State v. Lindquist , 328 Or. App. 538 ( 2023 )

538
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted August 30, portion of judgment requiring defendant to pay attorney
fees reversed; otherwise affirmed October 4, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
RYAN ALLEN LINDQUIST,
Defendant-Appellant.
Washington County Circuit Court
21CN01433, 21CN02294;
A177160 (Control), A177161
Kelly D. Lemarr, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Alex Jones, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
KAMINS, J.
Portion of judgment requiring defendant to pay attorney
fees reversed; otherwise affirmed.
Nonprecedential Memo Op: 328 Or App 538 (2023) 539
KAMINS, J.
In these consolidated cases, defendant appeals from
judgments imposing punitive sanctions for three counts of
contempt of court, ORS 33.015, for violating a restraining
order. In six assignments of error, defendant challenges two
of the findings of contempt, the imposition of attorney fees,
and three of the conditions of probation. We reverse as to the
imposition of attorney fees and otherwise affirm.
In defendant’s first assignment of error, he argues
that the trial court erred in finding that he acted “willfully”
with respect to two of the three contempt charges. ORS
33.015(2)(b) (“ ‘Contempt of court’ means the following acts,
done willfully: * * * Disobedience of * * * the court’s author-
ity, process, orders or judgments.”). For the purposes of ORS
33.015(2), an individual acts “willfully” if they act “intention-
ally and with knowledge that [the act or omission] was forbid-
den conduct.” State v. Nicholson, 282 Or App 51, 62, 383 P3d
977 (2016) (internal quotation marks omitted). The state’s
evidence at trial consisted of testimony from defendant’s wife
and a screenshot from her phone showing two missed calls
and one video message from defendant while he was subject
to a restraining order that prohibited him from contacting
or attempting to contact her in any way. There was also evi-
dence of several calls made before the restraining order was
issued. In defendant’s view, the evidence was insufficient to
prove that he acted willfully with respect to the missed calls,
particularly because his wife also testified that she acciden-
tally initiated a call to him while trying to take the screen-
shot. Applying our standard of review, which requires that
we view the evidence “in the light most favorable to the state,”
we disagree. State v. Welch, 295 Or App 410, 415, 434 P3d
488 (2018). A factfinder could reasonably infer that defen-
dant called his wife on purpose based on the number of calls
both before and after the restraining order was issued, and
the fact that the victim called defendant accidentally does
not necessarily mean that defendant called and left a video
message for her by accident as well. See State v. Miller, 196
Or App 354, 103 P3d 112 (2004), rev den, 338 Or 488 (2005)
(“[I]f the established facts support multiple reasonable infer-
ences, the [factfinder] may decide which inference to draw.”).
540 State v. Lindquist
In his third assignment of error, defendant argues,
and the state concedes, that the trial court plainly erred
in imposing attorney fees because there was insufficient
evidence that defendant had the ability to pay them. See
ORS 161.665(4). We agree, and we exercise our discretion
to correct the error. See State v. Walker, 274 Or App 501,
502, 360 P3d 754 (2015) (doing the same under similar
circumstances).
Defendant’s remaining assignments of error chal-
lenge three conditions of his probation. The state responds
that those assignments are moot, because defendant’s pro-
bation was later revoked for violations of conditions other
than the ones he challenges. We agree with the state and
therefore do not address defendant’s arguments. See State
v. Bateman, 94 Or App 449, 765 P2d 249 (1988) (dismiss-
ing appeal challenging condition of probation as moot where
probation was revoked).
Portion of judgments requiring defendant to pay
attorney fees reversed; otherwise affirmed.