367
Submitted June 20; affirmed December 18, 2019; petition for review denied
May 21, 2020 (366 Or 493)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALI JASIM MOHAMMED,
Defendant-Appellant.
Washington County Circuit Court
17CN05826; A166566
456 P3d 661
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.
Affirmed.
Ramon A. Pagan, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
TOOKEY, J.
Affirmed.
368 State v. Mohammed
TOOKEY, J.
Defendant appeals a judgment of contempt, ORS
33.015(2)(b).1 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 affirm.
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 P3d 515 (2012).2 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 P3d 977
(2016).
In 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,
1
ORS 33.015(2) provides, in part:
“ ‘Contempt of court’ means the following acts, done willfully:
“…
“(b) Disobedience of, resistance to or obstruction of the court’s authority,
process, orders or judgments.”
2
At defendant’s bench trial, although defendant did not formally move for a
judgment of acquittal, in his closing arguments, defendant argued that there was
legally insufficient evidence that his conduct was a “willful” violation of the FAPA
order. See State v. Gonzalez, 188 Or App 430, 431,
71 P3d 573 (2003) (explaining that, in a bench trial, a defendant’s closing argument that the state had not
adduced legally sufficient evidence to establish the required culpable mental
state “is the equivalent of a motion for judgment of acquittal”).
Cite as
301 Or App 367 (2019) 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.
On 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.
At 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.
For his 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.”
The 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
370 State v. Mohammed
because defendant honestly believed that the order had been
dismissed.
The trial court expressly found that G was credible
and that she had never told defendant that the FAPA order
had been dismissed. The trial court further found that, even
if G had told defendant the order had been dismissed at
some point, any good faith belief by defendant that the order
had been dismissed “had completely been washed away”
once G told defendant that she was “not going to remove
the restraining order” and that she was calling the police
to report defendant’s violation of the order. Accordingly, the
trial court found defendant in contempt for his “willful” violation of the FAPA order.
On appeal, defendant argues that the trial court
erred when it entered a judgment of contempt because “his
conduct did not establish a willful violation” of the FAPA
order. Defendant contends that the outcome of this case is
controlled by Nicholson, 282 Or App 51, because the evidence
indicates that G “represented that the restraining order was
no longer in effect,” and, thus, defendant believed that the
restraining order had been dismissed. The state responds
that “sufficient evidence supported the [trial court’s finding that] defendant’s violation of the restraining order was
knowing and willful and constituted contempt of court.” We
agree with the state.
“To prove contempt, the state must establish the
existence of a valid court order, the defendant’s knowledge of
that order, and the defendant’s willful noncompliance with
that order.” State v. Beleke, 287 Or App 417, 421,
403 P3d
481, rev den,
362 Or 208 (2017). As we have discussed, “ ‘willfully’ for the purposes of ORS 33.015(2) meant, and means,
intentionally and with knowledge that the act or omission
was forbidden conduct.” Nicholson,
282 Or App at 62 (internal quotation marks and brackets omitted). But a “defendant who acts based on a good faith belief that a judicial
order has been dismissed cannot be deemed to have acted
with knowledge that it was forbidden conduct.”
Id. (internal
quotation marks omitted).
Defendant’s reliance on Nicholson as controlling
precedent under these circumstances is misplaced. In that
Cite as 301 Or App 367 (2019) 371
case, there was no factual issue concerning the defendant’s
“contemporaneous, good faith belief” that the FAPA order
had been dismissed. Id. at 62. Indeed, the trial court credited the defendant’s testimony that her estranged husband
had told the defendant that he was at the courthouse getting
the FAPA order dismissed and found that the defendant
“actually, and in good faith, believed that the order had been
set aside.” Id. at 55-56. Nevertheless, the trial court found
the defendant in contempt. Id. at 54. On appeal, in light of
the trial court’s express finding that the defendant had a
“contemporaneous, good faith belief” that the FAPA order
had been dismissed, we concluded that the trial court erred
in finding the defendant in contempt, because “[a] defendant
who acts based on a good faith belief that a judicial order
has been dismissed cannot be deemed to have acted with
knowledge that it was forbidden conduct,” i.e., “ ‘willfully’ for
purposes of ORS 33.015(2)(b).” Id. at 62 (internal quotation
marks omitted).
Here, by contrast, the trial court expressly found
that G, not defendant, was credible in her testimony, and
that G had never told defendant that the FAPA order had
been dismissed. See id. at 56 (observing that “if the trial
court discredited defendant’s testimony that she believed
that the order was no longer in effect, then that alone
would have established willfulness”). Furthermore, defendant’s own testimony was that, when G told defendant that
she was going to call the police, G told defendant that the
FAPA order was still in place and that he needed to leave.
Defendant chose to stay and was arrested for violating the
order. From that evidence, a rational trier of fact could find
that defendant knew that he remained subject to the FAPA
order and chose to willfully violate the order.
In sum, a rational trier of fact, drawing all reasonable inferences in the light most favorable to the state,
could find all of the elements of contempt beyond a reasonable doubt. The trial court’s findings are supported by evidence in the record, and the record supports a reasonable
inference that defendant did not have a “contemporaneous,
good faith belief” that the FAPA order had been dismissed.
Id. at 62. Thus, the trial court did not err when it found that
372 State v. Mohammed
defendant willfully violated the restraining order and found
defendant in contempt.
Affirmed.
