State v. Cavness

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

LAURA ANN CAVNESS, Appellant.

No. 1 CA-CR 19-0044
FILED 4-7-2020

Appeal from the Superior Court in Maricopa County
No. FC2012-004322
The Honorable Kevin B. Wein, Judge

JURISDICTION ACCEPTED IN PART; RELIEF DENIED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew S. Reilly
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant
 STATE v. CAVNESS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Randall M. Howe and Chief Judge Peter B. Swann joined.

T H U M M A, Judge:

¶1 Laura Cavness challenges orders holding her in criminal
contempt, entered in April 2018 and December 2018, the latter confining her
in jail for six months. Although these contempt orders are not appealable,
sua sponte exercising special action jurisdiction over the December 2018
order, this court accepts jurisdiction in part but denies relief.

FACTS AND PROCEDURAL HISTORY

¶2 Laura and Brian Howard Wilson ended their marriage in a
divorce decree entered in July 2013. As relevant here, Laura and Brian have
one minor child, G.C.

¶3 In January 2017, Laura’s adult daughter C.C., and C.C.’s
husband C.E., filed a petition for an emergency order, without notice,
seeking custody of G.C. The petition alleged Laura had been involuntarily
admitted to the Urgent Psychiatric Center and, after being discharged, was
threatening harm to herself and others. The court issued the custody order
that same day and, after an evidentiary, affirmed the order.

¶4 After G.C. was placed with C.C. and C.E., Laura began
contacting them in a variety of different ways, including by text messaging,
email, social media, telephone and through third parties. In June 2017, the
court granted C.C. and C.E.’s request to limit contact between Laura and
G.C. When the court later ruled C.C. and C.E. had in loco parentis sole legal
decision-making authority for G.C., this became a no contact order. The
court specified that Laura was “to have no contact with [G.C.] through any
electronic means, including but not limited to e-mails, text messages, calls,
Instagram, Facebook, Facebook Messenger or any other social media or any
other electronic means whatsoever.” The court also prohibited Laura from
posting on social media regarding C.C. or C.E. or the case.

¶5 Laura, however, persisted in attempting to contact G.C. In
November 2017, C.C. and C.E. sought a contempt order, providing the
court with pages of e-mails, text messages and social media posts Laura

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sent after the no contact order issued. C.C. and C.E. also explained that they
changed G.C.’s cell phone number on numerous occasions to no avail;
Laura repeatedly found the new number and contacted G.C., both directly
and through third parties. Laura demanded visitation on G.C.’s birthday
and delivered a birthday gift to G.C. at school that included a letter
pleading with G.C. to call Laura. Laura also contacted G.C. personally at
school, after waiting for the child in a courtyard.

¶6 In December 2017, the court scheduled an indirect criminal
contempt hearing that was then scheduled for April 2018. The matter was
referred for prosecution, and an attorney was appointed to represent Laura.
The State alleged Laura violated the no contact order by electronic means
on five occasions and by using social media on three occasions. The State
pursued the allegations under Arizona Rule of Criminal Procedure 35,1
adding one reference to Arizona Revised Statutes (A.R.S.) section 12-861 in
discussing the birthday present and letter Laura sent to G.C. at school.

¶7 On the day of the April 2018 criminal contempt hearing, the
court met with counsel in chambers before the hearing began without a
court reporter. As later revealed on the record, during that in-chambers
meeting, the parties agreed that Laura would “admit to certain allegations
of criminal contempt as outlined in the State’s pretrial statement” and that
the court would impose a sentence of six months jail time, to be deferred
and not imposed if she complied with the no contact order. After being
sworn, Laura admitted to eight Rule 35 contempt allegations. The court
found her guilty of criminal contempt under Rule 35 and imposed a
sentence of six months jail time, deferred and not to be imposed if she
complied with the no contact order, which the court reaffirmed. Laura did
not seek appellate review at that time.

¶8 Notwithstanding the criminal contempt finding and deferred
jail time, Laura continued to violate the no contact order. In late September
2018, C.C. and C.E. made a filing showing Laura contacted G.C. directly by
text and social media several times that month. In these contacts, Laura was
asking G.C. to call her, and when G.C. responded that he would block her
phone number, Laura responded in the following text dated September 14,
2018:

1 Rule 33, effective during the superior court hearings, was re-numbered

Rule 35 effective January 1, 2020. Citations to the current rule and statutes
are used here.

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Wow. Ok. Are you afraid. [G.C.] are you safe?
Do you need to talk to someone you feel safe
with? Sweetheart I have been trying to get you
home for 612 days. I love you and miss you so
much. You were stolen from me by [C.C. and
C.E.]. They have told you I will go to jail if you
and I talk or see each other. Honey I swear to
you THAT IS NOT THE TRUTH. No one is
putting me in jail or taking me away. Mom has
been in court for months and you are going to
come home I promise. Please look up a very
important new phrase. Parental Alienation.
That is what is being done to you. To make you
afraid and to keep you from contacting me you
have been lied to by people who you thought
you could trust[.] Please baby TRUST ONLY IN
YOURSELF. LISTEN TO THAT LITTLE VOICE
I ALWAYS TOLD YOU WOULD TELL YOU
WHAT WAS RIGHT AND WRONG. Some
people call that voice your guardian angel. We
all have it and the smartest people I know listen
to that inner voice when making choices about
what is good and what is not so good. You are
good and have done nothing wrong. You are
going to be 16 next month and I am very proud
of you. Remember I am your mom and I have
loved you your whole life and before you were
born. I never lied to you. You have been told
many bad and scary things in the last year and
a half….please son promise me you will think
again about what makes the most sense to you.
If it doesn’t sound true it isn’t true[.] Remember
I used to tell you that all the time. No one is in
trouble. There is something you have to do that
I promise you will change your life and you
have to promise me you will be brave and do
exactly what I tell you and you have to do it
right away. You and I have to talk. You have this
number and I will give you my cell number.
YOU CAN’T CALL ME FROM YOUR PHONE
OR ON ANY PHONE THAT [C.C. and C.E. and
others] KNOW ABOUT. YOU HAVE BEEN

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BLOCKED. YOU MUST CALL ME FROM A
PHONE OF A FRIEND OF YOURS OR CALL
ME FROM A PHONE FROM A STORE OR
SCHOOL. PLEASE [G.C.] I NEED TO HEAR
YOUR VOICE AND YOU NEED TO HEAR ME.
My heart is broken and I have cried a million
tears since you have been gone. I didn’t give
you away and they did not get permission from
me to take you. I am so worried about you and
I am begging you to be a brave young man and
trust me sweetie[.] Please trust me. I love you
and will be waiting for you to call. God is
watching over you and will keep you safe. You
have to save our family. You have to be my hero
[G.C.]. . . . I love you and I am safe I swear to
you.

As a result of this late September 2018 filing, the court scheduled a
December 2018 contempt hearing. The court informed Laura and her
counsel that these new contacts constituted the contempt allegations. The
State’s pre-trial statement and notice of contempt allegations limited the
allegation to this September 14, 2018 text message, also making plain the
State was proceeding under Rule 35.

¶9 At the December 2018 contempt hearing, the State called as
witnesses C.E., G.C.’s father, his father’s girlfriend and an investigator. C.E.
testified to the contents of the September 14, 2018 text message, the phone
number it was sent from and the no contact order. The investigator testified
that based upon a subpoena from T-Mobile, Laura was the subscriber of
one of the phone numbers used to contact G.C. The other witnesses
confirmed Laura used two other phone numbers, which were both used to
contact G.C. The court took judicial notice of the no contact order.

¶10 Having received the evidence and argument, the court found
Laura guilty of criminal contempt under Rule 35. As a consequence, the
court imposed the six months of jail time that had been deferred in April
2018, and an additional month for the September 14, 2018 text message, to
be served concurrently. Laura filed a notice of appeal later in December
2018. Laura did not seek a stay of that consequence pending review by this
court, and she was released from custody in June 2019.

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DISCUSSION

I. Rule 35 Criminal Contempt Cannot Be Challenged by Appeal.

¶11 “This court’s appellate jurisdiction is defined, and limited, by
the Legislature.” Brummett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420,
426 ¶ 4 (App. 2016). This court has an independent obligation to determine
it has jurisdiction over an appeal. Robinson v. Kay, 225 Ariz. 191, 192 ¶ 4
(App. 2010). Laura’s putative appeal is based on the argument that the
contempt orders were issued under A.R.S. §§ 12-861 and -863, where there
is a right to an appeal. Because the contempt orders were issued under Rule
35, however, she has no right to an appeal.

¶12 For A.R.S. § 12-861 to apply, Laura’s conduct would have had
to (1) violate a lawful court order and (2) be an independent criminal
offense. See Riley v. Superior Court, 124 Ariz. 498, 499 (App. 1979); State v.
Cohen, 15 Ariz. App. 436, 439 (1971). Although contemptuous, Laura’s acts
do not appear to be independently criminal. For this reason, the court
proceeded under Rule 35, not Section 12-861. Accordingly, because Rule 35
governed these contempt proceedings, she has no right to appeal the
contempt orders. See State v. Mulligan, 126 Ariz. 210, 216-17 (1980) (finding
no authority for appeals of contempt orders). Instead, her exclusive route
for appellate review was by special action. See, e.g., Stoddard v. Donahoe, 224
Ariz. 152, 154 ¶ 7 (App. 2010); Hirschfeld v. Superior Court, 184 Ariz. 208, 209
(App. 1995); Ariz. R.P. Spec. Act. 1(a). Sua sponte construing Laura’s
putative appeal as a petition for special action, the issue then becomes
whether this court should accept special action jurisdiction.

¶13 Laura’s December 2018 notice of appeal seeks to challenge
both the April 2018 and the December 2018 contempt orders. In doing so,
she waited seven months after the April 2018 order, issued as a result of her
admission under oath, to seek to appeal criminal contempt and the
imposition of the agreed-upon and suspended six months jail time. Laura
did not seek to challenge the April 2018 order until after issuance of the
December 2018 order, which found her in contempt based on her conduct
after entry of the April 2018 order and imposing the suspended
consequences specified in the April 2018 order. Moreover, Laura did not
seek suspension of the jail time pending this court’s resolution and has now
served that time. “One of the equitable considerations involved in accepting
special action jurisdiction is a petitioner’s showing of a need for speedy
relief.” State ex. rel. Neely v. Rodriguez, 165 Ariz. 74, 77 (1990) (emphasis
added). Given her delay in challenging the April 2018 order, this court

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declines to accept special action jurisdiction over her challenges to the April
2018 order.2

¶14 By contrast, Laura’s attempt to seek review by this court of
the December 2018 order was timely. Accordingly, and because she would
otherwise be deprived of appellate review, this court will exercise its
discretion and sua sponte accept special action jurisdiction over the
December 2018 order. See A.R.S. § 12-120.21(A)(4); Ariz. R.P. Spec. Act. 1(a).

II. Laura Has Shown No Reversible Error for the December 2018
Order.

¶15 Laura argues she did not receive adequate advance notice of
the allegation to be tried at the December 2018 hearing, an issue this court
reviews de novo. State v. Rosengren, 199 Ariz. 112, 116 ¶ 9 (App. 2000). Laura
was charged with indirect criminal contempt under Rule 35. “[I]ndirect
contempt requires that the alleged contemnor be given advance notice of
the charge, an opportunity to be heard, and present testimony in his own
behalf. The party is entitled to his day in court.” Ong Hing v. Thurston, 101
Ariz. 92, 99 (1966). As applicable here, a court “may not find a person in
criminal contempt without notifying the person of the charge.” Ariz. R.
Crim. P. 35.3.

The court must set the hearing on a date that
will allow the person reasonable time to prepare
a defense. The notice of hearing must state the
hearing’s time and place, and the essential facts
constituting the charged contempt. A court may
give the notice orally in open court in the
presence of the person charged or by an order
to show cause.

Id. (emphasis added).

2 On the merits, Laura’s challenge to the April 2018 order would fail. She

argues that the order must be vacated because the court failed to conduct a
full Rule 17 colloquy before accepting her admission at the April 2018
hearing. Laura has not shown that Rule 17 applied, given the proceeding
was under Rule 35 and did not involve an independent criminal offense.
Nor has Laura shown that her admissions, under oath, were not sufficiently
knowing, voluntary and intelligent. As a result, and recognizing she did not
timely object, Laura has not shown the proceedings leading to the April
2018 order constitute fundamental error.

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¶16 The record shows Laura had at least two months’ notice of the
allegations. In late September 2018, C.C. and C.E. provided notice to Laura
and the court of her violations of the no contact order earlier that month,
attaching the September 14, 2018 text message (among others) that
provided the basis for the December 2018 order. At a September 2018
hearing that followed, the court specifically addressed these new alleged
violations with Laura and her counsel. At that hearing, the court set the date
and time for the December 2018 contempt hearing and informed Laura
these allegations would be the subject of that hearing. As reflected in the
following exchange, the court clarified the allegations to be addressed at the
December 2018 hearing:

[Laura’s counsel]: Well, what exactly are we – is
this going to be these newest allegations?

The Court: Yes. These are if you have any
violation of the Court’s orders which as you
know, I’ve deferred the jail sentence and it will
be whether or not that jail sentence gets
imposed.

¶17 More than a week before the December 2018 hearing, the State
filed its pre-trial statement, which narrowed the focus of that hearing to the
September 14, 2018 text message. This further provided Laura advance
notice and further narrowed the scope of the December 2018 hearing. On
this record, Laura has not shown that she failed to receive proper advance
notice of the scope of the December 2018 hearing. See State v. Arnett, 158
Ariz. 15, 18-19 (1988) (finding indictment gave sufficient notice even though
defendant did not learn the state’s theories of prosecution until day of trial).

¶18 Laura also argues there was insufficient evidence to support
the court’s December 2018 contempt finding, an issue this court reviews de
novo. State v. West, 226 Ariz. 559, 562 ¶ 15 (2011). “[T]he relevant question
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 562 ¶ 16 (quoting
State v. Mathers, 165 Ariz. 64, 66 (1990)).

¶19 The State was required to prove Laura “willfully disobey[ed]
a lawful writ, process, order, or judgment of a court by doing . . . an act or
thing forbidden.” Ariz. R. Crim. P. 35.1(a). The State was required to prove
both the acts alleged and the requisite intent beyond a reasonable doubt.
See Cohen, 15 Ariz. App. at 440 (citing cases). On appeal, Laura does not

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contest the proof showing that she committed contemptuous acts, only that
the State failed to prove a lawful order prohibited her from contacting G.C.

¶20 Although the no contact order was not marked and received
as an exhibit at the December 2018 hearing, at the State’s request and
without objection, the court took judicial notice of its order prohibiting that
contact. See Ariz. R. Evid. 201. C.E. also testified that there were orders in
place prohibiting Laura from contacting G.C. Although the better practice
would have been to have the order marked and received in evidence, Laura
has not shown that the court fundamentally erred in taking judicial notice
of its own order. See State v. Rhome, 235 Ariz. 459, 461 ¶ 8 (App. 2014) (“[A]
court may properly take judicial notice of its own records.”). On this record,
Laura has not shown fundamental error.

CONCLUSION

¶21 Sua sponte exercising special action jurisdiction over the
superior court’s December 2018 order, this court accepts jurisdiction in part
but denies relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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