State v. Guzman-Vera

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Juan Antonio GUZMAN-VERA, Defendant-Appellant.
• Citation: 469 P.3d 842,305 Or.App. 161
• Docket Number: A166866
• Court: Oregon Court of Appeals
• Decision Date: 01 July 2020

305 Or.App. 161

469 P.3d 842

STATE of Oregon, Plaintiff-Respondent,

v.Juan Antonio GUZMAN-VERA, Defendant-Appellant.

A166866

Court of Appeals of Oregon.

Argued and submitted July 9, 2019.

July 1, 2020

Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Christopher Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

LAGESEN, P. J.

Defendant appeals a judgment of punitive contempt for violating a restraining order issued under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735. He contends that the trial court applied the wrong legal standard in finding him in contempt and that the error entitles him to a new trial. He also contends that the court plainly erred by requiring him to pay the cost of court-appointed counsel. Accepting a concession by the state, we reverse the award of attorney fees but otherwise affirm.

The trial court did not make any explicit findings of historical fact. Accordingly, we draw our statement of facts from the trial record. Because defendant's arguments on appeal are legal and do not challenge the implicit factual findings that the court necessarily made in determining that defendant was in contempt, we presume that the trial court implicitly found the facts in the manner necessary to support its ultimate conclusion, and we state the facts in a manner consistent with that presumption. Pereida-Alba v. Coursey , 356 Or. 654, 670-71, 342 P.3d 70 (2015).

Upon his release from jail, where he had been for a few days, defendant was served with the FAPA order barring him from contact with C, with whom he had been living in an apartment. Among other things, the order prohibited him from being within 100 yards of several specific locations, the addresses of which were listed on the third page of the eight-page-long order. At the time of service, defendant, who is a native Spanish speaker, reviewed the order with a police officer and an interpreter, but they only discussed the first page of the order, and, in particular, only discussed with defendant the fact that he could not be within a certain distance of C.

After receiving the order, defendant was released from jail. Thinking that C was likely at their apartment and knowing that he could not be within a certain distance of her, defendant began walking to C's sister-in-law's home, a trailer. Defendant did not stop to read the FAPA order in full because it was late at night, because he was walking, and because he does not "read English very well."¹ As a result, he did not see that the home he was headed for was one of the places that the FAPA order said he could not be. When he arrived, C and her sister-in-law both were present. C's sister-in-law called the police. When the responding officer arrived, he found defendant walking away from the residence but still within 100 yards of it. Defendant had the restraining order with him.

For that conduct, the state charged defendant by complaint with one count of punitive contempt. At the close of evidence, defendant argued that, because he had not yet read the part of the order barring him from being within 100 yards of the home, he did not know about the prohibition. Therefore, defendant asserted that the court could not find that he willfully violated the order, as the court was required to find him in contempt. Rejecting that argument, the trial court explained that defendant's failure to read the order did not mean he had a good faith belief that his conduct did not violate it, and did not preclude a finding that defendant's violation of the order was willful:

"He has a restraining order in his pocket and I'm not going to find that someone who chooses not to find out what a legal document they've been served by law enforcement, when they can at least explain that it's a restraining order to them, that they don't take any action to figure out what it is, is good faith enough to deter them, because that would be an exception that swallows the rule. It would open flood gates to people not ever being enforced. Restraining orders would have no power. Somebody could say I don't read English, and so I decided not to flip to page two and then that's it, and then they could just go wherever, and so that—that's—it's total chaos. So I reject that.

"So he did not have good faith beliefs that restraining order was not in place. He willfully violated the restraining order that he had. You know[,] if I go with * * * when you're handed a document[,] at that point the law presumes that you will take the steps to find out what that document means and what it does, and if you do something that's prohibited by that document, you are on the hook for it, unless there is some sort of good reason for you to have a good faith belief otherwise, which is not good here."

Thereafter, the court imposed a term of probation and ordered defendant to pay $442 in court-appointed attorney fees. Defendant appealed.

On appeal, defendant argues that the trial court erroneously applied the wrong legal standard when finding him in contempt. Relying in large part on our decision in State v. Nicholson , 282 Or. App. 51, 383 P.3d 977 (2016), defendant argues that "the ‘willful’ requirement in the context of a contempt proceeding for violation of a restraining order requires that a defendant have knowledge, meaning actual awareness, of the existence of the order that he or she violated." That means, according to defendant, that the state had to prove that defendant knew that he was prohibited from being within 100 yards of C's sister-in-law's residence in order to find that his violation of the FAPA order was willful. Defendant argues further that the court's order reflects that it erroneously relied on a legal presumption to conclude that defendant knew that he was prohibited from going to the residence in question. Defendant also contends that the court plainly erred in imposing attorney fees absent evidence that defendant has an ability to pay them, and that we should exercise our discretion to correct that error as we have in many similar cases.

The state responds that the trial court's finding of contempt was correct. The state contends that the court implicitly found that defendant did know about the prohibition, and that that implicit finding is supported by the record and defeats defendant's argument that the court's willfulness finding was wrong. The state argues alternatively that it would "defy logic" to conclude that a person could not be found to be in contempt simply because the person chose not to review a restraining order with which he or she was served. As to the attorney fees, the state concedes that the court plainly erred in imposing attorney fees on this record and agrees with defendant that we should exercise our discretion to correct the error for the reasons stated in State v. Eubanks , 296 Or. App. 150, 151, 437 P.3d 323 (2019), and the cases collected therein.

We start with defendant's argument that the trial court applied the incorrect legal standard in finding him in contempt. As both parties recognize, to find defendant in contempt, the court had to find that defendant "willfully" acted in or with "disobedience of, resistance to or obstruction of" an order of the court, ORS 33.015(2)(b), including a valid FAPA order. State v. Welch , 295 Or. App. 410, 416, 434 P.3d 488 (2018).

One way to prove that the violation of a court order is willful is by showing that a defendant, knowing that particular conduct was prohibited by the order, engaged in the prohibited conduct. Id . at 417, 434 P.3d 488. The state argues that the trial court implicitly found that that is what happened here—that defendant knew he was prohibited from going to the sister-in-law's home yet went there anyway. But the finding that defendant knew the order barred him from that address was not necessary to the court's ruling, which turned on the notion that a person could willfully violate a court order by making a choice not to read it. Because that finding was not necessary to the court's ruling, we may not presume that the court implicitly made it. Pereida-Alba , 356 Or. at 670-71, 342 P.3d 70 ; State v. Sherriff , 303 Or. App. 638, 640, 465 P.3d 288 (2020).

Proof that a person knew of the requirements of a court order, but chose not to comply with those requirements, is not the only way to prove that a person willfully disobeyed a court order—historically, anyway. Another judicially recognized path to proving the willful violation of a court order is to show that a defendant opted to take a head-in-the-sand approach to the order. Dept. of Rev. v. Carpet Warehouse , 296 Or. 400, 407-08, 676 P.2d 299 (1984). That is, willfulness can be shown through proof that the defendant knew about the order but chose to ignore it, and then failed to comply with the order's requirements in that state of elective ignorance: "A party cannot ignore a court order and then claim that the act of ignoring it is not wilful." Carpet Warehouse , 296 Or. at 407, 676 P.2d 299 ; see Pamplin v. Victoria , 138 Or. App. 563, 566-67, 909 P.2d 1245 (1996) (concluding that an attorney who ignored discovery requests and a related court order acted willfully in not complying).²

In this case, as we understand the trial court's reasoning, it concluded that defendant's violation was willful because defendant had the order and knew that it was a restraining order but chose not to learn its contents. That conclusion is consistent with decisions in Carpet Warehouse and Pamplin and, for that reason, it does not appear that the court applied an erroneous legal standard in finding defendant in contempt.

We do not read Nicholson , on which defendant...