NEBEKER, Senior Judge:
Following a jury trial, Ronald L. Atkinson appeals his conviction of one count of stalking, in violation of D.C.Code § 22-3133(a)(3) (2012 Repl.), and six counts of Violating a Civil Protection Order (CPO), in violation of D.C.Code §§ 16-1004(d), -1005(g) (2012 Repl.).
This case stems from actions taken by appellant after the demise of his relationship with Ms. Halima Roebuck. Appellant and Roebuck first met in 1998, and began a cordial friendship that became "intimate" after both individuals moved to the District of Columbia in 2002. Sometime around 2003, the relationship began "unraveling." Roebuck last communicated with appellant at the end of February 2004. From 2005 to 2011, appellant sent Roebuck numerous emails from multiple email addresses in an attempt to reconcile their differences and reestablish contact. Roebuck never responded.
At some point, appellant — for reasons not revealed in the record-believed that he and Roebuck had a child together,
After calling Roebuck's residence a number of times unsuccessfully, appellant attempted to contact members of Roebuck's family — including her mother and her father — and told each parent that he and Roebuck had a child together. Roebuck's mother refused to speak with appellant and called the police. Roebuck's father "specifically" told appellant not to "communicate with any of [the Roebuck family]" because appellant's behavior "was bordering on harassment." He also "told [appellant] that [Roebuck] does not have a child," that he was "not a grandfather," and that appellant "should try to seek some sort of treatment."
On May 6, 2012, appellant's conduct toward Roebuck reached a head. At 1:30 a.m., Roebuck received "back-to-back" phone calls from a number that registered as private on her caller I.D. Roebuck then began to receive calls on her cell phone indicating that someone was ringing the call box outside of her apartment building. Roebuck thought it was appellant contacting her again because of the "pattern" of his behavior, but could not be certain. Roebuck eventually called the police. She testified that she was fearful because she was alone in the apartment; her fiancé was out of town. At 3:00 a.m., she received
Early arrived at Roebuck's apartment building at approximately 12:30 p.m. on May 6th, and observed appellant standing outside of the building, glancing at his cellphone and pacing back and forth.
Appellant fled from the officers down an adjacent alleyway and jumped a fence, but did not have "anywhere to go." The officers pursued him up to the fence. Appellant told the officers that he "just want[ed] to see [his] daughter," and Officer Jones attempted to coax appellant into climbing back over the fence by telling him that he could "see" his daughter. At that time, appellant fled from the officers by scaling a second fence, used piping attached to the apartment building to climb to the roof, and then began to run "from roof to roof" on top of the buildings. The officers were unable to maintain pursuit.
Following the May 6 incident, appellant attempted to contact Roebuck a number of times. Evidence presented showed that appellant called Roebuck at least eight times on May 10, 2012. Appellant also called her on May 11 at 12:54 a.m., and Roebuck "continue[d] to receive numerous calls ... in the subsequent days." Roebuck never responded.
Appellant was charged on April 9, 2013.
Now, the merits. We first address appellant's claim that the trial court committed reversible error when it failed to include the jury instruction that defined the term "course of conduct,"
A review of the record establishes that the only instance in which appellant's counsel at trial mentioned the "course of conduct" definition was a brief request made via email to the trial court on the morning in which jury instructions were to be discussed.
Assuming without deciding that the trial court's failure to instruct the jury on
Appellant next contends that the trial court committed reversible error when it instructed the jury concerning the charge of stalking. Appellant was charged under D.C.Code § 22-3133(a)(3), which requires the government to prove beyond a reasonable doubt that appellant "purposefully engage[d] in a course of conduct directed at a specific individual ... [t]hat the person should have known would cause a reasonable person in the individual's circumstances to fear for his or her safety or the safety of another person, feel seriously alarmed, disturbed, or frightened, or suffer emotional distress." At trial, the government requested that the court alter the final instruction to add the language "Halima Roebuck or" before "a reasonable person in Ms. Roebuck's circumstances." Over objection, the trial court found that the government was entitled to the instruction. The final jury instruction read that
Essentially, the trial court's instruction merged § 22-3133(a)(3) and § 22-3133(a)(2), but omitted language under
Appellant's principal argument is that the instructions permitted the jury to convict appellant if it determined that he should have known that his actions would cause Roebuck to be fearful, even though her fear was objectively unreasonable. We find this argument unpersuasive for two reasons. First, appellant's conduct towards Roebuck was objectively frightening and alarming, regardless of context or motive. Here, appellant's behavior included repeated, unwanted calls at all hours, including late at night; unsolicited visits to Roebuck's past residence and her parents' residences; and attempts to gain unauthorized access to Roebuck's apartment building. The foregoing are all actions that an impartial juror could easily find to be objectively frightening, alarming, or disturbing. That appellant was attempting to locate a child he thought existed (and who was told that did not exist) does not render such activity benign. The record demonstrates that there were numerous instances in which appellant engaged in conduct that a reasonable, impartial juror could find to be alarming.
Second, the jury was presented with substantial — almost overwhelming — evidence of appellant's objectively frightening behavior to support the conclusion that the government proved beyond a reasonable doubt that appellant's actions would cause a reasonable person under the circumstances to be frightened/alarmed/disturbed or to suffer emotional distress. Evidence established that appellant sent numerous, unsolicited emails to Roebuck between 2005 and 2011, none of which were returned. On December 23 and 24, 2011, appellant placed multiple phone calls to appellant, including a call at 1:48 a.m., leading Roebuck to change her phone number. Appellant was told not to call back. Appellant then personally contacted both of Roebuck's parents, telling each that he and Roebuck had a child together. Appellant was told that he was mistaken. Appellant attempted to contact Roebuck by appearing at her old residence, unannounced. Appellant returned a second time and the police were called. Roebuck obtained a TPO, and then a one-year CPO against appellant. Appellant was aware
Given the substantial evidence presented of appellant's repeated conduct and the objectively alarming nature of the conduct, there was no "reasonable possibility that the jury's verdict ... was affected by the instructional error." Robinson, supra, 100 A.3d at 108 (citation omitted). Thus, a reasonable, impartial juror would conclude beyond a reasonable doubt that appellant engaged in a course of conduct that would cause a reasonable person in Halima Roebuck's circumstances to fear for her safety or feel seriously alarmed, disturbed, or frightened. Wilson, supra, 785 A.2d at 329. The error was harmless.
We now turn to appellant's final claim, where he contends that the trial court erred when it denied appellant's request for a mistrial. The factual background for the issue is as follows. At trial, the government presented an eleven-minute audio recording of Roebuck's 9-1-1 call after appellant appeared at her residence on May 6, 2012. Two statements included in the call prompted appellant's motion for a mistrial. The first was a statement made by Roebuck to the 9-1-1 operator that "during the ordeal my mom's house burned down so [appellant] is very dangerous."
Immediately after the recording ended, the trial court, sua sponte, told the jury that "there was some reference in that call to a house burning down," but "[t]hat [it] has nothing whatsoever to do with this case. Please disregard it." The trial court found that the inclusion of the statements was "extraordinarily negligent," a "gross kind of mistake," and "merely negligent," but even then denied appellant's motion for a mistrial. The trial court reasoned that the government did not engage in "deliberate misconduct," and that it was "confident that [the statements] w[ould] not affect the outcome of the case." The trial court did, however, offer to give "whatever additional instruction" appellant wanted, and offered "to have a stipulation that there was absolutely no connection to [the] house burning down." The government concedes that the statement concerning Roebuck's mother was erroneously included in the audio recording.
It is well-established that a mistrial "is a severe remedy ... to be avoided whenever possible, and one to be taken only in circumstances manifesting a necessity therefor." Parker v. United States, 757 A.2d 1280, 1286 (D.C.2000) (citation omitted). The trial court exercises "broad discretion" with respect to the motion, Gordon v. United States, 783 A.2d 575, 583 (D.C.2001), and "[w]e will reverse the trial court's denial of a motion for a mistrial only if it appears irrational, unreasonable,
When an errant comment or testimony creates the possibility of prejudice, "an effectively worded curative instruction rendered in a timely manner may serve to rectify the error." Hazel v. United States, 319 A.2d 136, 138 (D.C.1974). But when "comments are particularly prejudic[ial]" to a defendant, "even a curative instruction may not be relied upon to overcome the prejudice." Lucas v. United States, 102 A.3d 270, 282 (D.C.2014) (noting that "timely limiting and curative instructions can be an important consideration" in determining harmlessness). We have little difficulty acknowledging that the first statement at issue — Roebuck's discussion of her mother's house being burned down — prejudiced appellant to a degree. However, we conclude that the trial court's sua sponte curative instruction was sufficient to remedy the prejudice.
When the trial judge's instruction to the jury is "prompt, complete, persuasive, and to the point," Metts, supra, 877 A.2d at 119 (quoting Peyton v. United States, 709 A.2d 65, 72 (D.C.1998)), we "should not readily assume that the jury could not or would not follow it." Id. (quoting Peyton, supra, 709 A.2d at 72); see Plater v. United States, 745 A.2d 953, 959 (D.C.2000) (citation omitted) (recognizing the "almost invariable assumption of the law that jurors follow their instructions"); see also McRoy v. United States, 106 A.3d 1051, 1061 (D.C.2015) (citation omitted) (noting that the trial court "issued a clear curative instruction, which we presume the jury followed, absent evidence to the contrary"). The trial court's curative instruction was "succinct and unambiguous." Metts, supra, 877 A.2d at 118. Accordingly, the prompt and "to the point" curative instruction sufficiently neutralized prejudice inflicted upon appellant from the errant evidence. Id. at 119 (concluding that the trial court's prompt instruction that testimony "bears absolutely no relationship" to the case following errant testimony was sufficient); see also Bennett v. United States, 597 A.2d 24, 27 (D.C.1991) (noting that prejudice to appellant is diminished when, after a motion for a mistrial, the trial court instructs the jury to ignore the prejudicial testimony).
Turning to the second statement — the 9-1-1 operator's comment concerning the capability of people who are mentally unstable — we note that appellant did not seek a curative instruction from the trial court. We have long "recognize[d] that there are situations where, as a matter of strategy, defense counsel may decide that it is more effective simply to let a potentially prejudicial remark pass, rather than drawing attention to it further
Here, the 9-1-1 operator made a single, off-hand comment during a nearly eleven-minute exchange with Roebuck. The operator had absolutely no knowledge of who appellant was, what he had done, his mental state, or his medical history. The statement is tantamount to personal opinion and is "merely speculative evidence" of appellant's possible mental state supported by no evidence. Clark, supra, 639 A.2d at 80. We do not think that the operator's comment caused appellant sufficient prejudice to warrant a mistrial. The comment was isolated, fleeting, and speculative in nature. An available curative instruction
From a review of the record, we cannot say that the trial court's decision to deny appellant's motion for a mistrial was "irrational, unreasonable, or ... a miscarriage of justice," and no abuse of discretion occurred. Bragdon v. United States, 668 A.2d 403, 405 n. 2 (D.C.1995) (citation omitted).
For the aforementioned reasons, we affirm appellant's convictions. Accordingly, the judgment is
Affirmed.