Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Dickinson

Court of Appeals of Oregon

July 31, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DAMIEN LEVI DICKINSON, Defendant-Appellant.

          Submitted October 19, 2018

          Washington County Circuit Court 16CR26286; James Lee Fun, Jr., Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case 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.

         [298 Or.App. 680] AOYAGI, J.

         Defendant 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.

         We 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).

         Defendant 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 defendant").

         [298 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 providers[1]between 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."[2] 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.

         The 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."[3] 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 billed.[4]

         "[W]hether 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 purposes).

         In this 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.