dissenting.
I agree with the majority that, under ORS 136.617, an alleged contemnor has a right to counsel when he refuses to testify on the basis of a fear of self-incrimination. However, I dissent, because I do not agree that appellant refused to testify on that ground.
The trial court told appellant that he would be held in contempt if he refused to testify. Appellant interrupted the trial court, asking, “excuse me, ma’am. Can I ask a question? Do I have a Fifth Amendment? Can I testify on the Fifth Amendment?” The trial court explained to him that he would not be asked questions about events that might incriminate him. Appellant said nothing more about the Fifth Amendment and never asserted that as a basis for refusing to testify.
After a short recess, appellant appeared again in court but was no longer accompanied by the lawyer who had previously been with him. The court asked him if he intended to testify, and he said that he did not. Before holding appellant in contempt, however, the court reiterated its reasoning as to why his testimony would not incriminate him. This colloquy occurred:
“THE COURT: You are a complaining witness, an alleged victim. Supposedly something was done to you in the course of this shooting event we’re all talking about, and that’s *429the only thing you’re going to be permitted — they’ll be permitted to ask you.
“MR. JONES: Okay, ma’am. Let me explain it to you this way: I forgive this person.
“THE COURT: That’s one thing. The government, though has to bring their case. This is not you suing somebody, or forgiving them, or not forgiving Mr. McDonald, this is just simply the government needs to know what happened, and that’s why they’ve subpoenaed you. And if you had a right to remain silent, a Fifth Amendment right, I’d be the very first person in line to see that it was honored. It’s just that you don’t have one, and it puts me in a position of having to find you in contempt, and keeping you here in Portland.
“MR. JONES: Okay, ma’am. Well, let me explain something else to you.
“THE COURT: Okay.
“MR. JONES: When he explained all this to me, he said —
“THE COURT: The DA?
“MR. JONES: Yes.
“THE COURT: Okay.
“MR. JONES: When he explained this all to me, he said it was because I signed a complaint form, right?
“THE COURT: Your name isn’t on the form. Let me explain something to you. This comes out of the grand jury of Multnomah County. I have the instrument here that charges Miss Rogers and Mr. McDonald with this, and it’s signed by the lady who was the foreman of the grand jury and a Deputy District Attorney. Your signature appears no place on it. And it is entitled State of Oregon v. Loretta Rogers, and that’s not you.
“MR. JONES: But who filed the complaint?
“THE COURT: The State of Oregon. The State of Oregon files complaints and brings things to the grand jury on behalf of citizens; citizens only file private actions where they sue somebody. You’re not suing anybody. See, that’s one of the reasons you really got no right to remain silent. And you’re welcome to say what’s on your mind if you want, you know, if you’re going to take the oath and testify, but you are obligated to testify in this case.
“MR. JONES: Well, somebody’s already testified, right?
*430“THE COURT: Yes, Mr. McDonald testified. That’s one person, but he’s not you, and not your perspective on this.
“MR. JONES: Oh, so you need me?
“THE COURT: I do need you to testify.
“MR. JONES: Well, okay, I don’t want to testify, ma’am. I told you I forgive this person.
“THE COURT: That’s one thing, but you are obligated to testify. Now, he’s here pursuant to a signed court order transporting him here for the purposes of testifying in this case. And his — and if I understand you, and I want to be real clear, Mr. Jones, you are refusing to be sworn, and you’re refusing to testify?
“MR. JONES: Yes.”
The state contends that appellant’s “refusal to testify was based on his forgiveness of the person who allegedly shot at him.” I agree. The majority dismisses that argument by claiming that appellant’s forgiveness came after he had refused to testify on the ground that he might incriminate himself. According to the majority, the privilege against self-incrimination is too complex for a defendant to understand and would be meaningless if the court were permitted to ask a defendant for some explanation. The privilege against self-incrimination is complex, and it undoubtedly would be meaningless if a witness had to explain it correctly to a judge under every circumstance. However, a trial court should be able to ask a witness for an explanation when, as in this case, the witness was the alleged victim of the crime being tried, there was no risk of incrimination and the witness did not clearly assert the privilege, but just asked questions about it. Here, by explaining the right and asking some relevant questions, the trial court discovered that appellant was not refusing to testify on the basis of the Fifth Amendment. Under the majority’s analysis, a defendant is automatically entitled to counsel whenever he asks a question about the Fifth Amendment, even if it becomes apparent that he is not asserting the privilege against self-incrimination.
Because I believe that the trial court acted within its discretion when it made a limited inquiry into appellant’s reasons for refusing to testify, I would conclude that appellant did not refuse to testify on the ground of fear of self-incrimination. Accordingly, he did not have a right to *431appointed counsel, and the trial court did not err when it did not tell him about that right.
I dissent.