State v. Kyei

No. 45               January 23, 2025                    473

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
            KOFI ADOMAKO OHENE KYEI,
                     aka Kofi Kyei,
                 Defendant-Appellant.
            Clackamas County Circuit Court
                 20CN01147; A177752

   Thomas J. Rastetter, Judge.
   Argued December 11, 2023.
   Francis C. Gieringer, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, Pagán, Judge, and
Mooney, Senior Judge.
   MOONEY, S. J.
   Vacated and remanded.
   Pagán, J., concurring in part, dissenting in part.
474   State v. Kyei
Cite as 

 (2025)                              475

        MOONEY, S. J.
         Defendant appeals a judgment of punitive contempt,
ORS 33.015, for failure to pay child support. He raises five
assignments of error through counsel and twelve supplemental assignments representing himself. In the first three
assignments, defendant asserts that the trial court erred
when it found him in contempt on each of the three counts
of failure to pay child support. In support of those assignments, defendant argues that the evidence was insufficient
to support the findings of contempt because he had established his inability to pay the underlying support obligation.
We conclude, however, that the evidence was sufficient to
support the trial court’s findings of contempt.
         We reject defendant’s first and second supplemental
assignments asserting pleading irregularities without discussion. The third, fourth, and fifth supplemental assignments are repetitive of the first three assignments of error,
essentially challenging on a sufficiency of the evidence basis
the trial court’s contempt findings and conclusions as to
each of the counts alleged in the charging instrument. We
reject those three supplemental assignments for the same
reasons that we reject the first three assignments on the
merits. We reject defendant’s sixth and seventh supplemental assignments of error as unpreserved and moot, respectively. We reject the remainder of defendant’s supplemental
assignments without discussion.
         Defendant asserts in his fourth assignment of error
that the trial court erred when it held a hearing on two pre-trial motions while defendant was not represented by legal
counsel. Defendant’s fifth assignment challenges the trial
court’s ruling that he had waived his right to counsel. We
conclude that defendant did not waive his right to counsel
and that it was, therefore, error for the trial court to conduct
a hearing on defendant’s motions to change venue and to disqualify the prosecutor while defendant was unrepresented.
And because we cannot conclude that conducting the motions
hearing while defendant was unrepresented by counsel was
harmless, we vacate and remand to the trial court to conduct a new hearing on those motions, with defendant’s legal
counsel present. If the trial court thereafter grants one
476                                                          State v. Kyei

or both of the motions, a new trial would be required. If it
denies both motions, a new trial would not be required, and
the judgment of contempt would stand.
                            I. THE FACTS
         Defendant’s daughter was born in 2003. Sole legal
custody was awarded to the child’s mother and defendant was
ordered to pay child support. Defendant rarely complied with
his support obligation. There was an agreement by mother
at one point to set aside defendant’s arrearages in an effort
to assist him in obtaining a work permit and employment.
Ultimately, in 2017, an administrative order requiring defendant to pay monthly child support in the amount of $995 was
entered. A judgment enforcing that administrative support
order was later entered in Clackamas County Circuit Court,
and we affirmed on appeal. DA Family Support v. Kyei, 

, 

 (2021), rev den, 

,

, cert den, ___ US ___, 

 (2022).
         The case now on appeal is a separate enforcement
action filed by the State of Oregon seeking punitive sanctions against defendant for his failure to comply with the
court’s support order during three distinct periods of time.
On November 4, 2020, although still represented by a lawyer, defendant filed two motions pro se: a motion to change
venue and a motion to disqualify the prosecuting district
attorney. His lawyer filed a motion to withdraw at the same
time. On December 9, 2020, the trial court granted counsel’s
motion to withdraw, but it reset the hearing on the other
motions to December 29, 2020, because defendant had not
been able to establish a technical connection to appear by
remote transmission in court on December 9.
        Defendant appeared for the December 29 hearing
without counsel and told the court that he had applied for
court-appointed counsel but that there had been issues concerning whether the application was received by the court.
The trial court addressed defendant and said, “I’m concerned,
[defendant], because your attorney was allowed to withdraw
back at the beginning of November1, and here we are at the

    1
      Defendant’s counsel filed a motion to withdraw in early November and was
allowed to withdraw on December 9.
Cite as 

 (2025)                             477

end of December, and you still don’t have a lawyer.” After
concluding that the application for court-appointed counsel
was untimely and incomplete, the court directed defendant
to present his motion to change venue and supporting legal
arguments on his own behalf. Defendant responded that he
“would like to talk to my attorney and have my attorney present—properly present a legal argument, because I am not a
lawyer, and I’m taking [on] the district attorney.” The court
summarily denied the motion to change venue. Turning to
the motion to disqualify the district attorney, the court once
again directed defendant to present his motion and legal
arguments. Defendant responded that he had not received
the district attorney’s response, and that he “would like to
have the opportunity to respond … appropriately.” The court
concluded that defendant had received service of the response
and then summarily denied the motion to disqualify.
         Defendant was assigned court-appointed counsel
on December 30, 2020. The trial occurred over the course
of two days in October and November 2021. The state presented evidence of the court order and defendant’s failure
to comply with that order. Defendant did not contest (1) the
existence of the child support order, (2) the fact that he was
at all material times aware of that order, or (3) the fact that
he had not paid child support in compliance with that order.
Defendant instead testified, and argued, that he was unable
to comply with the order because his income was insufficient to pay the ordered amount. He testified that he did not
seek modification of the order because he did not have access
to certain financial information that the district attorney’s
office reportedly required of him, and that his prior attempts
to modify had been lost by the District Attorney.
         Defendant described his financial situation in nonspecific terms—that he struggled to “pay [to live]” and that
he received some financial support from family and friends,
but he declined to list specific expenses he was struggling to
pay or how much support he was receiving. Defendant also
gave some nonspecific testimony about a trust that had been
created for his other children.
         At the conclusion of the two-day contempt trial, the
court stated its findings on the record:
478                                                     State v. Kyei

          “[Defendant] has been recalcitrant at every step to the
     court orders, to any efforts made by Support Enforcement,
     and hasn’t returned financial documents, hasn’t filed a modification. He’s never voluntarily paid a dime even when he had
     income, was able to make direct payments to his daughter.
     He hasn’t cooperated at all with Support Enforcement. And
     I, frankly, found his testimony to be evasive and not credible.
     So I will find the State has proven Counts 1, 2, and 3.”
                  II. PUNITIVE CONTEMPT
          The state bears the burden to prove its punitive contempt charges by proof beyond a reasonable doubt that (1) a
valid court order exists, (2) defendant knew of the order, and
(3) defendant willfully failed to comply with the order. State
v. Zamora-Skaar, 

, 

 (2020);
ORS 33.065(9) (“In any proceeding for imposition of a punitive sanction, proof of contempt shall be beyond a reasonable
doubt.”). Defendant does not dispute the existence of a valid
child support order, that he knew of the order, or that he
failed to comply with the order. He relies instead on the affirmative defense of inability-to-pay and argues that he met his
burden to prove that defense. ORS 33.065(7) (“Inability to
comply with a court order is an affirmative defense.”); ORS
161.055(2) (burden of proof on affirmative defenses in criminal matters is by a preponderance of the evidence.); State
ex rel Mikkelsen v. Hill, 

, 

 (1993)
(applying the preponderance burden to the defendant on his
inability-to-pay defense in a punitive contempt case).
A.    Standard of Review
          We review the trial court’s punitive contempt verdict for legal error, reviewing the evidence in the light most
favorable to the trial court’s verdict. 

 Defendant would
have been entitled to acquittal based upon his affirmative
defense only if “no facts” were presented in evidence upon
which “reasonable [persons] could differ” as to whether he
had proved his inability-to-pay defense. State v. Meiser, 

, 

 (2021), rev’d in part on other
grounds, 

, 

 (2022) (explaining that
motion for judgment of acquittal on an affirmative defense
may only be granted when no facts are presented upon
which reasonable persons could differ).
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 (2025)                                      479

B.    Analysis
         The relationship between the element of willful failure to comply in a punitive contempt charge and an inability-to-comply affirmative defense is that
         “ ‘willful disobedience’ of a court order to pay child support is established by showing that a party, aware of a court
     order, neither has complied with nor sought a modification
     of the court’s order. … [I]n a criminal contempt proceeding brought for failure to pay child support, inability to
     comply with the support order is an affirmative defense;
     proving the ability to pay is not an element of the offense.
     Present law codifies that rule. ORS 33.055(10); 33.065(7)
     (‘Inability to comply with an order of the court is an affirmative defense.’).”
Hill, 

. “[N]oncompliance with a court order is
willful when it is voluntary, that is, a choice by the party not
to comply.” Chang v. Chun, 

, 

(2020). “A separate showing of ‘bad intent’ is not required.”
Zamora-Skaar, 

.
         The trial court found that defendant never voluntarily paid his court ordered child support obligation and
that he did not request a modification of that obligation
when, according to defendant, his financial circumstances
changed. We conclude that a rational factfinder could find
on this record that defendant willfully failed to pay his child
support obligation and that he did not meet his burden to
prove that he was unable to pay that support obligation or
otherwise comply with the court order.
                   III.   RIGHT TO COUNSEL
A.    Standard of Review
         We review for legal error when we assess whether
the trial court has violated defendant’s right to counsel.
State v Cable, 

, 

 (2024) (citing State v. Abbott, 

, 

 (2022)).
B.    Analysis
        ORS 33.065(6) provides that, in a punitive contempt
proceeding,
480                                                           State v. Kyei

   “[e]xcept for the right to a jury trial, the defendant is entitled to the constitutional and statutory protections, including the right to appointed counsel, that a defendant would
   be entitled to in a criminal proceeding in which the fine
   or term of imprisonment that could be imposed is equivalent to the punitive sanctions sought in the contempt
   proceeding.”
(Emphasis added.) The state does not dispute that defendant was entitled to counsel in this matter. Given that the
state sought confinement for up to six months on each count
as well as probation and community service, we agree. The
state acknowledges that defendant did not expressly or
impliedly waive his right to counsel. We agree. Instead, the
state suggests that any error was harmless. We conclude
that hearing defendant’s motions without defense counsel
and without a waiver of defendant’s right to counsel constituted error that we cannot conclude was harmless.2
          Although defendant was later appointed counsel and
was represented at the contempt trial, the court required
him to present two pretrial motions without counsel. Those
motions—(1) seeking a change of venue and (2) requesting
the disqualification of the prosecuting attorney—concerned
disputed facts and legal concepts best presented through
legal counsel. We assess whether requiring defendant to
present those motions pro se in the absence of a valid waiver
of his right to counsel was harmless by asking “whether the
development and disposition of defendant’s pretrial motions
could have been affected if defendant had been represented
by counsel.” State v Richardson, 

,

, rev den, 

 (1999).
          We are not able to determine, on this record,
whether those motions would have been handled differently by legal counsel, or whether the record would
have developed differently in any material way and, if
so, whether the trial court would have ruled differently
had defendant been represented by counsel at the hearing on those motions. The place where a case is tried and
the identity of the person who prosecutes the case for the
state potentially implicate a broad range of issues that
    2
      Given our disposition, we do not reach defendant’s argument under the federal constitution.
Cite as 

 (2025)                                  481

might impact the fundamental fairness of the entire
trial. Because of that, we are unable to say that there
is “little likelihood that [the court’s error] affected the
outcome in this case[.]” State v. Cole, 

, 

 (1996). See also Richardson, 

(explaining that because of the breadth of the issues
implicated by the defendant’s motions, we could not say
that the error in proceeding without defense counsel was
harmless).
          We also reject the state’s argument that the trial
court’s rulings on the motions were merely provisional and,
therefore, harmless. Although a trial court has broad authority to issue nonfinal rulings on motions and may then reconsider the motions at later points in the litigation, State v.
Oatney, 

, 

 (2022), the court here
did not say or write anything suggesting that its rulings were
provisional. The order entered in the court’s records states,
“Motion to Change Place of Venue and Disqualification of
Counsel denied.” (Underscoring in original.) The court ruled
on both motions at the hearing as follows:
       “THE COURT: …. If you choose to re-file [ ] a motion
   [to change venue] at a later time when and if you ever get
   a lawyer, you are certainly free to do that, but I am not
   going to wait for you to do—to get a lawyer when it is your
   responsibility to do so or to make an application for a court-appointed lawyer if you qualify.
      “…
       “Consequently, I am going to deny your disqualification
   of counsel as to the District Attorney’s Office, but should
   you get counsel at some point in the future and choose to
   re-file that with your counsel, I may reconsider, but right
   now, no.”
That language reflects that the court ruled on the pending
motions. Any further consideration would require the filing
of another motion.
C. Remedy
       Finally, we turn to the proper remedy. The state
argues that we should order a limited remand like the
Supreme Court did in Cole in which the court stated:
482                                                 State v. Kyei

       “We remand the case to the circuit court with instructions to grant defendant a new hearing on his motion to
   suppress evidence. If that motion is denied after the hearing, the circuit court shall again enter the judgment of
   conviction previously entered. If the motion is allowed, the
   circuit court shall grant the defendant a new trial.”

. Defendant argues that the Supreme Court
implicitly overruled Cole in State v. Hightower, 

,

 (2021), when it stated that “a defendant is entitled to a new trial” when “the trial court record could have
developed in a materially different way if the error had
not occurred.” Hightower, 

. Arguing that the
record would have developed differently here had the trial
court appointed counsel to represent defendant before the
pretrial motions were heard, defendant urges us to reverse
and remand to the trial court for a new contempt trial. But
we do not read Cole and Hightower as incompatible, and we
do not agree that a new trial is necessarily required here.
As Senior Judge Kistler cautioned in his concurring opinion
in State v. Black:
      “It is difficult to see, however, what interest [requiring
   a new trial whenever the record might develop differently]
   would serve when the trial court can correctly reach the
   same ruling on remand under the appropriate legal standard. The mere fact that the record at the hearing on
   remand differs under the correct legal standard does not
   appear to justify putting the parties and the court system to
   the expense of a new trial. … I would interpret Hightower
   as holding that a new trial is required when a stand-alone
   hearing on remand will not fairly serve to adjudicate the
   issue that the trial court initially decided incorrectly.”

, 

, adh’d to as modified
on recons, 

, 

 (2022) (Kistler, S. J.,
concurring). Hightower provides guidance for determining
whether a new trial is required after we have found error,
reversed, and remanded the matter to the trial court.
      “After this court identifies a legal error that was not
   harmless and remands the case to the trial court, that
   court generally has the flexibility to determine how to proceed on remand, so long as that decision is made within the
   boundaries set by the appellate court’s instructions.”
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 (2025)                                483

Hightower, 

. On remand, a trial court must
“focus not only on the explicit and implicit instructions provided in the appellate court’s opinion, but also on the entirety
of the record as it relates to the identified error.” 

.
       “The trial court needs to evaluate the error, along with
   the explicit and implicit instructions from the appellate
   court, and consider the impact of the error on the record.
   If the trial court determines that the record could have
   developed in a materially different way if the error had not
   occurred, then a defendant is entitled to a new trial.”

.
         In deciding the scope of remand, we look to our
recent cases that apply the Hightower principles concerning remedy when there has been a violation of a defendant’s
right to counsel: State v. Omar, 

, 

(2022); State v. Joyce, 

, 

 (2024);
State v. Bales, 

, 

 (2022); and State
v. Black.
         In both Omar and Joyce, the error occurred on the
day or eve of trial and could not be fixed without a new
trial. The defendant in Omar made an oral motion for substitute counsel on the morning of his trial, which the trial
court denied in error. Omar, 

. On remand
from the Supreme Court, we reconsidered our disposition
“through the lens of Hightower.” 

. We remanded
with instructions for a new trial, having concluded that the
record could have developed differently and that there was
no way to “recreate [in retrospect] the opportunity for a realtime interchange with the defendant that could [lead] the
trial court to exercise its discretion differently.” 

 at 406-
07 (quoting Black, 

 (Kistler, S. J., concurring) (brackets in Omar)).
          In Joyce, the trial court erred more than once when
it failed to conduct the necessary inquiry in response to the
defendant’s request to proceed pro se, with the trial court
ultimately granting the defendant’s motion to represent
himself on the day of trial. Joyce, 

. We
concluded there that we could not determine whether the
record would have developed differently if the motion had
484                                                  State v. Kyei

been granted earlier, because the trial court’s error had
prevented the defendant from having the time to develop
his own case and trial strategy. 

 We remanded for a new
trial. 

          Unlike Omar and Joyce, the errors in Bales and
Black occurred during pretrial hearings and not on the day
of trial. We ultimately sent Bales back to the trial court for
a Hightower analysis, directing the trial court to “not limit
itself to considering whether it might again rule similarly
(but on a permissible basis),” and to “consider what effect its
erroneous ruling had at the time it was made and whether
the evidentiary record or the parties’ arguments might have
developed in a materially different way at that time had the
trial court not erred.” Bales, 

 (parentheses and emphasis in original). As we explained in Black,
   “Where … the error occurred in a pretrial hearing, that
   necessarily entails an assessment both of how the error
   may have materially affected the development of the
   record at the hearing and how the error may have materially affected the development of the record at trial. If, in
   either instance, the record could have developed in a materially different way but for the trial court’s error, then, as
   we understand Hightower, a defendant is entitled to a new
   trial, absent explicit direction from the remanding appellate court spelling out a different approach.”
Black, 

.
         We conclude that, on this record, the trial court
must conduct a new hearing, with defense counsel present
and participating, on the motions to change venue and to
disqualify counsel. If the court again denies those motions,
a new trial would not be required, and the judgment would
stand. If it grants one or both motions, a new contempt trial
would be required. We therefore vacate and remand for further proceedings consistent with this opinion.
         Vacated and remanded.
         PAGÁN, J., concurring and dissenting.
        In an era where trial courts are struggling to
appoint defense counsel, and the dockets are overloaded
with backlogs from disruptive events like a pandemic or
Cite as 

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constitutional shifts in the United States Supreme Court,
it behooves our court to seek the most pragmatic disposition
possible. The majority opinion, while dutifully respectful to
appellant’s rights to counsel, falls short in providing efficient justice. I concur with the majority on all points but one:
I would conclude that the error in this case regarding the
motions made without counsel was harmless, and affirm.
         Appellant filed two motions, with the support of
counsel who withdrew, to change the venue of the trial
and to wholly disqualify the Clackamas County District
Attorney’s office. It is not unreasonable to observe that both
motions were highly unusual, and neither are granted on
a regular basis in a criminal contempt proceeding. The
alleged basis for the motion to disqualify an entire district
attorney’s office? An order from this court, in defendant’s
own long-running case, in which we declined to add the
Clackamas County District Attorney as a party instead
of or in addition to the State of Oregon. The basis for the
motion to change venue? Gleaning from the multitude of
reasons cited by appellant, his strongest arguments appear
to be that his driver’s license was suspended and he had
several witnesses from outside the county (not outside the
state) that may suffer inconveniences if they were required
to testify in person in Oregon City.
         Putting aside the reticence of our courts to grapple
with creating an appropriate framework for deciding when
this scenario requires straight reversal, such as in State
v. Cole, 

, 

 (1996), I agree with federal constitutional analysis that concludes if a defendant is
deprived of counsel at one point in proceedings but there is
an opportunity to ameliorate and re-address the issues with
new counsel later in the same proceedings, the error may
be considered harmless. See Jordan v. Ducharme, 983 F2d
933 (9th Cir 1993) (concluding that the absence of counsel
during pre-trial identification procedures could have been
addressed by counsel that was appointed at a later stage).
Here, the court invited defendant to revisit the motions
with new counsel. New counsel never did so. In that context,
we can reasonably presume that new counsel spoke with
their client, made a judgment based on their expertise, and
486                                            State v. Kyei

decided against further engagement. I would leave further
work on those two issues to post-conviction proceedings,
should any be initiated.
       I concur in part and dissent in part.