduct punishable by

only a single sentence for one count of stalking. Appellant now appeals the denial

of that motion. Resolving the appeal requires us to decide whether the stalking

counts of which appellant was convicted were separate units of prosecution. For

the reasons that follow, we conclude that most of the counts were separately

punishable and that the trial court did not err in declining to “correct” appellant‟s

separate and consecutive sentences for counts 1, 14, and 24.          However, we

conclude that the court did err in letting appellant‟s separate and consecutive

sentences for counts 5 and 7 stand and that these sentences must merge.




      We therefore affirm the court‟s ruling declining to vacate the sentences as to

counts 1, 14, and 24. We remand for the court to vacate the sentence for count 5 or

the sentence for count 7.



      1
         Appellant was acquitted of one count of felony threats, and the jury was
unable to reach a verdict as to one count of felony contempt, one count of
misdemeanor contempt, and all of the remaining counts of felony threats. On
September 28, 2012, this court affirmed appellant‟s convictions in an unpublished
order in case number 11-CF-1132.
                                          3


                                  I.   Background




      In February 2010, Melody Parker began working as a nurse in the adolescent

unit at the Psychiatric Institute of Washington (PIW), and was warned that a crank

caller, appellant Whylie, frequently called the unit. On June 14, 2010, Parker

received her first call from appellant, on a PIW line, directed specifically to her.

During thirty to fifty subsequent calls on the same day, appellant spoke with Parker

and, inter alia, called her a “dumb bitch,” told her that she had “started a war[,]”

threatened to “beat [her] ass,” told Parker that she and two co-workers were going

to “jump” Parker, and tried to “bait” Parker into coming to fight with her.




      Appellant resumed calling PIW during Parker‟s shift on the following day

and told Parker during various calls that Parker didn‟t know who she was “dealing

with” and that she and two co-workers were “looking for [Parker]” because they

were “going to beat [her] ass[.]” Appellant continued calling throughout that day,

making fifty to one hundred calls, and repeated many of the threats she had

previously made against Parker.
                                          4


      On June 17, 2010, Parker obtained from the Superior Court a temporary

restraining order that prohibited appellant from contacting her. Notwithstanding

the order, appellant continued to call Parker at PIW that day, throughout the rest of

the month of June, and into July, telling Parker that she would see her in court and

sometimes telling the PIW employees who answered the phone that she was

Parker‟s mother in order to trick Parker into speaking to her.2




      On July 16, 2010, Parker appeared in court for a hearing on her petition for a

final protective order. After she played recordings she had made of some of

appellant‟s calls, in which appellant made references to the July 16 court date, the

court granted the protective order. During calls that she made to Parker at PIW

later that day, appellant, who had not appeared at the court hearing, told Parker that

the restraining order “wasn‟t valid” because appellant had not appeared, that

“[n]othing was going to happen to [appellant],” and that Parker was “dumb” to

think that she was going “to get [appellant] locked up[.]”


      2
          Beginning on July 3, 2010, Parker began to receive occasional calls from
“blocked” numbers on her personal cell phone. For the first few days, Parker
disregarded the calls to her cell phone because no one would speak on the other
line, but during one of the calls to her cell phone, between 1:00 and 2:00 a.m. on
July 7, 2010, Parker heard appellant begin to laugh “hysterical[ly],” and say “dumb
bitch, I told you I was going to find you[,]” before correctly identifying Parker‟s
home address (where Parker was at the time of the call).
                                          5




      Appellant continued calling Parker through the month of July 2010. Both

Parker and appellant appeared at the Superior Court for a hearing on August 18,

2010. During the August 18 hearing, appellant requested that the protective order

be “thrown out” because she had not been served and had known nothing about it,

a request that the judge, who had heard appellant‟s references to the July 16 court

date on the recordings of appellant‟s calls, denied. Instead, the court converted the

order into a one-year mutual no contact order, and both Parker and appellant

expressed, in court, their willingness to avoid contact with each other.




      Following the August 18 hearing, Parker, who had a block on her cell phone

to stop incoming calls, did not receive calls from appellant for nearly a month.

However, the calls resumed on September 12, 2010, after Parker removed the

block. On that date, between 2:00 and 3:00 a.m., Parker received a call on her cell

phone from appellant. Parker put the call blocker back onto her cell phone, and

appellant subsequently resumed calling Parker at PIW, making more than a

thousand calls between mid-September 2010 and late February 2011.3 Nearly 150


      3
         During the calls that appellant made during this period, she frequently
insulted Parker in sexually graphic terms and called Parker insulting names, such
as “bitch,” “dumb bitch,” and “zebra face,” but sometimes would merely scream
                                                                           (continued…)
                                        6


of these calls were placed after December 3, 2010, and thus violated a criminal

stay-away order that the Superior Court entered on that date against appellant in

case number 2010-CMD-22628. Many more of the calls also violated a second

criminal stay-away order that the Superior Court entered in January 7, 2011, in

case number 2011-CF2-3672.4




      Parker‟s father died on January 6, 2011, and after his death, Parker had a

dispute with her stepmother, Eldora Parker, regarding Parker‟s father‟s will. The

dispute led Parker and her stepmother to obtain mutual protection orders from a

Maryland court on January 12, 2011, that prohibited them from contacting each

other. However, on February 5, 2011, Parker received a call on her cell phone that

appeared on her phone‟s caller ID as originating from her stepmother, and later

that day, Parker received a call from a police officer, who accused her of having



(…continued)
and then hang up, sometimes was silent, sometimes played soft music, and
sometimes pressed phone buttons or made “cat noises” or “sucking noises[.]”
During numerous calls over this period, appellant would make threats, telling
Parker that she would “blow up [Parker‟s] house . . . [and] family members[‟]
houses[,]” asserting that the “war [wa]s just beginning,” repeating Parker‟s home
address and threatening to “send people” to her house, and threatening to “beat
[Parker‟s] ass[.]”
      4
        The jury found appellant guilty of contempt charges for having violated
the December 3, 2010, and January 7, 2011, orders.
                                           7


“harass[ed]” her stepmother with numerous phone calls and told her that her

stepmother‟s home caller ID recorded calls from Parker throughout the day. Two

days later, Parker discovered that a warrant had been issued in Maryland for her

arrest, based on six violations of the no-contact order that she had supposedly

committed. Eventually, however, the charges were dropped, and an investigator

with the U.S. Attorney‟s Office discovered that the calls by which Parker had

supposedly violated the Maryland no-contact order had actually been made from

appellant‟s phone number using a service called “SpoofCard,” which allows a user

to make calls appear on the recipient‟s caller ID as having originated from a

different number than that of the actual caller.




      During calls from appellant to Parker on February 26 and 27, 2011,

appellant told Parker that there was a “warrant [for Parker] in Virginia,” and that

she “was setting [Parker] up in Virginia[.]” In calls that appellant made around

this time to Parker‟s supervisor at PIW, appellant mentioned Parker‟s stepmother

by name and instructed the supervisor to tell Parker that appellant and Parker‟s

stepmother had “become very good friends,” that appellant knew that Parker was

“trying to take all the money that [Parker‟s] dad had left for [Parker‟s stepmother]”

and that appellant and Parker‟s stepmother “were going to take [Parker] down[.]”
                                         8


      For purposes of the indictment and the jury verdict form, the charged

stalking conduct — i.e., the thousands of phone calls that appellant placed to

Parker and Parker‟s stepmother between June 2010 and February 2011 — was

divided into one misdemeanor count and four felony counts of stalking, and the

court imposed separate sentences for each count.       The misdemeanor stalking

conviction (the conviction on count 1) is based on the more than 1400 calls that

appellant placed, using both her cell phone and her home landline phone, to Parker

at PIW between June 14, 2010, and July 16, 2010. The first felony stalking

conviction (count 5) corresponds to the more than 800 calls that appellant, using

her home landline phone, placed to Parker at PIW and on Parker‟s cell phone

between September 12 and October 24, 2010, all of which violated the no-contact

order that the Superior Court had imposed on August 18, 2010.5 The second

felony stalking conviction (count 7) corresponds to the more than 700 calls that

appellant, using her home landline phone, placed to Parker at PIW between

November 1 and December 2, 2010, (calls that likewise violated the no-contact

order that the Superior Court had imposed on August 18, 2010). The third felony

stalking conviction (count 14) was based on the nearly 150 calls that appellant

placed to Parker between December 4 and December 30, 2010, during which


      5
         The jury found appellant guilty of several counts of contempt for violation
of that order.
                                         9


appellant used her “SpoofCard” service, presumably in an attempt to disguise her

non-compliance with the December 3, 2010, criminal stay-away order. Finally, the

fourth felony stalking conviction (count 24) corresponds to the calls that appellant

placed to Parker‟s stepmother between February 5 and February 28, 2010, during

which appellant again used her “SpoofCard” service, this time to make the calls

appear to have originated from Parker‟s phone (presumably so as to falsely

incriminate Parker for violating the January 12, 2011, Maryland protection order

governing Parker and her stepmother).




      Following her convictions and the trial court‟s imposition of a 180-day term

of incarceration for the misdemeanor count and one-year terms of incarceration for

each of the felony counts — all five of which were to run consecutively —

appellant filed her January 30, 2012, motion to correct an illegal sentence.6 She

argued that all of the stalking behavior of which she was convicted constituted a

single course of conduct and thus, for purposes of sentencing, should have been

treated as a single felony count.     On April 17, 2013, the trial court denied

appellant‟s motion to “correct” and reduce her sentence, finding that “each count

      6
        A trial court “may correct an illegal sentence at any time[.]” Super. Ct.
Crim. R. 35 (a). A sentence is “illegal” when the “court goes beyond its authority
by acting without jurisdiction or imposing a sentence in excess of the statutory
maximum.” Littlejohn v. United States, 749 A.2d 1253, 1256 (D.C. 2000).
                                          10


brought by the Government [was] adequately delineated from the other, displaying

a logic that dispels any suspicion of arbitrary or excessive prosecution.” She now

appeals the denial of that motion.




                                II.   Applicable Law




      The District of Columbia statute that criminalizes stalking makes it unlawful

to “purposefully engage in a course of conduct directed at a specific individual”

with the intent to cause that individual to “[f]ear for his or her safety or the safety

of another person[,]” to “[f]eel seriously alarmed, disturbed or frightened[,]” or to

“[s]uffer emotional distress[.]” D.C. Code § 22-3133 (a) (2012 Repl.). The term

“engage in a course of conduct” is defined to include following, monitoring,

surveilling, threatening, or communicating to or about an individual “on 2 or more

occasions[.]” D.C. Code § 22-3132 (8) (2012 Repl.). The statute further specifies

that “[w]here a single act is of a continuing nature, each 24-hour period constitutes

a separate occasion.” D.C. Code § 22-3133 (c) (2012 Repl.). The statute also

provides that “[t]he conduct on each of the occasions [constituting a course of

conduct] need not be the same as it is on the others.” D.C. Code § 22-3133 (d)

(2012 Repl.).
                                          11




      This court reviews de novo “claims involving matters of statutory

interpretation[,]” including a claim that an appellant “has been unlawfully

convicted for multiple violations of a single statute[.]” Hammond v. United States,

77 A.3d 964, 967 (D.C. 2013). “If the unit of prosecution is not clear from the

statutory language, . . . it is „determined by reference to the legislative intent in

framing the offense.‟” Id. (quoting Williams v. United States, 569 A.2d 97, 98

(D.C. 1989). When “it becomes necessary to determine „[w]hat [the legislature]

has made the allowable unit of prosecution‟ . . . under a statute which does not

explicitly give the answer[,]” “doubt will be resolved against turning a single

transaction into multiple offenses[.]” Bell v. United States, 349 U.S. 81, 81, 84

(1955); see also United States v. McLaughlin, 164 F.3d 1, 15 (D.C. Cir. 1998)

(“„Unit of prosecution‟ cases are thus resolved in favor of lenity.”).




                                   III.   Analysis




      We have not previously had occasion to interpret the term “course of

conduct” as used in D.C. Code §§ 22-3132 (8) and 22-3133 (a) to answer the

question presented here: under what circumstances a defendant‟s stalking behavior
                                         12


can be said to constitute multiple courses of conduct. However, in applying other

statutes, courts, including this one, have determined “how many courses of conduct

[a defendant] undertook” by applying “the so-called impulse test[,]” which entails

“treat[ing] as one offense all violations that arise from that singleness of thought,

purpose or action[.]” United States v. Grimes, 702 F.3d 460, 468 (8th Cir. 2012)

(internal quotation marks omitted) (holding that where Grimes left twenty-six

harassing voicemail messages on six separate days over a course of three weeks, he

engaged in “a single ongoing course of conduct” and could be charged with only

one, rather than six, violations of 47 U.S.C. § 223(a)(1)(E) (2006)); see also United

States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 224 (1952) (holding that

because the offense made punishable under the Fair Labor Standards Act is a

course of conduct, it is correct to read the statute as “treat[ing] as one offense all

violations that arise from that singleness of thought, purpose or action, which may

be deemed a single „impulse[.]‟”); United States v. Smith, 685 A.2d 380, 385 (D.C.

1996) (holding that the predecessor statute to § 22-3133 required proof that the

defendant‟s conduct “was a „course of conduct‟ in that it showed a continuity of

purpose.”).7 More generally, we have held that “criminal acts are considered


      7
         This court has not previously had occasion to construe the anti-stalking
statute codified in chapter 31A of title 22 of the D.C. Code, but, in a number of
opinions, interpreted the now-repealed stalking statute that was codified at D.C.
Code § 22-404 (2001). Because both the current and the predecessor statute
                                                                        (continued…)
                                            13


separate when there is an appreciable length of time between the acts that

constitute the two offenses, or when a subsequent criminal act was not the result of

the original impulse, but a fresh one[,]” Jenkins v. United States, 980 A.2d 421,

424 (D.C. 2009) (internal alterations and quotation marks omitted), such that “the

defendant can be said to have realized that he has come to a fork in the road” but

nevertheless continued his offensive conduct. Spain v. United States, 665 A.2d

658, 660 (D.C. 1995); see also Irby v. United States, 390 F.2d 432, 437-38 (D.C.

Cir. 1967) (en banc) (noting that a defendant‟s “successive intentions make him

subject to cumulative punishment, and he must be treated as accepting that risk,

whether he in fact knows of it or not.”).




(…continued)
criminalized a “course of conduct” made up of multiple acts of harassing or
threatening behavior, and because nothing in the legislative history of the current
statute indicates an intent by the Council of the District of Columbia to change the
substantive meaning of the term “course of conduct,” our opinions construing the
former statute, including Smith and Washington v. United States, 760 A.2d 187
(D.C. 2000), guide our analysis here. See COUNCIL OF THE DISTRICT OF COLUMBIA,
COMMITTEE ON PUBLIC SAFETY AND THE JUDICIARY, Report on Bill 18-151 at 32-
34 (June 26, 2009) (“Committee Report”) (explaining that the new law was
intended to be “more in line with the Model Stalking Code . . . developed by the
National Center for Victims of Crime” in that it would address harassment carried
out by technology not contemplated by the previous statute, and would handle the
“subjective” nature of stalking offenses by ensuring that all charges would be jury-
demandable).
                                         14


      In addition to being guided by these more general principles, we note from

the language and the legislative history of the current stalking statute that the

Council intended to more heavily penalize — and thus to treat differently — a

course of stalking by a defendant who “was at the time, subject to a court . . . order

prohibiting contact with the victim[.]” Committee Report at 33; D.C. Code §

22-3134 (b). We think it consistent with the legislative intent to treat stalking that

post-dates a no-contact order as separate from stalking that precedes that court

order. The Council also intended that a defendant “be able to argue that he or she

did not know that their actions would cause that specific individual to feel

frightened.” Committee Report at 34. From this we deduce the rule that stalking

conduct that one could reasonably argue would cause a victim to be frightened in a

different way from previous or succeeding conduct (or not to be frightened at all)

should be analyzed separately, and for that reason should be deemed to constitute a

separate course of conduct.8 We also note from the statutory scheme that, while

the Council mandated that continuous conduct over separate days be deemed to

constitute separate occasions, see D.C. Code 22-3133 (c), neither the statutory

language nor the legislative history establishes a basis for assuming that non-


      8
          The rules we identify in this opinion are not necessarily exclusive of
others; there may be other factors, not suggested by the record in this case, that
would support treating a defendant‟s entire course of stalking conduct as separate
courses of conduct.
                                         15


continuous conduct spanning days, weeks, months, or other units of time should on

that basis alone be deemed to constitute multiple courses of conduct corresponding

to the number of units of time over which the conduct occurred. Cf. Washington,

760 A.2d at 199 (holding, on plain-error review, that although the episodes of

stalking conduct could be divided into pre-reconciliation and post-reconciliation

conduct, there was “a continuing course of conduct from the middle of 1994 until

[defendant‟s] arrest in January 1997” that “constituted a single offense (not two

separate offenses)”).




      Application of the foregoing principles leads us to conclude that, on the

basis of the record evidence, appellant could lawfully be punished for only four

courses of stalking conduct. The first distinction we draw is between appellant‟s

calls to Parker that preceded the July 16, 2010 restraining order (corresponding to

count 1) and appellant‟s calls to Parker that post-dated and violated that order (and

elevated appellant‟s subsequent stalking offenses to felony offenses under D.C.

Code § 3134 (b)(1)).




      We similarly distinguish between appellant‟s calls to Parker that preceded

the December 3, 2010, criminal stay-away order entered in case number 2010-
                                        16


CMD-22628 and appellant‟s calls to Parker that post-dated that order and

continued through December 30, 2010 (calls charged in count 14).9




      We next distinguish between the phone calls appellant made to Parker in

December 2010 and the phone calls, charged in count 24, that appellant placed to

Parker‟s stepmother between February 5 and February 28, 2010, dates that were

after entry of the January 7, 2011, Superior Court stay-away order in case number

2011-CF2-3672 and the January 12, 2011, Maryland no-contact order. Even if the

February 2011 calls had not post-dated these additional no-contact orders, we

would hold that they constituted a separate course of stalking conduct since they

were, with the aid of appellant‟s “SpoofCard” service, made to appear to have

originated from Parker‟s phone. Appellant either knew or should have known that

these calls, which made it appear that Parker was violating a court stay-away order

and which, predictably, led to criminal charges against her, would cause Parker not

only to fear for her safety, to have impaired concentration at work, and to lose her


      9
          These included calls that appellant made using her “SpoofCard” service.
At least arguably, insofar as appellant‟s resort to the SpoofCard service for these
calls could reasonably be expected to cause Parker a different type or degree of
fright from that she experienced when she could see from her caller ID that calls
were originating from Parker, these calls could be said to constitute a separate
course of conduct even without regard to the December 3, 2010, stay-away order.
We need not decide the point.
                                         17


peace of mind, as Parker testified previous calls had done, but also to fear

apprehension by the police and the stigma and ordeal of criminal prosecution.

Stated differently, the February 2011 calls, which were designed to engender a

different type of fear than the previous calls caused, can be said to have reflected a

purpose different from appellant‟s purpose in making the previous calls and to

have “invade[d] a different interest,” Gray v. United States, 544 A.2d 1255, 1257

(D.C. 1988), and for that reason are properly deemed to constitute a separate

course of conduct from the prior calls, even irrespective of the January 2011 no-

contact orders.




      Accordingly, the trial court did not err in denying appellant‟s challenge to

the sentences imposed for counts 1, 14, and 24 (i.e., the misdemeanor stalking

count and the fourth and fifth felony stalking counts). As to counts 5 and 7,

however, we discern from the record evidence no basis for treating the more than

800 calls that appellant placed to Parker at PIW between September 12 and

October 24, 2010, (count 5) as separate from the more than 700 additional calls

that appellant made to Parker at PIW between November 1 and December 2, 2010,

(count 7). A government witness testified that the calls made during the period

described in count 5 were all made to Parker at PIW, as were the calls made during

the period described in count 7. Further, in describing the calls, Parker said
                                        18


nothing (and the prosecutor elicited from her no facts) that distinguished in any

legally significant way the calls made during the two periods. The government

asserts that count 5 “addressed roughly the first month of harassment that took

place after appellant was subject to a restraining order” while count 7 “addressed

the second month of post-restraining order harassment[.]” However, nothing in the

statute or legislative history suggests that otherwise indistinguishable month-long

episodes of stalking conduct should, on the basis of that duration alone, be deemed

to constitute separate courses of conduct.     Cf. Washington, 760 A.2d at 199

(holding that there was “a continuing course of conduct from the middle of 1994

until [defendant‟s] arrest in January 1997”); Grimes, 702 F.3d at 469 (internal

quotation marks omitted) (reasoning that repeated conduct “not separated by

periods of months or years” can “rightly be called a single episode”). And, to the

extent that the statute is ambiguous in this regard, we are obligated by the rule of

lenity to resolve the issue in appellant‟s favor. Bell, 349 U.S. at 84 (“if [the

legislature] does not fix the punishment for a[n] . . . offense clearly and without

ambiguity, doubt will be resolved against turning a single transaction into multiple

offenses”).




      It might be posited that the one-week break in calls from October 24, 2010,

to November 1, 2010 — an anomalous period of quiet — corresponded to a fork in
                                        19


the road and a fresh impulse not in evidence, but we cannot uphold the separate

sentences based on such rank speculation.10 We are constrained to conclude

that appellant‟s calls to Parker during these two periods constituted a single

course of conduct.     Accordingly, we conclude that the trial court erred in

sentencing appellant to separate and consecutive sentences for counts 5 and 7,

and in denying appellant‟s motion to correct those sentences.11 We remand the

case for the trial court to vacate the sentence for one of those two counts (but the




      10
          Moreover, there were (what Parker called) other “small break[s] for a
couple of days” in appellant‟s calls to Parker during the time periods
corresponding to the other counts in the indictment. We discern no non-arbitrary
basis for distinguishing the October 24 to November 1 break from those other
breaks.
      11
          Nothing in this opinion is intended to imply that four stalking offenses
were the maximum the government could have charged on the full facts of this
case. Our analysis considers only whether the groupings of stalking conduct as
charged by the government, and as punished through the sentences imposed by the
court, improperly treated, as separate courses of conduct, conduct that the evidence
provided no basis for treating as legally distinct. Like the trial court — which
expressed the view that the government “showed admirable restraint in its decision
to charge only five counts of stalking” — we do “not need to reach the question of
how many counts the [g]overnment could have potentially charged [appellant] with
based on her actions” or “what the upper limit of stalking charges could have
been.”
                                        20


court is free to re-sentence appellant so as to impose an aggregate sentence that

is comparable to the original aggregate sentence).12




                                             So ordered.




      12
           See Nixon v. United States, 730 A.2d 145, 155, 155 n.12 (D.C. 1999)
(stating that the trial court, which was to vacate either Nixon‟s conviction for
mayhem while armed or aggravated assault while armed and to merge his
possession of a firearm during crime of violence convictions into one conviction,
“may, in its discretion, alter his sentences”). Kerns v. United States, 551 A.2d
1336, 1337 (D.C. 1989) (“Vacation of [an] illegal sentence place[s] appellant in the
same position as if he had never been sentenced.”).
