State v. Jones

No. 658              September 18, 2024                       79

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  TROY ALLEN JONES,
                   Defendant-Appellant.
                Harney County Circuit Court
                   22CN05587; A180625

   Robert S. Raschio, Judge.
   Submitted June 17, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Carla E. Edmondson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kyleigh Gray, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
   AOYAGI, P. J.
   Reversed.
80                                                              State v. Jones

           AOYAGI, P. J.
         Defendant appeals a judgment finding him in
contempt of court for willfully violating a Family Abuse
Prevention Act (FAPA) restraining order by having contact
with the protected person. See ORS 33.015(2)(b) (defining
“contempt of court” to mean various acts “done willfully,”
including “[d]isobedience of, resistance to or obstruction of the
court’s authority, process, orders or judgments”). Defendant
contends that the trial court applied an incorrect legal standard and, as a result, found him to have “willfully” violated
the restraining order while also finding that he believed at
the time that the order had been dismissed. The state challenges defendant’s interpretation of the trial court’s findings
and argues that the court did not err. As described below, we
agree with defendant that the trial court applied an incorrect
legal standard and that, given the court’s findings, it should
not have found him in contempt. Accordingly, we reverse.
                                     FACTS
        On November 16, 2021, defendant’s niece, E,
obtained a FAPA restraining order against him. Defendant
was personally served with the restraining order at that
time. The order states that its provisions “are in effect for
a period of one (1) year from the date of the judge’s signature (unless renewed before it expires) or until the order is
dismissed, modified, or replaced, whichever occurs first.”
(Emphasis in original.)
         In May 2022, defendant was charged with violating
the restraining order and placed on a release agreement.
While in court on that matter, the court told him “to follow
the restraining order.”1
          On November 7, 2022, a police officer stopped E for a
traffic violation and learned from a records check that E had
a restraining order against defendant, who was a passenger
     1
       Defendant testified at trial that, in May 2022, he was “charged” with violating the restraining order, that he “believes” he was placed on a release agreement,
and that the court told him when he was in court on that matter “to follow the
restraining order.” The sheriff’s deputy who served the restraining order on defendant also testified to having twice “arrested” defendant “related to [the] restraining order,” although he did not provide dates or any other detail. That is the totality of the trial evidence regarding prior violations of the restraining order.
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in the vehicle. E was giving defendant a ride to the bank.
The officer asked defendant whether he knew about the
restraining order. Defendant told the officer that he thought
it had been “rescinded or cancelled.” E also told the officer
that she thought it had been “rescinded.”
         Defendant was arrested and charged with contempt of court.2 At trial, the state called two witnesses—
the sheriff’s deputy who had served the restraining order
on defendant in November 2021, and the police officer who
conducted the traffic stop in November 2022. The only other
trial witness was defendant, who testified on his own behalf.
Defendant did not contest that he had violated the restraining order by being in E’s car on November 7, 2022, but he
maintained that the violation was not “willful.” He testified
that he did not think at the time that the restraining order
was still in effect, that he “thought it was over,” that the
restraining order that his mother had obtained against him
had been rescinded, that he did not believe that E still had a
valid restraining order, and that he did not willfully violate
the restraining order. Defendant acknowledged that he had
not called the court or his lawyer to check the status and
that, in retrospect, he “should have called the court.” But, he
reiterated, E told him that it was dismissed.
         The court found defendant in contempt. The court
reasoned that, because defendant had not called the court
to verify dismissal of the restraining order, the state had
proved a “willful” violation under the “head in the sand” theory of willfulness articulated in State v. Guzman-Vera, 

, 

, rev den, 

 (2020):
      “If you’d called the Court and some clerk had told you,
   ‘Hey, that was dismissed,’ you would have a good faith basis
   to believe that it was dismissed, but you didn’t do that
   extra work that was necessary to determine for sure that
   the restraining order had been dismissed.
      “You are—were at that time in contempt of the Court’s
   order because as it is also pointed out in Guzman-Vera,
   you cannot rule out willfulness under a head-in-the-sand
   theory; she thought it was dismissed, I thought it was dismissed, so it was dismissed. That’s just not how it works.
   2
       In the meantime, the restraining order expired on November 16, 2022.
82                                                 State v. Jones

        “This Court is the one who issues the order. You had an
     obligation to this Court to make sure whether the order
     was dismissed or not.
        “So I am going to find you in willful contempt of the
     Court’s order with regards to that restraining order, that
     contact.”
         In explaining its verdict, the court did not expressly
credit or discredit defendant’s testimony that he believed the
restraining order had been dismissed because E told him so.
However, two days later at sentencing, the court indicated
that it had credited that testimony. The court acknowledged
during sentencing what defense counsel described as “uncontroverted evidence that both parties told the police officer
at the scene that they thought the restraining order was no
longer in effect.” More importantly, in sentencing defendant
to five days in jail instead of the 10 days recommended by
the state, the court gave as one of its reasons for the lighter
sentence that “[defendant] indicated that both of [them] had
thought it was dismissed.” If the court had discredited that
testimony, it would not make sense to cite it as a reason for a
lighter sentence, so that statement clarifies the factual findings on which the trial court based its verdict. Cf. State v.
Nicholson, 

, 

 (2016) (citing a
statement made by the trial court during sentencing as corroborating our understanding of its findings at verdict with
respect to whether the defendant believed that the restraining order had been dismissed at the time that she violated it).
         Thus, we understand that, in finding defendant in
contempt, the trial court credited defendant’s testimony that
when he rode in E’s vehicle on November 7, 2022, he believed
that the restraining order had been dismissed because E
had told him so, but nonetheless found defendant to have
“willfully” violated the restraining order because defendant
did not call the court to verify that information.
       Defendant appeals the judgment finding him in
contempt.
                           ANALYSIS
        To prove punitive contempt, “the state must establish the existence of a valid court order, the defendant’s
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knowledge of that order, and the defendant’s willful noncompliance with that order.” State v. Harrison, 

, 

 (2018) (internal quotation marks omitted).
Here, it is undisputed that the state proved the existence of
a valid court order and defendant’s knowledge of that order.
Only the willfulness element is at issue.
          ORS 33.015(2)(b) lists the various ways that one
may commit contempt of court, all of which must be “done
willfully” to constitute contempt. The term “willfully” is
not defined by statute. Nicholson, 

 (“There
is no statutory definition of ‘willfully’ for purposes of ORS
33.015(2).”). Moreover, “ ‘[w]illful’ and ‘willfully’ are notoriously elusive terms, with their content varying qualitatively
and dramatically in different contexts.” 

. However,
as to the meaning of “willfully” in ORS 33.015(2) in particular, the legislative history is clear as to the intended meaning of an otherwise “innately ambiguous term.” 

.
As used in ORS 33.015(2), “willfully” means “intentionally
and with knowledge that the act or omission was forbidden
conduct.”3 

 (brackets omitted).
        Because willfulness is an element of the offense, it
was the state’s burden to prove that defendant willfully violated the restraining order. Harrison, 

.
The state could do so through direct evidence, such as an
admission by defendant that he knew he was violating the
    3
       As described in Nicholson, 

, the definition of “contempt”
codified as ORS 33.015(2) was enacted as part of Senate Bill (SB) 376 (1991). Prior
to the 1991 enactment, Oregon’s contempt statute did not contain an express
mental-state requirement, although “judicial decisions had incorporated and
applied a willfulness requirement,” which evolved through cases such as State
ex rel. Grover v. Grover, 

, 

 (1938), and Couey and Couey,

, 

 (1991). Nicholson, 

. The Court of
Appeals’ decision in Couey was on the legislature’s mind when it enacted SB 376
(1991), prompting legislative discussion of the mental-state requirement. 

. That decision was subsequently overturned by the Supreme Court. 

. In Nicholson, we recognized that, for years, we had followed the Supreme
Court’s formulation of “willfully” in Couey, despite the court having “made it clear
that it was addressing the application of only the former, repealed statute, and not
the newly enacted ORS 33.015(2)(b).” 

. We undertook a proper statutory
construction of ORS 33.015(2)(b) in Nicholson, which led us to conclude that the
legislature intended “willfully” in that statute to mean “intentionally and with
knowledge that the act or omission was forbidden conduct.” 

 (brackets
omitted). Thus, although the definition of “contempt” in ORS 33.015(2) has been in
place since 1991, we look to case law post-dating our 2016 decision in Nicholson as
the most relevant regarding what “willfully” means in ORS 33.015(2).
84                                             State v. Jones

restraining order, or as is more common, through circumstantial evidence. Elizabeth Lofts Condo Owners’ v. Victaulic
Co., 

, 

 (2018). “A defendant’s
subjective intent may be inferred from the evidence and circumstances surrounding the defendant’s actions, and such
an inference is reasonable if there is a logical connection
between the surrounding activity and the defendant’s purported state of mind.” 

 (internal quotation marks and
alterations omitted). Thus, in nearly all cases, whether willfulness has been proved will come down to the trial court’s
credibility determinations, view of the evidence as a whole,
and resulting finding as to the defendant’s subjective intent
at the time of the violation.
         Consistent with that reality, defendant does not
challenge the sufficiency of the evidence to prove willfulness in this case. He implicitly acknowledges that, on this
record, the trial court could have discredited his testimony
and relied on circumstantial evidence to find that he acted
willfully. But he argues that the trial court in fact credited
his testimony regarding a subjective honest belief that the
restraining order had been dismissed—which the record
also allowed the court to do—and then nonetheless found
him in contempt because the court applied an incorrect legal
standard for willfulness. Specifically, defendant challenges
the “verification” requirement imposed by the court, which
he argues conflicts with our decisions in Nicholson and State
v. Simmons, 

, 

 (2021).
         In response, the state’s primary argument is that
“the trial court expressly found that defendant did not have
a good faith belief that the order had been rescinded” and
that the evidence was legally sufficient to support that finding. That argument is unavailing for two related reasons.
First, it is evident from the court’s speaking verdict that
the court’s finding that defendant acted “willfully” and not
in “good faith” was based on its understanding of the legal
standard—specifically that a person “willfully” violates a
restraining order if they have an honest belief that it has
been dismissed, based on information received from a third
party, but fail to call the court to verify the dismissal—
rather than being based on a finding that defendant did not
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honestly believe that E’s restraining order had been dismissed. Second, as already explained, defendant is not challenging the sufficiency of the evidence. He is not arguing
that the trial court had to credit his testimony but instead
that, having credited it, it was legal error to nonetheless
find a willful violation of the restraining order. Those are
fundamentally different arguments. See State v. Langford,

, 

 (2013) (recognizing the difference between those two types of arguments).
         Because defendant’s argument is in the nature of a
challenge to the trial court’s instructions to itself in a bench
trial, the state’s primary argument in response—which
turns on the sufficiency of the evidence—is misplaced. The
question properly before us is not what findings the trial
court could have made but whether the trial court misunderstood and thus misapplied the law to the findings that it did
make. See State v. Butterfield, 

, 

 (2024) (addressing an argument “that the trial court
incorrectly instructed itself on the elements of self-defense”
in a bench trial and explaining that in such circumstances,
“as we would for a challenge to jury instructions, we review
for legal error”).
         On that issue, the state argues (in the alternative
to its primary argument) that, even if the trial court found
that defendant subjectively believed that the restraining
order had been dismissed—as we have concluded that it
did—such a finding “does not preclude a finding that his
belief was not in good faith.” The state compares this case
to Guzman-Vera, which the trial court cited in its speaking
verdict, arguing that relying on a representation by the protected person without calling the court to verify its accuracy
is “akin to the head-in-the-sand approach the defendant
took in Guzman-Vera.”
         We are unpersuaded that this case is akin to
Guzman-Vera. Rather, we agree with defendant that it is
controlled by Nicholson and Simmons.
        In Nicholson, the defendant’s husband, T, obtained
a restraining order against her. 

. While
that order was in place, T communicated to the defendant
86                                                  State v. Jones

through a third party that he wanted to attempt a reconciliation and proposed a family trip with their young son
over Father’s Day weekend. 

 The defendant agreed, but
only if the restraining order was “ ‘dropped.’ ” 

 A few days
before Father’s Day, T emailed the defendant “that he was
‘at the courthouse’ with a coworker and ‘in the process of’
dismissing the FAPA order.” 

 T then presented the defendant with a new wedding ring. 

 The defendant went on
the Father’s Day trip with T and their son, believing that
the FAPA order had been dismissed. 

. In fact, it had
not been dismissed. 

 During the trip, the defendant and
T were stopped for a traffic violation, which led to the defendant’s arrest for violating the restraining order. 

 The following week, T moved to dismiss the restraining order, and
it was dismissed. 

 at 53 & n 3.
         The trial court in Nicholson found that the defendant believed when she went on the Father’s Day trip that
the restraining order had been dismissed, based on what T
told her, but it nonetheless found the defendant in contempt
for “willfully” violating the restraining order, because she
did not call the court to verify the dismissal. 

. The
court reasoned that “the order was issued by the Court, and
only until the Court, the Judge, signs that order dismissing
it is the restraining order actually dismissed. And you did
not take the steps to protect yourself in that instance[.] …
You did not verify that the Court had signed a dismissal,
and so I do find you in contempt.” 

 We reversed on appeal,
concluding that the trial court could not find defendant in
contempt given its finding as to her subjective belief:
     “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.
     Such a defendant cannot be deemed to have acted ‘willfully’
     for purposes of ORS 33.015(2)(b). Consequently, the trial
     court’s finding here as to defendant’s contemporaneous,
     good faith belief contradicted an adjudication of contempt.”

 (internal citation and some internal quotation
marks omitted).
       Similarly, in Simmons, the defendant was charged
with domestic violence crimes against his girlfriend, L, and
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entered into a release agreement with a “no contact” provision. 

. Three months later, a police officer
responded to a report of a man and woman fighting in a
parking lot, who turned out to be the defendant and L. 

The officer learned of the no-contact provision from dispatch
and asked the defendant about it. 

. The defendant
stated “ ‘that [L] had told him that she had gone down to
the courthouse and had the no-contact release dropped.’ ” 

(brackets in original). When asked, the defendant acknowledged that he had not “contacted his attorney or the court to
verify that information” but, instead, “took L’s word for it.”

 The defendant was arrested and charged with violating
the no-contact provision. 

          At trial, L testified that she had told the defendant
that she had “gone down to Center for Hope and Safety,” “was
clearing up the no-contact order and stuff,” and “had taken
care of it and everything,” and so “he was under the impression that that’s what had happened.” 

. The prosecutor argued in closing that it did not matter whether L told
the defendant that the no-contact order had been dropped,
because the defendant “should’ve taken additional steps” to
verify that information. 

 (emphasis omitted). The
trial court agreed, concluding that it was irrelevant to willfulness whether L told the defendant that the no-contact
order was no longer in effect, because the defendant needed to
“check with [his] lawyer” before relying on such a statement.

. On appeal, we reversed and remanded. 

.
We reversed because the trial court had misunderstood the
legal standard for willfulness, and we remanded for a new
hearing because the trial court had not made the necessary
finding as to whether the defendant actually believed when
he had contact with L in the parking lot that the no-contact
order was no longer in effect. 

.
         This case is controlled by Nicholson and Simmons.
Like the trial courts in those cases, the trial court here erroneously believed that, even if defendant subjectively believed
that the restraining order had been dismissed, he “willfully”
violated the order because he did not call the court to verify
the dismissal. That view of the law is incompatible with our
holdings in Nicholson and Simmons.
88                                                              State v. Jones

         Because the trial court credited defendant’s testimony regarding his subjective belief, this case is exactly like
Nicholson,4 and it is unlike cases in which we have affirmed
contempt findings because the trial court expressly discredited the defendant’s claimed subjective belief. For example,
in State v. Mohammed, 

, 

(2019), rev den, 

 (2020), the trial court found,
based on its credibility assessment of the witnesses, that the
protected person “had never told defendant that the FAPA
order had been dismissed.” In State v. Arnold, 

, 

 (2020), the trial court found that the
defendant knew that a restraining order applied to her,
despite it identifying her by her husband’s last name that
she had not legally taken. And in State v. Reed, the trial
court discredited the defendant’s claim that he believed the
restraining order had been dismissed, where the protected
person (his ex-girlfriend) had told him several months earlier that she had “dropped” it, but the circumstances led
the court to conclude that the defendant did not honestly
believe that. 

, 

 (2023)
(“[C]ontrary to defendant’s argument, the court’s statement
that he ‘knew’ that he ‘ha[d] to confirm’ the dismissal of the
protective order was in the context of explaining why the
court did not believe that defendant had a good-faith belief
given his prior experience with the FAPA restraining order
process, rather than the imposition of an additional requirement inconsistent with defendant’s professed good faith, as
in Nicholson.” (Brackets omitted.)).
         This case is also unlike Guzman-Vera, the case on
which the trial court relied in its speaking verdict and on
which the state relies on appeal. In that case, the defendant was served with a FAPA restraining order when he
was released from jail. 

. “Among other
things, the order prohibited him from being within 100
    4
       The only difference between this case and Nicholson is that the Nicholson
defendant testified in greater detail regarding what the protected person told
her and why she believed him. That type of detail may increase a defendant’s
credibility and make it more likely that the trial court will believe them, but it is
not required. In this case, both defendant and E told the officer during the traffic
stop that they thought the restraining order had been dismissed, and defendant
testified at trial that he believed it had been dismissed because E told him so and
because his mother’s restraining order had been dismissed. No more evidence
was required. This case is thus exactly like Nicholson.
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yards of several specific locations, the addresses of which
were listed on the third page of the eight-page-long order.”

 A police officer and an interpreter reviewed the first page
of the order with the defendant, who was a native Spanish
speaker, but no other pages. 

 Thinking that the protected
person, C, would likely be at their apartment, the defendant went to C’s sister-in-law’s home instead. 

 He “did
not stop to read the FAPA order in full because it was late
at night, because he was walking, and because he does not
‘read English very well.’ ” 

. Consequently, “he
did not see that the home he was headed for was one of the
places that the FAPA order said he could not be.” 

.
C was there when he arrived, and C’s sister-in-law called
the police. 

 The responding officer found the defendant,
who had the restraining order on him, “walking away from
the residence but still within 100 yards of it.” 

         The defendant was found in contempt for violating the restraining order. 

 Both the trial court and we
rejected the defendant’s argument that he could not be found
to have “willfully” violated the restraining order because he
had not read the portion of the order that listed prohibited
addresses. 

 We reasoned:
       “Proof that a person knew of the requirements of a court
   order, but chose not to comply with those requirements, is
   not the only way to prove that a person willfully disobeyed
   a court order—historically, anyway. Another judicially
   recognized path to proving the willful violation of a court
   order is to show that a defendant opted to take a head-in-the-sand approach to the order. Dept. of Rev. v. Carpet
   Warehouse, 

, 

 (1984). That
   is, willfulness can be shown through proof that the defendant knew about the order but chose to ignore it, and then
   failed to comply with the order’s requirements in that state
   of elective ignorance: ‘A party cannot ignore a court order
   and then claim that the act of ignoring it is not wilful.’
   Carpet Warehouse, 

; see Pamplin v. Victoria,
   

, 

 (1996) (concluding
   that an attorney who ignored discovery requests and a
   related court order acted willfully in not complying).”
Id. at 166-67.
90                                              State v. Jones

         The trial court’s approach in Guzman-Vera was consistent with Carpet Warehouse and Pamplin, so we concluded
that it was not error for the trial court to find “that defendant’s violation was willful because defendant had the order
and knew that it was a restraining order but chose not to
learn its contents.” Id. at 167. We distinguished Nicholson,
explaining that we were “not called upon to address” in
Nicholson “whether a person who knows about a court order,
chooses to ignore it, and then intentionally engages in conduct that violates it, acts willfully for purpose of the contempt statutes” and that we “do not read Nicholson to rule
out proof of willfulness under a head-in-the-sand theory in
a case that presents that issue.” Id. at 168.
         We disagree with the state—and the trial court—
that Guzman-Vera applies here. The historically accepted
“head-in-the-sand” theory of willfulness addressed in
Guzman-Vera applies when a person “chooses to ignore”
a restraining order, such as by choosing not to read it.
Guzman-Vera, 

. It does not apply when
someone honestly believes that the restraining is no longer
in effect; indeed, if Guzman-Vera applied that broadly, it
would have necessarily overruled Nicholson and Simmons,
which it decidedly did not do. See 

 (distinguishing Nicholson).
         In sum, the trial court applied an incorrect legal
standard when it found defendant in contempt, necessitating reversal. Had the trial court made no finding regarding
defendant’s subjective belief as to the status of the restraining order on November 7, 2022, we would remand for a new
hearing under the correct legal standard. However, because
the court credited defendant’s testimony in that regard, a
remand is not necessary or appropriate. Compare Nicholson,

 (reversing without remand where the trial
court had already made a finding on the defendant’s subjective belief), with Simmons, 

 (reversing and
remanding for a new contempt hearing where the trial court
made no finding as to the defendant’s subjective belief and
the evidence allowed a determination either way). We therefore reverse the judgment finding defendant in contempt.
        Reversed.