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State v. Welch

Court of Appeals of Oregon

December 12, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DONALD ARTHUR WELCH, Defendant-Appellant.

          Submitted on remand July 10, 2018.

          Deschutes County Circuit Court 14AB0137C1

          On remand from the Oregon Supreme Court, State v. Welch, 363 Or. 119, 421 P.3d 351 (2018). Stephen P. Forte, Judge.

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

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

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

         Case Summary:

         Defendant appeals from a judgment holding him in contempt of court for violating a restraining order. He assigns error to the trial court's denial of his motion for a judgment of acquittal, arguing that the evidence was insufficient to establish that he had willfully violated the order. The Court of Appeals initially dismissed defendant's appeal as moot. State v. Welch, 289 Or.App. 118, 407 P.3d 895 (2017). The Supreme Court remanded the case to the Court of Appeals 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). On remand, the state concedes that it cannot demonstrate that defendant's appeal is moot because it cannot show that the collateral consequences of the judgment of contempt identified by defendant either do not exist or are legally insufficient. On the merits, defendant argues that he made reasonable efforts to comply with the restraining order under the circumstances and, as a consequence, could not be held in contempt for failing to comply with it. Held: Defendant's appeal is not moot because the state did not meet its burden to establish mootness under the [295 Or.App. 411] standard articulated in K. J. B., 362 Or at 786. As to the merits, the trial court did not err because a reasonable trier of fact could have found that defendant had willfully violated the restraining order.

         Affirmed.

         [295 Or.App. 412] 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.

         [295 Or.App. 413] 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 (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. 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 ...

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