State v. Welch

• Decision Date: 12 December 2018
• Docket Number: A158592
• Citation: 434 P.3d 488,295 Or.App. 410
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Donald Arthur WELCH, Defendant-Appellant.
• Court: Oregon Court of Appeals

295 Or.App. 410

434 P.3d 488

STATE of Oregon, Plaintiff-Respondent,

v.Donald Arthur WELCH, Defendant-Appellant.

A158592

Court of Appeals of Oregon.

Submitted on remand July 10, 2018.

December 12, 2018

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Nani Apo, Assistant Attorney General, filed the briefs for respondent.

Before DeHoog, Presiding Judge, and Shorr, Judge, and Aoyagi, Judge.

SHORR, J.

Defendant appeals from a judgment holding him in contempt of court for violating a restraining order issued under the Family Abuse Protection Act (FAPA), ORS 107.718. He assigns error to the trial court’s denial of his motion for a judgment of acquittal (MJOA) and the court’s resulting finding of contempt,¹ arguing that the evidence was insufficient to establish that he had "willfully" violated the provision in the FAPA order prohibiting him from "knowingly be[ing] or stay[ing] within 500 feet" of the victim, S. We initially dismissed defendant’s appeal as moot. State v. Welch , 289 Or. App. 118, 407 P.3d 895 (2017) ( Welch I ). The Supreme Court remanded the case to us for reconsideration in light of its opinion in State v. K. J. B. , 362 Or. 777, 416 P.3d 291 (2018). State v. Welch , 363 Or. 119, 421 P.3d 351 (2018) ( Welch II ). For the reasons that follow, after considering K. J. B. , we conclude that defendant’s appeal is not moot. Then, turning to the merits of defendant’s appeal, we affirm the denial of defendant’s MJOA.

We begin with a summary of the procedural background in Welch I . As noted above, defendant was charged with contempt of court for violating a FAPA order. At his contempt hearing, defendant moved for a judgment of acquittal. The trial court denied the motion and found defendant in contempt. Rather than imposing any sanctions against defendant, the court only ordered defendant to fully comply with the FAPA order going forward.

Defendant appealed and assigned error to the trial court’s denial of his MJOA. One of the state’s principal arguments on appeal was that defendant’s appeal was moot because the court had not imposed any punitive sanctions against defendant and defendant had failed to show any probable collateral consequences that flowed purely from the judgment of contempt. Defendant countered that there was a meaningful collateral consequence, namely that contempt proceedings are inherently stigmatizing, and that judgments of contempt are appealable as a matter of law because of that inherent social stigma.

We were persuaded by the state’s argument. We first described how we have resolved claims of mootness in previous appeals from judgments of contempt, and specifically whether those appeals were moot due to resulting social stigma. Welch I , 289 Or. App. at 120-22, 407 P.3d 895 (citing State v. Langford , 260 Or. App. 61, 317 P.3d 905 (2013) ; State v. Hauskins , 251 Or. App. 34, 281 P.3d 669 (2012) ; State ex rel. State of Oregon v. Hawash , 230 Or. App. 427, 215 P.3d 124 (2009) ). Based on those opinions, we concluded that defendant’s appeal was moot because the trial court had not imposed any sanctions or other consequences on defendant apart from reiterating the preexisting requirement that defendant must comply with the FAPA order. Id. at 122, 407 P.3d 895. We explained that

"the trial court ordered defendant to comply with the restraining order against him, which defendant had a preexisting obligation to do. The court expressly decided not to impose any sanctions or ‘consequences’ on defendant. Defendant has not identified how a contempt judgment that imposes no sanctions and only mandates compliance with a preexisting court order generates sufficient social stigma to save the appeal from being moot. Absent a sufficiently stigmatizing sanction, we are not aware of any collateral consequences that flow directly and solely from the judgment of contempt itself."

Id .

Defendant sought review of our decision from the Oregon Supreme Court. The Supreme Court subsequently decided K. J. B. —a case involving an appeal from an order of civil commitment that had since expired—in which it clarified how a court should address claims of mootness. The Supreme Court then remanded Welch I to us for reconsideration in light of K. J. B . Welch II , 363 Or. 119, 421 P.3d 351. Of relevance to this case, the court explained in K. J. B. that

"[t]he burden rests with the party moving for dismissal to establish that a case is moot. ***

"The moving party’s burden includes the burden of establishing that any collateral consequences either do not exist or are legally insufficient. That does not mean that the moving party is required to imagine all possible collateral consequences and then disprove each of them. Rather, when the moving party takes the position that a case has become moot, the responding party must identify any collateral consequences that he or she contends has the effect of producing the required practical effects of a judicial decision. At that point, the moving party must demonstrate that any of those identified collateral consequences either does not exist or is legally insufficient."

362 Or. at 785-86, 416 P.3d 291 (internal citations omitted). The court did not decide whether a social stigma attaches to an order of involuntary civil commitment and, if so, whether the stigma persists after the order has expired. Instead, the court concluded only that the state had failed to satisfy its burden to establish that the appeal was moot. As the court explained,

"the burden rests with the state to establish that any collateral consequences that petitioner has identified either do not exist or are legally insufficient. In this case, the state has done neither. It has simply asserted—without support of any kind—that the social stigma of which petitioner complains does not exist. That is not adequate to establish that there are no collateral consequences of the order of civil commitment. Accordingly, the state’s motion to dismiss is denied."

Id. at 789, 416 P.3d 291.

Turning to this case, we similarly conclude that the state has failed to establish that the collateral consequences identified by defendant do not exist or are legally insufficient. In its original answering brief on appeal to our court, the state simply asserted—with little support—that the stigma identified by defendant does not exist. Under the standard articulated in K. J. B. , that is not adequate to carry the state’s burden to establish mootness. In its supplemental briefing on remand, the state abandons its mootness argument altogether and concedes that it cannot demonstrate that defendant’s appeal is moot. We accept that concession.

We do not decide whether the state could establish, either under the circumstances of this case or any other, that an appeal from a judgment of contempt is moot. Similarly, we do not decide whether to adopt defendant’s view that punitive contempt proceedings always carry significant and inherent social stigma, such that no judgment of contempt can be moot for want of collateral consequences. Cf. Hawash , 230 Or. App. at 428, 215 P.3d 124 (deciding that an appeal from a judgment of contempt for failure to pay child support was moot because "appellant has not identified any collateral consequences that flow from the judgment of contempt, and we are aware of none"). We decide only that, in this case, the state did not meet its burden to establish that defendant’s appeal is moot.

Having decided that defendant’s appeal is not moot, we turn to the merits. When a defendant argues that there was insufficient evidence to find that he or she willfully violated a court order, 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. Beleke , 287 Or. App. 417, 420, 403 P.3d 481, rev. den. , 362 Or. 208, 407 P.3d 814 (2017) ; see Langford , 260 Or. App. at 68, 317 P.3d 905. We recite the following facts consistently with our standard of review.

In 2014, the trial court entered a FAPA restraining order requiring that defendant "shall not knowingly be or stay within 500 feet" of S. One evening, after defendant had been served with the FAPA order, S and a friend went out to a local restaurant for dinner. Defendant was already eating dinner at the restaurant when they arrived. Defendant, who was sitting at a table on the restaurant’s patio, saw S and her friend arrive at the restaurant and walk inside to the bar. S immediately saw defendant upon her arrival as well. The two women decided to wait at the bar to give defendant a chance to leave. After defendant had remained at his table for several minutes, S told the manager of the restaurant that she wanted to call the police to report defendant but that she would wait 10 to 15 minutes more before doing so. The manager asked the server to bring defendant his check and warn him that S planned to call the police. The server did so, and defendant finished his meal and paid his check in cash. The server brought defendant his change, but defendant still remained at his table. During that time, S had called the police, who dispatched an officer to the restaurant. S testified that the moment that the officer pulled up outside the restaurant, defendant got up "super fast" and left. At least 15 to 20 minutes had passed from the time S arrived at the restaurant until defendant left.²

Defendant was charged with contempt of court on an information that alleged that he had violated the FAPA order by "knowingly staying within 500 feet" of S. At the close of evidence in the contempt hearing, defendant moved for a judgment of acquittal for the reasons described above. The trial court denied the motion. The...