State v. Dragowsky

169 P.3d 1271, 215 Or. App. 377, 2007 Ore. App. LEXIS 1444

• Court: Court of Appeals of Oregon
• Decided: October 10, 2007
• Docket: 050362055; A128889
• Status: Published

Opinions

EDMONDS, P. J.

Defendant appeals a judgment for contempt of court in which he was convicted of violating an abuse prevention restraining order. ORS 33.015(2)(b). Defendant assigns error to the trial court’s denial of his motion for a judgment of acquittal. He argues that the evidence was insufficient to allow a reasonable trier of fact to find that he willfully entered or attempted to enter within 150 feet of the victim as prohibited by the restraining order. We affirm.

When reviewing the denial of a motion for a judgment of acquittal, we determine whether the evidence, viewed in the light most favorable to the state, permits a reasonable trier of fact to find that the elements of the crime were proved beyond a reasonable doubt. State v. McMillan, 199 Or App 408, 411-12, 111 P3d 1154 (2005). In making that determination, we resolve any conflicts in the evidence in favor of the state, give the state the benefit of all reasonable inferences that may properly be drawn, and accept the fact-finder’s reasonable credibility choices. State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995).

Defendant argues on appeal that there was insufficient evidence from which a reasonable factfinder could find that he willfully violated a restraining order prohibiting him from “entering, attempting to enter, or remaining at the following locations: * * * The area 150 feet from [the victim].” The state responds that the testimony of Officer Shadron, the officer who responded to a disturbance at defendant’s house, is sufficient to support the conviction.

At trial, Officer Shadron testified that, when he arrived at defendant’s house, he observed defendant lying on top of the victim with his hand over her mouth. Defendant then testified to the following: he and the victim had an on-again, off-again relationship for about eight years; on the day of the incident, he awoke to the sound of an argument in his living room; upon investigating, he discovered that the victim had entered his house without permission; after ignoring his repeated requests that she leave his house, the victim attacked him and caused him to fall on top of her. The evidence, defendant argues, shows merely that he was within 150 feet of the victim, not that he willfully entered or attempted to enter the area within 150 feet of the victim.

As stated above, we accept the factfinder’s reasonable credibility choices when we determine whether the evidence, viewed in the light most favorable to the state, permits a reasonable trier of fact to find beyond reasonable doubt that defendant willfully violated the order. Thus, the trial court was entitled to disbelieve defendant’s testimony that the victim attacked him. In this case, it appears that the trial court did just that. In its role as factfinder, the court made an express credibility finding regarding defendant: “I just don’t believe him. I don’t find him credible. * * * I found his manner of testifying just not credible to me.”

The remainder of defendant’s testimony and the testimony of Officer Shadron permitted the trial court to find that defendant violated the restraining order. That is, the evidence was sufficient to support a finding that, after discovering the victim in his residence, defendant approached and assaulted her, thereby willfully entering an area that he was prohibited from entering by the restraining order.

The dissent disagrees. It posits that “[t]o prove the charge that it made, the state needed to show that defendant was situated outside of that location, an area bounded by a line 150 feet from the victim and then entered that defined location.” 215 Or App at 381 (Sercombe, J., dissenting). The dissent’s literal interpretation of the court’s restraining order fails to capture the restraining order’s intended import as evidenced by its language. The language of the restraining order creates a 150-foot radius of protected space around the victim. Defendant was prohibited from entering any portion of the area within that 150-foot radius. At the point in time that defendant discovered the victim in his residence, he was not in violation of the restraining order because he had not willfully entered an area that was protected by the restraining order. Stated otherwise, at that point in time, there had been no “entry” by defendant within the meaning of the restraining order because the order contemplates a willful entry, not an inadvertent entry.

However, once defendant moved from his original location willfully toward the victim, he entered into space protected by the restraining order. Because the trial court could reasonably infer from the evidence that defendant willfully invaded a portion of the area protected by the restraining order by approaching the victim, lying on top of her, and putting his hand over her mouth, it did not err by concluding that defendant’s conduct violated the restraining order. In sum, it was those actions that constituted the willful entry contemplated by the restraining order and that violated the restraining order. We conclude, therefore, that the evidence supports the court’s contempt finding.¹

Affirmed.

1 Under the dissent’s interpretation of the restraining order, defendant would have been entitled to approach the victim with impunity because he had made no entry from outside the 150-foot area. In light of the purpose of the restraining order, the trial court could not have intended that result when it enjoined defendant from “entering, attempting to enter or remaining” within 150 feet of the victim. Also, it was not necessary to a finding of contempt that the state charge defendant with “remaining” within 150 feet of the victim. “To remain” in a location connotes a passive act. According to the evidence, defendant did not remain passively in the location where he first observed the victim.