State v. Mann

No. 614            November 29, 2023                  279

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
               BRIAN JOSEPH MANN,
                 Defendant-Appellant.
              Marion County Circuit Court
                 17CR55426; A175263

  Courtland Geyer, Judge.
  Argued and submitted December 20, 2022.
   Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
   Restitution award to Willamette Valley reversed; otherwise affirmed.
280   State v. Mann
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           HELLMAN, J.
         Defendant pleaded guilty to and was convicted of two
counts of attempted first-degree sexual abuse for acts committed against a child. In addition to supervised probation
and compensatory fines, the trial court awarded restitution
in the amount of $4,400 to Willamette Valley Community
Health (Willamette Valley), the organization that paid for
a sexual abuse evaluation of the child at Liberty House, a
child abuse assessment center. That award of restitution to
Willamette Valley is the subject of defendant’s appeal. The
central question before us is whether Willamette Valley
“suffered economic damages as a result of the defendant’s
criminal activities” when it paid Liberty House for the evaluation, such that Willamette Valley qualifies as a “victim”
entitled to receive restitution under ORS 137.103(4)(b).1 As
explained below, we conclude that the state failed to establish that Willamette Valley suffered economic damages
within the meaning of the statute. Specifically, the state
failed to identify any theory of civil recovery that would
allow Willamette Valley to recover from defendant the cost
of the forensic interview conducted at Liberty House—an
interview that occurred after a referral by police, was at
least partly for investigatory purposes, and for which neither the victim nor the victim’s family would ever be billed.
We therefore reverse the trial court’s restitution award.
                              BACKGROUND
          This is the second time this case has been before us
on the question of restitution to Willamette Valley, and the
state’s theory of recovery and the statutory basis for the trial
court’s award of the costs of the Liberty House evaluation
have shifted throughout the litigation—primarily because
of intervening case law. We begin with a brief overview of
that litigation history, which frames the specific question
that now arises in this second appeal.
    1
      Statutory citations throughout this opinion are to the statues in place as of
July 2017. Although there have been some amendments to the applicable statutes between 2015 and 2020, those amendments are not relevant to the legal
analysis in this opinion. We note that despite statutory changes over the lifespan
of this case, neither party indicated which version of the statute they relied on,
nor did they made an argument that a specific version of the statute was critical
to answering the legal questions before us.
282                                           State v. Mann

         The state initially sought an award of restitution to
Willamette Valley on the ground that it was an insurance
carrier that had expended money on behalf of a victim. See
ORS 137.103(4)(d) (defining a “victim” for restitution purposes to include “an insurance carrier, if it has expended
moneys on behalf of a victim described in paragraph (a) of
this subsection”); ORS 137.104(4)(a) (defining “victim” to
include the person against whom the defendant committed
the offense if the court determines that the person suffered
economic damages as a result). In support of that request,
the state offered testimony from two witnesses: Allison
Kelley, the chief executive officer of Liberty House, and
Sarah Zumwalt, an employee of Willamette Valley.
         Kelley’s testimony focused on the nature of the services provided by Liberty House and its billing practices.
With regard to the services, Kelley testified that Liberty
House is a child abuse assessment center that is “a specialty
medical clinic that provides what we would call a trauma
informed response to concerns of child abuse, neglect, trafficking, that kind of thing.” She testified that their staff
is trained to conduct “forensic interviews,” the purpose of
which is to “create an environment in which a child feels safe
enough to describe what his or her experiences have been.”
According to Kelley, the interview is “like an extended social
history” that is an “absolutely necessary [tool] to determine
first the diagnosis and then what the follow-up recommendations might be.” She repeatedly rejected the characterization of the interview as having an investigatory purpose
and asserted that the purpose was to “[get] a complete history for the medical provider.”
         At the same time, Kelley acknowledged that Liberty
House works with law enforcement. She explained that
“there are statutes [in ORS chapter 418] that say that when
there are those other agencies involved they are allowed to
work together. And they should be able to work together
because it makes it easier for the child.” She testified that
the ultimate report “is able to be shared for the purposes
of the statute—what the statutes provide in responding to
child abuse.” Copies of the assessment are sent to agency
partners, including the Department of Human Services
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(DHS) and a law enforcement agency, if they are involved.
This was one of those cases in which law enforcement was
involved; the report stated that the referral to Liberty House
came from an officer in the Aumsville Police Department.
         Kelley also testified about the costs associated with
a Liberty House interview and the center’s funding model.
She explained that Liberty House is a nonprofit and that
14 percent of its overall budget comes from state grants,
including the “Child Abuse Multidisciplinary Intervention
Grant,” that is contemplated under ORS 418.747—one of the
statutes that addresses the relationship between agencies.
The rest of the budget, Kelley explained, “comes from fundraising that we have to do and billing that we have to do.”
          With regard to billing, Kelley testified that children
and their parents are not themselves billed for an assessment by Liberty House. She explained that, when a child
goes through the intake process, Liberty House asks the
child’s parent or caregiver whether they have insurance and
would be willing to allow Liberty House to bill that insurance company. However, if the child’s parents or caregiver do
not have insurance or are unwilling to allow Liberty House
to bill the insurance company, then Liberty House will “take
a loss.” Kelley testified:
   “[I]n that case there are—there will be no way to recover
   the cost. We never bill a child or a family. We don’t bill a
   copay. We don’t bill a deductible and we don’t bill the family
   directly. They are not responsible in any way for the costs
   associated with that visit.”
She later reiterated that the victim’s parents would not have
signed anything other than a consent to treatment:
   “Q. Okay. Did the parents sign any kind of fee agreement
   or subrogation agreement?
   “A. No, they would not have because we never bill the
   parent.
   “Q. And as a result you never billed the victim as well.
   “A. We never bill the victim.”
        Kelley then described the relationship between
Liberty House, Willamette Valley, and the victim in this
284                                           State v. Mann

case. She explained that, because the victim was eligible
to receive Medicaid healthcare through the Oregon Health
Plan (OHP), and was enrolled with Willamette Valley,
Willamette Valley was the “conduit” for the payment and
was the “insurer of record for children who are eligible
and enrolled in that coordinated care organization.” She
explained that Liberty House’s agreement with Willamette
Valley allows Liberty House to “bill and they reimburse on
a voluntary basis because of our agreement at the rates that
are reflected.”
         Zumwalt, a Willamette Valley employee, testified
about the nature of Willamette Valley and its relationship
to Liberty House. Zumwalt testified that Willamette Valley
is a “coordinated care organization” that “manage[s] the
Medicaid benefits for Marion County.” She testified that
the “claims paid by Willamette Valley Community Health
totaled $4,400[,]” broken down by medical codes that had
been coded by Liberty House. The state’s exhibits reflected
those codes and included the following itemized entries:
“Office/Outpatient Visit New” ($2,400); “PROLONG E&M/
PSYCTX SERV O/P” ($500); “PROLONG E&M/PSYCTX
SERV O/P” ($500); “TEAM CONF W/PAT BY HC PROF”
($1,000). Zumwalt testified that, under those codes, the initial consult is $2,400 and that there are additional amounts
that can be billed under other codes when the appointments
run longer; she also explained that a final $1,000 charge
was for “a team conference with the patient or family by the
health care professional.”
         After hearing the evidence and arguments at
that initial hearing, the trial court agreed with the state’s
view that Willamette Valley was entitled to restitution as
an insurance company. The court explained that a victim
as defined by ORS 137.103(4) includes not only the person
against whom the crime was committed but also “an insurance carrier if it has expended monies on behalf of a victim,”
and that “Willamette Valley Community Health is[,] according to [Liberty House’s CEO], the insurer of record in this
case.”
       Defendant appealed the ensuing judgment that
awarded restitution and argued, among other contentions,
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that Liberty House does not bill children or their families for
the cost of an evaluation, meaning that Willamette Valley
had not expended money “on behalf of a victim described
in paragraph (a).” By the time the state filed its answering brief, the law had evolved significantly with regard to
the definition of “victim” under ORS 137.103(4). In State v.
Moreno-Hernandez, 

, 

 (2019),
the court held that medical expenses of an unemancipated
minor child were economic damages suffered by the child’s
parent, not the child, meaning that the child was not a “victim” within the meaning of ORS 137.103(4)(a). Then, in State
v. White, 

, 

 (2019) (T. White), we
applied that reasoning in the context of a restitution award
to an insurer under ORS 137.103(4)(d). We reversed the
award because the minor victim had not suffered economic
damages and, therefore, moneys expended on the child’s
behalf were not expended “ ‘on behalf of a victim described
in paragraph (a) of this subsection.’ ” 

 at 168 (quoting ORS
137.103(4)(d)).
         After those developments in the law, the state did
not defend the notion that Willamette Valley could recover
as an insurance carrier under paragraph (d) of the statute.
Instead, the state recast Willamette Valley’s role, arguing
that it was not an insurance carrier at all; the state argued
instead that Willamette Valley was entitled to claim restitution under a different paragraph, ORS 137.103(4)(b), which
defines a victim as “[a]ny person not described in paragraph
(a) of this subsection whom the court determines has suffered economic damages as a result of the defendant’s criminal activities.”
         We ultimately reversed the restitution award, concluding that the case was not materially distinguishable
from T. White. State v. Mann, 

, 

 (2020). We declined to address the merits of the state’s
newly developed theory that Willamette Valley could recover
under paragraph (b), mainly because we were not convinced
that the record would have been the same had the state
raised its alternative theory below. 

 We therefore left it
to the trial court on remand to “consider whether there are
‘other permissible options,’ including the option proposed by
286                                           State v. Mann

the state, for awarding restitution to Willamette Valley.” 

(quoting T. White, 299 Or App at 169).
         On remand, the state again proposed its alternative
option for awarding restitution to Willamette Valley under
ORS 137.103(4)(b). And despite what we said in the earlier
appeal about the record developing differently with regard
to that argument, both sides elected to proceed on the record
that had been developed at the earlier restitution hearing.
The state offered the transcript of the earlier hearing and
advanced its new legal argument based on the existing
record.
         The state’s new argument went as follows:
Testimony at the original restitution hearing established
that Willamette Valley is a “coordinated care organization” that administers the OHP to children within Marion
County and Polk County who are eligible to receive both
benefits. Willamette Valley incurred the cost of the evaluation as a provider of OHP benefits. Because the benefits
are provided under the OHP or Medicare to families that
qualify, Willamette Valley does not enter into contractual
agreements that result in it being an insurance carrier.
And because it is not an insurance carrier, the reasoning
in T. White with regard to paragraph (d) is inapplicable.
Therefore, Willamette Valley is entitled to recoup the cost of
the evaluation under paragraph (b), which allows recovery
by “[a]ny person not described in paragraph (a) of this subsection whom the court determines has suffered economic
damages as a result of the defendant’s criminal activities.”
         The trial court agreed with the state that it was
authorized to award restitution to Willamette Valley under
ORS 137.103(4)(b). The court reasoned that the $4,400 “is
an expense that was incurred as part of the criminal activity”; that the cost of the evaluation was “a medical expense
and was not investigatory in nature”; that it was Willamette
Valley, not the victim or the victim’s family, “who has suffered these economic damages”; and that the arrangement
between Willamette Valley and Liberty House, although
not addressed “in the fairly extensive list of persons, organizations and circumstances who could be compensated as
a victim under ORS 137.103(4),” nonetheless fell “under the
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broader category (b) cited by the State.” Thus, the trial court
entered a judgment that reimposed the same $4,400 in restitution to Willamette Valley. Defendant timely appealed
that judgment.
                        DISCUSSION
           Defendant’s primary argument on appeal is straightforward: For the state to establish that Willamette Valley is
a victim entitled to restitution under ORS 137.103(4)(b), the
state must show that Willamette Valley suffered “economic
damages,” which means “objectively verifiable monetary
losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and
memorial expenses ….” ORS 31.710(2)(a). That requires the
state to identify some theory by which the amount sought as
restitution “ ‘could be recovered against the defendant in a
civil action arising out of the facts or events constituting
defendant’s criminal activities.’ ” State v. Ixcolin-Otzoy, 

, 105, 

 (2017), rev den, 

(2018) (quoting State v. Dillon, 

, 

(1981)); see State v. White, 

, 

,
rev den, 

 (2019) (J. White) (“[P]aragraph (b) of the
statute requires the state to articulate a theory by which
defendant would have civil liability directly to CARES
itself.”); see also State v. Fox, 

, 

 (2022) (“[State v. Ramos, 

, 

 (2016)]
instructs that, in using [the term ‘economic damages’], the
legislature did not intend to differentiate between the ‘economic damages’ that a victim can recover as damages in a
civil action and those that the victim can recover as restitution in a criminal case.”). According to defendant, the state
has never explained the theory by which Willamette Valley
could recover its expenditures in a civil action against
defendant.
         The state accepts defendant’s framing of the question but argues that it did, in fact, identify a viable theory of
civil recovery for purposes of ORS 137.103(4)(b). That theory,
as described by the state on appeal, is that a coordinated
care organization like Willamette Valley has, “by operation of law, assignment rights to any civil cause of action
288                                                           State v. Mann

that the victim’s parents would have against defendant.”
The state’s theory rests on two premises: (1) that the victim’s parents would have had a civil cause of action against
defendant for the costs of the Liberty House evaluation; and
(2) that Willamette Valley would have been able to assert
those rights by operation of law to recover in a civil action.
Because the first premise of the state’s contention is unsupported by this record, we need not address the second.2
         The first premise of the state’s argument is that the
“minor victim’s parents would have a remedy by civil action
for assault or battery on the child’s behalf,” citing State v.
Haines, 

, 436 n 3, 

 (2010), and
Palmore v. Kirkman Laboratories, Inc., 

, 

 (1974) (explaining that a child’s parent is “the real
party in interest as to [a child’s] claim for medical expenses”
in a tort action). The state acknowledges that the parents
have not suffered any “out-of-pocket loss” because Liberty
House does not bill children or parents for the cost of the
evaluation. But, the state quotes White v. Jubitz Corp., 

, 

 (2009) (Jubitz Corp.), for the proposition that the parents’ lack of out-of-pocket loss does not
preclude recovery because an injured plaintiff suffers “economic damages” by incurring medical expenses even if “a
third party satisfies medical charges” and the plaintiff has
no obligation to repay the third party. The state also cites
our decision in State v. Romero-Navarro, 

,

 (2008), rev den, 

 (2010), issued before
the Supreme Court’s decision in Jubitz Corp., in which
we explained that expenses are “incurred” when a victim
becomes “subject to” the expenses even though someone else
might pay them.
          The problem for the state is that we have since held
that, in the absence of a bill from a provider or other evidence
that a parent or child would be responsible for payment of
a child abuse evaluation, there is insufficient evidence from
which to infer that the child or family is “subject to” the
    2
      Although we do not reach the merits of the state’s second premise, we note
that the state does not explain, and it is not readily apparent, how the statutes
and rules that it cites, which refer to an assignment to “the state” or an assignment “to the Authority,” would operate to assign any rights to Willamette Valley,
a coordinated care organization.
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expenses for purposes of obtaining restitution. In State v.
Herfurth, 

, 

 (2016), rev den,

 (2017), we considered whether the expenses of
a child abuse evaluation conducted by CARES, an abuse
assessment center, could be recovered as economic damages.
We explained that, for purposes of the restitution statutes,
“economic damages” are objectively verifiable out-of-pocket
losses that a person could recover against the defendant in
a civil action arising out of the defendant’s criminal activities. Id. at 158. We thus concluded that the state had failed
to establish that the minor victim or her family were in any
way “subject to” the cost of the abuse evaluation:
   “The record in this case regarding the CARES costs is
   sparse. It does not contain a bill from CARES, and the bills
   that it does contain do not reflect any charges or payments
   that correspond to the [Criminal Injuries Compensation]
   Account’s request for restitution for the CARES costs. The
   bills do not indicate that MD (or her family, because she
   was a minor) was charged for the CARES evaluation. And,
   there is no other evidence in the record that MD or her family was responsible for payment of the CARES evaluation,
   which, as the state acknowledged, was conducted as part of
   its criminal investigation. For example, the record does not
   contain any evidence of any payment agreements or actual
   payments by MD or her family relating to the CARES evaluation that would support a nonspeculative inference that
   MD or her family had subjected themselves to financial
   liability for the evaluation. Therefore, the record does not
   contain legally sufficient evidence to give rise to a theory of
   civil liability under which the CARES costs could be recovered from defendant.”
Id. at 158-59 (footnote omitted).
         The state does not address Herfuth, let alone attempt
to distinguish it. Nor does there appear to be any meaningful distinction between the records in the two cases with
regard to whether the victim’s families were “subject to”
expenses for the child abuse evaluations. Here, if anything,
the record affirmatively establishes that the victim’s parents would not have been subject to any expenses as a result
of the Liberty House evaluation. Kelley, Liberty House’s
CEO, testified that “[w]e never bill a child or a family. We
don’t bill a copay. We don’t bill a deductible and we don’t
290                                             State v. Mann

bill the family directly. They are not responsible in any way
for the costs associated with that visit.” She later reiterated
that the parents did not sign “any kind of fee agreement or
subrogation agreement” because “we never bill the parent”
and “[w]e never bill the victim.”
         Thus, on this record, the first premise of the state’s
argument fails under Herfurth, because the record is legally
insufficient to establish that the victim’s parents “incurred”
any medical expenses—i.e., were liable for or subject to any
medical expenses related to the child abuse evaluation. 

.
         We recognize that, more recently, the Supreme
Court in Moreno-Hernandez was presented with an argument based on Jubitz Corp. that is similar to the one that
the state raises here: “that medical expenses can be incurred
based on treatment received, even where there is no obligation to pay, and that therefore [the minor] incurred medical
expenses regardless of whether she paid for or was liable for
the cost of her treatment.” 

. After an extensive
discussion of the parties’ competing interpretations of Jubitz
Corp. on that question, the Supreme Court ultimately did not
decide whether medical expenses can be incurred based on
treatment received, even where there is no legal obligation to
pay. Instead, the court decided that it was “faced with a more
straightforward question: Whether [Jubitz Corp.] supplanted
the common law rule that when a child is injured, and receives
treatment for that injury in her minority, it is the parent who
suffers any economic damages based on medical expenses.”

. Because the Supreme Court elected not to address
whether expenses are incurred based upon treatment received
rather than a bill, nothing in that decision calls into question
our holding in Herfurth. Thus, even if there may be an open
question under Supreme Court jurisprudence with regard to
the interpretation and application of the rule in Jubitz Corp.,
the question is settled under Herfurth when it comes to a child
abuse evaluation: There must be some evidence that the child’s
parents were “subject to” the cost of the evaluation, beyond the
mere fact that the services were rendered.
         Herfurth, however, is not the state’s only obstacle on
this record. Even if the state’s reading of Jubitz Corp. were
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correct and costs for medical services can be incurred in the
absence of a billing arrangement, it is the state’s burden to
put forth a viable theory of civil recovery for the cost of the
specific services that were rendered. As discussed further
below, the services in this case involved an interview following a police referral to Liberty House, which had an investigatory purpose in addition to any medical purpose, and
was conducted by an abuse assessment center that receives
public funding for conducting the assessment according to
protocols developed by law enforcement. The state has not
offered any supporting authority or a persuasive explanation as to what principles of civil law would allow a person to
recover the costs of services that are the product of a referral by police, at a facility partially funded in that manner,
and that, by design, are never actually billed to the person
or the person’s family.
        As Kelley described in her testimony, Liberty House
operates within a statutory framework that addresses child
abuse assessment and intervention. ORS chapter 418 creates and implements the Child Abuse Multidisciplinary
Intervention (CAMI) Program. See ORS 418.746 to ORS
418.800. The CAMI program is part of the Department of
Justice (DOJ), and it serves the following purposes listed
under ORS 418.783(1):
      “(a) Establish and maintain a coordinated multidisciplinary community-based system for responding to allegations of child abuse that is sensitive to the needs of children;
      “(b) Ensure the safety and health of children who are
   victims of child abuse to the greatest extent possible; and
     “(c) Administer the grant programs established under
   ORS 418.746 and 418.786.”
         The “grant programs established under ORS
418.746” exist to fund, from money appropriated to the
DOJ, multidisciplinary teams (MDTs) at the county level.
Those teams can include a “community assessment center.”
ORS 418.746(1), (2), (5). ORS 418.747, in turn, describes the
requirements of those MDTs. Subsection (1) provides that
the district attorney of each county is responsible for developing those teams and that they shall consist of:
292                                                 State v. Mann

   “law enforcement personnel, Department of Human
   Services child protective service workers, school officials,
   county health department personnel, county mental health
   department personnel who have experience with children
   and family mental health issues, child abuse intervention
   center workers, if available, and juvenile department representatives, as well as others specially trained in child abuse,
   child sexual abuse and rape of children investigation.”
ORS 418.747(1). Subsection (2) requires the teams to develop
a written protocol “for immediate investigation of and notification procedures for child abuse cases and for interviewing
child abuse victims,” and subsection (3) requires that team
members, including personnel who conduct interviews of
child abuse victims, “shall be trained in risk assessment,
dynamics of child abuse, child sexual abuse and rape of
children and legally sound and age appropriate interview
and investigatory techniques.” ORS 418.747(2), (3) (emphases
added).
         In State ex rel Juv. Dept. v. S. P., 

,

 (2009), the Supreme Court discussed parts of
that scheme in the context of an argument that statements
made by a three-year-old child to staff members at an abuse
assessment center were testimonial for purposes of the Sixth
Amendment to the United States Constitution. Among other
things, the court observed:
   “[The abuse assessment center, CARES,] partners with
   local police and the district attorney’s office. Its members
   are trained in interview and investigatory techniques that
   are, among other things, ‘legally sound.’ [ORS 418.747(2)
   (2007)] suggests that CARES’ protocol for interviewing
   child abuse victims was developed by ‘teams,’ i.e., the local
   MDT in which CARES is a partner. In other words, that
   statute provides an opportunity for the district attorney’s
   office and the police to participate in the development of
   the protocol that CARES uses to interview the victims of
   child abuse.”

. The court further observed that funding of
the assessment centers is conditioned upon the training of
workers in those “legally sound” interview techniques. 

at 620 (citing ORS 418.747(3) (2007), amended by Or Laws
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2015, ch 736, § 63; Or Laws 2017, ch 356, § 40; and Or Laws
2019, ch 141, § 17).
         In light of those factors, as well as a fiscal report
filed in 2008 with CAMI and evidence in the record in
that case about the relationship between CARES and law
enforcement, the court in S. P. described the abuse assessment center as a “proxy” for the police interview:
       “Service as a proxy for the police appears to be a primary function of CARES. CARES receives a significant
   amount of its funding from the Department of Justice. As
   a condition of receiving those funds, CARES must train
   its workers in ‘legally sound’ interview techniques. [ORS
   418.747(3) (2007)]. … As [a social worker] stated in his
   testimony, a goal of CARES is to ‘centralize’ the process of
   interviewing child abuse victims and allow ‘law enforcement and DHS’ to be ‘present to hear firsthand what the
   child says,’ so that they do not need to ‘reinterview the
   child themselves.’ In other words, an interview by CARES
   staff acts as a substitute for an interview with the police.
   In addition, CARES receives reports on the outcomes of
   child abuse cases in which it has evaluated the victim so
   that it may reassess its evaluation techniques in order to
   strengthen the prosecution’s case. In light of all of those
   facts, we conclude that, when [the physician] and [social
   worker] interviewed N, they were acting as proxies for the
   police.”

.
         Defendant, seizing on that relationship between
law enforcement and abuse assessment centers, argues that
a separate statute, ORS 161.665, prohibits the recovery of
the cost of a child abuse assessment. That statute provides:
   “(1) Except as provided in ORS 151.505, the court, only
   in the case of a defendant for whom it enters a judgment of
   conviction, may include in its sentence thereunder a money
   award for all costs specially incurred by the state in prosecuting the defendant. …. Costs do not include expenses
   inherent in providing a constitutionally guaranteed jury
   trial or expenditures in connection with the maintenance
   and operation of government agencies that must be made by
   the public irrespective of specific violations of law.”
(Emphasis added.)
294                                                           State v. Mann

         In defendant’s view, “Liberty House provides services under the authority of the Department of Justice and
county district attorneys[,]” such that the cost of a Liberty
House evaluation is “an expenditure made in connection
with the maintenance and operation of government agencies
that must be made by the public irrespective of specific violations of law under ORS 161.665, just like regular police
services, even if it also entails providing medical services to
then-suspected victims.”
         By its terms, ORS 137.103 refers to restitution as
opposed to awarding “costs.” Nonetheless, we have previously
discussed the restitution statutes and ORS 161.665 together,
suggesting that investigatory costs under ORS 161.665 are
not recoverable as restitution. In State v. Wilson, 

, 

 (2004), the state sought and was awarded
restitution payable to the Fugitive Apprehension Unit of the
Department of Corrections (FAU) in the amount of $5,000 for
its labor expenses associated with tracking and apprehending the defendant. We reversed the award, explaining that
the labor costs incident to the FAU were incurred by that
government entity irrespective of specific violations of law:
“Such expenses, which are incurred irrespective of specific
violations of law, are no more recoverable as restitution than
they are recoverable as costs under ORS 161.665.” 

 at 510-
11 (emphasis added). But we then returned to the framework
of the restitution statute in the next sentence, concluding:
“Because the expenses at issue are not recoverable under
any theory of civil liability, the trial court lacked authority
to impose restitution.” 

.
         Here, the threshold question is not whether ORS
161.665 precludes recovery of the cost of the evaluation but
whether the state has affirmatively shown that they are economic damages to the child’s parents—as opposed to some
other type of cost, such as the cost of a governmental service
that is provided and subsidized as a matter of statewide policy. The state has not carried that burden.3

    3
      Because we focus on whether the state carried its burden to demonstrate a
theory of civil recovery for purposes of the restitution statute, as opposed to the
construction of ORS 161.665, we do not address whether defendant sufficiently
preserved his standalone contention under ORS 161.665.
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         In this case, the record does not reflect that Liberty
House receives as much of its funding from the DOJ as
CARES had in S. P., where the court described CARES as a
proxy for law enforcement. 

. Nonetheless, the
evidence in the record is that 14 percent of Liberty House’s
funding comes from DOJ and, as the court observed in S. P.,
that funding is contingent upon Liberty House conducting
its interviews according to a protocol developed with the
participation of the district attorney’s office and police.
         Given the statutory overlay and contingent funding to abuse assessment centers like Liberty House, an
interview conducted there based on referral by police has,
at the very least, a dual purpose of providing medical care
and assisting police in investigating a possible criminal
case under the CAMI scheme. That is true regardless of the
subjective intent of the medical providers. Although Kelley
testified that the purpose of the interview is to obtain a complete medical history, and that the agencies have “complete
and separate independent functions,” the fact remains that
Liberty House receives funding for conducting those interviews according to a protocol developed with the input of district attorneys and police, and the results of that interview
are shared with police.
         In theory, it is possible that parts of an assessment
by Liberty House would have no investigatory component
and be purely directed at treatment of the child. However,
none of the exhibits or testimony in this case allow for that
type of differentiation. The $4,400 requested and awarded
in this case appears to be primarily for the interview time,
and none of the entries are specific as to whether they were
directed at treatment of the child as opposed to determining
whether abuse occurred.
         Again, the state has not explained how those undifferentiated costs of a child abuse assessment are recoverable.
The CAMI scheme represents a policy decision to devote
public funding to coordinate a community response to allegations of child abuse. However, neither that scheme nor the
restitution statutes reflect a further policy choice to shift
those undifferentiated expenses to criminal defendants in
296                                               State v. Mann

all cases, regardless of whether a victim or victim’s family
has paid or been subject to the cost of the abuse assessment.
         Nor does there appear to be any support for that
idea in related statutes addressing victim compensation.
After the CAMI statutory scheme was enacted in 1989, see
Or Laws 1989, ch 998, the legislature built on that scheme
and connected it with others over the years—including
statutes concerning payment for the abuse assessments. In
1997, the legislature enacted ORS 147.390 as part of a bill
that also amended the CAMI scheme. See Or Laws 1997,
ch 872, § 25. At the time of the Liberty House evaluation in
this case, ORS 147.390 provided:
      “(1) Notwithstanding that a child is not a victim
   under ORS 147.015 (1)(a), in cases of suspected child sexual
   abuse as described in ORS 419B.005 (1)(a)(C), (D) or (E), or
   child physical abuse by an adult or caretaker as otherwise
   described in ORS 419B.005 (1)(a)(A), compensation may
   be made on behalf of the child for a child abuse medical
   assessment as defined in ORS 418.782 … if:
      “(a) The expenses are actually paid or incurred by the
   applicant; and
      “(b) A claim is filed on behalf of the child in the manner provided in ORS 147.015.
       “(2) The Department of Justice may pay compensation for child abuse medical assessments … regardless of
   whether a finding of abuse is made and only if other insurance is unavailable. If the department pays compensation,
   the department shall pay the compensation directly to
   the provider of the services. The medical fee schedules for
   payment under this section shall be the schedules adopted
   under ORS 147.035.”
The phrase “actually paid or incurred by the applicant” runs
counter to the notion that victims are to be compensated
even if they have not actually paid or are not actually liable
or subject to the expenses; and, the scheme contemplates
that DOJ can directly pay medical providers for the services
without any involvement from the child or child’s family.
       For all of those reasons, even assuming that it would
be permissible for the state to shift the full costs of abuse
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evaluations to criminal defendants in all circumstances,4
the state has not identified any clear statutory basis for
that cost-shifting, as is evident from its multiple attempts
to fit those costs into different definitions of “victim” in ORS
137.103(4).
         In sum, the state has not explained, below or on
appeal, how a medical evaluation that is part of this type
of scheme—a scheme in which the DOJ funds the abuse
assessment centers contingent upon the use of certain protocols, and can pay providers directly for child abuse medical
assessments, and can compensate the victim for expenses
that are “actually paid or incurred by the applicant”—would
be recoverable by a child or the child’s family, regardless of
whether they were ever subject to or liable for the cost of
the assessment. Moreover, the state has already had multiple opportunities below and on appeal to articulate a theory
of restitution, has rested on the same evidentiary record at
each point, and has not identified any alternative basis for
an award of restitution to Willamette Valley for the cost of
the evaluation. We therefore reverse the restitution award
outright rather than remand in this circumstance.
        Restitution award to Willamette Valley reversed;
otherwise affirmed.




    4
      Defendant alternatively contends that recovery of the costs of the evaluation only upon conviction creates an incentive for conviction that violates due
process. We need not and do not reach that argument, which does not appear to
have been raised to the trial court at the original hearing or during the proceedings on remand.