State v. Arnold

302 Or.App. 765

462 P.3d 753

STATE of Oregon, Plaintiff-Respondent,

v.David Ray ARNOLD, Defendant-Appellant.

A166303

Court of Appeals of Oregon.

Argued and submitted January 30, 2019.

March 11, 2020

Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Kirsten M. Naito, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Defendant appeals from a judgment of summary contempt, ORS 33.096, assigning error to the trial court’s finding of summary contempt based on conduct that the court did not personally observe. We conclude that the court erred by summarily finding defendant in contempt because defendant’s misconduct was not within "the immediate view and presence of the court," as required by ORS 33.096. Accordingly, we reverse and remand.

The relevant facts are uncontested. Defendant appeared by live video feed from jail during a sentencing hearing for convictions in three separate but "interrelated" cases. During that hearing, the trial court revoked defendant’s probation and sentenced him to 45 months’ and 90 days’ incarceration, to be served concurrently. Defendant told the court that he intended to appeal the sentence because he found the sentence to be "cruel and unusual" and in violation of "the double jeopardy clause." At the relevant time discussed below, the judge was not looking at the live video feed while responding to defendant. At that point, the prosecutor observed defendant "flipping off" the camera. The following colloquy ensued:

"[PROSECUTOR]: Your Honor, he just flipped you the bird and walked away.

"DEFENDANT: No, you. I flipped you the bird.

"[PROSECUTOR]: Flipped me the bird.

"THE COURT: Well, you’re in court, Mr.—

"DEFENDANT: That’s for the district attorney. The bird’s for the district attorney.

"THE COURT: Okay.

"DEFENDANT: Bye.

"[DEFENSE COUNSEL]: [Defendant]—

"THE COURT: So, [defendant], that’s going to—you’re in the courtroom.

"DEFENDANT: Not no more.

"THE COURT: I guess, just technically, I did not see it. I mean, I wasn’t looking at him at the time. I don’t think I can—

"[DEFENSE COUNSEL]: I didn’t see it either, honestly. I was looking at the judgment.

"THE COURT: I guess I could review the replay. I heard you say it, but I was looking over this way and down.

"[PROSECUTOR]: I think his admission that it was for the district attorney was pretty plain.

"THE COURT: Let me sign this other matter here first."

By the end of that colloquy, defendant had left the live video feed location.

The trial court then explained that, in its view, defendant’s admission that he had flipped off the prosecutor in court, "even though it’s from the jail, is sufficient for a summary contempt." The court asked if defense counsel would like to be heard on that issue. Defense counsel stated that he preferred for defendant to be present before the camera, "just so he knows what’s going on." The court then ordered the deputy to bring defendant back in front of the camera.

The deputies returned defendant to the live video feed, and defense counsel conferred with defendant in open court while the prosecutor and judge were present. Defense counsel advised defendant "to remain cool and collected and composed," and then informed defendant that the judge was contemplating imposing summary contempt for defendant’s earlier conduct.

Defense counsel explained to the court that defendant was probably feeling "frustrat[ed]" and "abandoned" after being sentenced to 45 months in prison and asked the court to "graciously excuse the frustration that I guess was exhibited by [defendant] in a moment of passion * * * [and] not impose a summary contempt." The court asked defendant if he would like to say anything, to which defendant responded, "My attorney has it on the nose, I guess." The court then asked the prosecutor if the state would like to respond. The prosecutor stated that he would "leave it up to the court’s discretion," but that "there needs to be some sort of a consequence."

The trial court then recited its understanding of the facts and the law regarding summary contempt before ultimately concluding that defendant had committed conduct that could be punished by summary contempt:

"I was not looking at the screen. When I look forward or down, I don’t see the screen. I have screens off to my peripheral, more or less, at my ears. I did not see anything. * * * [T]he prosecutor brought up that he’s flipping off the court. [Defendant] responded that, no, I’m flipping off you, referencing the prosecutor. And then there’s a couple statements, and he left the screen upset.

"* * * * *

"Regardless, [defendant], this is a courtroom, even when you’re [out] there. If I allow you to flip off anybody in the court, flip me off, people yell names at me, then we would have chaos. And so summary contempt is more or less in the presence of the court. You were in the courtroom. I do have a little bit of concern that I didn’t see it, and I put that on the record, but [the prosecutor] said he did see it. You have acknowledged it. And I think the presence means within the purview or the court could see it. I don’t think I have to see it. If I have my back turned, if I’m getting a thing and someone keeps—I guess is flipping me off or someone else in the courtroom, I believe I have the—as long as I can substantiate that that did happen in the courtroom when I was present during the court time, it is punishable by summary contempt. That’s the position I’m going to take."

The trial court then swore the prosecutor in to testify under oath. The court asked the prosecutor if he had observed defendant "flipping off the camera, which appears into the court," to which the prosecutor responded affirmatively. The court summarily found defendant in contempt and imposed a sanction of 30 days in jail to be served consecutively to defendant’s 45-month prison sentence.

On appeal, defendant assigns error to the trial court finding him in contempt. Specifically, defendant argues that the summary contempt procedure authorized by ORS 33.096 was inappropriate under the circumstances here because the conduct was not within "the immediate view and presence of the court," as ORS 33.096 requires for the summary imposition of sanction for contempt. Accordingly, defendant argues, the court imposed a punitive sanction without providing defendant the requisite procedural due process safeguards, such as notice and a fair hearing.

The state does not respond on the merits. Instead, the state contends that defendant’s argument is unpreserved and that this court should decline to exercise our discretion to correct any plain error. The state argues that we should not exercise our discretion because the policies behind the preservation rule were not served and because the alleged error was harmless.

We first address the state’s contention that defendant’s claim of error was not preserved. As a general rule, we will not consider a claim of error unless it was preserved in the trial court. State v. Wyatt , 331 Or. 335, 343, 15 P.3d 22 (2000) ; ORAP 5.45(1). To preserve an error for appeal, a party must have provided the trial court "with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." Wyatt , 331 Or. at 343, 15 P.3d 22.

"The touchstone for determining whether a contention is adequately preserved is whether the policies that underlie the preservation requirement—giving the opposing party a fair opportunity to respond, fostering appellate review through full development of the record, and giving the trial court the opportunity to fully consider and rule in the first instance—have been served in a particular case."

State v. Ames , 298 Or. App. 227, 232, 445 P.3d 928 (2019) (citing State v. Parkins , 346 Or. 333, 340-41, 211 P.3d 262 (2009) ; Peeples v. Lampert , 345 Or. 209, 219-21, 191 P.3d 637 (2008) ).

Defendant contends that his argument regarding the trial court’s construction of ORS 33.096 is preserved because the court expressly noted the issue when it stated that it had "a little bit of concern that [it] didn’t see" defendant’s conduct and because the trial court fully considered the legal issue before us, namely, whether he had to "view" defendant’s misconduct to proceed with summary contempt. Accordingly, the court considered that particular issue and had a fair opportunity to correct its error, and the state had an opportunity to respond. Thus, defendant argues, the policies underlying the preservation requirement were served in this case.

We agree. As noted, the trial court sua sponte raised the issues that defendant now raises on appeal and ruled that, as long as the court could "substantiate that [defendant’s alleged conduct] did happen in the courtroom when I was present during the court time, it is punishable by summary contempt. That’s the position I’m going to take." The state had an opportunity to raise any additional arguments, and the record is sufficiently developed for our review of the matter. We, therefore, conclude that the policies underlying the preservation requirement were served under the circumstances here, and that defendant’s argument is preserved.¹ See Ames , 298 Or. App. at 234-35, 445 P.3d 928 (concluding that a matter was preserved when the policies underlying the preservation requirement were "obviously served"); State v. Roberts , 291 Or. App. 124, 130-31, 418 P.3d 41 (2018) (concluding that an issue was preserved when the court raised the issue sua sponte , even though the defendant "did little to advance that discussion"); State...