and submitted September 13, 2018
Washington County Circuit Court 17CN00066; Kirsten E.
M. Du Clos, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
A. Reniche-Smith, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
Or.App. 807] PER CURIAM
appeals from a judgment of contempt for three counts of
punitive contempt for violating a restraining order his wife,
E, had obtained under the Family Abuse Prevention Act (FAPA).
In his first assignment of error, defendant challenges Counts
1 and 2, arguing that the trial court erred in applying an
incorrect legal standard to determine that defendant had
violated the restraining order as alleged in those counts.
The state concedes the error, and we accept that concession.
Accordingly, we reverse and remand Counts 1 and 2. We reject
defendant's second assignment of error without
1 and 2 were based on allegations that defendant contacted E
through electronic messages after being served with the FAPA
restraining order earlier in the day. Defendant put on
evidence that he had not looked at or read the paperwork,
having assumed they were divorce papers, until after he had
sent the messages, so he did not know that there was a
restraining order at the time he sent the messages. In
determining that defendant had violated the restraining
order, the trial court stated that, because defendant had the
restraining order in his possession for several hours, he had
"adequate notice" and that "[h]is failure to
read the documents or take a moment to do so before violating
it does not excuse him from the violation."
appeal, defendant argues that the trial court erred because
ORS 33.015(2)(b) required the court to find that defendant
had willfully disobeyed the FAPA order, which required the
court to find that defendant had actual knowledge of the
existence of the order. See State v. Nicholson, 282
Or.App. 51, 62, 383 P.3d 977 (2016) (willfully, under ORS
33.015(2)(b), requires the person to "have acted with
knowledge that it was forbidden conduct" (internal
quotation marks omitted)). Because the trial court applied an
incorrect legal standard, defendant asserts that we should
reverse and remand for a new trial.
state concedes that the trial court erred with respect to
Counts 1 and 2. However, the state argues that the correct
disposition is to affirm as to Count 3 and, because there was
evidence in the record from which the court could [298
Or.App. 808] have found that defendant had actual knowledge
of the order, "remand to the court for reconsideration
of its ruling on Counts 1 and 2 under the correct legal
agree with and accept the state's concession that the
trial court erred. We also agree with the state that there is
evidence in the record from which the court could have found
that defendant did have knowledge of the contents of the
order, but the court did not make a finding on that issue.
However, we conclude that the correct disposition is to
reverse and remand for a new trial on Counts 1 and 2.
See, e.g., State v. Barboe, 253 Or.App. 367, 378,
290 P.3d 833 (2012), rev den, 353 Or. 714 (2013)
("We have consistently held that * * * where factual
issues pertinent to a material element of the crime remain
unresolved[ ] 'the proper disposition is to reverse and
remand for a new trial.'" (Quoting State v.
Schodrow, 187 Or.App. 224, 232, 66 P.3d 547 (2003).)).
We affirm on Count 3, because defendant has not challenged
that count on appeal.
1 and 2 reversed and remanded; otherwise affirmed.