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
                                   

    Defendant appeals from an amended supplemental judgment imposing $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 victim, 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 resentencing; 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 reasonably 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, 

, 

, rev den, 

 (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 restitution 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 compensation and revenue collection program at CVSD. Shaw testified 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’ compensation fee schedule. Shaw testified to how much J’s medical bills originally were and how much they were reduced
to pursuant to the workers’ compensation fee schedule: hospital 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 

 (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 application 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 company, 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 testified 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 practice, Naumes, to represent them for that dispute. When the
criminal case arose, the victims retained Naumes to represent 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 services were reasonable and necessary.” Defendant argued
that, under the reasoning articulated in McClelland, medical 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 recommended 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, 

, 

 (2016), rev den, 

 (2017). In particular, defendant 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 attorney’s office whose job it is to assist crime victims. Defendant
argued that there are “victim advocates in the district attorney’s office to do exactly what [the victims’] attorney did for
them.” In response, the state argued that under State v.
Ramos, 

, 

 (2016), State v. Gerhardt,

, 

 (2016), and Herfurth, the allowance 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 

 (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 reasonableness 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 having 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 reasonable, the state asserts that this case is controlled by State v.
Campbell, 

, 

 (2019), rev’d on other
grounds, 

, 

 (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, 

. 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 present to the court … evidence of the nature and amount of
   the damages. … If the court finds from the evidence presented 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 damages 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 activity and the economic damages. State v. Aguirre-Rodriguez,

, 

 (2021). Medical expenses are
recoverable as restitution if they are reasonable in amount
and necessarily incurred. State v. Perdew, 

, 

 (2020); see also ORS 31.710(2)(a) (defining
economic damages to include “reasonable charges necessarily 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, 

 (“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 

 (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, 

,

 (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, 

. 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, 

. Similarly,
a trial court cannot rely on “common sense” alone to conclude a medical charge is reasonable. See 

 (“The
finder of fact cannot be presumed to know what is a ‘reasonable’ charge for medical services based on their own experience and without further evidence, particularly given that
many medical services are paid by third parties and insurance companies.”).
         Whether treatment is necessary is a distinct question
from whether charges are reasonable. See State v. Dickinson,

, 682, 

 (2019) (“Evidence of one
does not necessarily establish the other.”). A trial court “cannot 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, 

 (emphasis omitted) (quoting State v. Jordan,

, 

, rev den, 

 (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 finding 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. 

. In that case, Shaw similarly testified as to
how CVSD reviews a victim’s medical bills and, more specifically, how they pay medical charges in accordance with the
workers’ compensation fee schedules when a victim is uninsured. 

 We concluded that, given the governing statutory
requirements, “it can be inferred that workers’ compensation fee schedules reflect customary market rates for medical services.” 

 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 establish 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 professional, 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, 

 (“Although we have acknowledged 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, 

, 

,
rev den, 

 (1997).
Cite as 

 (2021)                            325

sense or common knowledge. 298 Or App at 684. Here, defendant 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 hospital 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 ambulance flight, facility charges, and a follow-up appointment,
Brown did not provide a breakdown of the cost of each service. 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, 

, 

 (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., 

, 

 (2019) (concluding that, without any evidence as to the
326                                               State v. Fox

reasonableness of a hospital bill paid by CVSD or other persuasive argument regarding CVSD’s duty to pay only a reasonable 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, 

. In order to recover attorney fees as restitution, “they
must be reasonably foreseeable” and “they must be reasonable in amount and necessarily incurred.” Herfurth, 

. Defendant does not challenge the reasonableness of Naumes’s fees; instead, defendant asserts that
Naumes’s fees were not reasonably foreseeable or necessarily incurred. The test for determining whether fees are reasonably 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, 

.
         Although defendant argues otherwise, it is reasonably 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, victims 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, section 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, 

, 

 (2020)
(emphasis in original). Thus, because the prosecutor does
not represent a victim, it is reasonably foreseeable that victims would seek their own legal counsel to provide advice
during criminal proceedings, including the restitutionrelated proceedings. Here, the victims retained an attorney
Cite as 

 (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 sentencing. 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 representation, 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, 

.
The incurred fees “must result from the defendant’s criminal activities.” 

 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.