250
Submitted March 23, affirmed June 8, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
KASSANDRA ANN WESTOM,
Defendant-Appellant.
Columbia County Circuit Court
18CR21011; A173956
512 P3d 850
Defendant appeals from two judgments convicting her of criminally negligent homicide, ORS 163.145, and third-degree assault, ORS 163.165(2)(a). The
trial court initially deferred sentencing on the negligent homicide charge and
sentenced defendant to a three-year period of probation on the assault conviction.
As a condition of probation, defendant was to have no contact with the victim’s
mother. The court subsequently found that defendant had violated the no-contact
provision of probation. As a result, the court entered a judgment on the criminally negligent homicide charge, sentenced defendant to a three-year period of
probation, and extended defendant’s existing probationary term on the assault.
On appeal, defendant argues that the trial court erred when it concluded that
defendant had contacted victim’s mother by knowingly remaining in her immediate presence. According to defendant, the term “contact” means to communicate
verbally. Held: The trial court did not err. When the term “contact” is undefined,
knowledge, proximity, and the duration of the contact can all bear on whether
defendant violated a no-contact provision of probation. In this case, the trial
court reasonably concluded that knowingly remaining in the presence of victim’s
mother constituted contact.
Affirmed.
Jenefer Stenzel Grant, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Ingrid A. MacFarlane, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
KISTLER, S. J.
Affirmed.
Cite as 320 Or App 250 (2022) 251
KISTLER, S. J.
In 2018, defendant entered into a plea agreement
with the state. Defendant admitted that she had unlawfully caused the death of a young woman in “a motor vehicle
crash” and agreed to plead guilty to criminally negligent
homicide, third-degree assault, and contempt of court. In
return, the state agreed to dismiss one count of reckless
driving and make certain sentencing recommendations to
the court. Consistently with the state’s recommendations,
the trial court deferred sentencing on the negligent homicide charge and sentenced defendant to a three-year period
of probation on the assault and contempt convictions. One
condition of defendant’s probation is that she “shall have no
contact with” the victim’s mother.1
In 2019, the trial court found that defendant had
violated the “no-contact” condition of her probation. Having
made that finding, the trial court sentenced defendant to a
three-year period of probation for criminally negligent homicide and entered a judgment of conviction on that charge.
The court also extended defendant’s existing probationary
term on the assault conviction in a separate “judgment and
probation order,” with the result that her extended period of
probation for assault mirrors the three-year period of probation on the homicide conviction. Defendant appeals from
both judgments, arguing that the trial court erred in finding that she contacted the victim’s mother in violation of her
probation. We affirm the trial court’s judgments.
We take the facts from the probation revocation
hearing and state them consistently with the trial court’s
decision. Approximately nine months after defendant began
her probation, the victim’s mother and younger sister
encountered defendant at a beach on the Columbia River.
The victim’s mother and sister were walking on a path from
the parking lot to the beach when they passed within 10
feet of defendant, her boyfriend, and their baby. The victim’s
mother made eye contact with defendant, who smiled at her.
That led the victim’s mother to say, in a normal tone of voice,
1
The conditions of probation are set out in the judgment of conviction for
assault and incorporated by reference in the judgment of conviction for contempt.
Neither judgment defines the phrase “shall have no contact with.”
252 State v. Westom
“Are you F—ing kidding me?” (Uppercase and deletions in
original.) When the victim’s sister asked her mother if she
wanted to leave, the mother replied, “No. We are not adjusting our plans. We are going to walk down to the beach and
spend our time together.” The victim’s mother and sister
continued walking “way down to … the sand. And set up
[their] spot” close to the water, away from where defendant
and her boyfriend were sitting.
Approximately 10 minutes later, defendant and her
boyfriend moved “their stuff closer to the beach, to where
[the victim’s mother and sister] were[.]”2 Then, “[defendant]
and her baby and her boyfriend walked down to the water
and played in front of [the victim’s mother]” for approximately 15 to 20 minutes.3 At that point, the victim’s sister
was also playing in the water, and she noticed defendant
looking “a couple of times” at her and also at her mother.
When the victim’s mother began taking pictures of defendant with her cell phone, defendant packed up her things
and left.
The trial court issued a show-cause order to determine whether defendant had violated the terms of her
probation because she had had “contact with” the victim’s
mother. At the hearing on the show-cause order, defendant’s
lawyer raised two defenses. The primary defense was factual. Defense counsel argued that, because the victim’s
mother was dressed for the beach, she looked different than
she usually did, with the result that defendant did not recognize her initially. Defendant’s lawyer argued that defendant recognized the victim’s mother only when she began
taking pictures of her. At that point, her lawyer contended,
defendant immediately gathered up her belongings and
left.
2
The victim’s mother estimated that defendant and her boyfriend put their
belongings down within 50 to 60 feet of where she and her daughter were sitting.
Based on a photograph that the victim’s mother took, which was admitted as
an exhibit, the trial court could have found that defendant moved closer to the
victim’s mother than that. Defendant presented evidence to the contrary, but the
trial court was not required to credit it.
3
The trial court could have found from the photographs that were admitted
as exhibits that the victim’s mother was sitting close to the water and that, when
defendant and her boyfriend were playing on the beach, they were close to her.
Cite as 320 Or App 250 (2022) 253
Defendant’s lawyer also mentioned a legal issue
in his opening statement and returned to it in his closing
argument. He observed in his opening statement that the
conditions of probation set out in the assault judgment did
not define the term “contact.” 4 At the end of his closing argument, defense counsel returned to the legal issue that he
had mentioned in his opening statement. He said:
“Again, I would point [out] to the Court that there really
isn’t a legal definition of what contact is. Other than [what]
I would assume would be normal contact, if a person came
up and said hey, how are you doing? And we don’t have that
here.”
Given that record, the trial court found that defendant had violated the no-contact condition of her probation.
It explained that, in light of the role that the victim’s mother
had played in defendant’s life, it was neither “realistic” nor
“plausible” to believe that defendant had not initially recognized the victim’s mother. The court was careful to make
clear that an inadvertent or unintentional contact would
not violate the terms of defendant’s probation. The court
explained, however, that, after defendant recognized the
victim’s mother, it was incumbent on defendant to avoid further contact. Defendant did not do that. Rather, defendant
and her boyfriend moved their belongings close to where the
victim’s mother was sitting and then spent a substantial
amount of time playing on the beach directly in front of her.
The court explained to defendant that, once she recognized the victim’s mother,
“[t]here were some choices you could have made that are
different from the choice of being directly in the line of
sight between [the victim’s mother] and—and the river.
“Which is very clear from the photograph that you were
right in her line of sight. So, that’s why I believe that that
was [a probation] violation.”
Having found that defendant violated her probation,
the court ruled that defendant had breached the plea
4
Having made that observation, defense counsel did not offer a definition of
contact in his opening statement, nor did he argue that any legal consequences
followed from the absence of a definition.
254 State v. Westom
agreement and sentenced her on the negligent homicide
charge to a three-year period of probation. The court entered
a judgment of conviction on that charge. The court did not
revoke defendant’s probation on the assault conviction.
Rather, it extended her probation on that conviction so that
it mirrored the three-year period of probation that the court
imposed on the negligent homicide conviction. The court
entered a separate document captioned “judgment and probation order” extending defendant’s probation on the assault
conviction.
On appeal, defendant does not pursue the factual
issue that she raised below; that is, she appears to recognize
that the trial court’s factual findings effectively preclude her
from arguing that she did not recognize the victim’s mother
initially. She focuses instead on the legal point that defense
counsel raised at the probation revocation hearing. She
notes, as her trial counsel did, that the condition of probation set out in the judgment of conviction for assault does
not define the term “contact,” and she argues that “contact”
means to communicate verbally. It does not mean, she contends, knowingly remaining in the protected person’s immediate presence. In making that argument, defendant does
not contend that the term “contact” is unconstitutionally
vague, either facially or as applied. Rather, she argues that
its meaning is clear; it just means less than the trial court
thought it did.
The state responds initially by raising two procedural defenses. It notes that the trial court’s ruling that
defendant violated her probation led to the entry of two
related but separate judgments—(1) a judgment of conviction for negligent homicide entered pursuant to the plea
agreement and (2) a “judgment and probation order” extending defendant’s probation on her assault conviction. The
state reasons that ORS 138.105(5) precludes us from deciding whether the first judgment resulted from an erroneous
ruling and that the second judgment can be upheld on alternative grounds. It follows, the state contends, that we can
affirm both judgments without deciding whether the trial
court correctly found that defendant violated her probation.
Finally, the state argues that the court’s ruling is correct on
the merits.
Cite as 320 Or App 250 (2022) 255
We begin with the state’s argument that ORS
138.105(5) precludes us from going behind the plea agreement that led to the judgment of conviction for negligent
homicide and determining whether the trial court erred in
finding a probation violation. Our decision in State v. Merrill,
311 Or App 487,
492 P3d 722, adh’d to as modified on recons,
314 Or App 460,
495 P3d 219 (2021), supports the state’s
argument. See also State v. Jones,
311 Or App 685,
492 P3d
116 (2021) (same). Although defendant argues that Merrill
was wrongly decided and notes that the Supreme Court has
allowed review in State v. Colgrove,
308 Or App 441,
480
P3d 1026, rev allowed,
368 Or 347 (2021), to decide the issue,
we follow our decision in Merrill.
That leaves the “judgment and probation order”
extending defendant’s probation on the assault conviction.
As the state recognizes, no statute bars us from reaching
the merits of the trial court’s ruling that led to that judgment. The state argues, however, that we can affirm that
judgment on an alternative ground. The state notes that
the trial court had discretion to extend defendant’s probation even if no probation violation occurred. See ORS
137.545(1)(a). That is so, the state argues, even if the trial
court erred in concluding that defendant violated her probation. See State v. Laizure, 246 Or App 747,
268 P3d 680
(2011) (so holding).
The state is correct that, in Laizure, we found it
unnecessary to decide whether the trial court erred in finding that the defendant had violated two conditions of his
probation, which led to the court’s extending the defendant’s
probation. 246 Or App at 753. We explained that the trial
court had acted within its discretion in extending the defendant’s probation because his actions, even if they did not violate the conditions of his probation, frustrated its purposes.
Id. at 753-54. Implicit in our decision in Laizure is the proposition that any error in finding a probation violation played
no role in the trial court’s decision to extend probation.
We later made what was implicit in Laizure explicit
in State v. Keleman, 296 Or App 184, 190,
437 P3d 1225
(2019). In Keleman, we declined to uphold a trial court
order erroneously revoking the defendant’s probation on the
256 State v. Westom
theory that the court could have reached the same result
on legitimate grounds.
Id. We explained that “the court’s
mistaken belief that defendant’s conduct violated the terms
of his probation appears to have played a role in its decision
to revoke.”
Id. That is, we could not say on appeal that the
court’s error was harmless.
We reach the same conclusion here. In this case, the
trial court’s decision to extend defendant’s probation on the
assault conviction flowed directly from its conclusion that
defendant had violated a condition of her probation that she
have no contact with the victim’s mother. If the terms of
defendant’s probation did not prohibit her from remaining
in the victim’s mother’s presence, as defendant argues, then
it is difficult to see how defendant’s actions—remaining on
a beach near the victim’s mother—would suggest that the
purposes of probation were not being served. Cf. Laizure, 246
Or App at 752 (explaining that, in the absence of a probation
violation, a trial court can exercise its discretion to extend
a defendant’s probation if the purposes of probation are not
being served). At a minimum, we cannot say on appeal that
the court would have independently exercised its discretion
to extend defendant’s probation if it had found no probation
violation. It follows that we cannot uphold the judgment
extending defendant’s probation on the alternative ground
that the state proposes and turn to the merits of the probation violation ruling.
As noted, one condition of defendant’s probation is
that “[d]efendant shall have no contact with” the victim’s
mother. As defendant observes, the judgment does not define
the term “contact.”5 However, in comparable circumstances,
we have looked to the dictionary definition of the noun “contact” to determine its meaning. See Boyd v. Essin, 170 Or
App 509, 516,
12 P3d 1003 (2000), rev den,
331 Or 674 (2001)
(looking to the dictionary definition of contact to determine
whether the respondent’s actions constituted a prohibited
contact).
Webster’s defines the noun “contact,” in relevant
part, as:
5
As used in defendant’s condition of probation, “contact” is a noun.
Cite as 320 Or App 250 (2022) 257
“2b: a condition or an instance of meeting, connecting, or
communicating <ordinary men were made to feel a direct
contact with their God –H. S. Canby> <keep in contact with
the other members> <neither party had made any contact
with the other> <made contact with the enemy>.”
Webster’s Third New Int’l Dictionary 490 (unabridged ed
2003). To be sure, “contact,” used as a noun, includes “an
instance of … communicating.” Id. But that is not its only
meaning.
Id. Used as a noun, “contact” also means “a condition or an instance of meeting [or] connecting.”
Id. To paraphrase the illustration in Webster’s, an army may “ma[k]e
contact with the enemy” by coming into the enemy’s visual
presence. See
id. No words need be exchanged for a contact
to occur.6
We explained in Boyd that the dictionary “establishes that, at its core, contact [used as a noun] involves
a direct communication or a meeting,” although “contact”
can, in context, have a broader meaning. 170 Or App at
516 (identifying the ordinary understanding of that term
and then interpreting it, in context, more broadly).7 In
this case, the trial court found that a prohibited nonverbal contact occurred when defendant knowingly chose to
move into and remain in the victim’s mother’s immediate
visual presence. Specifically, after recognizing the victim’s
mother, defendant moved her belongings close to where
the mother and her daughter were sitting and then played
on the beach directly in front of the mother for 15 to 20
minutes.
6
The phrase used in defendant’s condition of probation, “shall have no contact with,” parallels the phrase in Webster’s illustration of that term, “ma[k]e
contact with.”
7
In Boyd, we sought to determine whether a nonverbal act, which the petitioner learned about after the fact—the respondent’s repeatedly watching the
petitioner’s home with binoculars—constituted a prohibited contact for the purposes of the stalking statutes. 170 Or App at 515. Those statutes provide that
“ ‘contact’ includes but is not limited to” a series of examples.
Id. (quoting the
statutory definition of “contact”). The specific contact at issue in Boyd did not
come within one of the listed examples,
id. at 515-16, and we looked to the dictionary definition of contact, used as a noun, as well as drawing inferences from
the listed examples, in concluding that watching the petitioner’s home with binoculars “show[ed] an unwanted relationship or association” and thus counted as
a prohibited contact once the petitioner learned about the respondent’s actions.
Id. at 517.
258 State v. Westom
Defendant, however, argues that “contact” has a
more limited meaning. Relying on our decision in State v.
Harrison, 290 Or App 766,
417 P3d 513 (2018), she contends
that the no-contact condition of her probation prohibits only
verbal communication. Defendant’s argument is counterintuitive. If defendant were correct, no contact would have
occurred if defendant had approached the victim’s mother
at the beach and physically grabbed her. Under defendant’s
interpretation of the no-contact condition, defendant would
not have made “contact” with the victim’s mother as long as
she did not say anything to her.
One difficulty with defendant’s argument (and her
reliance on Harrison) is that we interpreted the transitive
verb “contact” in Harrison; we did not interpret that term
used as a noun. See Harrison, 290 Or App at 769-70 (noting
that we were discussing the meaning of “the verb ‘contact’ ”);
id. at 767 (setting out the prohibition at issue in that case).
As we recognized in Harrison, “contact,” used as a transitive
verb, has a limited set of meanings; one person ordinarily
“contacts” another by communicating with them in some
way.
290 Or App at 769; Webster’s at 490.8 When used as a
noun, contact has a wider range of meanings. See Boyd,
170
Or App at 516; Webster’s at 490.9 Used as a noun, “contact”
means, among other things, “a condition or an instance of
meeting [or] connecting.” Webster’s at 490. Defendant errs in
taking the definition of one part of speech in Harrison and
transposing it onto a different part of speech in this case.
Defendant’s reliance on Harrison is misplaced for
another reason. She relies on a statement from Harrison
to resolve an issue that that case neither presented nor
decided. As noted above, the parties in Harrison agreed, as
8
The dictionary defines contact, used as a transitive verb, as “to bring into
contact : enter or be in contact with[.]” It then lists three subsenses of that word:
“a: to press against …”; “b: to make connection with : get in communication
with …”; and “c: to talk or confer with.” Webster’s at 490. Even that definition,
however, is broader than the definition defendant proposes; it would include
“press[ing] against” another as well as “talk[ing] or confer[ring] with” them.
9
The dictionary lists five different senses of contact, used as a noun, several
of which have multiple subsenses. See Webster’s at 17a (explaining how Webster’s
indicates that a word has more than one sense or subsense). As noted above, the
most relevant sense of contact, used as a noun, is “a condition or instance of meeting, connecting, or communicating.” Webster’s at 490.
Cite as 320 Or App 250 (2022) 259
did we, that “the plain meaning of the verb ‘contact’ is communication between people.”
290 Or App at 769. We did not,
however, purport to decide whether that was the only meaning of “contact,” even when used as a transitive verb. Rather,
the question that we decided in Harrison was whether the
defendant “contacted” the petitioner in that case when she
told another person information that she either intended or
understood that the person would communicate to the petitioner.
Id. at 772. Defendant errs in reading Harrison more
broadly.
We accordingly agree with the trial court that
defendant’s actions violated the condition of her probation
that she “have no contact” with the victim’s mother. Having
reached that conclusion, we note that, when the term “contact” is undefined, the question whether a person violated
a no-contact prohibition by being in the protected person’s presence can present close questions at the margin.
Knowledge, proximity, and the duration of the contact can
all bear on the issue. This, however, is not a close case. The
trial court reasonably determined that defendant’s knowing
decision to remain in the victim’s mother’s immediate presence while she and her boyfriend played directly in front
of the mother for 15 to 20 minutes fell within the center of
the prohibition. We also note that the only issue that defendant has raised on appeal is what the no-contact prohibition
means. Defendant has not argued that the prohibition, left
undefined, is unconstitutionally vague, either facially or as
applied.
Affirmed.
