State v. Peterson

Opinion

696 September 2, 2026 No. 845

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent,

v.

ALEXANDER ROLAND PETERSON, Defendant-Appellant. Lane County Circuit Court 24CN04367; A186778

Lauren S. Holland, Senior Judge. Submitted July 29, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant.

Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Lagesen, Chief Judge, and Egan, Judge.* AOYAGI, P. J. Vacated and remanded.

_____________

* Lagesen, Chief Judge, vice Pagán, Judge.

Nonprecedential Memo Op: 352 Or App 696 (2026) 697

AOYAGI, P. J. Defendant appeals a judgment for contempt of court. In his first assignment of error, he argues that the evidence was legally insufficient to support a finding that he “willfully” disobeyed a court order. In his second assignment of error, he argues that the trial court erred by not making an express finding on willfulness. For the reasons explained below, we reject the first assignment of error, but we agree with defendant as to the second assignment of error. Accordingly, we vacate and remand.

Facts. We state the facts in the light most favorable to the state, given the nature of defendant’s claims of error. Defendant was married to R. R left the relationship and became involved with Y, who eventually obtained a stalking protective order (SPO) against defendant. The SPO was served on defendant in June 2024. In September 2024, Y received text messages on his personal cell phone that he believed were from defendant. Defendant would call from different numbers, but Y recognized defendant’s voice and therefore knew that certain numbers were associated with him. Defendant’s calls were enough of a problem that Y and R had “switched numbers” to try to avoid them.1 R may have used a work cell phone belonging to Y at some point, if doing work for his business, but these text messages were to Y’s personal cell phone. Some of the messages that Y received seemed to be directed to R, but it was hard to tell, as the messages were not coherent.

Defendant was charged by information with contempt of court, and the matter was tried to the court. In closing argument, defendant argued that the state had failed to prove that the calls and messages came from him or that they were directed to Y. The court disagreed and found defendant in contempt based on his violation of the SPO.

Legal Sufficiency of the Evidence. Contempt of court requires willful action. See ORS 33.015(2) (defining 1 Defendant seems to understand “switched numbers” to mean that Y and R switched phone numbers with each other. However, the more natural reading of Y’s testimony is that he and R switched to new phone numbers—and, in any event, the evidence must be viewed in the light most favorable to the state.

698 State v. Peterson

“[c]ontempt of court” to mean certain “acts, done willfully[,]” including disobedience of a court order). In his first assignment of error, defendant argues that the evidence was legally insufficient to prove willfulness. Legal sufficiency is a question of law. State v. Reynolds, 250 Or App 516, 520, 280 P3d 1046, rev den, 352 Or 666 (2012). Defendant claims to have preserved this issue for appeal, and the state agrees. However, we have “an independent obligation to determine whether a claimed error was preserved[,]” State v. Skotland, 372 Or 319, 326, 549 P3d 534 (2024), and we conclude that this claim of error was not preserved for appeal.

“Generally, an issue not preserved in the trial court will not be considered on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). “To preserve a claim of error concerning the legal sufficiency of the state’s evidence, a defendant must—even in a case tried to the court—challenge the legal sufficiency of the evidence at trial.” State v. Forrester, 203 Or App 151, 155, 125 P3d 47 (2005), rev den, 341 Or 141 (2006). In a bench trial, a defendant can preserve a challenge to the legal sufficiency of the evidence by “clearly rais[ing] the issue in closing argument.” Id. It must be clear, however, that the defendant is making a legal sufficiency argument. “There is an important distinction between (1) an argument that seeks to convince a trial court, sitting as fact finder, not to be persuaded by the evidence favoring the other party, and (2) an argument that seeks to convince the trial court that the evidence is legally insufficient to support a verdict for that other party.” State v. R. W. G., 288 Or App 238, 240, 404 P3d 1131 (2017) (emphases in original). “[T]o preserve an ‘insufficiency of the evidence’ claim for appeal, a party must present the trial court with the latter type of argument.” Id.

Here, defendant did not clearly challenge the legal sufficiency of the evidence in his closing argument. His arguments were instead in the nature of arguments that the court should not be persuaded. See T. L. A. v. Vierra, 295 Or App 576, 578, 435 P3d 826, rev den, 364 Or 723 (2019) (“To the extent that respondent intended to challenge the legal sufficiency of the evidence, his closing argument did not give petitioner or the trial court enough information to be able to understand [that] contention and to fairly respond

Nonprecedential Memo Op: 352 Or App 696 (2026) 699

to it.” (Internal quotation marks, brackets, and footnote omitted.)). We reject the first assignment of error based on lack of preservation.2 Lack of Express Finding on Willfulness. Defendant next argues that the trial court erred by not making an express finding on willfulness. We again start with preservation . Defendant posits that we should excuse preservation because he could not know until the court entered the judgment that it would not make an express finding on willfulness . See Peeples v. Lampert, 345 Or 209, 220, 191 P3d 637 (2008) (“In some circumstances, the preservation requirement gives way entirely, as when a party has no practical ability to raise an issue.”). The state counters that preservation should not be excused because defendant could have objected to the trial court’s oral ruling. The state’s argument is nonresponsive, because, as defendant correctly points out, it was only in the judgment—not in the oral ruling—that the court was required to make an express finding on willfulness . We are persuaded to excuse preservation.3 Turning to the merits, as previously noted, contempt is defined in ORS 33.015(2) to require a willful violation . The trial court therefore had to find that defendant contacted Y willfully, not accidentally, to find him in contempt . State v. Montgomery, 216 Or App 221, 225, 172 P3d 279 (2007) (discussing “accidental” contact). Moreover, under a line of case law specific to contempt, the trial court’s finding on the willfulness element had to be express—it is “not one that may be inferred.” Cowles and Flormoe-Cowles, 322 Or App 741, 745, 522 P3d 557 (2022) (explaining that we have “consistently required that a determination of remedial contempt be supported by a specific finding of willfulness ” and that “[a] specific finding is one made by the court explicitly, not one that may be inferred”); see also Hecker v.

2 Defendant has not requested discretionary plain-error review on his first assignment of error.

3 Because we conclude that preservation is excused, we need not address defendant’s alternative request for plain-error review on the second assignment of error or the state’s arguments in opposition to plain-error review. See ORAP 5.45. (we have discretion to consider “plain” errors despite lack of preservation); State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (describing what “plain” error is).

700 State v. Peterson

Fella, 336 Or App 857, 870, 562 P3d 1097 (2024), rev den, 373 Or 736 (2025) (vacating and remanding a contempt judgment where there was not an express finding of willfulness because, even if it was a “fair inference” that the court found the violation to be willful, “in this context, the law requires an express finding of a willful violation of the court order”).

The state suggests that an express finding is required only if the party being held in contempt requests an express finding, but we do not find support for that position in our case law. We therefore conclude that the second assignment of error is well taken. In line with our case law and as requested by defendant, we vacate the judgment of contempt and remand for the trial court to make an express finding on willfulness and proceed accordingly.

Vacated and remanded.