State v. Westom

320 Or.App. 250

512 P.3d 850

STATE of Oregon, Plaintiff-Respondent,

v.Kassandra Ann WESTOM, Defendant-Appellant.

A173956

Court of Appeals of Oregon.

Submitted March 23, 2022.

June 8, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Mooney, Presiding Judge, and Lagesen, Chief Judge, and Kistler, Senior Judge.

KISTLER, S. J.

In 2018, defendant entered into a plea agreement with the state. Defendant admitted that she had unlawfully caused the death of a young woman in "a motor vehicle crash" and agreed to plead guilty to criminally negligent homicide, third-degree assault, and contempt of court. In return, the state agreed to dismiss one count of reckless driving and make certain sentencing recommendations to the court. Consistently with the state's recommendations, the trial court deferred sentencing on the negligent homicide charge and sentenced defendant to a three-year period of probation on the assault and contempt convictions. One condition of defendant's probation is that she "shall have no contact with" the victim's mother.¹

In 2019, the trial court found that defendant had violated the "no-contact" condition of her probation. Having made that finding, the trial court sentenced defendant to a three-year period of probation for criminally negligent homicide and entered a judgment of conviction on that charge. The court also extended defendant's existing probationary term on the assault conviction in a separate "judgment and probation order," with the result that her extended period of probation for assault mirrors the three-year period of probation on the homicide conviction. Defendant appeals from both judgments, arguing that the trial court erred in finding that she contacted the victim's mother in violation of her probation. We affirm the trial court's judgments.

We take the facts from the probation revocation hearing and state them consistently with the trial court's decision. Approximately nine months after defendant began her probation, the victim's mother and younger sister encountered defendant at a beach on the Columbia River. The victim's mother and sister were walking on a path from the parking lot to the beach when they passed within 10 feet of defendant, her boyfriend, and their baby. The victim's mother made eye contact with defendant, who smiled at her. That led the victim's mother to say, in a normal tone of voice, "Are you F—ing kidding me?" (Uppercase and deletions in original.) When the victim's sister asked her mother if she wanted to leave, the mother replied, "No. We are not adjusting our plans. We are going to walk down to the beach and spend our time together." The victim's mother and sister continued walking "way down to *** the sand. And set up [their] spot" close to the water, away from where defendant and her boyfriend were sitting.

Approximately 10 minutes later, defendant and her boyfriend moved "their stuff closer to the beach, to where [the victim's mother and sister] were[.]"² Then, "[defendant] and her baby and her boyfriend walked down to the water and played in front of [the victim's mother]" for approximately 15 to 20 minutes.³ At that point, the victim's sister was also playing in the water, and she noticed defendant looking "a couple of times" at her and also at her mother. When the victim's mother began taking pictures of defendant with her cell phone, defendant packed up her things and left.

The trial court issued a show-cause order to determine whether defendant had violated the terms of her probation because she had had "contact with" the victim's mother. At the hearing on the show-cause order, defendant's lawyer raised two defenses. The primary defense was factual. Defense counsel argued that, because the victim's mother was dressed for the beach, she looked different than she usually did, with the result that defendant did not recognize her initially. Defendant's lawyer argued that defendant recognized the victim's mother only when she began taking pictures of her. At that point, her lawyer contended, defendant immediately gathered up her belongings and left.

Defendant's lawyer also mentioned a legal issue in his opening statement and returned to it in his closing argument. He observed in his opening statement that the conditions of probation set out in the assault judgment did not define the term "contact."⁴ At the end of his closing argument, defense counsel returned to the legal issue that he had mentioned in his opening statement. He said:

"Again, I would point [out] to the Court that there really isn't a legal definition of what contact is. Other than [what] I would assume would be normal contact, if a person came up and said hey, how are you doing? And we don't have that here."

Given that record, the trial court found that defendant had violated the no-contact condition of her probation. It explained that, in light of the role that the victim's mother had played in defendant's life, it was neither "realistic" nor "plausible" to believe that defendant had not initially recognized the victim's mother. The court was careful to make clear that an inadvertent or unintentional contact would not violate the terms of defendant's probation. The court explained, however, that, after defendant recognized the victim's mother, it was incumbent on defendant to avoid further contact. Defendant did not do that. Rather, defendant and her boyfriend moved their belongings close to where the victim's mother was sitting and then spent a substantial amount of time playing on the beach directly in front of her.

The court explained to defendant that, once she recognized the victim's mother,

"[t]here were some choices you could have made that are different from the choice of being directly in the line of sight between [the victim's mother] and—and the river.

"Which is very clear from the photograph that you were right in her line of sight. So, that's why I believe that that was [a probation] violation."

Having found that defendant violated her probation, the court ruled that defendant had breached the plea agreement and sentenced her on the negligent homicide charge to a three-year period of probation. The court entered a judgment of conviction on that charge. The court did not revoke defendant's probation on the assault conviction. Rather, it extended her probation on that conviction so that it mirrored the three-year period of probation that the court imposed on the negligent homicide conviction. The court entered a separate document captioned "judgment and probation order" extending defendant's probation on the assault conviction.

On appeal, defendant does not pursue the factual issue that she raised below; that is, she appears to recognize that the trial court's factual findings effectively preclude her from arguing that she did not recognize the victim's mother initially. She focuses instead on the legal point that defense counsel raised at the probation revocation hearing. She notes, as her trial counsel did, that the condition of probation set out in the judgment of conviction for assault does not define the term "contact," and she argues that "contact" means to communicate verbally. It does not mean, she contends, knowingly remaining in the protected person's immediate presence. In making that argument, defendant does not contend that the term "contact" is unconstitutionally vague, either facially or as applied. Rather, she argues that its meaning is clear; it just means less than the trial court thought it did.

The state responds initially by raising two procedural defenses. It notes that the trial court's ruling that defendant violated her probation led to the entry of two related but separate judgments—(1) a judgment of conviction for negligent homicide entered pursuant to the plea agreement and (2) a "judgment and probation order" extending defendant's probation on her assault conviction. The state reasons that ORS 138.105(5) precludes us from deciding whether the first judgment resulted from an erroneous ruling and that the second judgment can be upheld on alternative grounds. It follows, the state contends, that we can affirm both judgments without deciding whether the trial court correctly found that defendant violated her probation. Finally, the state argues that the court's ruling is correct on the merits.

We begin with the state's argument that ORS 138.105(5) precludes us from going behind the plea agreement that led to the judgment of conviction for negligent homicide and determining whether the trial court erred in finding a probation violation. Our decision in State v. Merrill , 311 Or.App. 487, 492 P.3d 722, adh'd to as modified on recons. , 314 Or.App. 460, 495 P.3d 219 (2021), supports the state's argument. See also State v. Jones , 311 Or.App. 685, 492 P.3d 116 (2021) (same). Although defendant argues that Merrill was wrongly decided and notes that the Supreme Court has allowed review in State v. Colgrove , 308 Or.App. 441, 480 P.3d 1026, rev. allowed , 368 Or. 347, 489 P.3d 540 (2021), to decide the issue, we follow our decision in Merrill .

That leaves the "judgment and probation order" extending defendant's probation on the assault conviction. As the state recognizes, no statute bars us from reaching the merits of the trial court's ruling that led to that judgment. The state argues, however, that we can affirm that judgment on an alternative ground. The state notes that the trial court had discretion to extend defendant's probation even if no probation violation occurred. See ORS 137.545(1)(a). That is so, the state argues, even if the trial court erred in concluding that defendant violated her probation. See State v. Laizure , 246 Or.App. 747, 268 P.3d 680 (2011) ...