State v. Simmons ( 2021 )

507
Argued and submitted June 15, reversed and remanded September 15, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSIAH ANDREW SIMMONS,
Defendant-Appellant.
Marion County Circuit Court
19CR21503; A172107
499 P3d 127
Defendant appeals from a judgment for one count of punitive contempt for
violating a “no contact” provision in a release agreement. In his sole assignment
of error, defendant argues that the trial court erred in finding him in contempt,
because, under ORS 33.015(2)(b), the trial court was required to find that he
willfully disobeyed the no contact provision and, in defendant’s view, the evidence
was insufficient for the trial court to have made that finding. In its ruling, the
trial court did not make an explicit finding about defendant’s willfulness, and it
is unclear whether it made an implicit finding. Held: Given the legal theory pur-
sued by the state, the limited evidence in the record, and the Court of Appeals’
inability to discern what finding, if any, the trial court made about defendant’s
willfulness, the court could not conclude that the evidence was sufficient to sup-
port a determination that defendant willfully violated the no contact provision.
Had the trial court made a finding about willfulness, the evidence may have been
sufficient to support a determination of contempt. Accordingly, the court reversed
and remanded for a new hearing.
Reversed and remanded.
Claudia M. Burton, Judge.
Bruce A. Myers, Deputy Public Defender, argued the
cause for appellant. Also on the briefs were Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, and
Mark Kimbrell, Deputy Public Defender, Office of Public
Defense Services.
Joseph Callahan, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
508 State v. Simmons
DeVORE, P. J.
Reversed and remanded.
Cite as 314 Or App 507 (2021) 509
DeVORE, P. J.
Defendant appeals from a judgment for one count
of punitive contempt for violating a “no contact” provision in
a release agreement. In his sole assignment of error, defen-
dant argues that the trial court erred in finding him in
contempt, because, under ORS 33.015(2)(b), the trial court
was required to find that he willfully disobeyed the court’s
no-contact order and, in defendant’s view, the evidence was
insufficient for the court to have made that finding. For the
reasons we explain below, we reverse and remand.
Most of the underlying facts are not disputed. In
April 2019, the state charged defendant with strangulation
constituting domestic violence, alleging that he had stran-
gled his girlfriend, L. As part of defendant’s release agree-
ment on that charge, the trial court included a provision
that required defendant to “not have direct or indirect con-
tact, in any manner, with alleged victim[, L].” (Uppercase
and boldface omitted.) In July, Keizer Police Officer Miranda
responded to a complaint of a man and woman arguing with
each other in a parking lot, which turned out to be defen-
dant and L. Defendant was then charged with punitive con-
tempt for “unlawfully and willfully disobey[ing] an order of
the Marion County Circuit Court by having victim contact”
on or about July 3, 2019. Defendant proceeded with a jury
trial on the strangulation charge, and while the jury was
deliberating, the trial court held a bench trial on the con-
tempt charge.1
At defendant’s jury trial on the strangulation charge,
L testified that she had had contact with defendant since
the alleged strangulation incident and that she had told
defendant “that, you know, I’d gone down to Center for Hope
and Safety. And I was clearing up the no-contact order
and stuff. And that I had taken care of it and everything
so I think he was under the impression that that’s what
had happened.”2 Officer Miranda was the only witness to
1
The jury ultimately acquitted defendant of the strangulation charge, and
the court entered a judgment of acquittal. That judgment is not at issue on
appeal.
2
Although L did not testify as part of the bench trial for contempt, both par-
ties refer to her jury trial testimony in their briefs. The state argues that, even
accepting L’s testimony as true, we should affirm.
510 State v. Simmons
testify at the bench trial on the contempt charge. He testi-
fied about his encounter with defendant and L in the park-
ing lot. Prior to approaching the vehicle that they were in,
Miranda learned from dispatch that the vehicle was reg-
istered to defendant and that “he was a respondent in a
no-contact release agreement with [L] as the protected per-
son.” Miranda asked defendant about the no-contact provi-
sion and defendant told him “that [L] had told him that she
had gone down to the courthouse and had the no-contact
release dropped.” Miranda then asked defendant whether he
had contacted his attorney or the court to verify that infor-
mation, and defendant told Miranda that he had not done
so—he took L’s word for it. Miranda then arrested defen-
dant for violating the release agreement and transported
him to jail. In addition to offering Miranda’s testimony, the
state marked the release agreement as an exhibit, which
the court received into evidence.
In its closing argument, the state argued that defen-
dant was aware of the release agreement and
“the Defendant in this case had contact with [L] in violation
of that release agreement. The release agreement was still
in effect. Defendant claims allegedly that [L] said that she
dropped it. But he took no affirmative actions and it’s on
the Defendant to—when he has a release agreement pro-
hibiting contact to make sure that he didn’t have contact
with her. He should’ve taken additional steps. And the State
would argue that this is a willful violation of the no-contact
order.”
(Emphasis added.) In response, defendant argued that he
did not willfully violate the no-contact provision because he
was of the belief that that order was no longer in existence.
The trial court found defendant in contempt of
court:
“So again there’s no question that the no-contact order
was in effect and that it was violated. The question is
whether the Defendant’s claim that he had been told it was
no longer in effect negates the willful element. And I don’t
believe that it does.
“First of all, no restraining order would be worth the
paper that it’s written on or the electrons that it’s written
Cite as 314 Or App 507 (2021) 511
on if that was a defense to violating a restraining order
because everybody can say that. ‘Oh, she told me it was—
it was gone.’ The no-contact order clearly states above the
Defendant’s signature that he understands that if he vio-
lates any condition there can be a warrant for his arrest
issued.
“His bail can be forwarded, he can be prosecuted for
additional crimes. If you’re released on a pending criminal
charge and you’re told that in writing, you got to know that
you need to check with your lawyer before you violate a
no-contact order. And again if it—if it doesn’t mean that, if
anybody can just say, ‘Well, my girlfriend told me that the
no-contact order was gone,’ then there are no no-contact
orders.
“They don’t exist for all practical purposes. So I will find
the Defendant guilty of the contempt.”
(Emphasis added.)
On appeal, defendant argues that the trial court
erred because ORS 33.015(2)(b) required the court to find
that he had willfully disobeyed the no-contact provision,
and because, in his view, the record and the trial court’s rul-
ing establish that defendant had a good faith belief that the
no-contact provision had been lifted, he did not act willfully
in violating the release agreement. In response, the state
argues that the evidence shows that defendant willfully vio-
lated the no-contact provision of the release agreement and
that the trial court did not find the facts as defendant sug-
gests it did.
When a defendant argues that the evidence was
insufficient for the court to find that he violated a court order,
we proceed as if we were reviewing the denial of a motion
for a judgment of acquittal. State v. Feyko, 290 Or App 159,
161, 414 P3d 912 (2018). “We review the denial of a motion
for judgment of acquittal to determine whether, viewing the
evidence in the light most favorable to the state, a rational
trier of fact could have found the essential elements of the
offense proved beyond a reasonable doubt.” State v. Trivitt,
247 Or App 199, 203, 268 P3d 765 (2011) (internal quotation
marks omitted). To prove punitive contempt, the state “must
prove beyond a reasonable doubt that a valid court order
512 State v. Simmons
exists, that the defendant knew of the order, and that the
defendant voluntarily failed to comply with it.” Feyko, 290
Or App at 162 (internal quotation marks omitted); see also
ORS 33.015(2)(b) (defining “Contempt of Court,” in part, as
“willfully” disobeying a court order). Here, the parties’ dis-
pute centers on the “willful” element.
Defendant relies on State v. Nicholson, 282 Or App
51, 383 P3d 977 (2016), as he did below, in support of his
argument that his good faith belief that the no-contact pro-
vision of the release agreement had been lifted precludes a
finding that he willfully violated the order. Nicholson con-
cerned an alleged violation of a restraining order issued
under the Family Abuse Prevention Act (FAPA). It is a case
in which we described the disputed issue as whether “defen-
dant’s subjective, good faith contemporaneous understand-
ing that the FAPA order was no longer in effect preclude[d] a
determination of willful noncompliance and, hence, an adju-
dication of contempt.” Id. at 56. The defendant’s estranged
husband, who had previously communicated that he wanted
to reconcile and take a family trip, told her via email that
he was at the courthouse and “in the process of” having
his FAPA order dismissed. Id. at 52. In fact, the restrain-
ing order was not dismissed, and the defendant was subse-
quently arrested for violating the restraining order while
she was on a weekend trip with her husband. The state
argued that “regardless of defendant’s subjective good faith
belief, her failure to verify that the order had not been set
aside rendered her noncompliance ‘willful.’ ” Id. at 55. The
trial court found that the defendant believed what her hus-
band had told her; but, the court found her in contempt none-
theless, noting, in part, that the defendant had not verified
that the court had signed a dismissal of the FAPA order.
Id. at 54.
After considering the legislative history of ORS
33.015(2) and related case law, we concluded that “willfully”
in that statute means “intentionally and with knowledge
that the act or omission was forbidden conduct.” Id. at 62(brackets and internal quotation marks omitted). Under
the factual circumstances in the case, we concluded that
“[a] defendant who acts based on a good faith belief that a
Cite as 314 Or App 507 (2021) 513
judicial order has been dismissed cannot be deemed to have
acted ‘with knowledge that it was forbidden conduct’ ” and
that the trial court’s finding of the “defendant’s contempora-
neous, good faith belief contradicted an adjudication of con-
tempt.” Id.Defendant argues that this case is like Nicholson
and that Nicholson controls here. Defendant asserts that
there was no dispute that he believed that the no-contact
provision had been lifted, and the state’s evidence estab-
lished as much. Defendant also contends that the trial court
implicitly found that he had that belief, because, just as
in Nicholson, if the trial court had determined that defen-
dant did not actually believe what L had told him, then the
court’s emphasis on defendant’s failure to verify the order’s
dismissal by contacting his lawyer “would have been gratu-
itous.” 282 Or App at 56. Therefore, according to defendant,
because the record and the trial court’s ruling establish that
he had a good faith belief that he was allowed to have con-
tact with L, he did not act willfully in violating the court’s
order.
The state argues that we should affirm because
the evidence supports a finding that defendant necessar-
ily violated the no-contact provision by having contact with
L before L told him that she had had the restriction lifted.
Defendant urges us to reject that argument, noting that the
record does not contain evidence that defendant contacted
L first or any evidence about who initiated contact. In any
event, according to defendant, we should not affirm under
the “right for the wrong reason” doctrine on the state’s tim-
ing theory because the record would have developed dif-
ferently had the state raised that argument below. Given
the theory under which this matter was argued to the trial
court, we agree with defendant’s objection. See Outdoor
Media Dimensions Inc. v. State of Oregon, 331 Or 634,
659-60, 20 P3d 180 (2001) (not considering alternative basis
for affirmance when losing party might have created differ-
ent record below).
The state also asserts that the record shows that
the release agreement imposed a categorical prohibition on
contact with L, and that the court, in using the preprinted
514 State v. Simmons
form, did not check the box on the form next to an option that
would permit the trial court to authorize contact. The state
contends that this case is distinguishable from Nicholson
because Nicholson involved a FAPA order that the petitioner
procured himself and had the authority to rescind, whereas,
here, the release agreement did not purport to allow L to
rescind the no-contact order. Defendant responds that the
distinction is without a difference. Defendant argues that the
trial court retained the authority to modify the no-contact
provision and that, under ORS 135.250(2)(b)(A),3 a victim
can petition the court for a waiver of a no-contact condition
in a release agreement. We are not persuaded by the state’s
argument, which was not made below, that the trial court
did not have authority to modify the no-contact provision in
the release agreement and that L could not have attempted
to seek dismissal of that provision.
The question returns to whether the trial court
made a finding regarding defendant’s good faith belief. To
be sure, the court could have made an express finding that
it did not find defendant’s statement to the officer to be cred-
ible, and that would be determinative. Instead, however, the
court was silent about that pivotal fact of credibility. That
left the potential that the court did not reach the factual
issue, assuming it to be unnecessary; believed defendant
had a good faith belief that the no-contact provision had
been dropped, but determined that that was not a defense;
or made an implicit finding that defendant’s account was not
credible.4
3
ORS 135.250 pertains to general conditions in a release agreement, and
provides, in part:
“(2)(a) In addition to the conditions listed in subsection (1) of this section,
if the defendant is charged with an offense that also constitutes domestic
violence, the court shall include as a condition of the release agreement that
the defendant not contact the victim of the violence.
“(b) Notwithstanding paragraph (a) of this subsection, the court may
enter an order waiving the condition that the defendant have no contact with
the victim if:
“(A) The victim petitions the court for a waiver; and
“(B) The court finds, after a hearing on the petition, that waiving the
condition is in the best interests of the parties and the community.”
4
Among all those possibilities, if defendant’s account were disbelieved as
a matter of fact, then the state’s evidence presented could have been sufficient
evidence to determine contempt, based on the undisputed evidence.
Cite as 314 Or App 507 (2021) 515
The state contends that the implicit finding that is
most consistent with its ultimate conclusion is that the trial
court discredited defendant’s assertion that he had a good
faith belief that the no-contact condition had been lifted at
the time he made contact with L. See Ball v. Gladden, 250 Or
485, 487, 443 P2d 621 (1968) (we presume that a trial court
resolved disputed factual issues consistently with its ulti-
mate conclusion, provided evidence in the record supports
the implicit finding). We can infer a finding of fact under
Ball, but “only where we can deduce that the trial court’s
chain of reasoning must necessarily have included that fact
as one of its links.” State v. Lunacolorado, 238 Or App 691,
696, 243 P3d 125 (2010), rev den, 350 Or 530 (2011).
In this case, the trial court’s ruling does not appear
to have been predicated on whether defendant had a good
faith belief or not. Rather, the court expressed its opinion—
without regard to a finding about defendant’s belief—that
such a belief would not provide a defense. Therefore, we
do not presume, as the state asserts that we should, that
the trial court implicitly found that defendant did not have
a subjective belief that the no-contact provision had been
lifted. See State v. Jackson, 296 Or 430, 440, 677 P2d 21(1984) (declining to attribute implicit factual finding to trial
court when the court “never made any conclusions” regard-
ing that factual issue (emphasis in original)).
That determination leaves the state with less to
rely on when facing defendant’s original argument that
the evidence was insufficient to support a determination
that he was in willful contempt of court. There is no dis-
pute that there was a valid no-contact provision and that
defendant was aware of that restriction. The evidence was
that defendant told the responding officer that he believed
the no-contact provision had been lifted because that is
what L had told him. When asked whether he verified that
information, defendant said that he took L’s word for it. No
evidence was presented to contradict defendant’s professed
belief, and, on this record, we cannot determine whether the
court, as factfinder, made an implicit finding that it believed
or disbelieved him. The prosecutor argued that defendant
needed to do something more than just believe L and that
he “should’ve taken additional steps.” The trial court agreed
516 State v. Simmons
with that proposition—either as a point of law or added fact
needed to prove good faith belief. In either case, that propo-
sition is contrary to our decision in Nicholson.
Given the legal theory pursued by the state, the
limited evidence in the record, and our inability to discern
what finding, if any, the trial court made about defendant’s
good faith belief, we cannot conclude that the evidence was
sufficient to support a determination that defendant will-
fully violated the no-contact provision. However, had the
court made such a finding and applied the law as described
above, the evidence may have been sufficient to support a
determination of contempt. Accordingly, the case must be
reversed and remanded for a new hearing. See State v.
McDougal, 299 Or App 96, 100, 449 P3d 919 (2019) (“ ‘We
have consistently held that * * * where factual issues perti-
nent to a material element of the crime remain unresolved,
the proper disposition is to reverse and remand for a new
trial.’ ” (Quoting State v. Barboe, 253 Or App 367, 378, 290
P3d 833 (2012), rev den, 353 Or 714 (2013)) (brackets omitted
from McDougal).)); State v. Heal, 298 Or App 806, 808, 448
P3d 1193 (2019) (same).
Reversed and remanded.