State of Utah v. Olson

State v. Olson

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Kevin Olson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010801-CA
 

F I L E D
(May 1, 2003)
 

2003 UT App 128

 

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Fifth District, Cedar City Department

The Honorable Robert T. Braithwaite

Attorneys: Kamie F. Brown and Tawni J. Sherman, Salt Lake City, for Appellant

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

"Every court has authority to . . . compel obedience to its judgments, orders, and process, and to . . . compel the attendance of persons to testify in a pending action or proceeding[.]" Utah Code Ann. § 78-7-5 (2002). "To be held in contempt, a party must have (1) known of the duty imposed by the court's order, (2) had the ability to comply with the order, and (3) willfully and knowingly refused to comply." Utah Farm Prod. Credit Ass'n v. Labrum, 762 P.2d 1070, 1074 (Utah 1988). Accord Envirotech Corp. v. Callahan, 872 P.2d 487, 498 (Utah Ct. App.), cert. denied, 883 P.2d 1359 (Utah 1994). "These three elements must be proven beyond a reasonable doubt in a criminal contempt proceeding . . . . [In addition, t]he trial court must enter written findings of fact and conclusions of law with respect to each of the three substantive elements." Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988).

"On review of . . . criminal . . . proceedings, we accept the trial court's findings of fact unless they are clearly erroneous." Id. We apply a correction of error standard to the trial court's determination that the findings establish contempt. See State v. Long, 844 P.2d 381, 383 (Utah Ct. App. 1992).

Appellant challenges the trial court's findings pursuant to prongs one and three of the Labrum test. The challenges are unavailing. Appellant acknowledged receiving the subpoena, which "commanded [him] to appear and give testimony." Despite any prior conversation Appellant may have had with Mr. Bittmenn, this fact alone is sufficient to establish that Appellant knew "of the duty imposed by the court's order," Utah Farm Prod., 762 P.2d at 1074, especially given Appellant's extensive experience in these matters. See Von Hake, 759 P.2d at 1172 ("[Defendant] had notice of what was required of him via the court's order that he must appear at the . . . hearing.").

Similarly, the trial court's written order specifically found that Appellant "intentionally did not comply" with the subpoena. This finding is supported by the uncontroverted evidence that Appellant, with twenty-six years of experience in law enforcement, disregarded the subpoena and went camping instead. See Utah Farm Prod., 762 P.2d at 1075 (assuming defendant's violation of a court order was "knowing and willful" when defendant received a "written copy of that order" but "nevertheless continued to [act] in direct violation of the order"). Cf. Long, 844 P.2d at 387-88 (vacating defendant's criminal contempt conviction where defendant was "genuinely confused" about sentence-staying procedures and State failed to produce evidence demonstrating that defendant had properly complied with such procedures in the past).

In arguing that his failure to comply with the subpoena was merely "a mistake," Appellant relies on language in the trial court's bench ruling that is seemingly contradictory to its subsequent order. The language Appellant singles out, however, relates to mitigating circumstances and the trial court's decision to forego a jail sentence, not to the court's explicit findings regarding the "willfully and knowingly" requirement. In any event, "'express written findings will supersede informal remarks made from the bench.'" Colonial Pac. Leasing Corp. v. J.W.C.J.R., 1999 UT App 91, n.6, 977 P.2d 541 (citation omitted).

In sum, Appellant has failed to demonstrate that, "viewed in the light most favorable to the trial court, the evidence . . . was insufficient to support the trial court's findings." Utah

Farm Prod., 762 P.2d at 1075. These findings adequately demonstrate contempt.

Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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William A. Thorne Jr., Judge