State v. Beleke

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Daniel Wayne BELEKE, Defendant-Appellant.
• Citation: 287 Or.App. 417,403 P.3d 481
• Docket Number: A160038 (Control),A160039
• Court: Oregon Court of Appeals
• Decision Date: 23 August 2017

287 Or.App. 417

403 P.3d 481

STATE of Oregon, Plaintiff-Respondent,

v.Daniel Wayne BELEKE, Defendant-Appellant.

A160038 (Control)

A160039

Court of Appeals of Oregon.

Submitted November 15, 2016.

August 23, 2017

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Brett J. Allin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge.^*

GARRETT, J.

Defendant appeals a judgment finding him in contempt of court and a judgment revoking his probation on his convictions for multiple domestic violence offenses, both of which the trial court entered after defendant violated a restraining order by entering the victim's apartment. Defendant acknowledges that he knew that the restraining order existed and that it prohibited him from being in the apartment. He argues, however, that both the contempt charge and the probation revocation required proof that defendant acted with "bad intent," and that because no such showing was made—that is, defendant believed that a probation officer gave him permission to be in the apartment—the trial court erred in finding him in contempt and revoking his probation. As to the revocation of probation, we reject defendant's arguments without discussion. As to contempt, for the reasons explained below, we reject defendant's arguments on appeal. We therefore affirm.

The facts are not in dispute. On May 8, 2015, as a result of a domestic-violence incident one day earlier, a restraining order was entered that prohibited defendant from contacting the victim or coming within 200 feet of her or her residence, and further required defendant to "move from and not return to" the apartment that he and the victim shared in Springfield. Three weeks later, on May 29, defendant pleaded guilty to and was convicted of multiple domestic-violence offenses. The parties stipulated to a downward-departure sentence of 36 months' probation. At the sentencing hearing, the state noted the existing restraining order, which, by its terms, was to remain in place for one year. The trial court then imposed several special conditions of probation, including that defendant could not have contact with the victim or knowingly be within 1,000 feet of her residence without prior written permission from his probation officer. The court also, however, specifically instructed defendant that he had to comply with any existing protective orders against him.

On June 2, defendant met with an intake officer, Shreve, at the probation department for approximately five minutes. Shreve was not defendant's probation officer and did not have any information about defendant's case other than that it was a domestic-violence case. Defendant did not inform Shreve that the May 8 restraining order was in place. Shreve asked defendant what his address was, and defendant gave the address of the Springfield apartment. Shreve asked if the victim lived there. Defendant replied, "Well, no, I live there. That's my house."

Shreve then stated: "Well, you have to stay at The Mission, that's your only approved residence, unless that victim doesn't live there." At the conclusion of their meeting, defendant and Shreve signed an "Action Plan" that stated, in part:

"No contact with victim.

"Stay at Mission or [Springfield apartment] if victim is not at [Springfield apartment]. I will stay at that residence."

Later that day, the victim's neighbor called police after seeing defendant at the Springfield apartment. Responding officers found defendant inside the apartment; he appeared to have broken the door to get in. Defendant told officers that he knew an existing restraining order prohibited him from being at the apartment, but asserted that the "Action Plan" allowed him to be there if the victim was not.

The state charged defendant with contempt for violating the restraining order and sought revocation of probation. Before the trial court, defendant did not challenge any of the evidence against him, but argued that the "Action Plan" constituted permission for defendant to be at the Springfield apartment if the victim was not there. He thus argued that he had acted without bad intent, that any violation of probation was not "willful," and that the state had also failed to prove "willful" conduct as required for the contempt charge. The trial court found him in contempt and revoked his probation. Defendant renews his arguments on appeal.

We review to determine "whether the record contains evidence from which a rational trier of fact, drawing all reasonable inferences in the light most favorable to the state, could find all elements of contempt beyond a reasonable doubt." State v. Graham , 251 Or.App. 217, 218, 284 P.3d 515 (2012). The question is not whether we believe that the defendant was in contempt, but whether the evidence is sufficient for the trier of fact to so find. Id. at 219, 284 P.3d 515.

ORS 33.015(2) provides, in relevant part:

" ‘Contempt of court’ means the following acts, done willfully:

" * * * * *

"(b) Disobedience of, resistance to or obstruction of the court's authority, process, orders or judgments."

To prove contempt, the state must establish the existence of a valid court order, the defendant's knowledge of that order, and the defendant's willful noncompliance with that order. Frady v. Frady , 185 Or.App. 245, 248, 58 P.3d 849 (2002) (citing Couey and Couey , 312 Or. 302, 306, 821 P.2d 1086 (1991) ). Although ORS 33.015 does not define "willfully," we recently analyzed that question in State v. Nicholson , 282 Or.App. 51, 383 P.3d 977 (2016). In Nicholson , we concluded on the basis of unambiguous legislative history that, for purposes of ORS 33.015(2), the legislature intended "willfully" to mean "intentionally and with knowledge that [the act or omission] was forbidden conduct." Id. at 62, 383 P.3d 977 (brackets in original). We concluded in...