The state appeals an order of the trial court dismissing assault charges against defendant on the basis that the charges were barred by former jeopardy. Defendant was charged in a single indictment with one count of attempted second-degree assault, ORS 163.175; two counts of felony fourth-degree assault, ORS 163.16CK3); 1 and one count of contempt of court for violating a restraining order, ORS 33.015. At the state’s request, the contempt charge was bifurcated from the others and tried to the court. Defendant was convicted of that charge. He then moved to dismiss the assault charges on former jeopardy grounds, and the court granted the motion. On appeal, the state argues that, because the assault charges were not committed in the “same criminal episode” as the acts constituting contempt of court, ORS 131.515(2) 2 did not bar trial of defendant on the assault charges. Alternatively, the state argues that defendant effectively consented to separate trials. We affirm.
Defendant and S, the alleged victim in this case, were, at some point, involved in a romantic relationship. In July 2008, S obtained a restraining order against defendant. Among other things, that order prohibited defendant from “[contacting, or attempting to contact, [S] in person (directly or through third parties).” (Boldface and italics omitted.) It also stated that defendant “shall not knowingly be оr stay within” 150 feet of S. (Boldface omitted.)
On several occasions between August and November 18, 2008, the date of the charged offenses in this case, defendant tried to get S to remove the restraining order. On November 18, defendant approached S at a park, where she had gone to get a meal provided by a local church. He walked up to her as she was sitting on a bench waiting for the dinner to arrive and began talking to her. Later that evening, S left the park and went to her daughter’s house to pick up a bicycle that she had borrowed from defendant. She then took the bicycle to some friends’ house because she knew that defendant would go there to рick it up.
She was on the back porch of the friends’ house taking a trailer off the bike when defendant suddenly came out the back door of the house and began arguing with her. Another man was also there; he knew of the history between defendant and S and expressed some concern. Eventually, however, defendant convinced the man that he was not going to hurt S, and the man left. Defendant continued to argue with S — asking her where she had been, why her hair was wet, and with whom she had taken a shower. S told him to calm down and turned to go into the house. As she did, defendant grabbed her by the throat and threw her against a post that supported the porch, which resulted in injuries to her face and а black eye.
Based on those events, defendant was charged in an indictment with the following offenses: (1) attempted second-degree assault for attempting to cause physical injury to S by means of a dangerous weapon (the post), ORS 163.175; (2) felony fourth-degree assault on the theory that defendant caused physical injury to S and was previously convicted of assaulting S, ORS 163.160(3)(a); (3) felony fourth-degree assault on the theory that defendant caused physical injury to S and was previously convicted at least three times of assaults involving domestic violence, ORS 163.160(3)(b); and (4) contempt of court for “unlawfully and willfully” disobeying the restraining order “by having personal contact with [5],” ORS 33.015(2)(b).
Defendant was arrested and placed in custody on those charges on December 3, 2008;
Meanwhile, defendant’s trial in this case was set for February 24. At a pretrial hearing on February 2, defense counsel requested a continuance of the February 24 trial date due to a scheduling conflict. In the course of considering that request, the court and the parties discussed the implication of the requirement that an in-custody defendant be brought to trial within 60 days after the defendant’s arrest. 3 From thе colloquy that ensued, it appears that the parties and the court were operating under the understanding that defendant would be entitled to release when his earlier sentence was served — that is, on February 13 — because more than 60 days had elapsed from the date of his arrest. 4 Concerned about that possibility, the prosecutor said:
“[I]f we get to the point where we’re [going to] release him, the state’s going to request a bench trial before the 13th on the contempt charge and just sever it from the other ones. Because, frankly, I — I think he’s dangerous on the street, Your Honor.”
After determining that defendant was not willing to waive the 60-day trial deadline, the court, without expressly ruling on the continuance request, then sent the parties back to the court assigned to handle domestic-violence-related cases, noting that that court could set a trial date on the contempt charge “within a week probably on their docket.”
Before the domestic-violence court, the prosecutor, after explaining the circumstances above, stated:
“So, I think we’re at the point where either if [defendant] is unwilling to waive, the State is going to request that the trial be bifurcated and that the Court hear the contempt of court charge on or before the 13th of February because, frankly, he’s already * * * given some indication that he intends to [flee].”
Defense counsel responded,
“I think that the purpose that it was brought back over to this courtroom this morning was that [the prosecutor] said he wanted to sever off the contempt count. Judge Bassinger felt that you would have more flexibility in terms of dates. And so I think that it was brought over here to
* * * *
“* * * set a date. I mean, I think the issue with the 60 days is it’s — it ran out as of today, and so I think he has to be conditionally released. If there is a contempt trial and he gets convicted of contempt and re-sentenced, then he would be back into custody, but I think he has to be released based on 60 days.”
The parties and the court then settled on a trial date of February 10 — before defendant’s scheduled release date on his earlier conviction — for a bench trial on the сontempt charge and agreed that the other charges would be placed back on the “duty court docket” for February 23.
The contempt trial was held as scheduled on February 10, and the victim, who was the only witness, testified to the events described above.
5
During his opening statement and again in closing argument, the prosecutor argued that “the incidents” of November 18th were a violation of the restraining order, referring to “two separate incidences,” but without elaborating as to the details of those
The court found defendant in criminal contempt for violating the restraining order and sentenced him to six months in jail. The court reasoned as follows:
“And the testimony by [S], the only witnеss in this case, was that subsequent to the filing of the restraining order she had multiple contacts with [defendant] requesting her to lift the * * * restraining order, * * *, or have it dropped. And particularly she testified to two occasions on November 18th, one at Monteith Park where he came up to her, she was sitting on the bench, he walked up to her, started talking, she indicated he was intoxicated at the time. And that then she left, went to [another residence] and [defendant] again showed up at the residence there, same date later in the day, evening, and had contact with her on the back porch. Also that she had — that he had continued to request that she drop the restraining order.
(iifc íjí % sfc ‡
“So, based on the evidence I find the defendant guilty of the contempt of court from November 18th of last year.”
Defense counsel asked the court for clarification as to whether the court was “basing that on the contact on the back porch at the * * * residence^]” The court replied, “I’m basing that on both the contact at Monteith park and the contact at the residence.”
Defendant subsequently moved to dismiss the assault charges on the statutory ground of former jeopardy, 6 arguing that, because the state elected to try the contempt count and “presented evidence pertaining to the same criminal episode” as the assault charges, and “[t]he trial judge found defendant guilty of contempt based upon defendant’s contact with the alleged victim of the assault [S] at the time of the alleged assault,” the assault charges must be dismissed. After reviewing an audio recording of the contempt trial, 7 the court granted defendant’s motion, stating:
“The evidence presented at Trial by the State included two incidences of contact by the Defendant with the victim both occurring on November 18, 2008; one at the park and one at the residence where the three assault charges are also alleged to have occurred. At the conclusion of the Contempt Trial, [defense counsel] asked Judge Broyles about which contact her guilty finding was based [on] and she sаid that her finding of guilty was based on both incidents.
“The State could have easily avoided former jeopardy issues, by presenting only the evidence concerning the contact at the park. Alternatively, pursuant to State v. Delker,123 Or App 129 [,858 P2d 1345 (1993), rev den,318 Or 326 (1994),] the State could have presented evidence of both contacts on November 18, 2008 but not the evidence of the alleged assaults. The State chose not only to put on evidence of the assault charges, but did so in such detail and specificity such that the ‘contact’ at the residence sounded like an assault trial.” 8
The court also concluded that, although defense counsel did not object to the state’s motion to sever the contempt charge, defendant had not waived his “[constitutional rights under the circumstances presented in this case.”
The state appeals, raising two alternative arguments: (1) that a separate trial of defendant on the assault charges is not precluded by ORS 131.515(2), “[b]ecause defendant’s contempts of court * * * and his later assault of the victim were not part of the ‘same criminal episode,’ ” within the meaning of
We begin with the state’s first argument. As noted, ORS 131.515(2) provides:
“No person shall be separately prosеcuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”
A defendant has the burden to prove all of the elements of a former jeopardy claim.
State v. Knowles,
“ ‘Criminal episode’ ” is defined by ORS 131.505(4) as “continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances thаt such conduct is directed to the accomplishment of a single criminal objective.” It has been held to be synonymous with the phrase “same act or transaction,” which the Oregon Supreme Court described as follows:
“ ‘[T]wo charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge.’ ”
State v. Boyd,
“if a complete account of one charge necessarily includes details of the other charge, the charges must be joined to avoid a later double jeopаrdy defense to further prosecution. We construe this test of interrelated events as necessitating joinder only where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge. Stated differently, the charge[s] must be cross-related.”
Boyd,
Thus, we first consider whether “a complete account of one charge
necessarily
includes details of the other.”
Id.
(emphasis added). If the answer to that question is “yes,” separate prosecution of the charges violates ORS 131.515(2). However, the obverse is not necessarily the case. That is, if the charges are not in that sense “cross-related,” they still may be part of the “same criminal episode” for purposes of precluding successive prosecution under ORS 131.515(2). Factors that may bear on that issue include whether the conduct comprising the offenses is “continuous and uninterrupted,” the extent to which they are temporally and spatially linked, and whether they are designed to serve a single criminal objective. ORS 131.505(4). In evaluating those factors, a court must also consider the legislative policy embodied in ORS 131.515(2), which “prohibits the reprosecution of factual issues already resolved by an earlier prosecution.”
State v. Lyons,
Lyons
illuminates the latter principle. There, we construed ORS 131.515(2) to determine
“the jeopardy concern should be resolved by considering the defendant’s right, as embodied in ORS 131.515(2), ‘to be free from being required to answer more than once for the same act or transaction!.]’ [Boyd,271 Or at 569 ]. In other words, in using the phrase ‘based upon the same criminal episode,’ the legislature established a policy of finality for the defendant’s benefit that prohibits the reprosecution of factual issues already resolved by an earlier prosecution. See id. at 567 (noting that a failure to join in first proceeding conduct that is part of the same criminal episode is ‘inexcusable and therefore a subsequent attempt by the statе to prosecute would constitute undue harassment’). The consideration here focuses on the conduct on which criminal culpability rests in the later prosecution and whether that conduct already has been litigated in a previous prosecution. Id. at 570-71.”
Lyons,
That is not to say, however, that charges must be joined simply because factual details of one charge are
admissible
at trial on the other charge.
State v. Stolz,
With those principles in mind, we turn back to the present case. As an initial matter, we agree with the state that this is not a case where the charges are necessarily cross-related. As the state points out, a complete account of the contempt charge against defendant does not necessarily include details of the assault; conversely, a complete account of the assault charges does not have to include details of the conduct constituting contempt of court. In other words, it was possible for the state to prove that defendant was in contempt of court for violating the restraining order without including the facts of the assault.
Contempt, as applicable here, involves a willful “[d]isobedience of, resistance to or obstruction of the court’s authority, process, orders or judgments.” ORS 33.015(2)(b). The indictment charged defendant with one count of contempt for unlawfully and willfully disobeying the court’s restraining order by having personal contact with S. Thus, it was possible for the state to establish the contempt by showing that defendant — having knowledge of the order— “personally contacted”
Likewise, the facts underlying the contempt — that is, that defendant violated the restraining order by personally contacting S at the park and at the residence — were not necessary to give a complete account of the conduct that gave rise to the assault charges. In short, although it might provide helpful context, it was not necessary for the state to prove the existence of the restraining order in prosecuting the assault charges against defendant.
As explained above, however, that does not resolve the issue. Rather, because “application of the unitary transaction test * * * fail[s] to yield a clear answer,” we must consider whether the factual issues underlying the assault charges were actually resolved in the earlier contempt prosecution.
12
Lyons,
On appeal, we reversed the trial court’s denial of the defendant’s motion to dismiss the burglary charge. Noting that the “key question * * * is whether the contempt proceeding litigated the same event as the burglary prosecution,” id. at 243, we explained:
“There were only three incidents testified to during the contempt proceeding. By finding that one described contact plus ‘other contacts’ — in the plural — occurred, the contempt court must have found all three.”
Id.
at 244 (first emphasis in original; second emphasis added).
13
As a result, we concluded, prosecution of the defendant for burglary violated ORS 131.515(1)
14
and (2).
Id.
Implicit in thаt conclusion is that, because the contempt court did not identify the specific June 9
conduct
that constituted the
contact
for purposes of the contempt finding — and, because,
The state, on the other hand, contends that Delker, 123 Or App 129, compels the conclusion that the offenses were not part of the same criminal episode. In that case, the defendant’s estranged wife had obtained a restraining order prohibiting the defendant from, in any manner, “ ‘molesting, interfering with or menacing’ ” the wife or thеir minor children. It also prohibited him from being at her apartment. On the night in question, the defendant and his estranged wife were out together celebrating her birthday. At approximately 2:15 a.m., they got into a fight back at her apartment, and the defendant allegedly assaulted his wife. The police were called, and the wife was taken to the hospital. Later, at about 3:45 a.m., the defendant allegedly returned to the apartment, unlawfully entered it, and started a fire. Id. at 131.
Based on that conduct, the defendant was charged with two counts each of first-degree burglary, first-degree arson, and first-degree criminal mischief, as well as one count of fourth-degree assault. While those charges wеre pending, he was found in criminal contempt for violating the restraining order. The defendant then moved to dismiss the criminal charges, contending, in part, that those crimes and the conduct that formed the basis of the criminal contempt were part of the “same criminal episode” for purposes of former jeopardy. Id. at 131.
The trial court granted the defendant’s motion and dismissed the charges on former jeopardy grounds, “finding that all seven criminal charges were prosecuted in the criminal contempt proceeding.” Id. at 132. On appeal, we examined the record of the contempt hearing and concluded that it did not support that finding — that is, it “d[id] not show that the cоnduct that the contempt court found violated the restraining order was the same conduct that constituted any of the criminal charges.” Id. at 134. Rather, the record showed that, at the contempt hearing, in response to questions from the court, the defendant admitted to being with his estranged wife and being at her apartment. That led to the court’s finding: “ "Well, I will find that you did violate the restraining order by being on the premises described in the order and having contact with the petitioner.’ ” Id. (emphasis in Delker).
We concluded that the record thus demonstrated that the conduct on which the contempt court based its finding of contempt was limited to the defendant “being at his estranged wife’s apartment and having contact with her,” аnd was not, as the trial court had found, the conduct constituting the seven criminal charges. Id. 15 In other words, in Delker, unlike in McIntyre, the record did not support a finding that the contempt court had based its finding of “contact” violating the restraining order on the entire course of events, including the conduct comprising the burglary, arson, criminal mischief, and assault charges.
A significant difference between
McIntyre
and
Delker
is that, in
Delker,
the conduct potentially constituting the “contact” that violated
In our view, this case is more like McIntyre than Delker. Here, the trial court found that defendant’s contempt conviction was based, in part, on the same conduct for which defendant was charged with assault. The record of the contempt hearing reveals that the contempt court found defendant guilty based on defendant’s “contact [with S] at Monteith pаrk and the contact [with S] at the residence.” As in McIntyre, the contempt court did not parse its finding more specifically — that is, the court did not identify a particular act or any particular conduct of defendant at the residence that specifically constituted the contact violating the restraining order. And, unlike in Delker, it is not apparent from the context in which that ruling was made that the court’s reference to the “contact” at the residence could be understood only narrowly — that is, that it could only be understood to refer to the initial verbal exchange between the defendant and S on the back porch and to exclude the alleged assaults.
In contrast to
Delker,
here, the entire episode at the residence took place in a very short span of time, at a single location, and involved a continuous and uninterrupted course of conduct on the part of defendant. Defendant suddenly appeared at the back of the house and started arguing with S, asking her accusatory questions about what she had been doing. When S turned to leave, he allegedly assaulted her by throwing her against a porch post. It is in the context of those factual circumstances that the contempt court’s statement of the basis for its conviction must be understood.
See Delker,
In sum, we conclude that the trial court’s determination that defendant’s violation of the restraining order and the assault charges were “based upon the same criminal episode” was legally correct, and its findings are supported by evidence in the record. Accordingly, the trial court did not err in determining that prosecution of defendant on the assault charges is barred by ORS 131.515(2).
We turn to the state’s alternative argument that, by not objecting when the state moved to bifurcate the trial and by “implicitly agreeing] to separatе trials by discussing trial dates for the remaining charges and by agreeing to the trial date on the contempt” — defendant waived any former-jeopardy challenge. That argument is easily disposed of. Even assuming without deciding that defendant could waive his former jeopardy challenge by essentially standing silent in the face of the state’s request to try the contempt charge separately from the assault charges, at the time of the state’s motion, defendant had no reason to object. First, at that point, jeopardy had not attached because defendant had not yet been prosecuted for any crime in the indictment. More significantly, there was no way for defеndant to have known — nor was he required to anticipate — that the state would choose to present evidence of the assault during the bifurcated contempt trial. Defendant was indicted for one count of contempt for “having personal contact” with S, in violation of a court order. As discussed above, the state could have established that violation based on the contact that defendant had with the S at the park. There was no need for the state to recount the second incident at all, let alone put on evidence of the assault.
Affirmed.
Notes
For convenience, we refer to the attempted second-degree assault charge and the two fourth-degree felony assault charges collectively as “the assault charges” throughout this opinion. We refer to the сonduct that gave rise to those charges as “the assault.”
ORS 131.151(2) provides:
“No person shall be separately prosecuted for two or more offenses based upon the same criminal episode, if the several offenses are reasonably known to the appropriate prosecutor at the time of commencement of the first prosecution and establish proper venue in a single court.”
The court and the parties presumably were referring to ORS 136.290(1), which generally requires the state to bring an in-custody defendant to trial within 60 days after the defendant’s arrest, unless the defendant expressly consents to a continuation of the trial or a statutory exception applies. If trial does not commence within the 60-day period, the court must release the defendant pending trial. ORS 136.290(2).
That understanding may have been incorrect. See ORS 136.295(1) (“ORS 136.290 does not apply to * * * prisoners serving sentences resulting from prior convictions.”); ORS 136.295(3) (“Any reasonable delay resulting from * * * other motion or appeal by the defendant shall not be included in the 60-day period.”).
On cross-examination, defense counsel asked, “So the thing that you’re really complaining about as far as violating the restraining order is * * * when he assaulted you, right?” She responded, “I’m not the one complaining. I didn’t go to the policef]”
Although defendant also cited the state and federal constitutions in his written motion before the trial court, he did not present any separate constitutional arguments, nor does he argue on appeal that those sources provide an alternate basis for the trial court’s ruling in his favor. Accordingly, we do not address them.
The motion to dismiss was decided by a different judge from the judge who presided over defendant’s contempt trial.
Although the court did not cite ORS 131.515(2), based on the arguments presented to the court and the court’s reasoning, the parties understand that statute to be the basis for the court’s ruling. We share that understanding.
The other two elements comprising a former jeopardy challenge under ORS 131.515(2) — that the offenses were known to the prosecutor at the commencеment of the first prosecution, and that venue was proper in a single court — are not disputed in this case.
Lyons involved the pre-1997 version of ORICO, ORS 166.715 to 166.735. In 1997, the legislature amended ORS 166.715(4) to provide:
“Notwithstanding ORS 131.505 to 131.525 or 419A.190 or any other provision of law providing that a previous prosecution is a bar to a subsequent prosecution, conduct that constitutes an incident of racketeering activity may be used to establish a pattern of racketeering activity without regard to whether the conduct previously has been the subject of a criminal prosecution or conviction * *
Because the trial court in
Lyons
had failed to take evidence on the reasonable knowledge element, we vacatеd the defendant’s ORICO conviction and remanded to the trial for an evidentiary hearing on that issue.
Stotz
is not to the contrary. In that case, there was a restraining order that required the defendant to vacate certain premises; when the defendant refused to leave, police officers attempted to arrest him, and he resisted.
Accordingly, we declined to presume under
Ball,
ORS 131.515(1) provides, “No person shall be prosecuted twice for the same offense.”
Citing
McIntyre,
we therefore held that prosecution of the defendant on the criminal charges would not violate ORS
131.515(1),
because the defendant did not prove that the criminal prosecution “is for the same offense for which he was found in criminal contempt.”
Delker,