State v. Mason

2021 UT App 41

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
VON DEL MASON JR.,
Appellant.

Opinion
No. 20190618-CA
Filed April 8, 2021

Fifth District Court, Cedar City Department
The Honorable Matthew L. Bell
No. 190500085

Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant
Brent M. Johnson, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN M. HARRIS
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Von Del Mason Jr. appeals the district court’s order
finding him in contempt. We affirm.

BACKGROUND

¶2 Mason and his ex-wife, who were embroiled in
contentious post-divorce proceedings, attended a hearing
regarding the ex-wife’s relocation to Arizona. Before the judge
ruled, he told the parties, “I don’t want any talking to each other.
I’m not open for any debate. . . . I’ll give you my ruling and we
can all leave, whatever your opinion is about it.” After the judge
 State v. Mason

made his ruling, which was adverse to Mason, he announced,
“[W]e are adjourned.” Immediately thereafter Mason proclaimed
to the judge, “You are a disingenuous, intellectual liar.”
Following that statement, the court recording was turned off for
approximately one minute. However, in a written order entered
that same day, the judge recited that during that break “[s]everal
times the court suggested that Mr. Mason should stop talking”
and later “instructed Mr. Mason to stop talking, but he
continued with similar accusations and disrespectful
comments.” When the recording was turned back on, the
following exchange took place:

Mr. Mason: That’s the truth, sir. And I have every
right to tell you that.

The Court: Mr. Mason, you are in contempt.

Mr. Mason: Go figure.

The Court: I don’t appreciate—

Mr. Mason: I don’t appreciate you. You’re not—
you’re dishonest.

....

The Court: —you’re trying to make this personal.

Mr. Mason: No, you’ve made it personal, sir. You
said this was your courtroom. This is not your
courtroom, sir. You have a job. You were an
antitrust lawyer.

The Court: I told you repeatedly to stop talking.
You’re not listening. You are in contempt. I’m tired
of it.

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....

Mr. Mason: You’re a disingenuous liar, sir.

The Court: You are in contempt.

Mr. Mason: Okay. Enjoy it.

¶3 Based on Mason’s behavior in its presence, the judge
found Mason “guilty of contempt pursuant to Utah Code 78B-6-
301(1) and (5)” for disrupting its proceedings and disobeying its
order to stop talking and sentenced him to forty-eight hours in
jail. The next day, however, the court “suspend[ed] the balance
of the jail time” and ordered Mason released from jail. Mason
now appeals his contempt conviction.

ISSUES AND STANDARDS OF REVIEW

¶4 As a threshold issue, we must determine whether
Mason’s appeal is moot in light of the fact that he has already
completed his sentence. If “the requested relief cannot affect the
rights of the litigants, the matter is moot and we will not
consider it.” Gardiner v. York, 2010 UT App 108, ¶ 30, 233 P.3d
500 (quotation simplified). And we consider the issue of
mootness as a question of law. See State v. Legg, 2018 UT 12, ¶ 12,
417 P.3d 592 (explaining that mootness is reviewed “de novo”).

¶5 Mason raises several substantive challenges to the district
court’s contempt order. First, he asserts that the court denied his
right to counsel. Next, Mason asserts that he could not be held in
contempt for statements he made after the court had adjourned
and that the court exceeded its discretion in holding him in
contempt because the court did not impose a clear order. Mason
did not preserve these issues for our review, but he asks that we
nevertheless review them for plain error and exceptional
circumstances.

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 State v. Mason

¶6 Normally, “[w]hen a party fails to raise and argue an
issue in the trial court, it has failed to preserve the issue, and an
appellate court will not typically reach that issue absent a valid
exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443. Plain error and exceptional circumstances are such
exceptions. However, here the State raised the issue of mootness
and briefed Mason’s challenges to the court’s contempt order on
their merits. And as discussed below, we agree with the State
that the issues Mason raises fail on their merits. Where this is the
case, we possess the discretion to reject claims on their merits,
even when those claims have not been properly preserved. See
State v. Kitches, 2021 UT App 24, ¶¶ 27–28. We elect to exercise
that discretion here, and after first determining that Mason’s
appeal is not moot, we address, and reject, Mason’s claims on
their merits.

ANALYSIS

I. Mason’s Appeal Is Not Moot

¶7 “A challenge to a conviction of criminal contempt is not
moot if there is a possibility that collateral legal consequences
may result from the conviction.” Gardiner v. York, 2010 UT App
108, ¶ 33, 233 P.3d 500. The State maintains that there is no
possibility of collateral legal consequences, asserting that a
criminal contempt conviction will not appear in Mason’s
criminal record and is not the type of criminal conviction that
can be used for impeachment purposes. However, even
assuming, without deciding, that the State’s assertions are
correct, the State does not respond to Mason’s argument that
“because this criminal contempt conviction comes in the midst of
a family law case where child custody is involved, a record of
criminal contempt may affect future decisions on custody.” Cf.
State v. C.H., 2008 UT App 404U, para. 2 (explaining that a
criminal contempt conviction may have “ramifications on future
investigations or adjudications by the Division of Child and

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 State v. Mason

Family Services” and could therefore affect a person’s right to
parent their children). “The burden of persuading the court that
an issue is moot lies with the party asserting mootness,” State v.
Legg, 2016 UT App 168, ¶ 9, 380 P.3d 360 (quotation simplified),
aff’d, 2018 UT 12, 417 P.3d 592, and we cannot say with certainty
that Mason’s contempt conviction could have no possible impact
on future child custody determinations or in future encounters
with the legal system. Thus, we agree with Mason that this
appeal is not moot. 1

II. Mason Was Not Entitled to the Appointment of Counsel in a
Direct Contempt Summary Proceeding

¶8 Mason argues that the district court improperly denied
his right to be represented by counsel during the proceeding in
which it found him in contempt and imposed a sanction. Mason
argues that he was entitled to the assistance of counsel in these
criminal contempt proceedings and that the court’s failure to
advise him of that right or to facilitate the appointment of

1. We also acknowledge but need not reach Mason’s argument
that even if this matter could somehow be considered moot, an
exception to the mootness doctrine would apply here because
Mason’s appeal from the court’s contempt order and sanction is
an issue that is capable of repetition yet evading review. See State
v. Steed, 2015 UT 76, ¶ 9, 357 P.3d 547 (“Issues that are likely to
evade judicial review are those that are inherently short in
duration such that a court will likely be unable to hear the issue
when it still presents a live controversy.”); see also In re adoption of
L.O., 2012 UT 23, ¶ 10, 282 P.3d 977 (“The types of issues likely
to evade review are those that are inherently short in duration so
that by the time the issue is appealed, a court is no longer in a
position to provide a remedy.” (quotation simplified)). The State
offered no rebuttal to Mason’s argument that this exception
would apply here, even if the matter is technically moot.

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counsel violated his constitutional rights and prevented him
from adequately challenging the merits of the contempt finding.
Although a defendant in most criminal proceedings—including
many criminal contempt proceedings—generally has the right to
counsel, see Turner v. Rogers, 564 U.S. 431, 441 (2011); United
States v. Dixon, 509 U.S. 688, 696 (1993), the Supreme Court
previously held, in Cooke v. United States, 267 U.S. 517 (1925), that
such a right does not exist in summary criminal contempt
proceedings involving conduct committed in the presence of the
judge, see id. at 534 (“There is no need of evidence or assistance
of counsel before punishment, because the court has seen the
offense. Such summary vindication of the court’s dignity and
authority is necessary.”).

¶9 Mason asserts that subsequent Supreme Court case law
acknowledging that “[c]riminal contempt is a crime in the
ordinary sense” and that “criminal penalties may not be
imposed on someone who has not been afforded the protections
that the Constitution requires of such criminal proceedings,”
International Union, United Mine Workers of Am. v. Bagwell, 512
U.S. 821, 826 (1994) (quotation simplified); see also Argersinger v.
Hamlin, 407 U.S. 25, 37 (1972) (“[A]bsent a knowing and
intelligent waiver, no person may be imprisoned for any offense,
whether classified as petty, misdemeanor, or felony, unless he
was represented by counsel at his trial.”), should be interpreted
as repudiating the Court’s previous position that the
appointment of counsel is not required in summary criminal
contempt proceedings. However, the Supreme Court has
continued to reaffirm the exception for summary criminal
contempt. See Turner, 564 U.S. at 441 (citing Cooke with approval
and stating that “an indigent defendant [has] the right to state-
appointed counsel in . . . criminal contempt proceedings (other
than summary proceedings)” (quotation simplified)); Dixon, 509
U.S. at 696 (explaining that “constitutional protections for
criminal defendants,” including the right to the assistance of
counsel, “apply in nonsummary criminal contempt prosecutions

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just as they do in other criminal prosecutions” (emphasis
added)). Although these more recent holdings may not address
the issue head-on, the Court’s continued reference to the
exception without repudiating Cooke leaves us with no basis,
under the federal constitution, for recognizing a constitutional
right to the assistance of counsel in summary criminal contempt
proceedings. Because Mason had no right to counsel, the court
could not have erred by not informing him of such a right or by
choosing not to appoint counsel to assist him in the summary
proceeding.

III. We Reject Mason’s Challenges to the Court’s Contempt
Finding

¶10 The court found Mason in contempt based on both
subsections (1) and (5) of Utah Code section 78B-6-301. Mason
raises challenges with respect to the court’s findings under both
provisions.

A. The Court Did Not Err by Holding Mason in Contempt
After Stating That Proceedings Were Adjourned

¶11 In his challenge to the contempt order, Mason asserts on
appeal that the court erred in holding him in contempt under
Utah Code section 78B-6-301(1), because his comments occurred
after the judge had stated that proceedings were adjourned. That
subsection defines contempt as “disorderly, contemptuous, or
insolent behavior toward the judge while holding the court, tending
to interrupt the course of a trial or other judicial proceeding.” Utah
Code Ann. § 78B-6-301(1) (LexisNexis 2018) (emphasis added).
Mason asserts that the plain language of subsection (1) limits the
definition of contemptuous behavior to “behavior that occurs
during a formal court proceeding, not after it has adjourned.” He
maintains that because the judge had announced, “[W]e are
adjourned,” before Mason’s statements, the judge was no longer
“holding the court” and that Mason’s actions therefore could not

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have “interrupt[ed] the course of a trial or other judicial
proceeding.” Id.

¶12 We disagree with Mason’s formalistic interpretation of
what constitutes a judicial proceeding or “holding the court.”
We acknowledge Mason’s assertion that disorderly or insolent
behavior toward a judge outside of court cannot justify a finding
of contempt under subsection (1) of the contempt statute. See
Robinson v. City Court, 185 P.2d 256, 257–58 (Utah 1947)
(overturning a contempt conviction based on behavior that
occurred while the contemnor and the judge were near or in a
courthouse elevator because “[t]he judge was not holding court,
he had already adjourned the morning session, he was on his
way out of the building, and no trial or other judicial
proceedings were then in progress”). But we do not agree that
the contempt statute should be so rigidly interpreted in a
situation involving a litigant who engages in contemptuous
behavior while in the courtroom and directly before the judge.
See Commonwealth v. Williams, 2000 PA Super 165, ¶¶ 5, 21–24,
753 A.2d 856 (rejecting the defendant’s assertion that his action
of “raising his middle finger and stating, ‘F—k You’” to the
judge as he “was being led from the courtroom” could not have
obstructed the administration of justice, explaining that his
actions “belittl[ed] the entire process of the administration of
justice” and that “had the Court not acted in response to the
[defendant’s] actions it would have eroded the Court’s authority
in the eyes of all those present”); Rhoad v. State, 641 S.E.2d 35, 37
(S.C. Ct. App. 2007) (explaining that a finding of direct contempt
against a defendant who made an obscene gesture to his trial
counsel on his way out of the courtroom was justified because
“[r]egardless of whether [the defendant’s] hearing had
concluded, [the defendant] failed to show proper decorum in the
courtroom and exhibited a disrespect for the court”).

¶13 Here, although the adjournment of the hearing had been
announced, the court proceedings had not actually concluded.

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See Williams, 2000 PA Super 165, ¶ 22 (“Court proceedings are
concluded after the defendant leaves the courtroom, the trial
judge goes to the next case or adjourns court and leaves the
courtroom.” (emphasis added) (quotation simplified)). Mason’s
conduct occurred in the courtroom while the judge was still on
the bench, 2 and he made his comments, directed at the judge,
immediately after the judge announced the adjournment of the
hearing but before adjournment had been accomplished. Simply
stating that court was adjourned was not equivalent to being out
of court. Nor did the court’s interest in maintaining order
evaporate simply because it had announced the adjournment of
Mason’s hearing. 3 “It is essential to the proper administration of
. . . justice that dignity, order, and decorum be the hallmarks of
all court proceedings in our country. The flagrant disregard in

2. In these pandemic-affected times, it is important to note that it
is not necessarily the physical presence in the courtroom that is
most relevant here but that the judge and Mason were still
present together in the proceeding’s forum. Had the proceeding
been held virtually and the contempt taken place during the gap
between an announcement of the court’s adjournment and the
time the judge terminated the virtual connection, we would also
consider such contempt to have occurred while the judge was
“holding the court,” see Utah Code Ann. § 78B-6-301(1)
(LexisNexis 2018).

3. It is unclear whether the court had completed its business for
the day or whether it had another hearing following Mason’s
hearing. But while the court’s interest in maintaining order
would certainly have been greater had other parties been in the
courtroom or had Mason’s actions delayed another hearing,
Mason’s and his ex-wife’s continued presence in the courtroom
and the judge remaining on the bench sufficiently demonstrated
that Mason’s actions tended to interrupt a judicial proceeding
while the judge was holding court.

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the courtroom of elementary standards of proper conduct
should not and cannot be tolerated.” Illinois v. Allen, 397 U.S. 337,
343 (1970). Because Mason’s conduct fell within subsection (1)’s
definition of contempt, the court’s contempt finding was not
error.

B. Mason Cannot Demonstrate That the Court Abused Its
Discretion in Finding That He Had Disobeyed a Court
Order

¶14 Mason also maintains that the court abused its discretion
by finding him in contempt under Utah Code section 78B-6-
301(5). Under that subsection, a person can be held in contempt
for “disobedience of any lawful judgment, order or process of
the court.” Utah Code Ann. § 78B-6-301(5) (LexisNexis 2018).
“[T]o prove contempt for failure to comply with a court order it
must be shown that the person cited for contempt knew what
was required, had the ability to comply, and intentionally failed
or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172
(Utah 1988). Mason asserts that the judge did not clearly order
him to stop talking and therefore could not properly hold him in
contempt for talking.

¶15 In his written contempt order, the judge described his
earlier verbal orders to Mason by stating that he had “instructed
the parties . . . that there should be no talking despite what either
side thought of the court’s decision” and that after Mason began
making “disrespectful comments toward the court,” the judge
“suggested that Mr. Mason should stop talking” and “instructed
Mr. Mason to stop talking.” Mason points out that before issuing
his ruling, the judge actually ordered the parties not to talk to
each other rather than ordering them not to talk at all. Thus, he
maintains that the order was unclear as to what he was required
to do. See id.

¶16 But even accepting Mason’s argument regarding the
judge’s initial order not to talk, the record shows that after

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Mason began making disrespectful comments, the judge
“instructed” Mason not to talk anymore. Nevertheless, Mason
“continued with similar accusations and disrespectful comments
even after he was taken into custody by bailiffs.” It was this
behavior that the judge identified as disobedience to “the court’s
order to stop.” We agree with the State that Mason’s disregard of
the judge’s instruction to stop talking after he had begun could
constitute contempt, and we cannot say that the court abused its
discretion by finding Mason in contempt on that basis.
Moreover, because a district court has discretion to deal with
contemptuous actions occurring in its presence, the judge did
not have to let Mason “wear himself out” before imposing a
sanction. In addition, even if there had been error in the court’s
contempt finding under section 78B-6-301(5), it would have been
harmless in light of the additional grounds for contempt it found
under section 78B-6-301(1). See supra ¶¶ 11–13.

CONCLUSION

¶17 Although we determine that this appeal is not moot, we
conclude that a person accused of direct contempt, committed in
the presence of the court, is not entitled to the appointment of
counsel in a summary contempt proceeding. Further, the district
court did not abuse its discretion in holding Mason in contempt
for his insolent behavior under the facts presented here.
Accordingly, we affirm the district court’s contempt order.

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