Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Balero

Court of Appeals of Oregon

September 7, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSEPH SHANE BALERO, Defendant-Appellant.

          Argued and Submitted February 18, 2016

         Jackson County Circuit Court 14CN00908; Kelly W. Ravassipour, Judge.

          Laura E. Coffn, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeVore, Presiding Judge, and Powers, Judge, and Duncan, Judge pro tempore. [*]

         Case Summary: Defendant appeals a judgment finding him in contempt of court for violating a restraining order issued under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735. He asserts that the state failed to present legally sufficient evidence that he “interfered” or attempted to “interfere” with the person protected by the restraining order, within the meaning of FAPA, when he sent an email to the protected person's employer asserting that the protected person had committed theft and fraud. Defendant argues that his conduct was analogous to that at issue in State v. Trivitt, 247 Or.App. 199, 206, 268 P.3d 765 (2011), which the Court of Appeals held did not constitute “interference” for the purposes of FAPA. Held: The trial court erred in finding defendant in contempt of court. Under Trivitt, there was insufficient evidence to show that defendant interfered or attempted to interfere with the protected person within the meaning of the FAPA order. Reversed.

         [287 Or. 679] DUNCAN, J., pro tempore

         Defendant appeals the trial court's judgment finding him in contempt of court for violating a restraining order issued under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735. On appeal, defendant asserts that the state failed to present legally sufficient evidence that he "interfered" or attempted to "interfere" with the person protected by the FAPA order. We agree with defendant and, therefore, we reverse the trial court's judgment.

         When a defendant challenges the legal sufficiency of the evidence supporting a finding of contempt, we view the evidence in the light most favorable to the state to determine whether a rational trier of fact could find the elements of contempt beyond a reasonable doubt. State v. Trivitt, 247 Or.App. 199, 203, 268 P.3d 765 (2011). The relevant facts, which we state in accordance with that standard, are few and undisputed.

         Defendant's then-current wife obtained a FAPA order against defendant pursuant to ORS 107.718. Under that statute, a petitioner may obtain a restraining order against a respondent if the petitioner shows that "the petitioner has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, that there is an imminent danger of further abuse to the petitioner and that the respondent represents a credible threat to the physical safety of the petitioner." ORS 107.718(1). For the purposes of FAPA, "abuse" is defined by ORS 107.705(1), which provides:

"'Abuse' means the occurrence of one or more of the following acts between family or household members:
"(a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury. "(b) Intentionally, knowingly, or recklessly placing another in fear of imminent bodily injury.
"(c) Causing another to engage in involuntary sexual relations by force or threat of force."

         A FAPA order may restrain the respondent "from intimidating, molesting, interfering with or menacing the petitioner, [287 Or. 680] or attempting to intimidate, molest, interfere with or menace the petitioner[.]" ORS 107.718(1)(e). "The purpose of a FAPA restraining order is to protect a victim of domestic abuse from further abuse." Trivitt, 247 Or.App. at 206; see also State ex rel Halthaway v. Hart,300 Or. 231, 236, 708 P.2d 1137 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.