State v. Fox
| Decision Date | 14 July 2021 |
| Docket Number | A167616 |
| Citation | 496 P.3d 10,313 Or.App. 317 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Patrick Raymond FOX, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
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.
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 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 , 278 Or. App. 138, 141, 372 P.3d 614, rev. den. , 360 Or. 423, 383 P.3d 862 (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 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, CVSD paid $2,273.80; ambulance bill was $1,328, CVSD paid $996; and a radiology bill was $492, CVSD paid $433. 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:
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 "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 , 283 Or. App. 149, 388 P.3d 1104 (2016), rev. den. , 361 Or. 350, 393 P.3d 1176 (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 , 358 Or. 581, 368 P.3d 446 (2016), State v. Gerhardt , 360 Or. 629, 385 P.3d 1049 (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 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:
Additionally, the court found the victims’ testimony to be credible and concluded that their testimony supported a finding that the expenses were necessary:
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 , 296 Or. App. 22, 438 P.3d 448 (2019), rev'd on other grounds , 366 Or. 825, 470 P.3d 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 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.
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, 372 P.3d 614. ORS 137.106(1)(a) provides, in part:
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State v. Gastiaburu
...testimony or evidence is required to support the reasonableness of the bill for the hospital or medical services." State v. Fox , 313 Or. App. 317, 323, 496 P.3d 10 (2021) (internal quotation marks and brackets omitted). "Similarly, a trial court cannot rely on ‘common sense’ alone to concl......
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State v. Gastiaburu
...testimony or evidence is required to support the reasonableness of the bill for the hospital or medical services." State v. Fox, 313 Or.App. 317, 323, 496 P.3d 10 (2021) (internal quotation marks and brackets omitted). "Similarly, a trial court cannot rely on 'common sense' alone to conclud......
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State v. Wagnon
...313 Or.App. 317, 496 P.3d 10 (2021), rev'd in part on other grounds, 370 Or. 456, 521 P.3d 151 (2022), does not compel a contrary result. In Fox we reversed in part a supplemental awarding restitution for the victims' medical expenses and attorney fees, concluding that the state had failed ......
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State v. Fox
...the award for the medical expenses incurred by one of the two victims but affirmed as to those incurred by the other. State v. Fox , 313 Or App 317, 324, 496 P.3d 10 (2021). As to the latter expenses, the court held that the record included evidence in addition to the payment of the bills d......