State v. Smith

754                   February 14, 2024                 No. 100

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                STACY MURREL SMITH,
                aka Stacey Murrel Smith,
                  Defendant-Appellant.
               Umatilla County Circuit Court
                  20CR55315; A177591

   Jon S. Lieuallen, Judge.
   Submitted August 10, 2023.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Silberman, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
   PAGÁN, J.
   Portion of amended judgment awarding restitution
reversed; otherwise affirmed.
Nonprecedential Memo Op: 

 (2024)                          755

          PAGÁN, J.
         Defendant was charged with and convicted of
assault in the fourth degree, ORS 163.160, and harassment,
ORS 166.065. On appeal, defendant seeks reversal of an
amended judgment ordering him to pay $4,444.15 in restitution for the victim’s medical expenses. For the following reasons, we conclude that the trial court erred when it
ordered restitution for charges arising out of the victim’s
medical expenses because the state did not present sufficient evidence showing that the charges were reasonable.
Accordingly, we reverse the portion of the amended judgment awarding restitution.
         We review restitution orders for errors of law and
are bound by the trial court’s factual findings if they are supported by any evidence in the record. State v. McClelland, 

, 

, rev den, 

 (2016). As
such, “[w]e review the evidence supporting the trial court’s
restitution order in the light most favorable to the state.”
State v. Kirkland, 

, 

 (2015).
         When a defendant has been convicted of a crime
that results in economic damage to the victim and proof of
that economic damage is established, a sentencing court
must order restitution. ORS 137.106(1)(a) (2015), amended
by Or Laws 2022, ch 57, § 1.1 The amount of restitution
“equals the full amount of the victim’s economic damages as
determined by the court.” Id. Economic damages are “objectively verifiable monetary losses” that include “reasonable
charges necessarily incurred for medical, hospital, nursing
and rehabilitative services and other health care services.”
ORS 31.705(2)(a).2 The state bears the burden of satisfying
the statutory prerequisites to a restitution award. State
v. Aguirre-Rodriguez, 

, 

 (2021).
Thus, when a victim seeks restitution for medical services,
the state has the burden to prove that the cost of such services is reasonable and necessarily incurred. McClelland,

.
   1
      We cite the version of the statute in effect at the time of the hearing.
   2
      ORS 137.103(2)(a) defines “economic damages” as having the same meaning
as the term is defined for civil matters under ORS 31.705 except that the term
does not include future impairment of earning capacity.
756                                                            State v. Smith

         Whether medical charges are reasonable and
whether the treatment is necessary are distinct inquiries.
State v. Campbell, 

, 

 (2019),
rev’d on other grounds, 

, 

 (2020).
Medical expenses are considered “necessarily incurred”
when they are required for “necessary medical treatment.”
White v. Jubitz Corp., 

, 

 (2009).
Medical expenses are “reasonable” when the expenses are at
or below the relevant market rates for the services provided.
Campbell, 

. The submission of a bill,
without more, is insufficient proof of a reasonable hospital or
medical charge.3 McClelland, 

. Rather, “[s]
ome additional testimony or evidence is required to support
the reasonableness of the bill for the hospital or medical services.” 

         Here, defendant argues that the trial court erred by
imposing $4,444.15 in restitution because the state failed to
prove that the medical expenses were reasonable and necessarily incurred.4 The state concedes—and we agree—that
the record lacks evidence that the victim’s medical expenses
for the radiology costs, family physician visits, prescription
costs, and outpatient physiatry were reasonable. The only evidence offered about those expenses was a spreadsheet indicating what the victim paid for the services. That evidence is

     3
       We note that, under the current version of ORS 137.106, “economic damages will be presumed reasonable if the damages are documented in the form of
a record, bill, estimate or invoice from a business, health care entity or provider
or public body as defined in ORS 174.109.”
     4
       The state contends that defendant’s error is not preserved and that we should
not exercise our discretion to review for plain error. However, defendant preserved
his challenge to both the reasonableness of the victim’s medical charges and necessity of the treatment. Defendant argued at the restitution hearing that the medical
charges were excessive, unclarified, and insufficiently detailed. That put at issue
the reasonableness of the victim’s medical charges. Defendant further argued that
the victim was less injured than he claimed and noted that the victim was continuing to work, was going hiking, volunteering, and engaging in other strenuous
activities even after the assault. That contention put the necessity of the treatment at issue. Although we acknowledge that the specific arguments of necessity
and reasonableness could have been more clearly delineated by defendant, we view
both issues as adequately preserved for this appeal. See State v. Walker, 

, 

 (2011) (“The fact that the level of detail or thoroughness
with which a party articulates a position may leave something to be desired does
not mean that it was insufficient to serve the rule of preservation’s pragmatic purposes. The point … is whether a party provides sufficient information to enable
opposing parties to meet an objection and the trial court to avoid error.”).
Nonprecedential Memo Op: 

 (2024)                             757

insufficient to establish reasonableness. See State v. Hilburn,

, 

 (2019) (concluding that a
lack of evidence about how charges for medical services, or
the amounts paid for those services, correspond to market
rates, meant that the state failed to prove that the medical
expenses were reasonable).
          The victim’s emergency room visit, CT scan, and
physical therapy costs were also not established as reasonable. The only evidence presented by the state to justify the
charges for the emergency room visit and CT scan was a bill
from Providence Health. That medical bill, without more,
was insufficient to prove whether the charges for those services were reasonable. See McClelland, 

(“[P]roof of reasonableness requires more than evidence of
the medical charges themselves.”). Likewise, the physical
therapy charges were not established as reasonable because
the only evidence presented was a spreadsheet of the charges
and testimony from the victim’s physical therapist stating
that the prices in his clinic were set by an insurance company. However, that evidence did not demonstrate how the
prices correspond to market rates. See State v. Gastiaburu,

, 

 (2022) (The payment
of a medical bill by an insurer did not demonstrate how the
amounts paid correspond to market rates, and, therefore, did
not demonstrate that the charges were at or below market
rates, i.e., reasonable.).
        Thus, because the state failed to produce sufficient
evidence to award restitution, reversal of that portion of
the judgment, without remand, is appropriate. 5 See State v.
Mann, 

, 

 (2023) (reversing

     5
       To the extent that defendant argues that the victim’s medical expenses
for the emergency room visit, CT scan, and follow up care were not necessarily
incurred, we disagree. The victim testified that he sought emergency medical
treatment after defendant struck him on the face. The victim did not request a
CT scan. Rather, he informed the ER doctor of his medical history, and the doctor
decided the CT scan was necessary. From that evidence, the trial court could
have concluded that the victim’s visit to the emergency room, the CT scan, and
follow-up care were necessary. See State v. Jordan, 

, 

, rev den, 

 (2012) (“Although [the victim’s wife’s testimony] is not
a great deal of evidence regarding the necessity of naturopathic treatments and
organic foods, it is some evidence from which the trial court could find that the
disputed expenses were necessary, and that is sufficient.”).
758                                           State v. Smith

restitution award outright when state failed to meet its evidentiary burden).
        Portion of amended judgment awarding restitution
reversed; otherwise affirmed.