Submitted June 20, 2019
Washington County Circuit Court 17CN05826; Ramon A. Pagan,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Sarah Laidlaw, Deputy Public Defender, Office of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Julia Glick, Assistant Attorney General, fled
the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals a judgment of contempt, ORS
33.015(2) (b). Defendant was found in contempt for violating
a Family Abuse Prevention Act (FAPA) restraining order, ORS
107.718, that had prohibited defendant from having contact
with G. Defendant argues that the trial court erred by
finding that he "willfully" violated the
restraining order, as required for a finding of contempt
under ORS 33.015(2)(b), because he believed that the order
had been dismissed. Held: A rational trier of fact,
drawing all reasonable inferences in the light most favorable
to the state, could have found all of the elements of
contempt beyond a reasonable doubt. The trial court's
findings were supported by evidence in the record, and the
record supported a reasonable inference that defendant did
not have a contemporaneous, good faith belief that the FAPA
order had been dismissed. Thus, the trial court did not err
when it found that defendant willfully violated the
restraining order and found defendant in contempt.
Or. App.App.368] TOOKEY, J.
appeals a judgment of contempt, ORS
33.015(2Xb). Defendant was found in contempt for
violating a Family Abuse Prevention Act (FAPA) restraining
order, ORS 107.718, that had prohibited defendant from having
contact with G, the mother of his child. Defendant argues
that the trial court erred by finding that he
"willfully" violated the restraining order, as
required for a finding of contempt under ORS 33.015(2)(b),
because he believed that the order had been dismissed. Our
review of the record leads us to conclude that the record
contains sufficient evidence from which the trial court could
have found that defendant knew that the order had not been
dismissed, and, thus, the violation of the order was
"done willfully." ORS 33.015(2). Accordingly, we
"review the denial of a motion for judgment of acquittal
on punitive contempt 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. Graham, 251 Or.App.
217, 218, 284 P.3d 515 (2012). In accordance with our standard
of review, "[w]e recite the material facts in the light
most favorable to the state, consistently with the trial
court's express findings." State v.
Nicholson, 282 Or.App. 51, 52, 383 P.3d 977 (2016).
March 2017, G, the mother of defendant's child, obtained
a FAPA restraining order against defendant that prohibited
him from having contact with G. In July 2017, [301 Or.
App.369] G began having financial difficulties and could not
afford rent or food. The only way defendant would agree to
help G economically was if G would allow defendant to move
back in with G and their daughter, even though the FAPA order
was still in place. Defendant began living with G in July.
According to G, defendant knew that the restraining order had
not been dismissed, because G and defendant "always talk
about this restraining order," and G had never told
defendant that the order had been dismissed.
November 15, 2017, G called the police after an argument with
defendant and told defendant that he needed to leave the home
because of the restraining order. Deputy Evans responded to
G's call. G informed Evans that defendant was violating
the FAPA order because defendant "was at her house and
refused to leave." Defendant stated to Evans that G had
told him that the restraining order had been dismissed. Evans
explained that a valid FAPA order was still in place, and
Evans arrested defendant for violating that order.
trial, G testified that defendant knew that the FAPA order
was in place, because the order was a frequent topic of
discussion and that G never had told defendant that the order
had been dismissed.
part, defendant testified that he believed the FAPA order had
been dismissed, because a previous charge for harassing G had
been dismissed, and because G had led defendant to believe
the order had been dismissed. Defendant acknowledged,
however, that nobody from the court system had ever told
defendant that he could resume contact with G after the
harassment charge had been dismissed, or that the order had
been dismissed along with the harassment charge. Defendant
also acknowledged that, when G called the police, G told
defendant, "I'm not going to remove the restraining
order off of you," and that defendant needed to leave
because "the police are coming."
state argued that, if the court found G to be a credible
witness, it should find that defendant willfully violated the
FAPA order. Defendant argued that the evidence was legally
insufficient to find that he had willfully violated the
order, because G was not a credible witness, and [301 ...