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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September 28, 2012, this court affirmed appellant‟s convictions in an unpublished 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 jurydemandable).
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 nocontact 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.”).