State v. Fox

317

Submitted December 3, 2019; amended supplemental judgment reversed in

part, remanded for resentencing, otherwise affirmed July 14, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

PATRICK RAYMOND FOX,

Defendant-Appellant.

Jackson County Circuit Court

17CR07694; A167616

496 P3d 10

Defendant appeals from an amended supplemental judgment impos-

ing $11,305.28 in restitution to cover the victims’ medical expenses and their

attorney fees, following defendant’s convictions for second-degree assault, ORS

163.175, and third-degree assault, ORS 163.165. In challenging the restitution

award, defendant contends that the state failed to establish that the medical

expenses were reasonable and necessarily incurred and that the attorney fees

were reasonably foreseeable and necessary. Held: The state presented sufficient

evidence to establish that the medical expenses as to one of the victims, J, were

both reasonable and necessarily incurred. The state, however, failed to present

sufficient evidence to establish that the medical expenses as to a separate vic-

tim, M, were reasonable. As to the attorney fees, the trial court did not err in

awarding restitution to the victims for the legal services directly related to the

criminal case.

Amended supplemental judgment reversed in part; remanded for resentenc-

ing; otherwise affirmed.

Timothy Barnack, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and David O. Ferry, Deputy Public Defender, Office

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Hannah K. Hoffman, Assistant Attorney

General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and Powers, Judge, and

Sercombe, Senior Judge.

POWERS, J.

Amended supplemental judgment reversed in part;

remanded for resentencing; otherwise affirmed.

318 State v. Fox

POWERS, J.

In this criminal case, defendant appeals from an

amended supplemental judgment imposing $11,305.28 in

restitution ($8,105.28 to cover the victims’ medical expenses

and $3,200.00 to cover their attorney fees), following his

convictions for second-degree assault, ORS 163.175, and

third-degree assault, ORS 163.165. Defendant challenges

the award of restitution, contending that the state failed to

establish that the medical expenses were reasonable and

necessarily incurred and that the attorney fees were reason-

ably foreseeable and necessary. For the reasons explained

here, we reverse, in part, and remand for resentencing.

We review orders of restitution for errors of law

and we are bound by the trial court’s factual findings if

there is any evidence in the record to support them. State v.

McClelland, 278 Or App 138, 141, 372 P3d 614, rev den, 360

Or 423 (2016).

Defendant caused physical injury to his neighbors—

a married couple, M and J—by striking them with a metal

chain. Both victims were transported to the hospital via an

ambulance flight and received medical treatment. Defendant

pleaded guilty to both assaults, and the state sought res-

titution for the victims’ medical expenses and the victims’

attorney fees.

At the restitution hearing, the state asked that

defendant be ordered to pay $4,759.02 in restitution to the

Crime Victim Services Division (CVSD), for medical and

hospital expenses incurred by the victims. In support of that

amount, the state called Shaw, the manager of the compen-

sation and revenue collection program at CVSD. Shaw testi-

fied that CVSD reimbursed M $300.00 for the copays that he

paid that insurance did not cover. As to J’s expenses, Shaw

explained that CVSD paid her hospital bills which, because

she was uninsured, had been reduced by the workers’ com-

pensation fee schedule. Shaw testified to how much J’s med-

ical bills originally were and how much they were reduced

to pursuant to the workers’ compensation fee schedule: hos-

pital bill was $6,848.00, CVSD paid $2,273.80; ambulance

bill was $1,328.00, CVSD paid $996.00; and a radiology bill

Cite as 313 Or App 317 (2021) 319

was $492.00, CVSD paid $433.00. CVSD also paid $726.22

for J’s follow-up care with her primary care physician. The

state also asked Shaw to explain how CVSD confirmed that

J’s medical bills were related to the criminal incident:

“Q [by the prosecutor:] And these were all related to

the injuries [J] sustained in the State versus Fox case?

“A [Shaw:] That is correct. When we accept an appli-

cation for compensation, we do not pay bills until we have

the actual bill. If insurance is involved, the explanation of

benefits. And then we also have to have the medical chart

notes so that we can review to ensure that they are directly

related to the criminal incident.”

The state also asked that defendant be ordered to

pay $3,346.26 in restitution to M’s health insurance com-

pany, Regence Blue Cross Blue Shield of Oregon (Blue Cross),

for medical expenses related to his injury. The state called

Brown, a representative from Blue Cross, to testify about

what charges Blue Cross paid on M’s behalf. Brown testi-

fied that Blue Cross paid the ambulance air flight charge,

emergency-care charges, and M’s follow-up appointment

charge. Brown did not, however, provide a breakdown of the

costs for each service. In addition to testimony from CVSD

and Blue Cross, the state also called both victims to testify

about the extent of their injuries.

Finally, the state sought restitution for the victims’

attorney fees that the couple incurred when they hired a

private attorney to assist them and guide them through the

criminal case. Prior to the criminal assaults, defendant and

the victims had been involved in a property dispute. The

victims had retained an attorney with a private civil prac-

tice, Naumes, to represent them for that dispute. When the

criminal case arose, the victims retained Naumes to rep-

resent their interests in the criminal proceeding because

“they want[ed] somebody who they trusted to advise them

in the criminal case.” The state submitted an invoice of the

services Naumes rendered and called Naumes to testify.

Naumes testified that she made various appearances in

court directly related to the criminal case, drafted a motion

to quash a subpoena, took pictures of defendant’s property

after defendant expressed concerns that the victims were

320 State v. Fox

“going over to his property and stealing his stuff,” assisted

in other property-related issues, represented the victims in

settlement negotiations, and spoke on behalf of the victims

at defendant’s sentencing hearing.

Defendant objected to the imposition of restitution.

As to the victims’ medical expenses, defendant argued that

the state failed to present “testimony that the medical ser-

vices were reasonable and necessary.” Defendant argued

that, under the reasoning articulated in McClelland, med-

ical bills alone are not sufficient, and that, the testimony

from CVSD and Blue Cross was akin to merely providing a

medical bill, because neither of the witnesses were medical

professionals and neither “testified that these services or

expenses were reasonable or necessary.” The state asserted

that the victims testified about the extent of their injuries

and confirmed that they followed the treatment plan recom-

mended by their doctors.

With regard to paying restitution for the victims’

attorney fees, defendant argued that the fees in this case

were neither reasonably foreseeable nor necessarily incurred

as outlined in State v. Herfurth, 283 Or App 149, 388 P3d

1104 (2016), rev den, 361 Or 350 (2017). In particular, defen-

dant asserted that it was not reasonably foreseeable for the

victims to hire a civil attorney to assist them with aspects of

a criminal case when there are people in the district attor-

ney’s office whose job it is to assist crime victims. Defendant

argued that there are “victim advocates in the district attor-

ney’s office to do exactly what [the victims’] attorney did for

them.” In response, the state argued that under State v.

Ramos, 358 Or 581, 368 P3d 446 (2016), State v. Gerhardt,

360 Or 629, 385 P3d 1049 (2016), and Herfurth, the allow-

ance of attorney fees for this type of case was “pretty broad.”

The trial court agreed with the state’s position.

With regard to restitution to Blue Cross, the court concluded

that the amount sought was reasonable:

“So on the reasonable fee for the amount being paid,

it’s an insurance company, Blue Cross and Blue Shield, it’s

a well reputable, established insurance company; so I can

make a reasonable inference that whatever they charge was

Cite as 313 Or App 317 (2021) 321

reasonable for insurance companies, and they’re within the

guidelines because they are regulated by the government.”

The court did not make any specific findings as to the rea-

sonableness of the restitution amount to CVSD.

Given the nature of the victims’ injuries, the court

concluded that their incurred medical expenses were

necessary:

“When you go to the hospital in an ambulance, they’re

going to do certain things regardless of what you say or do.

That’s just the way hospitals work.

“* * * They’re going to say, no, we need to check you out.

We need to do a CAT scan on you. You got hit in the head;

we don’t care what you say, we’ve got to do it, because we’ve

got liability * * *. So for them it’s necessary.”

Additionally, the court found the victims’ testimony to be

credible and concluded that their testimony supported a

finding that the expenses were necessary:

“So the medical bills, I believe you can testify as to * * *

[whether the medical bills were necessary] and them hav-

ing to follow through. They didn’t have a choice, for the

purpose of the record, when they went to the hospital. But

for the defendant’s actions, they didn’t have a choice but to

go to the hospital and they didn’t have a choice but to go

through all those procedures which they testified to.”

Finally, the court also imposed restitution to cover

the victims’ attorney fees for the services related to the

criminal case; however, the court declined to award fees for

services related to the property dispute (with the exception

of one, which we discuss below).

On appeal, defendant renews the arguments that

he made to the trial court. The state remonstrates that the

victims’ medical expenses were reasonable and necessarily

incurred. With respect to whether the expenses were reason-

able, the state asserts that this case is controlled by State v.

Campbell, 296 Or App 22, 438 P3d 448 (2019), rev’d on other

grounds, 366 Or 825, 470 P3d 369 (2020), and that payment

from either a state-funded insurer or a private insurer is

sufficient to show reasonableness. The state also asserts

that given the nature of the victims’ injuries, the trial court

322 State v. Fox

could infer that the expenses they incurred (e.g., ambulance

ride, emergency room treatment, diagnostic imaging) were

“medically appropriate,” and thus, necessarily incurred.

Finally, the state renews the arguments made to the trial

court regarding the award of attorney fees as restitution.

We address each of the arguments in turn.

I. MEDICAL EXPENSES

Under ORS 137.106(1)(a), “the state may seek to

recover restitution against a criminal defendant and on

behalf of a victim.” McClelland, 278 Or App at 141. ORS

137.106(1)(a) provides, in part:

“When a person is convicted of a crime, or a violation as

described in ORS 153.008, that has resulted in economic

damages, the district attorney shall investigate and pres-

ent to the court * * * evidence of the nature and amount of

the damages. * * * If the court finds from the evidence pre-

sented that a victim suffered economic damages, in addition

to any other sanction it may impose, the court shall enter

a judgment or supplemental judgment requiring that the

defendant pay the victim restitution in a specific amount

that equals the full amount of the victim’s economic dam-

ages as determined by the court.”

As the Supreme Court recently explained, restitution is

statutorily required when three conditions are satisfied:

(1) the defendant has been convicted of criminal activity;

(2) the victim suffered economic damages; and (3) there exists

a causal relationship between the defendant’s criminal activ-

ity and the economic damages. State v. Aguirre-Rodriguez,

367 Or 614, 620-21, 482 P3d 62 (2021). Medical expenses are

recoverable as restitution if they are reasonable in amount

and necessarily incurred. State v. Perdew, 304 Or App 524,

525, 467 P3d 70 (2020); see also ORS 31.710(2)(a) (defining

economic damages to include “reasonable charges necessar-

ily incurred for medical, hospital, nursing and rehabilitative

services and other health care services”). The burden is on

the state to present sufficient evidence to support a finding

of reasonableness and necessity. See Perdew, 304 Or App at

526 (“As to both reasonableness and necessity, the state must

present evidence sufficient to support a finding, rather than

relying on a presumption of reasonableness or necessity.”).

Cite as 313 Or App 317 (2021) 323

A medical expense is reasonable “if it is at (or below)

the market rate for the services, drugs, or other medical

items provided[.]” State v. Workman, 300 Or App 622, 623,

455 P3d 566 (2019). That is because, “[b]y definition, the

market rate is the value ascribed to the services in a given

market, and the market rate is the burden a victim bears to

receive care in that time and place.” Campbell, 296 Or App

at 30-31. A trial court cannot rely on medical bills alone

to establish that a medical expense is at the market rate;

rather, “[s]ome additional testimony or evidence is required

to support the reasonableness of the bill for the hospital or

medical services.” McClelland, 278 Or App at 144. Similarly,

a trial court cannot rely on “common sense” alone to con-

clude a medical charge is reasonable. See id. at 146-47 (“The

finder of fact cannot be presumed to know what is a ‘reason-

able’ charge for medical services based on their own experi-

ence and without further evidence, particularly given that

many medical services are paid by third parties and insur-

ance companies.”).

Whether treatment is necessary is a distinct question

from whether charges are reasonable. See State v. Dickinson,

298 Or App 679, 682, 448 P3d 694 (2019) (“Evidence of one

does not necessarily establish the other.”). A trial court “can-

not presume that medical or hospital services provided to

a crime victim were necessary, merely by virtue of the fact

that they were provided, because such a presumption would

be inconsistent” with ORS 137.103(2). Id. at 684. Rather, the

state must present “ ‘some evidence’ of necessity.” Perdew, 304

Or App at 528 (emphasis omitted) (quoting State v. Jordan,

249 Or App 93, 100, 274 P3d 289, rev den, 353 Or 103 (2012)).

As we recently explained in Dickinson, there may be cases

where a trial court may rely on “common sense or common

knowledge alone to determine the necessity of the services.”

298 Or App at 684. That is, the necessity of a particular

medical service “may be so obvious in some situations as to

allow for reliance on common knowledge alone.” Id. at 684

n 5. Illustrating the point, we explained:

“For example, we doubt that it would require much evidence,

let alone expert evidence, to establish that the expense of a

tourniquet was necessarily incurred to stem the bleeding

of a severed limb, or that the expense of an ambulance ride

324 State v. Fox

was necessarily incurred to transport a severely injured

victim to the hospital.”

Id.

A. Restitution to CVSD

Here, the evidence is sufficient to support a find-

ing that the medical charges paid by CVSD on behalf of

J were reasonable and necessarily incurred. In Workman,

we addressed whether testimony from a representative of

CVSD—the same witness that testified in this case—was

sufficient to establish that the charges were reasonable. 300

Or App at 624. In that case, Shaw similarly testified as to

how CVSD reviews a victim’s medical bills and, more specif-

ically, how they pay medical charges in accordance with the

workers’ compensation fee schedules when a victim is unin-

sured. Id. We concluded that, given the governing statutory

requirements, “it can be inferred that workers’ compensa-

tion fee schedules reflect customary market rates for med-

ical services.” Id. at 625 (citing ORS 656.248(1)). We do not

deviate from the analysis in Workman and likewise conclude

that Shaw’s testimony in this case was sufficient to estab-

lish that the medical expenses paid by CVSD on behalf of J

were at or below the market rate and, therefore, reasonable.1

Further, although Shaw is not a medical profes-

sional, we conclude that her testimony, along with the nature

of J’s injuries, provided some evidence for the trial court to

conclude that her medical expenses were necessary. See

Campbell, 296 Or App at 34 (“Although we have acknowl-

edged that a plaintiff generally presents evidence of the

reasonableness and necessity of medical expenses through

testimony of physicians and other medical professionals

familiar with the injury, treatment, and costs involved,

we have not held that to be the only permissible method.”

(Brackets, internal quotation marks, and citation omitted.)).

As Dickinson suggests, some medical expenses may be so

“obviously necessary” as to allow a court to rely on common

1

Although the trial court did not make a reasonableness finding specific to

CVSD, because there is evidence in the record to support that finding, “we will

presume that the trial court [made that finding] in a manner consistent with

its ultimate conclusion.” State v. Ready, 148 Or App 149, 153-54, 939 P2d 117,

rev den, 326 Or 68 (1997).

Cite as 313 Or App 317 (2021) 325

sense or common knowledge. 298 Or App at 684. Here, defen-

dant hit J with a metal chain. Given that circumstance, the

court could rely on common sense to conclude that it was

necessary for J to be transported by ambulance to the hos-

pital to receive medical treatment such as x-rays and a CT

scan to determine the extent of her injuries and that she

would need follow-up care. Shaw’s testimony outlined each

of those services and identified the charges associated with

each service. Therefore, because the state presented some

evidence that the medical expenses for J were necessarily

incurred, the trial court did not err in awarding restitution

to CVSD for those expenses.

Finally, the state also sought restitution for the

amount CVSD reimbursed to M to cover his copays for his

medical and hospital services. However, because the state

failed to establish that the $300 amount was reasonable, we

conclude that the trial court erred in awarding restitution to

CVSD for that expense.

B. Restitution to Blue Cross

Unlike the evidence supporting J’s medical expenses,

the evidence of M’s medical expenses paid for by Blue Cross,

which was presented through Brown’s testimony, was not

sufficient to establish that the expenses were reasonable.

Although Brown testified that Blue Cross paid for M’s ambu-

lance flight, facility charges, and a follow-up appointment,

Brown did not provide a breakdown of the cost of each ser-

vice. Brown testified that Blue Cross paid $3,346.26 in total

but did not elaborate on how the amounts paid correspond

to customary market rates. Without more information, the

trial court cannot conclude that the medical expenses were

at or below the market rate and, therefore, reasonable. See

State v. Hilburn, 301 Or App 48, 49-50, 455 P3d 995 (2019)

(noting that, although the state called witnesses to testify

about the payments they made for medical expenses, “the

state elicited no testimony addressing how the amounts

paid related to the customary market rates” and ultimately

concluding that the state failed to prove that the medical

expenses it was seeking in restitution were reasonable);

see also State v. J. M. E., 299 Or App 483, 489, 451 P3d

1018 (2019) (concluding that, without any evidence as to the

326 State v. Fox

reasonableness of a hospital bill paid by CVSD or other per-

suasive argument regarding CVSD’s duty to pay only a rea-

sonable medical bill, the juvenile court erred in awarding

restitution). Because the state failed to establish that the

charges for M’s medical expenses were reasonable, we need

not address whether they were necessarily incurred.

II. ATTORNEY FEES

As noted above, defendant also challenges the

award of restitution to the victims for their attorney fees.

Attorney fees and litigation costs that a victim incurs in

connection with an underlying criminal prosecution may be

recoverable in a restitution proceeding. Ramos, 358 Or at

604. In order to recover attorney fees as restitution, “they

must be reasonably foreseeable” and “they must be reason-

able in amount and necessarily incurred.” Herfurth, 283

Or App at 157. Defendant does not challenge the reason-

ableness of Naumes’s fees; instead, defendant asserts that

Naumes’s fees were not reasonably foreseeable or necessar-

ily incurred. The test for determining whether fees are rea-

sonably foreseeable is “whether a reasonable person in the

defendant’s position would have foreseen that someone in

the victim’s position could reasonably incur damages of the

same general kind that the victim incurred.” Ramos, 358 Or

at 597.

Although defendant argues otherwise, it is rea-

sonably foreseeable that a victim would hire an attorney to

advise them about their rights in a criminal case. Under

Article I, section 42(1)(d), of the Oregon Constitution, vic-

tims have the “right to receive prompt restitution from the

convicted criminal who caused the victim’s loss or injury[.]”

However, “the right to restitution protected by Article I, sec-

tion 42, does not encompass a right to have a prosecuting

attorney assist in the recovery of restitution. Rather, the

participation of the prosecuting attorney is discretionary[.]”

State v. Lynch, 305 Or App 122, 130, 469 P3d 800 (2020)

(emphasis in original). Thus, because the prosecutor does

not represent a victim, it is reasonably foreseeable that vic-

tims would seek their own legal counsel to provide advice

during criminal proceedings, including the restitution-

related proceedings. Here, the victims retained an attorney

Cite as 313 Or App 317 (2021) 327

who provided services directly related to the criminal case.

Specifically, Naumes worked on a motion to quash an overly

broad subpoena, she represented the victims in settlement

negotiations, and she spoke on behalf of the victims at sen-

tencing. Further, although some of those services may be

duplicated by the district attorney’s office, we conclude that,

because a victim is entitled to seek separate representa-

tion, the services provided by Naumes that were directly

related to the criminal case were necessarily incurred by

the victims.

We do note, however, that “not all attorney fees that

a victim incurs in connection with a criminal proceeding

are recoverable as restitution.” Herfurth, 283 Or App at 156.

The incurred fees “must result from the defendant’s crimi-

nal activities.” Id. As such, defendant’s argument that the

charge for Naumes taking pictures of defendant’s property

was not necessarily incurred is well taken. Defendant was

convicted of assault; therefore, any services related to the

property dispute between defendant and the victims are too

removed from the criminal case. The trial court erred in

awarding restitution for those fees.

Accordingly, we reverse and remand the amended

supplemental judgment for recalculation of the proper amount

of restitution consistent with this opinion.

Amended supplemental judgment reversed in part;

remanded for resentencing; otherwise affirmed.