Full Opinion (html_with_citations)

No. 679                        December 28, 2023        717
679
329 Orv.App
State
2023    Reed                                              December 28, 2023




                    IN THE COURT OF APPEALS OF THE
                            STATE OF OREGON

                              STATE OF OREGON,
                               Plaintiff-Respondent,
                                         v.
                           TIMOTHY MICHAEL REED,
                              Defendant-Appellant.
                            Lane County Circuit Court
                              21CN02325; A176499

               Kamala H. Shugar, Judge.
               Submitted February 27, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
               ORTEGA, P. J.
               Affirmed.
718                                                         State v. Reed

          ORTEGA, P. J.
         Defendant appeals a judgment holding him in con-
tempt of court, ORS 33.015, for violating a restraining order
issued under the Family Abuse Protection Act (FAPA), ORS
107.718. In a single assignment of error, he challenges the
trial court’s finding that he had the requisite mental state
for contempt—that is, that he acted “willfully,” in “[d]isobe-
dience of, resistance to or obstruction of the court’s author-
ity, process, orders or judgments.” ORS 33.015(2)(b). He
argues that, in assessing his mental state, the court applied
an incorrect legal standard that disregarded his argument
regarding good faith and improperly required him to have
verified that the restraining order had been dismissed.
Reviewing for legal error, we conclude that the trial court
applied the correct legal standard and therefore did not err
in finding defendant in contempt on that basis. Accordingly,
we affirm the judgment.
         We review for legal error a challenge to a trial
court’s application of a substantive legal standard. Espinoza
v. Evergreen Helicopters, Inc.,
359 Or 63, 117
,
376 P3d 960
(2016). In assessing the court’s application of the law to con-
clude that defendant was in contempt, we consider the “mate-
rial facts in the light most favorable to the state, consistently
with the trial court’s * * * findings.” State v. Nicholson,
282 Or App 51, 52
,
383 P3d 977
 (2016). “[U]nless the evidence
in a case is such that the trial court as finder of fact could
decide a particular factual question in only one way,” we are
bound by the court’s factual findings that are supported by
evidence in the record, including a finding that a party’s evi-
dence is not “sufficiently persuasive.” State v. Johnson,
335 Or 511, 523
,
73 P3d 282
 (2003). With those standards in
mind, we provide the facts that explain our ruling.
        The restraining order at issue was granted in
response to a FAPA petition by S, who had been in an inti-
mate relationship with defendant and who alleged that he
had physically injured her on several occasions.1 The order
prohibited defendant from contacting or attempting to
    1
      The FAPA provides that “intentionally, knowingly or recklessly caus-
ing bodily injury” to a “family or household member[ ]” constitutes abuse. ORS
107.705(1)(a). S’s FAPA petition described four incidents of abuse.
Cite as
329 Or App 717
 (2023)                            719

contact S, including by phone or text message. About four
months after its entry, S reported to police that defendant
had violated the order by, among other things, having phys-
ical contact with her and by sending her text messages.
         The state charged defendant by information with
contempt of court, ORS 33.015(2)(b), alleging that defendant
“willfully” violated the restraining order by contacting S by
text message. Defendant requested a contested hearing on
the matter.
         At the hearing, S and the patrol officer who
responded to her report, Officer Schafer, testified for the
state, and the state introduced copies of S’s FAPA petition,
the restraining order, proof of service to defendant, and
photographs of defendant’s text messages to S. S testified
that defendant contacted her by text message after being
served with the restraining order. According to S, she “let
him believe” that she had “dropped” the restraining order
because she had “dropped” a prior FAPA restraining order
against him. She further testified that, about a month after
issuance of the order in this case and three months before
the alleged violation, she met with him when he was being
released from jail for the related criminal charges and told
him that she had “dropped” the order. Schafer testified that,
upon receiving S’s report of the violation, he confirmed that
the restraining order was still in effect when defendant sent
the messages to S. Defendant introduced evidence that S
had dismissed the prior restraining order; he did not object
to the evidence that the order at issue was valid at the time
of his conduct, that he had received notice of that order, or
that he had texted S after the order had been issued.
          In support of its argument that defendant “will-
fully” violated the restraining order, the state explained
that except for S’s statements, there was “no testimony
regarding [defendant]’s * * * foundational understanding”
that the order had been dismissed. Defendant maintained
that he did not “willfully” disobey the order and that the
state introduced no evidence that he believed the order was
still in place. He relied on Nicholson to argue that he acted
under a good-faith belief that the order had been dismissed,
based on S’s request for dismissal of the prior FAPA order
720                                                            State v. Reed

and on her statement to him that she had also “dropped” the
order at issue. See
282 Or App at 62
 (“A defendant who acts
based on a good faith belief that a judicial order has been
dismissed cannot be deemed to have acted” willfully.).
         In finding defendant in contempt, the court distin-
guished defendant’s case from Nicholson and found that the
restraining order, of which defendant had notice, had not
been dismissed until after the conduct at issue. Observing
that defendant’s text messages to S were “concerning,
threatening, [and] hostile,” the court stated:
       “And in addition, I don’t believe that [defendant] had a
    good-faith belief that the court order had been dismissed.
    In fact, he’s pretty savvy and aware of this system. He’s
    been around a few times with this same victim filing a pro-
    tective order, and he knows that you have to confirm that
    a protective order has been dismissed, as was presented to
    me in evidence.2
       “And I don’t find that there’s a good-faith belief that the
    court order ha[d] been dismissed * * *; and therefore, I do
    find beyond a reasonable doubt that [defendant] willfully
    violated the * * * restraining order * * *.”
         On appeal, defendant assigns error to the trial
court’s contempt finding, arguing that the court applied an
incorrect legal standard to assess whether his conduct was
“willful.” He begins by arguing that the trial court failed
to find that he “knew” that the order was still in place for
the purpose of meeting that standard. See Nicholson,
282 Or App at 62
 (requiring a finding that the defendant acted
“with knowledge” that such an act or omission was “forbid-
den conduct”). Particularly, defendant contends that the
court’s statement—“he knows that you have to confirm that a
protective order has been dismissed”—”[a]t most,” indicated
     2
       In Nicholson, the defendant violated the FAPA restraining order by con-
tacting the protected person, T, who was the defendant’s husband. The contact
occurred when the defendant decided to go on a weekend trip with T and their
child, even though the order was still in effect. Nicholson,
282 Or App at 52
.
About two days earlier, T had “informed [the] defendant that he was ‘at the court-
house’ * * * and ‘in the process of’ dismissing the FAPA order.”
Id.
 On the next
day, T “presented [the] defendant with ‘a new wedding ring.’ ”
Id.
 The defendant
testified that she believed that T had dropped the restraining order and that she
“ ‘thought that [they] were going to for sure work things out.’ ”
Id. at 52-53
. In
contrast to the present case, the Nicholson court found—and we upheld—that the
defendant, “in good faith, believed that the order had been set aside.”
Id. at 56
.
Cite as
329 Or App 717
 (2023)                               721

that the court found that defendant “should have known”
that the order was still in effect and did not satisfy the “will-
ful” standard. In his view, that comment indicated that the
court was “requiring [him] to verify the dismissal of the
restraining order” and that, in light of his good-faith argu-
ment, the court was applying the same standard that we
have rejected in Nicholson and State v. Simmons,
314 Or App 507
,
499 P3d 127
 (2021). Defendant further claims that, as
in those cases, here the court “implicitly [and improperly]
ruled that [his] belief that the restraining order was still in
effect did not matter because [he] did not verify the truth of
[S]’s statement that she had dropped the restraining order.”
We are not persuaded.
          In Nicholson, we explained that the court’s factual
finding that the defendant acted on a good-faith under-
standing that the protective order had been dismissed was
inconsistent with its subsequent finding that her failure to
verify whether the order had been dismissed indicated that
she acted willfully. Nicholson,
282 Or App at 54-62
. We con-
cluded that “[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’ ” and cannot be deemed to have acted “willfully”
for purposes of ORS 33.015(2)(b).
Id. at 62
. In Simmons, we
concluded that the court’s silence about the credibility of the
defendant’s “professed belief” that the restraining order had
been dismissed made it impossible to determine whether
the evidence was sufficient to support the state’s theory
that the defendant acted “willfully.” Simmons,
314 Or App at 514-16
 (the trial court’s failure to make an express cred-
ibility finding regarding the defendant’s good faith belief
“left the potential that the court did not reach the factual
issue, assuming it to be unnecessary; believed defendant
had a good faith belief that the no-contact provision had
been dropped, but determined that that was not a defense;
or made an implicit finding that defendant’s account was not
credible”).
        In contrast to Nicholson’s finding crediting the
defendant’s good-faith argument and Simmons’s silence
about that matter, the court in this case expressly found
722                                            State v. Reed

that defendant did not act with a good-faith belief that the
restraining order had been dismissed. And, contrary to
defendant’s argument, the court’s statement that he “kn[ew]”
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 inconsis-
tent with defendant’s professed good faith, as in Nicholson.
         The court, therefore, did not err in determining that
defendant “willfully” violated the restraining order at issue,
and it consequently did not err in finding defendant guilty
of contempt on that basis.
        Affirmed.