State v. Simmons

• Decision Date: 15 September 2021
• Docket Number: A172107
• Citation: 499 P.3d 127,314 Or.App. 507
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Josiah Andrew SIMMONS, Defendant-Appellant.
• Court: Oregon Court of Appeals

314 Or.App. 507

499 P.3d 127

STATE of Oregon, Plaintiff-Respondent,

v.Josiah Andrew SIMMONS, Defendant-Appellant.

A172107

Court of Appeals of Oregon.

Argued and submitted June 15, 2021.

September 15, 2021

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.

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, 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 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 strangled his girlfriend, L. As part of defendant's release agreement on that charge, the trial court included a provision that required defendant to "not have direct or indirect contact, 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 defendant and L. Defendant was then charged with punitive contempt 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 contempt 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 testify at the bench trial on the contempt charge. He testified about his encounter with defendant and L in the parking lot. Prior to approaching the vehicle that they were in, Miranda learned from dispatch that the vehicle was registered to defendant and that "he was a respondent in a no-contact release agreement with [L] as the protected person." Miranda asked defendant about the no-contact provision 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 information, and defendant told Miranda that he had not done so—he took L's word for it. Miranda then arrested defendant 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 defendant 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 prohibiting 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 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 violates 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 ruling 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 violated the no-contact provision of the release agreement and that the trial court did not find the facts as defendant suggests 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 P.3d 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 P.3d 765 (2011) (internal quotation marks omitted). To prove punitive contempt, the state "must prove beyond a reasonable doubt that a valid court order exists, that the defendant knew of the order, and that the defendant voluntarily failed to comply with it." Feyko , 290 Or. App. at 162, 414 P.3d 912 (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’ dispute centers on the "willful" element.

Defendant relies on State v. Nicholson , 282 Or. App. 51, 383 P.3d 977 (2016), as he did below, in support of his argument that his good faith belief that the no-contact provision of the release agreement had been lifted precludes a finding that he willfully violated the order. Nicholson concerned 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 "defendant's subjective, good faith contemporaneous understanding that the FAPA order was no longer in effect preclude[d] a determination of willful noncompliance and, hence, an adjudication of contempt." Id . at 56, 383 P.3d 977. 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, 383 P.3d 977. In fact, the restraining order was not dismissed, and the defendant was subsequently 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, 383 P.3d 977. The trial court found that the defendant believed what her husband had told her; but, the court found her in contempt nonetheless, noting, in part, that the defendant had not verified that the court had signed a dismissal of the FAPA order. Id . at 54, 383 P.3d 977.

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, 383 P.3d 977 (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 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 contemporaneous, good faith belief contradicted an adjudication of contempt." 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 established 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 defendant did not actually believe what L had told him, then the court's emphasis on d...