Submitted October 19, 2018
Washington County Circuit Court 16CR26286; James Lee Fun,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Kristin A. Carveth, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Michael A. Casper, Assistant Attorney General,
fled the brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: Defendant was convicted of attempted second-degree
rape. On appeal from his judgment of conviction and a related
supplemental judgment ordering criminal restitution,
defendant raises a single assignment of error. Defendant
argues that the trial court erred in ordering him to pay
restitution for the victim's medical and hospital
charges, because the state failed to present evidence that
the charges were reasonable and necessarily incurred. The
only evidence presented by the state was the victim's
insurer's payment ledger, which contained summary
information about the charges paid, and brief testimony by an
attorney for the insurer as to what the ledger showed.
Held: The trial court erred in ordering defendant to
pay restitution, because the state did not present sufficient
evidence to establish the necessity of the medical services
for which the insurer paid.
Or.App. 680] AOYAGI, J.
appeals a judgment of conviction for attempted second-degree
rape, ORS 163.365 and ORS 161.405, and a supplemental
judgment awarding criminal restitution. During sentencing, a
criminal defendant may be ordered to pay restitution for a
victim's objectively verifiable monetary losses,
including "reasonable" medical and hospital charges
that were "necessarily incurred." ORS 31.710 (2Xa);
see ORS 137.103(2) (generally adopting the
definition of "economic damages" in ORS 31.710). In
his sole assignment of error, defendant challenges an award
of $5, 281.74 in restitution for a victim's hospital and
medical expenses, arguing that the state failed to present
evidence that the charges were reasonable and necessarily
incurred. We agree with defendant that, because the state
presented no evidence regarding the necessity of the medical
services underlying the charges, the sentencing court erred.
Accordingly, we remand for resentencing.
review orders of restitution 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, 278 Or.App. 138, 141, 372 P.3d 614 (2016).
pleaded guilty and was convicted of attempted second-degree
rape. Although his conviction was for an attempt crime
(pursuant to a plea agreement), defendant admitted that he
had sex with the victim and impregnated her. During
sentencing, the state asked that defendant be ordered to pay
$5, 281.74 in restitution to Tuality Health Alliance (THA),
the victim's health insurer, for medical and hospital
expenses related to pregnancy, childbirth, and nursing that
THA had paid on the victim's behalf. See State v.
Campbell, 296 Or.App. 22, 26-27, 438 P.3d 448 (2019)
(summarizing criminal restitution procedures); State v.
Pumphrey, 266 Or.App. 729, 733, 338 P.3d 819 (2014),
rev den, 357 Or. 112 (2015) (recognizing that
restitution may be ordered for economic damages arising from
"criminal activities," which ORS 137.103(1) defines
to mean "any offense with respect to which the defendant
is convicted or any other criminal conduct admitted by the
Or.App. 681] At the restitution hearing, the state called one
witness, an attorney, who testified that his client, THA, had
paid $5, 281.74 in claims for the victim, specifically claims
"related to a pregnancy or a medical issue," as
shown on THAs payment ledger, which was admitted into
evidence as Exhibit A. That was the entirety of the
substantive testimony. As for Exhibit A itself, THAs payment
ledger is a spreadsheet with 10 rows and 16 columns. Based on
the attorney's testimony, it is reasonable to infer that
each row reflects a medical or hospital bill that THA paid on
the victim's behalf. As for the columns, the column
headings are illegible, and many columns contain numbers or
codes without an obvious meaning. However, the ledger does
indicate that the victim received hospital or medical
services from five providersbetween August 5, 2015 and
September 23, 2015. The ledger describes the services
provided as (1) "LAB/BACT-MICRO"; (2)
"LAB/BACT-MICRO"; (3) "ULTRASOUND"; (4)
"US PG UTRUS B-SCAN [illegible]"; (5)
"Neuraxial labor analgesia/ anesthes [cut off]";
(6) "Vaginal delivery w/o complicating d [cut
off]"; (7) "ROUTINE OB CARE W/ ANTPRTM CA [cut
off]"; (8) "Daily management of epidural or su [cut
off]"; (9) "BREAST PUMP, ELECTRIC, ANY TYPE";
and (10)"DME MISCELLANEOUS." Finally, the
ledger shows a charge for each line item-with the 10 charges
totaling $6, 402.37-and how much THA paid for each line item-
with the 10 payments totaling $5, 281.74.
trial court ordered the requested restitution, reasoning that
the victim's expenses were "economic damages"
and were a reasonably foreseeable consequence of
defendant's criminal activities. On appeal of the
resulting judgment, defendant does not contest that THA
qualifies as a victim for restitution purposes. See
ORS 137.103(4Xd) (defining "victims" to include
"[a]n insurance carrier" that "has expended
moneys on behalf of a crime victim). As he did below,
however, defendant argues that the evidence was [298 Or.App.
682] insufficient to support the restitution award,
specifically that the state failed to establish that the
charges were reasonable and necessarily incurred.
See ORS l37.lO6(1)(a) (the burden is on the state in
a restitution proceeding to present "evidence of the
nature and amount of the damages"). The state does not
respond on the issue of necessity, apparently due to a
misconception that the necessity of the services "is
undisputed." As to reasonableness, the state argues
that, although an unpaid hospital bill is insufficient to
establish reasonableness under McClelland, the
evidence in this case is sufficient to establish
reasonableness, because THA paid the bills and,
moreover, paid them in a lesser amount than originally
the charges are reasonable and whether the treatment is
necessary are two distinct questions."
Campbell, 296 Or.App. at 35. Evidence of one does
not necessarily establish the other. See id.; cf. Sisters
of St. Joseph v. Russell, 122 Or.App. 188, 192, 857 P.2d
192 (1993), rev'd on other grounds, 318 Or. 370,
867 P.2d 1377 (1994) (making similar distinction between
reasonableness and necessity in a different context).
Moreover, in expressly limiting restitution to
"reasonable" and "necessarily incurred"
medical and hospital expenses, the legislature appears to
have affirmatively assumed that not all medical and hospital
expenses [298 Or.App. 683] are reasonable or necessarily
incurred. See ORS 31.710 (2)(a) (denning
"economic damages"); ORS 137.103(2) (adopting that
definition, with limited exception, for restitution
case, the only evidence that the state presented at the
restitution hearing was THA's payment ledger and brief
testimony by an attorney for THA as to what the ledger
showed. There was no testimony by medical professionals
regarding the nature of the services referenced on the ledger
or their necessity-see White v. Jubitz Corp., 219
Or.App. 62, 68, 182 P.3d 215 (2008), affd, 347 Or.
212, 219 P.3d 566 (2009) (typically, in civil actions,
plaintiffs have "presented evidence of the
reasonableness and necessity of medical expenses through
testimony of physicians and other medical professionals