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State v. McDougal

Court of Appeals of Oregon

August 21, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JEFFREY WILLIAM McDOUGAL, Defendant-Appellant.

          Submitted May 30, 2019

          Multnomah County Circuit Court 17CN0 0767; Christopher A. Ramras, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, fled the briefs for respondent.

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

         Case Summary:

         Defendant appeals a judgment of contempt based on his alleged violation of a restraining order issued under the Family Abuse Prevention Act (FAPA). As the state concedes that the trial court erred in relying on facts that were not in evidence, the real dispute in this appeal concerns the proper disposition. Defendant advocates for reversal and remand for a new trial, while the state proposes a more limited remand. Held: The proper remedy in this circumstance is to reverse and remand for a new trial. The Court of Appeals adhered to its decisions in State v. Barboe, 253 Or.App. 367, 290 P.3d 833 (2012), rev den, 353 Or. 714 (2013) and State v. Massey, 249 Or.App. 689, 278 P.3d 130 (2012), rev den, 353 Or. 203 (2013) and disavowed State v. Chelson, 212 Or.App. 132, 157 P.3d 258 (2007) and State v. Irving, 74 Or.App. 600, 703 P.2d 983 (1985) to the extent they suggest otherwise.

         Reversed and remanded.

         [299 Or.App. 97] HADLOCK, P. J.

         Defendant appeals a judgment of contempt based on his alleged violation of a restraining order issued under the Family Abuse Prevention Act (FAPA). For the reasons set out below, we reverse and remand.

         Defendant was charged with violating a FAPA restraining order by willfully contacting and attempting to contact the victim, M, by telephone. The case was tried to the court. M testified that, after the FAPA order had issued, she received a notification on her telephone indicating that she had an incoming call from defendant. M did not answer, and defendant left a brief voicemail message that included M's first name. Defendant also testified, asserting that he had not intended to call M, but had instead attempted to call a different person who has the same first name as M; he did so by speaking to his telephone and asking it to call that name.

         The court found defendant guilty. In explaining its verdict, the court emphasized defendant's testimony that he made the call by asking his telephone to call M. The court described that testimony as "fairly critical." The court then described its own understanding of telephone technology as its reason for finding that events could not have transpired as defendant described them:

"I think his testimony was that he told his phone or [B]luetooth to call [M]. If, in fact, there were more than one [M] in his phone contacts, typically Siri, or whatever Siri-like device is being used, will ask someone which [M] the person should call.
"So if that's the way you really made the call, then it would seem to me that you would have been given the option of which [M] to call and would have called ...

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