State v. Nicholson, A158526

• Decision Date: 02 November 2016
• Docket Number: A158526
• Citation: 383 P.3d 977,282 Or.App. 51
• Parties: State of Oregon, Plaintiff–Respondent, v. Katie Mayrie Nicholson, Defendant–Appellant.
• Court: Oregon Court of Appeals

282 Or.App. 51

383 P.3d 977

State of Oregon, Plaintiff–Respondent,

v.Katie Mayrie Nicholson, Defendant–Appellant.

A158526

Court of Appeals of Oregon.

Submitted August 30, 2016.

November 2, 2016

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and DeVore, Judge, and Haselton, Senior Judge.

HASELTON

, S.J.

Defendant, who was adjudicated for contempt, ORS 33.015(2)(b)

, based on a violation of a restraining order issued pursuant to the Family Abuse Protection Act (FAPA), ORS 107.718, appeals. She contends that, in adjudicating her, the trial court rendered findings that not only contradicted, but precluded as a matter of law, a determination that the asserted violation was “done willfully.” ORS 33.015(2)(b).¹ We agree. Specifically, as amplified below, the trial court's findings were irreconcilable with the legislatively intended content of “willfully” in this context. Accordingly, we reverse.

We recite the material facts in the light most favorable to the state, consistently with the trial court's express findings. In March 2014, defendant's estranged husband, T, obtained a FAPA restraining order, which provided, inter alia , that defendant, as respondent, “shall not knowingly be or stay within 200 feet” of T and prohibited defendant from “[c]ontacting, or attempting to contact, [T] in person.” (Boldface omitted.)² In May and June of 2014, T, through a third person, communicated to defendant that he would like to attempt a reconciliation, to “patch things up,” and proposed that they take a family trip together, with their young son, to the coast over Father's Day weekend. Defendant was aware of the existence of the restraining order and agreed to direct contact, including the proposed trip, only upon the restraining order being “dropped.”

On either the Wednesday or Thursday before Father's Day, T, via email, informed defendant that he was “at the courthouse” with a coworker and “in the process of” dismissing the FAPA order. On the Friday before Father's Day, T presented defendant with “a new wedding ring,” because (in defendant's words) “we thought that we were going to for sure work things out.”

Before leaving for the coast for the weekend with T and their son, defendant did not contact the court to confirm T's representations regarding dismissal of the FAPA order. In defendant's view, she had no reason to disbelieve T, “because he wanted to be [with] the family. He wanted me * * * back fully in his life,” “especially seeing as he did buy me a wedding ring [that] Friday.” In fact, the FAPA order had not been dismissed.

On Saturday, June 14, the day before Father's Day, defendant and T were stopped for a traffic violation while riding ATVs together in Winchester Bay. When the officer who made the stop checked with dispatch, he learned of the FAPA order, which was still in effect. When the officer so informed defendant, she was “upset” and protested, telling him that T had “gone to the court or to a government agency to have the restraining order dropped so they could spend more time as a family.” T also protested, saying that he had “dropped it,” but the officer replied that, without some confirmation that the order had been dismissed, he would have to take defendant into custody—which he did.

At the time of her arrest, defendant did not believe that the FAPA order was still in effect. A judgment dismissing the FAPA order was entered on June 19.³

On July 1, defendant was charged, by a district attorney's information, with contempt, ORS 33.015(2)(b)

, based on the violation of the FAPA order. The matter was tried to the court. In closing argument, defense counsel argued that, if the court credited defendant's account, it could not adjudicate her for contempt, because defendant's contemporaneous understanding—viz. , that “[s]he earnestly believed the restraining order had been dropped”—precluded the requisite determination that she had willfully violated the FAPA order. The prosecutor countered that, because defendant had insufficient information “to know that the restraining order wasn't in place,” “[t]he onus [was] on her” to “check, to call [the court], and to make sure that [it] wasn't.”

The trial court, while explicitly crediting defendant's account, nevertheless adjudicated her for contempt:

“[I]n listening to the testimony here today, you know, it's very clear that, [defendant], that you had believed what someone else told you. However, the order was issued by the Court, and only until the Court, the Judge, signs that order dismissing it is the restraining order actually dismissed. And you did not take the steps to protect yourself in that instance, and I find it very telling that [T]—even after you had been arrested on the 14th, that it took him five more days to actually go to the court and file a motion to dismiss. * * * But on the day that the deputy contacted you and you were well within 100 feet of [T], that restraining order had not been dismissed. It was still in effect. And based on that, I do find you in contempt of court. I do find that you willfully violated that order of the Court. You did not verify that the Court had signed a dismissal, and so I do find you in contempt.”

(Emphasis added.)

On appeal, defendant substantially reiterates her position before the trial court, with the refinement, in the light of the trial court's finding as to defendant's contemporaneous good faith belief, that that finding precludes an adjudication of contempt. The state remonstrates that (1) that contention was unpreserved, because defense counsel expressed no objection after the trial court rendered its “speaking verdict”; and (2) in all events, there is no essential contradiction between the trial court's findings and a determination of a willful violation of the FAPA order.

The state's threshold nonpreservation response is unavailing. In this case, defense counsel contended in closing argument that, if the trial court found the facts in a certain fashion (viz. , if the court believed defendant's account), then it could not determine that her violation of the FAPA order was willful and, hence, contumacious. See 282 Or. App. at 53, 383 P.3d at 979. That contention, necessarily, was not framed or phrased as a motion for judgment of acquittal, because, after all, the court was free to disbelieve defendant. Rather, it was posited in functionally “matter-of-law” terms: If “A” (factually), then not “B” (“done willfully”/contempt). The prosecutor so understood, and engaged with, that fundamental contention, asserting that, regardless of defendant's subjective good faith belief, her failure to verify that the order had not been set aside rendered her noncomplicance “willful.” Id. Ultimately, the trial court, while explicitly finding the facts pertaining to defendant's contemporaneous understanding to be as she had represented, endorsed the state's legal position. Given that posture, a further objection by defense counsel, reiterating the legal premise of his closing argument, would not have served the prudential underpinnings of the preservation requirement.⁴

We proceed to the merits. As noted above, the state contends that, for several reasons, the trial court's statement crediting defendant's testimony as to her contemporaneous belief was not necessarily legally irreconcilable with a determination of willfulness. The state first contends that the trial court's statement did not constitute a finding that defendant believed that the FAPA order was no longer in effect. Specifically, the state asserts that,

“when the trial court credited defendant's testimony by finding that she ‘believed what someone had told’ her, the court was referring to defendant's belief in her husband's statement about what he intended to do, not what he had done.”

(Emphases in original.)

We respectfully reject that parsing. T's statements to defendant, which the court expressly found that she believed, were not that he intended to have the order set aside at some future date. Rather, what he told defendant was that he was “at the courthouse,” “in the process of” having the order dismissed. That is, defendant believed T when he said he was presently engaged in having the FAPA order set aside.

In that light, and read in their entirety, the court's statements express a determination that defendant actually, and in good faith, believed that the order had been set aside, but, nevertheless, in the totality of the circumstances—and, as the prosecutor had argued—“t]he onus [was] on [defendant] to make sure” that the order had, in fact, been dismissed. See 282 Or. App. at 54, 383 P3d at 979. Indeed, if the state's construction were correct, then the trial court's emphasis on defendant's failure to verify the order's dismissal would have been gratuitous. That is, if the trial court discredited defendant's testimony that she believed that the order was no longer in effect, then that alone would have established willfulness, without reference to any failure to verify the order's dismissal. We note, finally, that our construction of the court's finding is corroborated by the tenor of the court's observations in imposing sentence:

“[I]t's unfortunate that you took the word of—I mean, at the time he was your husband still, although you had been separated. You took his word without verifying on your own, especially because of the situation that you both were in.”

We turn, then, to the fundamental substantive dispute here: Did defendant's subjective, good faith contemporaneous understanding that the FAPA order was no longer in effect preclude a determination of willful noncompliance and, hence, an adjudication of contempt?

ORS 33.015(2)

provides, in part:

“ ‘Contempt of court’

...