Romero v. State

258 P.3d 132, 2011 Alas. App. LEXIS 37, 2011 WL 2084089

• Court: Court of Appeals of Alaska
• Decided: May 27, 2011
• Docket: A-10418
• Status: Published

Opinions

OPINION

BOLGER, Judge.

George M. Romero was convicted of contempt of court for disobeying an order issued by the superior court. ¹ He had been appointed as the third-party custodian for a felon who was awaiting a probation revocation proceeding. On appeal, Romero argues that the evidence was insufficient to support his conviction. We agree that the State failed to prove that the superior court issued an order that was sufficiently clear and definite to support a conviction for eriminal contempt.

Background

In November 2006, Superior Court Judge Larry D. Card approved Romero as a third-party custodian for Veronica Ashouwak. Ashouwak was a convicted felon who was awaiting disposition of a petition to revoke her probation. Her conduct while on probation had been poor and she was facing a fourth petition to revoke her probation. According to Judge Card, Ashouwak had "major problems with [controlled] substances."

At the bail hearing, the State objected to Ashouwak's release to Romero in part because Ashouwak's performance while under probation supervision was "best described as abysmal" and she needed the "highest level of in-patient substance abuse treatment to avoid her self-destructive and illegal behavior." Despite the State's objection, Judge Card approved Romero as Ashouwak's third-party custodian.

The written conditions of Ashouwak's release required her not to "be where aleohol is sold or consumed" and to have "no guns in [the] home." But even though Judge Card ordered Ashouwak to avoid alcohol, he did not explicitly direct Romero to remove all alcohol from his residence.

A day or two after the bail hearing, Ashou-wak's probation officer searched Romero's residence while Ashouwak was there and found alcohol. Based on this evidence, the State charged Romero with violating the duties of a third-party custodian on the ground that he had not reported that Ashou-wak had violated her conditions of release.

The State later amended the information and added a second count charging Romero with criminal contempt for knowingly disobeying a lawful court order.² The State subsequently dismissed the first count-the charge that Romero had violated his duty to report-and proceeded to trial on the contempt of court charge.

During a hearing prior to trial, the prosecutor told the trial judge, District Court Judge Stephanie Rhoades that the contempt charge was based on Judge Card's oral order that Romero must remove all alcohol from his residence. The prosecutor repeated this assertion in his opening statement at trial before Judge Rhoades. The State maintains this position in this appeal.

Discussion

Romero contends that Judge Card never ordered him to remove all alcohol from his residence. The State argues that even though "Judge Card's order was not as clear as it could have been," Romero had to have known that he had been ordered to remove any aleohol from his residence before allowing Ashouwak to stay there. To resolve this issue, we view the evidence in the light most favorable to upholding the jury's verdict, asking whether a fair-minded juror exercising reasonable judgment could conclude that the State met its burden of proving guilt beyond a reasonable doubt.³

At Romero's trial, the State presented the audio recording of Ashouwak's bail hearing. At that hearing, the prosecutor, Ashouwak's defense attorney, and Judge Card were concerned about Ashouwak's apparent inability to control her aleohol and cocaine abuse. Ashouwak's defense attorney emphasized that Romero had experience as a third-party custodian for persons with chemical abuse issues, especially those with alcohol-related problems.

The defense attorney urged Judge Card to have faith that Romero would follow all duties imposed by the court. The attorney also told the court that Romero was helping to search for an in-patient treatment facility for Ashouwak. And the attorney agreed that Romero would remove his firearms from his house.

The defense attorney then asked Romero if he would "also ... take out any drop of aleohol out of your house[.]" To this, Romero replied, "Yes." Judge Card then commented, "I don't think Mr. Romero drinks either." Romero responded, "Very seldom," and Judge Card replied, "Okay."

After this exchange, Judge Card outlined Ashouwak's conditions of release: "No alcohol, no drugs, no violation of the law, follow conditions, including reporting to probation officer within 24 hours of release." Judge Card then entered written conditions of release ordering Ashouwak to "not ... consume alcohol or be where aleohol is sold or consumed."

Viewing this evidence in the light most favorable to the guilty verdict, we conclude that the State did not prove that Judge Card had ordered Romero to remove all aleohol from his residence. To prove contempt for violating a court order, the State had to prove that Romero was aware of the requirements of a court order. ⁴ That is, as part of proving that Romero had disobeyed a court order, the State had to prove that the court had entered an order specifically telling Romero what he was required to do.⁵

This principle was recently discussed by the Texas Court of Criminal Appeals in In re Davis⁶ The Davis court explained that a person charged with contempt of court is entitled to procedural due process, including "full and complete notification.⁷ Accordingly, "the order underlying a contempt judgment must set forth the terms of compliance in clear, specific, and unambiguous terms so that the person charged with obeying the order will readily know exactly what duties and obligations [have been] imposed upon [him or her]." ⁸ The "question of whether an order is enforceable by contempt depends on whether the order is definite and certain, and the focus is on the wording of the [order] itself.⁹ We agree with this discussion.

In this case, the State was required to prove that Judge Card issued an order requiring Romero to remove all aleohol from his residence. But Judge Card did not issue any definite order that Romero was required to do so. So Romero did not have notice that Judge Card had imposed this obligation. In the absence of a specific court order, Romero was not guilty of eriminal contempt.

Conclusion

Romero's conviction is REVERSED. The district court shall enter a judgment of acquittal.

MANNHEIMER, Judge, concurring.

1 . AS 09.50.010(5); AS 12.80.010.

2 . AS 09.50.010 provides: "The following acts or omissions with respect to a court of justice or court proceedings are contempts of the authority of the court: ... (5) disobedience of a lawful judgment, order, or process of the court." AS 12.80.010 provides that this statute applies in criminal proceedings.

3 . Shorty v. State, 214 P.3d 374, 383-84 (Alaska App.2009).

4 . See Cont'l Ins. Cos. v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976); O'Brannon v. State, 812 P.2d 222, 228 (Alaska App.1991); see also L.A.M. v. State, 547 P.2d 827, 831 (Alaska 1976); Hutchison v. State, 27 P.3d 774, 780 (Alaska App.2001).

5 . See Affatato v. Considine, 305 Ga.App. 755, 700 S.E.2d 717, 723 (2010) (before a defendant can be found in contempt for violating a court order, the order should inform him in definite terms of the duties imposed upon him; therefore, the command must be express rather than implied) (citations omitted).

6 . 305 S.W.3d 326 (Tex.App.2010).

7 . Id. at 330.

8 . Id. at 330-31.

9 . Id. at 331; see also United States v. Straub, 508 F.3d 1003, 1012 (11th Cir.2007) (for purposes of contempt, '"[aln order meets the 'reasonable specificity' requirement only if it is a 'clear, definite, and unambiguous' order requiring the action in question"") (citations omitted).