In 2018, defendant entered into a plea agreement with the state. Defendant admitted that she had unlawfully caused the death of a young woman in “a motor vehicle crash” and agreed to plead guilty to criminally negligent homicide, third-degree assault, and contempt of court. In return, the state agreed to dismiss one count of reckless driving and make certain sentencing recommendations to the court. Consistently with the states recommendations, the trial court deferred sentencing on the negligent homicide charge and sentenced defendant to a three-year period of probation on the assault and contempt convictions. One condition of defendants probation is that she “shall have no contact with” the victims mother.
1
In 2019, the trial court found that defendant had violated the “no-contact” condition of her probation. Having made that finding, the trial court sentenced defendant to a three-year period of probation for criminally negligent homicide and entered a judgment of conviction on that charge. The court also extended defendants existing probationary term on the assault conviction in a separate “judgment and probation order,” with the result that her extended period of probation for assault mirrors the three-year period of probation on the homicide conviction. Defendant appeals from both judgments, arguing that the trial court erred in finding that she contacted the victims mother in violation of her probation. We affirm the trial courts judgments.
We take the facts from the probation revocation hearing and state them consistently with the trial courts decision. Approximately nine months after defendant began her probation, the victims mother and younger sister encountered defendant at a beach on the Columbia River. The victims mother and sister were walking on a path from the parking lot to the beach when they passed within 10 feet of defendant, her boyfriend, and their baby. The victims mother made eye contact with defendant, who smiled at her. That led the victims mother to say, in a normal tone of voice, “Are you F—ing kidding me?” (Uppercase and deletions in original.) When the victims sister asked her mother if she wanted to leave, the mother replied, “No. We are not adjusting our plans. We are going to walk down to the beach and spend our time together.” The victims mother and sister continued walking “way down to *** the sand. And set up [their] spot” close to the water, away from where defendant and her boyfriend were sitting.
Approximately 10 minutes later, defendant and her boyfriend moved “their stuff closer to the beach, to where [the victims mother and sister] were[.]”
2
Then, “[defendant] and her baby and her boyfriend walked down to the water and played in front of [the victims mother]” for approximately 15 to 20 minutes.
3
At that point, the victims sister was also playing in the water, and she noticed defendant looking “a couple of times” at her and also at her mother. When the victims mother began taking pictures of defendant with her cell phone, defendant packed up her things and left.
The trial court issued a show-cause order to determine whether defendant had violated the terms of her probation because she had had “contact with” the victims mother. At the hearing on the show-cause order, defendants lawyer raised two defenses. The primary defense was factual. Defense counsel argued that, because the victims mother was dressed for the beach, she looked different than she usually did, with the result that defendant did not recognize her initially. Defendants lawyer argued that defendant recognized the victims mother only when she began taking pictures of her. At that point, her lawyer contended, defendant immediately gathered up her belongings and left.
Defendants lawyer also mentioned a legal issue in his opening statement and returned to it in his closing argument. He observed in his opening statement that the conditions of probation set out in the assault judgment did not define the term “contact.”
4
At the end of his closing argument, defense counsel returned to the legal issue that he had mentioned in his opening statement. He said:
“Again, I would point [out] to the Court that there really isnt a legal definition of what contact is. Other than [what] I would assume would be normal contact, if a person came up and said hey, how are you doing? And we dont have that here.”
Given that record, the trial court found that defendant had violated the no-contact condition of her probation. It explained that, in light of the role that the victims mother had played in defendants life, it was neither “realistic” nor “plausible” to believe that defendant had not initially recognized the victims mother. The court was careful to make clear that an inadvertent or unintentional contact would not violate the terms of defendants probation. The court explained, however, that, after defendant recognized the victims mother, it was incumbent on defendant to avoid further contact. Defendant did not do that. Rather, defendant and her boyfriend moved their belongings close to where the victims mother was sitting and then spent a substantial amount of time playing on the beach directly in front of her.
The court explained to defendant that, once she recognized the victims mother,
“[t]here were some choices you could have made that are different from the choice of being directly in the line of sight between [the victims mother] and—and the river.
“Which is very clear from the photograph that you were right in her line of sight. So, thats why I believe that that was [a probation] violation.”
Having found that defendant violated her probation, the court ruled that defendant had breached the plea agreement and sentenced her on the negligent homicide charge to a three-year period of probation. The court entered a judgment of conviction on that charge. The court did not revoke defendants probation on the assault conviction. Rather, it extended her probation on that conviction so that it mirrored the three-year period of probation that the court imposed on the negligent homicide conviction. The court entered a separate document captioned “judgment and probation order” extending defendants probation on the assault conviction.
On appeal, defendant does not pursue the factual issue that she raised below; that is, she appears to recognize that the trial courts factual findings effectively preclude her from arguing that she did not recognize the victims mother initially. She focuses instead on the legal point that defense counsel raised at the probation revocation hearing. She notes, as her trial counsel did, that the condition of probation set out in the judgment of conviction for assault does not define the term “contact,” and she argues that “contact” means to communicate verbally. It does not mean, she contends, knowingly remaining in the protected persons immediate presence. In making that argument, defendant does not contend that the term “contact” is unconstitutionally vague, either facially or as applied. Rather, she argues that its meaning is clear; it just means less than the trial court thought it did.
The state responds initially by raising two procedural defenses. It notes that the trial courts ruling that defendant violated her probation led to the entry of two related but separate judgments—(1) a judgment of conviction for negligent homicide entered pursuant to the plea agreement and (2) a “judgment and probation order” extending defendants probation on her assault conviction. The state reasons that ORS 138.105(5) precludes us from deciding whether the first judgment resulted from an erroneous ruling and that the second judgment can be upheld on alternative grounds. It follows, the state contends, that we can affirm both judgments without deciding whether the trial court correctly found that defendant violated her probation. Finally, the state argues that the courts ruling is correct on the merits.
We begin with the states argument that ORS 138.105(5) precludes us from going behind the plea agreement that led to the judgment of conviction for negligent homicide and determining whether the trial court erred in finding a probation violation. Our decision in State v. Merrill, 311 Or.App. 487, 492 P.3d 722, adhd to as modified on recons., 314 Or.App. 460, 495 P.3d 219 (2021), supports the states argument. See also State v. Jones, 311 Or.App. 685, 492 P.3d 116 (2021) (same). Although defendant argues that Merrill was wrongly decided and notes that the Supreme Court has allowed review in State v. Colgrove, 308 Or.App. 441, 480 P.3d 1026, rev. allowed, 368 Or. 347, 489 P.3d 540 (2021), to decide the issue, we follow our decision in Merrill.
That leaves the “judgment and probation order” extending defendants probation on the assault conviction. As the state recognizes, no statute bars us from reaching the merits of the trial courts ruling that led to that judgment. The state argues, however, that we can affirm that judgment on an alternative ground. The state notes that the trial court had discretion to extend defendants probation even if no probation violation occurred. See ORS 137.545(1)(a). That is so, the state argues, even if the trial court erred in concluding that defendant violated her probation. See State v. Laizure, 246 Or.App. 747, 268 P.3d 680 (2011) (so holding).
The state is correct that, in Laizure, we found it unnecessary to decide whether the trial court erred in finding that the defendant had violated two conditions of his probation, which led to the courts extending the defendants probation. 246 Or.App. at 753, 268 P.3d 680. We explained that the trial court had acted within its discretion in extending the defendants probation because his actions, even if they did not violate the conditions of his probation, frustrated its purposes. Id. at 753-54, 268 P.3d 680. Implicit in our decision in Laizure is the proposition that any error in finding a probation violation played no role in the trial courts decision to extend probation.
We later made what was implicit in Laizure explicit in State v. Keleman, 296 Or.App. 184, 190, 437 P.3d 1225 (2019). In Keleman, we declined to uphold a trial court order erroneously revoking the defendants probation on the theory that the court could have reached the same result on legitimate grounds. Id. We explained that “the courts mistaken belief that defendants conduct violated the terms of his probation appears to have played a role in its decision to revoke.” Id. That is, we could not say on appeal that the courts error was harmless.
We reach the same conclusion here. In this case, the trial courts decision to extend defendants probation on the assault conviction flowed directly from its conclusion that defendant had violated a condition of her probation that she have no contact with the victims mother. If the terms of defendants probation did not prohibit her from remaining in the victims mothers presence, as defendant argues, then it is difficult to see how defendants actions—remaining on a beach near the victims mother—would suggest that the purposes of probation were not being served. Cf. Laizure, 246 Or.App. at 752, 268 P.3d 680 (explaining that, in the absence of a probation violation, a trial court can exercise its discretion to extend a defendants probation if the purposes of probation are not being served). At a minimum, we cannot say on appeal that the court would have independently exercised its discretion to extend defendants probation if it had found no probation violation. It follows that we cannot uphold the judgment extending defendants probation on the alternative ground that the state proposes and turn to the merits of the probation violation ruling.
As noted, one condition of defendants probation is that “[d]efendant shall have no contact with” the victims mother. As defendant observes, the judgment does not define the term “contact.”
5
However, in comparable circumstances, we have looked to the dictionary definition of the noun “contact” to determine its meaning. See Boyd v. Essin, 170 Or.App. 509, 516, 12 P.3d 1003 (2000), rev. den., 331 Or. 674, 21 P.3d 96 (2001) (looking to the dictionary definition of contact to determine whether the respondents actions constituted a prohibited contact).
Websters defines the noun “contact,” in relevant part, as:
“2b: a condition or an instance of meeting, connecting, or communicating ”
Websters Third New Intl Dictionary 490 (unabridged ed. 2003). To be sure, “contact,” used as a noun, includes “an instance of *** communicating.” Id. But that is not its only meaning. Id. Used as a noun, “contact” also means “a condition or an instance of meeting [or] connecting.” Id. To paraphrase the illustration in Websters, an army may “ma[k]e contact with the enemy” by coming into the enemys visual presence. See id. No words need be exchanged for a contact to occur.
6
We explained in Boyd that the dictionary “establishes that, at its core, contact [used as a noun] involves a direct communication or a meeting,” although “contact” can, in context, have a broader meaning. 170 Or.App. at 516, 12 P.3d 1003 (identifying the ordinary understanding of that term and then interpreting it, in context, more broadly).
7
In this case, the trial court found that a prohibited nonverbal contact occurred when defendant knowingly chose to move into and remain in the victims mothers immediate visual presence. Specifically, after recognizing the victims mother, defendant moved her belongings close to where the mother and her daughter were sitting and then played on the beach directly in front of the mother for 15 to 20 minutes.
Defendant, however, argues that “contact” has a more limited meaning. Relying on our decision in State v. Harrison, 290 Or.App. 766, 417 P.3d 513 (2018), she contends that the no-contact condition of her probation prohibits only verbal communication. Defendants argument is counter-intuitive. If defendant were correct, no contact would have occurred if defendant had approached the victims mother at the beach and physically grabbed her. Under defendants interpretation of the no-contact condition, defendant would not have made “contact” with the victims mother as long as she did not say anything to her.
One difficulty with defendants argument (and her reliance on Harrison) is that we interpreted the transitive verb “contact” in Harrison; we did not interpret that term used as a noun. See Harrison, 290 Or.App. at 769-70, 417 P.3d 513 (noting that we were discussing the meaning of “the verb ‘contact’ ”); id. at 767, 417 P.3d 513 (setting out the prohibition at issue in that case). As we recognized in Harrison, “contact,” used as a transitive verb, has a limited set of meanings; one person ordinarily “contacts” another by communicating with them in some way. 290 Or.App. at 769, 417 P.3d 513; Websters at 490.
8
When used as a noun, contact has a wider range of meanings. See Boyd, 170 Or.App. at 516, 12 P.3d 1003; Websters at 490.
9
Used as a noun, “contact” means, among other things, “a condition or an instance of meeting [or] connecting.” Websters at 490. Defendant errs in taking the definition of one part of speech in Harrison and transposing it onto a different part of speech in this case.
Defendants reliance on Harrison is misplaced for another reason. She relies on a statement from Harrison to resolve an issue that that case neither presented nor decided. As noted above, the parties in Harrison agreed, as did we, that “the plain meaning of the verb ‘contact;’ is communication between people.” 290 Or.App. at 769, 417 P.3d 513. We did not, however, purport to decide whether that was the only meaning of “contact,” even when used as a transitive verb. Rather, the question that we decided in Harrison was whether the defendant “contacted” the petitioner in that case when she told another person information that she either intended or understood that the person would communicate to the petitioner. Id. at 772, 417 P.3d 513. Defendant errs in reading Harrison more broadly.
We accordingly agree with the trial court that defendants actions violated the condition of her probation that she “have no contact” with the victims mother. Having reached that conclusion, we note that, when the term “contact” is undefined, the question whether a person violated a no-contact prohibition by being in the protected persons presence can present close questions at the margin. Knowledge, proximity, and the duration of the contact can all bear on the issue. This, however, is not a close case. The trial court reasonably determined that defendants knowing decision to remain in the victims mothers immediate presence while she and her boyfriend played directly in front of the mother for 15 to 20 minutes fell within the center of the prohibition. We also note that the only issue that defendant has raised on appeal is what the no-contact prohibition means. Defendant has not argued that the prohibition, left undefined, is unconstitutionally vague, either facially or as applied.
Affirmed.
FOOTNOTES
1
. The conditions of probation are set out in the judgment of conviction for assault and incorporated by reference in the judgment of conviction for contempt. Neither judgment defines the phrase “shall have no contact with.”
2
. The victims mother estimated that defendant and her boyfriend put their belongings down within 50 to 60 feet of where she and her daughter were sitting. Based on a photograph that the victims mother took, which was admitted as an exhibit, the trial court could have found that defendant moved closer to the victims mother than that. Defendant presented evidence to the contrary, but the trial court was not required to credit it.
3
. The trial court could have found from the photographs that were admitted as exhibits that the victims mother was sitting close to the water and that, when defendant and her boyfriend were playing on the beach, they were close to her.
4
. Having made that observation, defense counsel did not offer a definition of contact in his opening statement, nor did he argue that any legal consequences followed from the absence of a definition.
5
. As used in defendants condition of probation, “contact” is a noun.
6
. The phrase used in defendants condition of probation, “shall have no contact with,” parallels the phrase in Websters illustration of that term, “ma[k]e contact with.”
7
. In Boyd, we sought to determine whether a nonverbal act, which the petitioner learned about after the fact—the respondents repeatedly watching the petitioners home with binoculars—constituted a prohibited contact for the purposes of the stalking statutes. 170 Or.App. at 515, 12 P.3d 1003. Those statutes provide that “ ‘contact’ includes but is not limited to” a series of examples. Id. (quoting the statutory definition of “contact”). The specific contact at issue in Boyd did not come within one of the listed examples, id. at 515-16, 12 P.3d 1003, and we looked to the dictionary definition of contact, used as a noun, as well as drawing inferences from the listed examples, in concluding that watching the petitioners home with binoculars “show[ed] an unwanted relationship or association” and thus counted as a prohibited contact once the petitioner learned about the respondents actions. Id. at 517, 12 P.3d 1003.
8
. The dictionary defines contact, used as a transitive verb, as “to bring into contact : enter or be in contact with[.]” It then lists three subsenses of that word: “a: to press against ***”; “b: to make connection with : get in communication with ***”; and “c: to talk or confer with.” Websters at 490. Even that definition, however, is broader than the definition defendant proposes; it would include “press[ing] against” another as well as “talk[ing] or confer[ring] with” them.
9
. The dictionary lists five different senses of contact, used as a noun, several of which have multiple subsenses. See Websters at 17a (explaining how Websters indicates that a word has more than one sense or subsense). As noted above, the most relevant sense of contact, used as a noun, is “a condition or instance of meeting, connecting, or communicating.” Websters at 490.
KISTLER, S. J.