No. 658 September 18, 2024 79

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

TROY ALLEN JONES,

Defendant-Appellant.

Harney County Circuit Court

22CN05587; A180625

Robert S. Raschio, Judge.

Submitted June 17, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Carla E. Edmondson, Deputy Public Defender, 

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Kyleigh Gray, Assistant Attorney 

General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Joyce, Judge, and 

Jacquot, Judge.

AOYAGI, P. J.

Reversed.
80 State v. Jones

AOYAGI, P. J.

Defendant appeals a judgment finding him in 

contempt of court for willfully violating a Family Abuse 

Prevention Act (FAPA) restraining order by having contact 

with the protected person. See ORS 33.015(2)(b) (defining 

“contempt of court” to mean various acts “done willfully,” 

including “[d]isobedience of, resistance to or obstruction of the 

court’s authority, process, orders or judgments”). Defendant 

contends that the trial court applied an incorrect legal standard and, as a result, found him to have “willfully” violated 

the restraining order while also finding that he believed at 

the time that the order had been dismissed. The state challenges defendant’s interpretation of the trial court’s findings 

and argues that the court did not err. As described below, we 

agree with defendant that the trial court applied an incorrect 

legal standard and that, given the court’s findings, it should 

not have found him in contempt. Accordingly, we reverse.

FACTS

On November 16, 2021, defendant’s niece, E, 

obtained a FAPA restraining order against him. Defendant 

was personally served with the restraining order at that 

time. The order states that its provisions “are in effect for 

a period of one (1) year from the date of the judge’s signature (unless renewed before it expires) or until the order is 

dismissed, modified, or replaced, whichever occurs first.” 

(Emphasis in original.)

In May 2022, defendant was charged with violating 

the restraining order and placed on a release agreement. 

While in court on that matter, the court told him “to follow 

the restraining order.”1

On November 7, 2022, a police officer stopped E for a 

traffic violation and learned from a records check that E had 

a restraining order against defendant, who was a passenger 

1 Defendant testified at trial that, in May 2022, he was “charged” with violating the restraining order, that he “believes” he was placed on a release agreement, 

and that the court told him when he was in court on that matter “to follow the 

restraining order.” The sheriff’s deputy who served the restraining order on defendant also testified to having twice “arrested” defendant “related to [the] restraining order,” although he did not provide dates or any other detail. That is the totality of the trial evidence regarding prior violations of the restraining order. 
Cite as 335 Or App 79 (2024) 81

in the vehicle. E was giving defendant a ride to the bank. 

The officer asked defendant whether he knew about the 

restraining order. Defendant told the officer that he thought 

it had been “rescinded or cancelled.” E also told the officer 

that she thought it had been “rescinded.”

Defendant was arrested and charged with contempt of court.2

 At trial, the state called two witnesses—

the sheriff’s deputy who had served the restraining order 

on defendant in November 2021, and the police officer who 

conducted the traffic stop in November 2022. The only other 

trial witness was defendant, who testified on his own behalf. 

Defendant did not contest that he had violated the restraining order by being in E’s car on November 7, 2022, but he 

maintained that the violation was not “willful.” He testified 

that he did not think at the time that the restraining order 

was still in effect, that he “thought it was over,” that the 

restraining order that his mother had obtained against him 

had been rescinded, that he did not believe that E still had a 

valid restraining order, and that he did not willfully violate 

the restraining order. Defendant acknowledged that he had 

not called the court or his lawyer to check the status and 

that, in retrospect, he “should have called the court.” But, he 

reiterated, E told him that it was dismissed.

The court found defendant in contempt. The court 

reasoned that, because defendant had not called the court 

to verify dismissal of the restraining order, the state had 

proved a “willful” violation under the “head in the sand” theory of willfulness articulated in State v. Guzman-Vera, 305 

Or App 161, 469 P3d 842, rev den, 367 Or 115 (2020):

“If you’d called the Court and some clerk had told you, 

‘Hey, that was dismissed,’ you would have a good faith basis 

to believe that it was dismissed, but you didn’t do that 

extra work that was necessary to determine for sure that 

the restraining order had been dismissed.

“You are—were at that time in contempt of the Court’s 

order because as it is also pointed out in Guzman-Vera, 

you cannot rule out willfulness under a head-in-the-sand 

theory; she thought it was dismissed, I thought it was dismissed, so it was dismissed. That’s just not how it works.

2 In the meantime, the restraining order expired on November 16, 2022.
82 State v. Jones

“This Court is the one who issues the order. You had an 

obligation to this Court to make sure whether the order 

was dismissed or not.

“So I am going to find you in willful contempt of the 

Court’s order with regards to that restraining order, that 

contact.”

In explaining its verdict, the court did not expressly 

credit or discredit defendant’s testimony that he believed the 

restraining order had been dismissed because E told him so. 

However, two days later at sentencing, the court indicated 

that it had credited that testimony. The court acknowledged 

during sentencing what defense counsel described as “uncontroverted evidence that both parties told the police officer 

at the scene that they thought the restraining order was no 

longer in effect.” More importantly, in sentencing defendant 

to five days in jail instead of the 10 days recommended by 

the state, the court gave as one of its reasons for the lighter 

sentence that “[defendant] indicated that both of [them] had 

thought it was dismissed.” If the court had discredited that 

testimony, it would not make sense to cite it as a reason for a 

lighter sentence, so that statement clarifies the factual findings on which the trial court based its verdict. Cf. State v. 

Nicholson, 282 Or App 51, 56, 383 P3d 977 (2016) (citing a 

statement made by the trial court during sentencing as corroborating our understanding of its findings at verdict with 

respect to whether the defendant believed that the restraining order had been dismissed at the time that she violated it).

Thus, we understand that, in finding defendant in 

contempt, the trial court credited defendant’s testimony that 

when he rode in E’s vehicle on November 7, 2022, he believed 

that the restraining order had been dismissed because E 

had told him so, but nonetheless found defendant to have 

“willfully” violated the restraining order because defendant 

did not call the court to verify that information.

Defendant appeals the judgment finding him in 

contempt.

ANALYSIS

To prove punitive contempt, “the state must establish the existence of a valid court order, the defendant’s 
Cite as 335 Or App 79 (2024) 83

knowledge of that order, and the defendant’s willful noncompliance with that order.” State v. Harrison, 290 Or App 766, 

769, 417 P3d 513 (2018) (internal quotation marks omitted). 

Here, it is undisputed that the state proved the existence of 

a valid court order and defendant’s knowledge of that order. 

Only the willfulness element is at issue.

ORS 33.015(2)(b) lists the various ways that one 

may commit contempt of court, all of which must be “done 

willfully” to constitute contempt. The term “willfully” is 

not defined by statute. Nicholson, 282 Or App at 56 (“There 

is no statutory definition of ‘willfully’ for purposes of ORS 

33.015(2).”). Moreover, “‘[w]illful’ and ‘willfully’ are notoriously elusive terms, with their content varying qualitatively 

and dramatically in different contexts.” Id. at 57. However, 

as to the meaning of “willfully” in ORS 33.015(2) in particular, the legislative history is clear as to the intended meaning of an otherwise “innately ambiguous term.” Id. at 62. 

As used in ORS 33.015(2), “willfully” means “intentionally 

and with knowledge that the act or omission was forbidden 

conduct.”3 Id. (brackets omitted).

Because willfulness is an element of the offense, it 

was the state’s burden to prove that defendant willfully violated the restraining order. Harrison, 290 Or App at 769. 

The state could do so through direct evidence, such as an 

admission by defendant that he knew he was violating the 

3 As described in Nicholson, 282 Or App at 57-58, the definition of “contempt” 

codified as ORS 33.015(2) was enacted as part of Senate Bill (SB) 376 (1991). Prior 

to the 1991 enactment, Oregon’s contempt statute did not contain an express 

mental-state requirement, although “judicial decisions had incorporated and 

applied a willfulness requirement,” which evolved through cases such as State 

ex rel. Grover v. Grover, 158 Or 635, 77 P2d 430 (1938), and Couey and Couey, 

312 Or 302, 821 P2d 1086 (1991). Nicholson, 282 Or App at 58-59. The Court of 

Appeals’ decision in Couey was on the legislature’s mind when it enacted SB 376 

(1991), prompting legislative discussion of the mental-state requirement. Id. at 

58-61. That decision was subsequently overturned by the Supreme Court. Id.

at 61. In Nicholson, we recognized that, for years, we had followed the Supreme 

Court’s formulation of “willfully” in Couey, despite the court having “made it clear 

that it was addressing the application of only the former, repealed statute, and not 

the newly enacted ORS 33.015(2)(b).” Id. at 61. We undertook a proper statutory 

construction of ORS 33.015(2)(b) in Nicholson, which led us to conclude that the 

legislature intended “willfully” in that statute to mean “intentionally and with 

knowledge that the act or omission was forbidden conduct.” Id. at 62 (brackets 

omitted). Thus, although the definition of “contempt” in ORS 33.015(2) has been in 

place since 1991, we look to case law post-dating our 2016 decision in Nicholson as 

the most relevant regarding what “willfully” means in ORS 33.015(2).
84 State v. Jones

restraining order, or as is more common, through circumstantial evidence. Elizabeth Lofts Condo Owners’ v. Victaulic 

Co., 293 Or App 572, 580, 428 P3d 952 (2018). “A defendant’s 

subjective intent may be inferred from the evidence and circumstances surrounding the defendant’s actions, and such 

an inference is reasonable if there is a logical connection 

between the surrounding activity and the defendant’s purported state of mind.” Id. (internal quotation marks and 

alterations omitted). Thus, in nearly all cases, whether willfulness has been proved will come down to the trial court’s 

credibility determinations, view of the evidence as a whole, 

and resulting finding as to the defendant’s subjective intent 

at the time of the violation.

Consistent with that reality, defendant does not 

challenge the sufficiency of the evidence to prove willfulness in this case. He implicitly acknowledges that, on this 

record, the trial court could have discredited his testimony 

and relied on circumstantial evidence to find that he acted 

willfully. But he argues that the trial court in fact credited

his testimony regarding a subjective honest belief that the 

restraining order had been dismissed—which the record 

also allowed the court to do—and then nonetheless found 

him in contempt because the court applied an incorrect legal 

standard for willfulness. Specifically, defendant challenges 

the “verification” requirement imposed by the court, which 

he argues conflicts with our decisions in Nicholson and State 

v. Simmons, 314 Or App 507, 509, 499 P3d 127 (2021).

In response, the state’s primary argument is that 

“the trial court expressly found that defendant did not have 

a good faith belief that the order had been rescinded” and 

that the evidence was legally sufficient to support that finding. That argument is unavailing for two related reasons. 

First, it is evident from the court’s speaking verdict that 

the court’s finding that defendant acted “willfully” and not 

in “good faith” was based on its understanding of the legal 

standard—specifically that a person “willfully” violates a 

restraining order if they have an honest belief that it has 

been dismissed, based on information received from a third 

party, but fail to call the court to verify the dismissal—

rather than being based on a finding that defendant did not 
Cite as 335 Or App 79 (2024) 85

honestly believe that E’s restraining order had been dismissed. Second, as already explained, defendant is not challenging the sufficiency of the evidence. He is not arguing 

that the trial court had to credit his testimony but instead 

that, having credited it, it was legal error to nonetheless 

find a willful violation of the restraining order. Those are 

fundamentally different arguments. See State v. Langford, 

260 Or App 61, 68, 317 P3d 905 (2013) (recognizing the difference between those two types of arguments).

Because defendant’s argument is in the nature of a 

challenge to the trial court’s instructions to itself in a bench 

trial, the state’s primary argument in response—which 

turns on the sufficiency of the evidence—is misplaced. The 

question properly before us is not what findings the trial 

court could have made but whether the trial court misunderstood and thus misapplied the law to the findings that it did 

make. See State v. Butterfield, 332 Or App 526, 534, 549 P3d 

545 (2024) (addressing an argument “that the trial court 

incorrectly instructed itself on the elements of self-defense” 

in a bench trial and explaining that in such circumstances, 

“as we would for a challenge to jury instructions, we review 

for legal error”).

On that issue, the state argues (in the alternative 

to its primary argument) that, even if the trial court found 

that defendant subjectively believed that the restraining 

order had been dismissed—as we have concluded that it 

did—such a finding “does not preclude a finding that his 

belief was not in good faith.” The state compares this case 

to Guzman-Vera, which the trial court cited in its speaking 

verdict, arguing that relying on a representation by the protected person without calling the court to verify its accuracy 

is “akin to the head-in-the-sand approach the defendant 

took in Guzman-Vera.”

We are unpersuaded that this case is akin to 

Guzman-Vera. Rather, we agree with defendant that it is 

controlled by Nicholson and Simmons.

In Nicholson, the defendant’s husband, T, obtained 

a restraining order against her. 282 Or App at 52. While 

that order was in place, T communicated to the defendant 
86 State v. Jones

through a third party that he wanted to attempt a reconciliation and proposed a family trip with their young son 

over Father’s Day weekend. Id. The defendant agreed, but 

only if the restraining order was “‘dropped.’” Id. A few days 

before Father’s Day, T emailed the defendant “that he was 

‘at the courthouse’ with a coworker and ‘in the process of’ 

dismissing the FAPA order.” Id. T then presented the defendant with a new wedding ring. Id. The defendant went on 

the Father’s Day trip with T and their son, believing that 

the FAPA order had been dismissed. Id. at 53. In fact, it had 

not been dismissed. Id. During the trip, the defendant and 

T were stopped for a traffic violation, which led to the defendant’s arrest for violating the restraining order. Id. The following week, T moved to dismiss the restraining order, and 

it was dismissed. Id. at 53 & n 3.

The trial court in Nicholson found that the defendant believed when she went on the Father’s Day trip that 

the restraining order had been dismissed, based on what T 

told her, but it nonetheless found the defendant in contempt 

for “willfully” violating the restraining order, because she 

did not call the court to verify the dismissal. Id. at 54. The 

court reasoned that “the order was issued by the Court, and 

only until the Court, the Judge, signs that order dismissing 

it is the restraining order actually dismissed. And you did 

not take the steps to protect yourself in that instance[.] * * * 

You did not verify that the Court had signed a dismissal, 

and so I do find you in contempt.” Id. We reversed on appeal, 

concluding that the trial court could not find defendant in 

contempt given its finding as to her subjective belief:

“A defendant who acts based on a good faith belief that 

a judicial order has been dismissed cannot be deemed to 

have acted with knowledge that it was forbidden conduct. 

Such a defendant cannot be deemed to have acted ‘willfully’ 

for purposes of ORS 33.015(2)(b). Consequently, the trial 

court’s finding here as to defendant’s contemporaneous, 

good faith belief contradicted an adjudication of contempt.”

Id. at 62 (internal citation and some internal quotation 

marks omitted).

Similarly, in Simmons, the defendant was charged 

with domestic violence crimes against his girlfriend, L, and 
Cite as 335 Or App 79 (2024) 87

entered into a release agreement with a “no contact” provision. 314 Or App at 509. Three months later, a police officer 

responded to a report of a man and woman fighting in a 

parking lot, who turned out to be the defendant and L. Id. 

The officer learned of the no-contact provision from dispatch 

and asked the defendant about it. Id. at 510. The defendant 

stated “‘that [L] had told him that she had gone down to 

the courthouse and had the no-contact release dropped.’” Id.

(brackets in original). When asked, the defendant acknowledged that he had not “contacted his attorney or the court to 

verify that information” but, instead, “took L’s word for it.” 

Id. The defendant was arrested and charged with violating 

the no-contact provision. Id.

At trial, L testified that she had told the defendant 

that she had “gone down to Center for Hope and Safety,” “was 

clearing up the no-contact order and stuff,” and “had taken 

care of it and everything,” and so “he was under the impression that that’s what had happened.” Id. at 509. The prosecutor argued in closing that it did not matter whether L told 

the defendant that the no-contact order had been dropped, 

because the defendant “should’ve taken additional steps” to 

verify that information. Id. at 510 (emphasis omitted). The 

trial court agreed, concluding that it was irrelevant to willfulness whether L told the defendant that the no-contact 

order was no longer in effect, because the defendant needed to 

“check with [his] lawyer” before relying on such a statement. 

Id. at 511. On appeal, we reversed and remanded. Id. at 516. 

We reversed because the trial court had misunderstood the 

legal standard for willfulness, and we remanded for a new 

hearing because the trial court had not made the necessary 

finding as to whether the defendant actually believed when 

he had contact with L in the parking lot that the no-contact 

order was no longer in effect. Id. at 514-16.

This case is controlled by Nicholson and Simmons. 

Like the trial courts in those cases, the trial court here erroneously believed that, even if defendant subjectively believed 

that the restraining order had been dismissed, he “willfully” 

violated the order because he did not call the court to verify 

the dismissal. That view of the law is incompatible with our 

holdings in Nicholson and Simmons.
88 State v. Jones

Because the trial court credited defendant’s testimony regarding his subjective belief, this case is exactly like 

Nicholson,

4

 and it is unlike cases in which we have affirmed 

contempt findings because the trial court expressly discredited the defendant’s claimed subjective belief. For example, 

in State v. Mohammed, 301 Or App 367, 371, 456 P3d 661 

(2019), rev den, 366 Or 493 (2020), the trial court found, 

based on its credibility assessment of the witnesses, that the 

protected person “had never told defendant that the FAPA 

order had been dismissed.” In State v. Arnold, 301 Or App 

642, 643, 458 P3d 725 (2020), the trial court found that the 

defendant knew that a restraining order applied to her, 

despite it identifying her by her husband’s last name that 

she had not legally taken. And in State v. Reed, the trial 

court discredited the defendant’s claim that he believed the 

restraining order had been dismissed, where the protected 

person (his ex-girlfriend) had told him several months earlier that she had “dropped” it, but the circumstances led 

the court to conclude that the defendant did not honestly 

believe that. 329 Or App 717, 721-22, 542 P3d 897 (2023) 

(“[C]ontrary to defendant’s argument, the court’s statement 

that he ‘knew’ that he ‘ha[d] to confirm’ the dismissal of the 

protective order was in the context of explaining why the 

court did not believe that defendant had a good-faith belief 

given his prior experience with the FAPA restraining order 

process, rather than the imposition of an additional requirement inconsistent with defendant’s professed good faith, as 

in Nicholson.” (Brackets omitted.)).

This case is also unlike Guzman-Vera, the case on 

which the trial court relied in its speaking verdict and on 

which the state relies on appeal. In that case, the defendant was served with a FAPA restraining order when he 

was released from jail. 305 Or App at 163. “Among other 

things, the order prohibited him from being within 100 

4 The only difference between this case and Nicholson is that the Nicholson 

defendant testified in greater detail regarding what the protected person told 

her and why she believed him. That type of detail may increase a defendant’s 

credibility and make it more likely that the trial court will believe them, but it is 

not required. In this case, both defendant and E told the officer during the traffic 

stop that they thought the restraining order had been dismissed, and defendant 

testified at trial that he believed it had been dismissed because E told him so and 

because his mother’s restraining order had been dismissed. No more evidence 

was required. This case is thus exactly like Nicholson.
Cite as 335 Or App 79 (2024) 89

yards of several specific locations, the addresses of which 

were listed on the third page of the eight-page-long order.” 

Id. A police officer and an interpreter reviewed the first page 

of the order with the defendant, who was a native Spanish 

speaker, but no other pages. Id. Thinking that the protected 

person, C, would likely be at their apartment, the defendant went to C’s sister-in-law’s home instead. Id. He “did 

not stop to read the FAPA order in full because it was late 

at night, because he was walking, and because he does not 

‘read English very well.’” Id. at 163-64. Consequently, “he 

did not see that the home he was headed for was one of the 

places that the FAPA order said he could not be.” Id. at 164. 

C was there when he arrived, and C’s sister-in-law called 

the police. Id. The responding officer found the defendant, 

who had the restraining order on him, “walking away from 

the residence but still within 100 yards of it.” Id.

The defendant was found in contempt for violating the restraining order. Id. Both the trial court and we 

rejected the defendant’s argument that he could not be found 

to have “willfully” violated the restraining order because he 

had not read the portion of the order that listed prohibited 

addresses. Id. We reasoned:

“Proof that a person knew of the requirements of a court 

order, but chose not to comply with those requirements, is 

not the only way to prove that a person willfully disobeyed 

a court order—historically, anyway. Another judicially 

recognized path to proving the willful violation of a court 

order is to show that a defendant opted to take a headin-the-sand approach to the order. Dept. of Rev. v. Carpet 

Warehouse, 296 Or 400, 407-08, 676 P2d 299 (1984). That 

is, willfulness can be shown through proof that the defendant knew about the order but chose to ignore it, and then 

failed to comply with the order’s requirements in that state 

of elective ignorance: ‘A party cannot ignore a court order 

and then claim that the act of ignoring it is not wilful.’ 

Carpet Warehouse, 296 Or at 407; see Pamplin v. Victoria, 

138 Or App 563, 566-67, 909 P2d 1245 (1996) (concluding 

that an attorney who ignored discovery requests and a 

related court order acted willfully in not complying).”

Id. at 166-67.
90 State v. Jones

The trial court’s approach in Guzman-Vera was consistent with Carpet Warehouse and Pamplin, so we concluded 

that it was not error for the trial court to find “that defendant’s violation was willful because defendant had the order 

and knew that it was a restraining order but chose not to 

learn its contents.” Id. at 167. We distinguished Nicholson, 

explaining that we were “not called upon to address” in 

Nicholson “whether a person who knows about a court order, 

chooses to ignore it, and then intentionally engages in conduct that violates it, acts willfully for purpose of the contempt statutes” and that we “do not read Nicholson to rule 

out proof of willfulness under a head-in-the-sand theory in 

a case that presents that issue.” Id. at 168.

We disagree with the state—and the trial court—

that Guzman-Vera applies here. The historically accepted 

“head-in-the-sand” theory of willfulness addressed in 

Guzman-Vera applies when a person “chooses to ignore” 

a restraining order, such as by choosing not to read it. 

Guzman-Vera, 305 Or App at 168. It does not apply when 

someone honestly believes that the restraining is no longer 

in effect; indeed, if Guzman-Vera applied that broadly, it 

would have necessarily overruled Nicholson and Simmons, 

which it decidedly did not do. See id. at 167-68 (distinguishing Nicholson).

In sum, the trial court applied an incorrect legal 

standard when it found defendant in contempt, necessitating reversal. Had the trial court made no finding regarding 

defendant’s subjective belief as to the status of the restraining order on November 7, 2022, we would remand for a new 

hearing under the correct legal standard. However, because 

the court credited defendant’s testimony in that regard, a 

remand is not necessary or appropriate. Compare Nicholson, 

282 Or App at 63 (reversing without remand where the trial 

court had already made a finding on the defendant’s subjective belief), with Simmons, 314 Or App at 516 (reversing and 

remanding for a new contempt hearing where the trial court 

made no finding as to the defendant’s subjective belief and 

the evidence allowed a determination either way). We therefore reverse the judgment finding defendant in contempt.

Reversed.