author: TOOKEY, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Charles Leo ENDICOTT, Defendant-Appellant.
    A157816
    Court of Appeals of Oregon.
    Submitted November 30, 2017. March 20, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Defendant appeals a judgment of conviction for, among other offenses, one count of first-degree burglary. ORS 164.225 ; ORS 164.215. On appeal, in his first assignment of error, defendant challenges the trial court's denial of his motion for a judgment of acquittal (MJOA) on the burglary counts that were subsequently merged into a single conviction. Defendant contends that he had "license" to enter and remain in the dwelling in which the jury found he intended to commit crimes. The state contends that, because defendant exceeded the scope of his license or privilege to enter and remain in the dwelling by bringing a person into the dwelling that defendant was not authorized to bring with him, his entry and remaining was not licensed or privileged and, consequently, was unlawful. For the reasons set forth below, we conclude that a rational trier of fact could have found beyond a reasonable doubt that defendant's entry and remaining was unlawful. Accordingly, we affirm.

When we review a trial court's denial of an MJOA, we view the evidence in the light most favorable to the state. State v. Rodriguez , 283 Or. App. 536, 537, 390 P.3d 1104, rev. den. , 361 Or. 543, 397 P.3d 35 (2017). We state the facts consistently with that standard.

Sorenson rented an apartment in Glide, Oregon. At the time of the burglary in this case, Sorenson was allowing a married couple, ZM (the husband) and KM (the wife), to stay with him at the apartment. In the months leading up to the burglary, KM had been "involved in a check fraud identity theft charge," and had identified three other individuals-at least two of whom were friends of defendant-to police as having also been involved in that conduct.

Sorenson was also friends with defendant. In fact, Sorenson had given defendant "full access" to his apartment, which meant that, according to Sorenson, it "wasn't abnormal for [defendant] to be waiting for [Sorenson] inside [Sorenson's apartment] when [Sorenson] got off work." The access that Sorenson had given to defendant to enter and remain in Sorenson's apartment did not, however, include defendant bringing another individual, Finnell, with him. Specifically, during defendant's trial, Sorenson provided the following testimony:

"[Deputy District Attorney]: When you testified that you gave [defendant] permission to go to and from your house, that did not include bringing Mr. Finnell with him?
"[Sorenson]: No, it did not."

Sorenson also testified during defendant's trial that, unlike defendant, Finnell was not "okay to go and come" from Sorenson's apartment and was not allowed in Sorenson's apartment. Sorenson explained that "every time I hang out with [Finnell] my chances of going to jail go[ ] up three hundred percent" and that Finnell had previously attacked Sorenson on Sorenson's porch.

Defendant and Finnell were friends. However, during defendant's trial, defendant provided the following testimony regarding his view of Finnell's disposition:

"[Deputy District Attorney]: You explained that you've known * * * Finnell since first grade. You described him as wayward, flighty, you have a soft spot for him. Was he ever violent? Did you ever know him to be violent?
"[Defendant]: To say the least.
"[Deputy District Attorney]: I don't understand what that means. Yes, you did know him to be violent?
"[Defendant]: * * * Finnell has always been kind of violent.
"[Deputy District Attorney]: Would you characterize him as unpredictable?
"[Defendant]: I'm sure most people would. I wouldn't characterize him as unpredictable.
"[Deputy District Attorney]: How would you characterize him?
"[Defendant]: At times a loose cannon, more or less. Unstable."

Additionally, defendant testified during his trial that Sorenson's former romantic partner and Finnell had been "kind of promiscuous together," and that had, at some point, caused tension between Sorenson and Finnell.

Prior to the burglary, defendant and Finnell were drinking together at defendant's house. That day, Finnell was "under the influence of a lot of alcohol and a lot of drugs." During defendant's trial, Finnell testified about himself that he was using drugs and was high that day because he is "always on drugs and high. And usually drunk." Later that day, defendant brought Finnell to Sorenson's apartment.

When they arrived at the apartment, KM was sleeping on the couch. Neither Sorenson nor ZM were present. KM awoke to people talking and saw defendant and Finnell in the apartment with her. The door to Sorenson's apartment did not "really lock" and they had, apparently, let themselves in. Defendant "started to tell [KM] that there were these people [who] were trying to hurt his family, hurt his wife, and that [he] needed * * * [ZM's] help." KM then left the apartment to go to a neighbor's house to try to find a phone so that she could call ZM. While she was searching for someone with a phone, ZM returned to Sorenson's apartment. Upon seeing ZM return, KM returned as well.

Defendant and Finnell then told ZM that someone was threatening defendant and was going to kill defendant's wife. Defendant requested that ZM come with him and Finnell to defendant's house. The story defendant and Finnell were telling, however, was not adding up to ZM, and ZM began to question defendant and Finnell.

When it became clear that ZM was not going to go with defendant and Finnell voluntarily, defendant punched him in the face, knocking him to the ground. Defendant then climbed on top of ZM, pulled out a knife, and began "yelling a bunch of stuff," such as "[y]ou narked us out," "[y]ou shouldn't tell on us," and "[w]e should kill you. You're dead." While this was occurring, Finnell restrained KM.

When ZM struggled to escape, Finnell ran over to assist defendant and began to put handcuffs on ZM. At that point, KM was able to flee. She left the apartment, stopped a passing semi-truck, and contacted law enforcement.

Subsequently, defendant was arrested and charged with, among other crimes, three counts of first-degree burglary, ORS 164.225. At the close of the state's case-in-chief, defendant moved for a judgment of acquittal on the burglary counts, arguing that the state had failed to establish that defendant did not have permission to enter or remain in Sorenson's residence. Specifically, defendant argued that Sorenson was the "lawful possessor of the residence," that Sorenson had not testified during the state's case-in-chief, and that the married couple did not have "a right to determine who c[ould] be [in the apartment] lawfully or unlawfully." The state responded that the married couple lived at the apartment, and that they had a right to determine "who is excluded and who is not in the absence of Mr. Sorensen." The trial court denied the motion, reasoning that,

"at the time of this incident, * * * with the evidence presented in the light most favorable to the state, [the married couple] had control over the premises, so I do believe there's sufficient evidence to present the three counts of burglary in the first degree to the jury with regard to the motion for judgment of acquittal."

Defendant then presented his case-in-chief, during which Sorenson testified, as discussed above, that, although defendant had permission "to go to and from" Sorenson's apartment, that permission "did not include bringing Mr. Finnell with him." Additionally, during defendant's case-in-chief, defendant provided the following testimony in which defendant acknowledged that, on the day of the burglary, defendant was aware that Sorenson did not want Finnell at Sorenson's apartment:

"[Deputy District Attorney]: And were you aware that * * * Sorensen did not want * * * Finnell at his home when you took him by the house?
"[Defendant]: That's why [Finnell] stood outside the whole time to begin with * * *."

At the close of defendant's case in chief, defendant renewed his MJOA, again arguing that Sorenson was the "lawful possessor of th[e] residence[ ]," and also arguing that Sorenson had provided testimony reflecting that defendant had permission to be at the apartment. The state responded that Sorenson's permission did not allow defendant to enter with Finnell. The trial court again denied defendant's MJOA, concluding that there was sufficient evidence to go forward to the jury. The jury then found defendant guilty of, among other crimes, two counts of burglary in the first degree, which the trial court merged into a single conviction.

On appeal, defendant argues that the trial court erred when it denied his MJOA on the burglary counts. Defendant's argument is twofold: First, defendant argues that his entry or remaining in Sorenson's apartment was lawful, because he had Sorenson's permission to enter and remain in the apartment and, under ORS 164.205(3)(a), which defines "enter or remain unlawfully" for purposes of the burglary and criminal trespass statutes, "an invitation from an owner" establishes that the entrant was "licensed or privileged" to enter or remain on property. Defendant acknowledges that Sorenson's permission to enter and remain in the apartment did not authorize defendant to bring Finnell into the apartment-and defendant does not argue that he was unaware of this restriction-but contends that "the relevant aspects of license [under ORS 164.205(3)(a) ] are the physical locale of a 'premises' and the time of defendant's entry." Consequently, according to defendant, although a license or privilege to enter or remain on property may be restricted by temporal or spatial limits, a license or privilege may not restrict a person's conduct. Thus, defendant contends that because "the license" allowed defendant onto Sorenson's property at the time that defendant was there, "even if defendant engaged in conduct inconsistent with his license, that issue is immaterial to whether he entered or remained unlawfully."

Second, defendant contends that the state failed to provide evidence that "Sorenson's license did not authorize defendant to be on the property even if defendant brought Finnell." Defendant points out that, "Sorenson testified that defendant was not authorized to bring Finnell, but Sorenson did not testify that defendant's license was revoked if he brought Finnell." Thus, defendant reasons that, although Sorenson's testimony might establish that Finnell had committed burglary, the trial court should have granted defendant's MJOA on the burglary counts, because defendant had a license to be on the property.

In response, the state argues that,

"a rational trier of fact could easily conclude that defendant did not have Sorenson's permission to enter the home. By bringing Finnell with him, defendant exceeded the scope of Sorenson's permission and thus was not licensed or privileged to enter or remain in the home. Thus, a rational trier of fact could have found the essential elements of the crime of first-degree burglary beyond a reasonable doubt, and the trial court correctly denied defendant's [MJOA]."

Where, as here, the dispute on review of a ruling on an MJOA centers on the meaning of the statute defining the offense, the issue is one of statutory construction that we review for legal error. State v. Hunt , 270 Or. App. 206, 210, 346 P.3d 1285 (2015). After we resolve the legal issue, we determine whether a rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt. State v. Bowen , 280 Or. App. 514, 516, 380 P.3d 1054 (2016) ; see also Hunt , 270 Or. App. at 209, 346 P.3d 1285 ("We generally review the denial of a motion for a judgment of acquittal by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt." (Internal quotation marks omitted.)).

We write to set forth our understanding of how the legal concepts of "license" and "privilege"

apply to the criminal trespass and burglary statutes, as well as to explain why we do not share defendant's view of how the criminal trespass and burglary statutes apply to the facts of this case.

In defendant's first argument, concerning ORS 164.205(3)(a), the legal questions presented are (1) whether a "license" or a "privilege" to enter and remain on another's property may impose only "temporal or spatial limits," as defendant contends, or whether a person can grant a license or privilege to enter premises that is conditioned on or restricted to specified conduct, and (2) if the latter, whether a conditional or restricted consent to enter and remain on premises creates a license or privilege to do so only in so far as the condition or restriction is complied with.

Resolution of those questions requires us to construe the criminal trespass and burglary statutes, which are related to each other. State v. Werner , 281 Or. App. 154, 161, 383 P.3d 875 (2016), rev. den. , 361 Or. 312, 393 P.3d 1173 (2017) (noting "[t]he criminal trespass and burglary statutes were drafted together"). In reviewing those statutes, our goal is to discern the legislature's intent, and to do so, we examine the text of the statutes in context, along with relevant legislative history, and, if necessary, canons of construction. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

ORS 164.245 defines the basic crime of criminal trespass. It provides, in relevant part, that a person commits the crime of second-degree criminal trespass "if the person enters or remains unlawfully * * * in or upon premises." ORS 164.245(1). The purpose of the criminal trespass statute is " 'the protection of one's property from unauthorized intrusion.' " Werner , 281 Or. App. at 161, 383 P.3d 875 (quoting Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 141, 147 (July 1970)).

ORS 164.215 defines the basic crime of burglary. It provides that, subject to exceptions not relevant here, a person commits the crime of second-degree burglary "if the person enters or remains unlawfully in a building with intent to commit a crime therein." ORS 164.215(1). "Thus, as defined by ORS 164.215, burglary is an aggravated form of criminal trespass" and the "basic crime of burglary" has three elements: "[1] criminal trespass, [2] of a building, [3] with the intent to commit a crime therein." Werner , 281 Or. App. at 162-63, 383 P.3d 875.

In this case, defendant does not argue that Sorenson's apartment did not constitute a "building" or that he did not enter or remain with "intent to commit a crime therein." Instead, the issue before us is whether his "entry or remaining" in Sorenson's apartment was unlawful-i.e. , whether his conduct constituted criminal trespass. See State v. Hartfield , 290 Or. 583, 594, 624 P.2d 588 (1981) (criminal trespass is the "requisite primary element" of burglary).

The phrase "enter or remain unlawfully" is defined by ORS 164.205(3), which provides, in part:

"To enter or remain in or upon the premises when the premises, at the time of such entry or remaining, are not open to the public and when the entrant is not otherwise licensed and privileged to do so."

ORS 164.205(3)(a). Thus, "a person commits criminal trespass on premises that are not open to the public if the person enters or remains when the person is not otherwise licensed or privileged to do so." Werner , 281 Or. App. at 163, 383 P.3d 875 (internal quotation marks omitted).

By defining "enter or remain unlawfully" in the way that it did, the legislature "intended to ground the crime of criminal trespass in traditional property law, specifically the law of trespass to property." State v. Hall , 181 Or. App. 536, 539, 47 P.3d 55 (2002). Accordingly, we have turned to relevant principles of the common law of trespass to determine whether an individual had authority to grant to a defendant a "license" or "privilege," as those terms are used in ORS 164.205(3)(a). See State v. Schneider , 246 Or. App. 163, 168, 265 P.3d 36 (2011), rev. den. , 351 Or. 545, 274 P.3d 184 (2012) (applying "common-law principles of trespass" to determine that a "tenant * * * had authority to invite guests [including the defendant] to the common areas of [an] apartment complex" and, therefore, the defendant was acting "within the scope of his invitation," and was "privileged to be in the [apartment complex's] parking lot"). And, "consistent[ ] with principles of common-law trespass," we have concluded that an invitation generally is sufficient to establish that the entrant was licensed or privileged to enter within the meaning of ORS 164.205(3)(a). Hall , 181 Or. App. at 539, 47 P.3d 55. We have also concluded that an invitation onto property can create a license or privilege that is restricted to entry into certain areas of a home. See, e.g ., State v. Angelo , 282 Or. App. 403, 411, 385 P.3d 1092 (2016), rev. den. , 361 Or. 311, 393 P.3d 1169 (2017) ("[T]he fact that [the victim] gave defendant permission to enter his home does not preclude the state from proving that he committed a burglary by unlawfully remaining in the home when he exceeded the spatial limitations that [the victim] placed on that permission." (Emphases in original.)).

Turning to the issues presented in this case, we do not find anything in the text of ORS 164.205(3)(a) -or any other relevant statute-that supports defendant's contentions that the "relevant aspects of license are the physical locale of a 'premises' and the time of defendant's entry" and that whether a person engages in "conduct inconsistent with [a] license" is immaterial to whether that person entered or remained unlawfully. Although defendant correctly points out that the text of ORS 164.205(3)(a) references both spatial ("in or upon") and temporal ("at the time of such entry or remaining") concepts, we understand those phrases to relate to the premises at issue rather than specifying the type of licenses and privileges that are recognized under ORS 164.205(3)(a). Contrary to defendant's argument, ORS 164.205(3)(a) refers generally to the legal concepts of "license" and "privilege," with no apparent restrictive modifier as to those concepts.

We next turn to the relevant principles of the common law of trespass to help us resolve defendant's arguments. See, e.g. , Schneider , 246 Or. App. at 166, 265 P.3d 36 ; see also Fresk v. Kraemer , 337 Or. 513, 520, 99 P.3d 282 (2004) (noting "[s]tatutory context includes * * * the preexisting common law"). In this case, we rely on our case law and on the Restatement (Second) of Torts to describe common trespass principles, including those related to consent, as nothing in our cases suggests any tension between Oregon trespass law and the common law as the Restatement describes it. Marlow v. City of Sisters , 281 Or. App. 462, 470, 383 P.3d 908 (2016). We conclude that those principles effectively foreclose defendant's first argument.

Under the common law, a "license" is a "revocable privilege to use land in the possession of another." Sproul et al. v. Gilbert et al. , 226 Or. 392, 403, 359 P.2d 543 (1961). It is a "justification for the acts which it authorizes to be done" and "will furnish a justification for an act which would otherwise be a trespass." Schiffmann v. Hickey et ux. , 101 Or. 596, 601, 200 P. 1035 (1921) (internal quotation marks omitted). However, "[a] conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with."

Restatement (Second) of Torts § 168 (1965) ; see also Restatement § 892A (1979) ("To be effective, consent must be * * * to the particular conduct, or to substantially the same conduct."); Strandholm v. Barbey , 145 Or. 427, 440-41, 26 P.2d 46 (1933) (a license "merely authorizes the licensee to go upon the land for the purposes specified in the instrument creating the license" (emphasis added)); Hager v. Tire Recyclers, Inc. , 136 Or. App. 439, 443, 901 P.2d 948, adh'd to as modified on recons. , 138 Or. App. 120, 906 P.2d 842 (1995), rev. den. , 323 Or. 690, 920 P.2d 549 (1996) ("To establish that a possessor has consented to the entry of another, there must be evidence of 'willingness in fact' that the 'particular conduct' that constitutes entry may occur." (Quoting Restatement §§ 892, 892A.)). Put another way, "[o]ne whose presence on land is pursuant to a consent which is restricted to conduct of a certain sort, is a trespasser if he intentionally conducts himself in a different manner." Restatement § 168 comment d.

The unrestricted references to the legal concepts of "license" and "privilege" in ORS 164.025(3)(a), coupled with the common-law rule that a license or privilege to enter property can be conditional or restricted to specified conduct, as set forth above, lead us to conclude that a person can grant a license or privilege to enter premises that is conditioned on or restricted to specified conduct. Further, we conclude that, consistent with the common law, a conditional or restricted consent to enter or remain on premises creates a license or privilege to do so only in so far as the condition or restriction is complied with. To conclude otherwise would fail to recognize that the "right to invite or to exclude [others] 'is the most nearly absolute of the many property rights that flow from the ownership or other rightful possession of land.' " Hall , 181 Or. App. at 540, 47 P.3d 55 (quoting Robert A. Cunningham et al. , The Law of Property § 7.1, 411 (1984)). Accordingly, we reject defendant's first argument that the "relevant aspects of license are the physical locale of a 'premises' and the time of defendant's entry" and that whether a person engages in "conduct inconsistent with [a] license" is immaterial to whether that person entered or remained unlawfully.

We next address defendant's second argument that "the state failed to provide evidence that Sorenson's license did not authorize defendant to be on the property even if defendant brought Finnell" because, while "Sorenson testified that defendant was not authorized to bring Finnell, * * * Sorenson did not testify that defendant's license was revoked if he brought Finnell."

Again, we turn to the relevant principles of the common law of trespass to help us resolve defendant's argument. Under the common law, whether a person's consent "includes * * * particular conduct" depends on the "terms and reasonable implications of the consent given." Restatement § 892A comment d. And, furthermore,

"[e]ven when no restriction is specified the reasonable interpretation of the consent may limit it to acts at a reasonable time and place, or those reasonable in other respects. For example, a landowner's permission for a picnic on his land will normally not be taken to give consent to a picnic at three o'clock in the morning or to a drunken brawl."

Restatement § 892A comment g.

Additionally, as noted above, "[a] conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with" and "[o]ne whose presence on land is pursuant to a consent which is restricted to conduct of a certain sort, is a trespasser if he intentionally conducts himself in a different manner." Restatement § 168 ; Restatement § 168 comment d. Further, an "actor's privilege to enter land created by consent * * * is terminated by * * * the doing of any act * * * by which the consent is restricted." Restatement § 171; see also Restatement § 168 comment d (further explaining termination of a consent by the doing of an unauthorized act).

In analyzing defendant's argument, we note that "[w]e will reverse a trial court's denial of a motion for judgment of acquittal only where no rational trier of fact could find all of the elements of the crime beyond a reasonable doubt." State v. Shewell , 178 Or. App. 115, 118, 35 P.3d 1096 (2001), rev. den. , 334 Or. 491, 52 P.3d 1057 (2002). Accordingly, the issue we must resolve is whether a rational trier of fact could have found, beyond a reasonable doubt, that Sorenson's consent for defendant to enter and remain in Sorenson's apartment included a restriction that defendant not bring Finnell with him, and that defendant violated that restriction by bringing Finnell.

We conclude that a rational trier of fact could have made such findings based on, among other evidence, (1) Sorenson's testimony that defendant's permission to enter Sorenson's apartment did not include defendant bringing Finnell with him and defendant's acknowledgement that, on the day he brought Finnell to Sorenson's apartment, he was aware that Sorenson did not want Finnell at the apartment, (2) testimony indicating that Finnell was a "violent" and "unstable" person, whose presence made it more likely that Sorenson would go to jail, and (3) testimony regarding Sorenson and Finnell's relationship, including testimony that Finnell had attacked Sorenson.

Additionally, as noted above, on appeal defendant does not argue that he was unaware of this restriction on Sorenson's consent for defendant to enter and remain in Sorenson's apartment. Nor would such an argument have been successful, given defendant's acknowledgement that he was aware, on the day of the events in question, that Sorenson did not want Finnell at Sorenson's apartment; Sorenson's testimony that defendant's permission to enter Sorenson's apartment did not include defendant bringing Finnell into the apartment; and our standard of review, which requires us to examine the evidence in the light most favorable to the state, accepting reasonable inferences and credibility choices.

Accordingly, we reject defendant's second argument that "the state failed to provide evidence that Sorenson's license did not authorize defendant to be on the property even if defendant brought Finnell" because "Sorenson did not testify that defendant's license was revoked if he brought Finnell." As noted above, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that Sorenson's consent for defendant to enter and remain in Sorenson's apartment included a restriction that defendant not bring Finnell with him into the apartment-that is, that defendant's license or privilege to enter and remain in Sorenson's apartment did not authorize defendant to enter or remain in Sorenson's apartment if defendant brought Finnell-and that defendant violated that restriction by entering and remaining in Sorenson's apartment with Finnell. Consequently, such a rational trier of fact could have found, beyond a reasonable doubt, that defendant's entry and remaining in Sorenson's apartment was not licensed or privileged.

For the reasons set forth above, we conclude that the trial court did not err when it denied defendant's MJOA.

Affirmed.

      Defendant has withdrawn his second assignment of error.

      Defendant also argues, without analysis or elaboration, that the denial of his MJOA violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We decline to address that undeveloped argument. See State v. Harrison , 290 Or. App. 766, 768 n. 3, 417 P.3d 513 (2018) (declining to address undeveloped claim of constitutional error).

      The state also argues that "a rational trier of fact could conclude that the [married couple], who were living in the home, had the right to exclude defendant from it." In light of our conclusion below, we need not consider that argument.

      In State v. Werner , 281 Or. App. 154, 161, 383 P.3d 875 (2016), rev. den. , 361 Or. 312, 393 P.3d 1173 (2017), which defendant relies on in his briefing, we considered the question "whether engaging in unauthorized conduct in a building constitutes unlawfully remaining in the building for the purposes of the burglary statute." We concluded that it does not when "the only evidence that the state present[s] regarding the criminal trespass element of the charged burglary * * * [is] that defendant committed" a crime in the building, because "the commission of a crime does not, in and of itself, convert a lawful entry into an unlawful remaining." Id. at 168, 383 P.3d 875. In this case, the state does not argue that it was defendant's commission of a crime in Sorenson's apartment that rendered his entry and remaining unlawful. Rather, the state argues, and, as explained below, we agree, that a rational trier of fact could have found that defendant committed criminal trespass when he brought Finnell into Sorenson's apartment in violation of the restriction on his license or privilege to enter and remain in the apartment.

      A burglary is a first-degree burglary, as defined by ORS 164.225, if the state establishes additional aggravating factors. As relevant here, ORS 164.225 provides that a person commits first-degree burglary "if the person violates ORS 164.215 and the building is a dwelling[.]" ORS 164.225(1).

      ORS 164.205 has been amended since the conduct that gave rise to the charges in this case occurred. See Or. Laws 2015, ch. 10, § 1. Because that amendment does not affect our analysis, all references to the statute throughout this opinion are to the current version.

      In full, ORS 164.205(3) provides:
      " 'Enter or remain unlawfully' means:
      "(a) To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the entrant is not otherwise licensed or privileged to do so;
      "(b) To fail to leave premises that are open to the public after being lawfully directed to do so by the person in charge;
      "(c) To enter premises that are open to the public after being lawfully directed not to enter the premises; or
      "(d) To enter or remain in a motor vehicle when the entrant is not authorized to do so."

      ORS 164.205 includes a separate definition of "open to the public." ORS 164.205(4) provides that " '[o]pen to the public' means premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required."


source: Caselaw Access Project

author: LAGESEN, P. J.

license: Public Domain

text:
    Victoria Marie MONFORE, Petitioner-Appellant, v. Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.
    A161060
    Court of Appeals of Oregon.
    Argued and submitted January 4, 2018. March 20, 2019
    Jason Weber argued the cause for appellant. Also on the briefs was O'Connor Weber LLC.
    Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and DeHoog, Judge.

      DeVore, J., vice Wollheim, S. J.

   LAGESEN, P. J.

While employed as a bookkeeper for two related Eugene companies, petitioner started writing company checks to herself, stealing over $ 1.5 million over the course of six years. One of the companies finally caught on and reported her to police, at which point petitioner quickly confessed and then pleaded guilty to 84 charges of various theft offenses. The trial court sentenced her to 23 years, nine months' incarceration, based in part on its view that petitioner's crime forced one of the companies to go out of business, leaving 85 people without jobs.

Petitioner now seeks post-conviction relief from her sentence and some of her convictions. The primary issues before us are whether petitioner is entitled to relief from some of her convictions on the ground that her trial counsel was inadequate and ineffective for not moving to dismiss the charges as time barred, and whether she is entitled to relief from her sentence on the ground that her trial counsel was inadequate and ineffective for failing to conduct an investigation into the accuracy of the state's contention that petitioner's thefts caused the closure of a company. For the reasons that follow, we reject petitioner's challenge to her convictions, but conclude that, under Richardson v. Belleque , 362 Or. 236, 406 P.3d 1074 (2017), petitioner is entitled to a new sentencing hearing because her lawyer's decision not to investigate the state's claim that petitioner's theft caused one of the companies to fail did not comport with constitutional standards. We therefore reverse and remand with directions to the trial court to grant relief on petitioner's claim regarding the adequacy of trial counsel's sentencing investigation and order a new sentencing proceeding.

I. BACKGROUND

A. Underlying Criminal Proceedings

Petitioner worked for 10 years in the accounts payable department of My Little Salesman. She also did the same type of work for a related company, IP Koke. Over six of those 10 years, from 2003 to 2009, she stole a total of $ 1,563,153.22 from the two companies. She did so by forging 365 checks to herself. Petitioner primarily took money from IP Koke, until it closed and let go all of its employees in November 2008. Petitioner then stole from My Little Salesman until she was fired for incompetence in June 2009. She used the money to gamble and to travel to various casinos, making numerous trips to Las Vegas.

After petitioner was fired, Pierce, one of the owners of both My Little Salesman and IP Koke, discovered the thefts and reported them to the police. Petitioner was arrested and, during a police interview, confessed to taking money from both IP Koke and My Little Salesman. The state then charged petitioner with 88 theft offenses, although it later dismissed the first four counts as barred by the statute of limitations. Petitioner pleaded guilty to the remaining 84 counts, with open sentencing.

At sentencing, the state noted that petitioner's sentencing exposure was 80 to 90 years, but urged the court to sentence her to 285 months-23 years, nine months. The state argued that petitioner's conduct had caused IP Koke to close and its employees to lose their jobs, warranting a long sentence: "It's not a matter of how many checks she wrote. It's a matter of the number of victims that she amassed and the damage that she caused and that she knew she was causing." Pierce and several of the employees who had lost their jobs made statements blaming petitioner's thefts for the company's closure, and the hardships suffered by the former employees as a result.

Petitioner's trial counsel, in response, opted not to dispute that the company's closure was the product of petitioner's thefts. Although counsel knew that that was the position that the state was going to take, and petitioner and her family members had requested that trial counsel investigate the claim that petitioner's conduct was the cause of IP Koke's closure, counsel decided not to look into it at all. Counsel thought that the best strategy was to "beg[ ] for mercy," without suggesting that the company failed for reasons other than petitioner's conduct, and said that he "had not signed up for that job of investigating whether IP went out of business because of mismanagement or petitioner's behavior, or both, and that was why [he] was so firm in refusing to get involved in such a strategy." Consistent with that strategy choice, counsel argued at sentencing that petitioner's thefts were the product of her gambling addiction, that petitioner's prompt confession demonstrated that she had accepted responsibility as best she could, and that the harm that petitioner's addiction had caused to her own family all pointed toward lenient treatment. Counsel also provided the court with information regarding sentences imposed in other business embezzlement cases, all of which were shorter than the sentence advocated by the state. Some of those cases involved thefts of greater amounts of money than that taken by petitioner, and counsel urged the court to conclude that the state's proposed sentence was too long in comparison.

The trial court went with the state's recommendation. In explaining its sentencing choice-and why it was imposing a longer sentence than those imposed in the other business embezzlement cases identified by trial counsel-the court emphasized the extent of the harm caused by petitioner's conduct:

"When [trial counsel] makes that argument in reading through each and every one of those [other cases], I can find distinguishing differences in your case.
"The activity was longer. The money might have been less, but there were far more victims. The harm was far greater here than it was in those cases.
"* * * * *
"And the destruction, although devastating to those victims, if you add up that destruction and this destruction, you are in a different ball park. Okay.
"* * * * *
"And you're a thief, regardless of how you spent the money. And you caused devastation on a magnitude, if you count the companies and 87 victims, that may never recover. And you can't help them recover."

The trial court reasoned further that the fact that petitioner "continue[d] to feed off of" My Little Salesman after IP Koke closed demonstrated that petitioner was "somebody who would do it again." Thus, a 285-month sentence was justified. The court observed that the sentence ultimately represented approximately "six months per victim." The court denied petitioner eligibility for alternative incarceration programs, "given the number of victims and given the devastation that [petitioner] * * * brought on these people." The court ordered petitioner to pay restitution on each count, including the four counts that had been dismissed. Petitioner's trial counsel did not object to the award of restitution with respect to the dismissed counts.

Petitioner appealed-unsuccessfully.

B. Post-Conviction Proceedings

After her appeal failed, petitioner filed this case. She alleged that her trial counsel and appellate counsel were inadequate and ineffective, in violation of her rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution, in a number of different ways. As relevant to the issues before us now, petitioner alleged that trial counsel was inadequate and ineffective for (1) not moving to dismiss Counts 5 through 40 as barred by the then-applicable three-year statute of limitations, ORS 131.125(6)(a) (2009), amended by Or. Laws 2012, ch. 70, § 2; (2) not hiring a forensic accountant or otherwise investigating the assertion that petitioner's conduct caused IP Koke to close; and (3) not objecting to the imposition of restitution with respect to the dismissed counts. In support of her claim that trial counsel was inadequate and ineffective for not investigating the harm caused by petitioner's theft, petitioner introduced evidence of newspaper articles about IP Koke's closure that explained the different factors that led to the closure, including changes in the printing industry, declining customer orders, and the poor economy. Petitioner also introduced evidence from an accountant who opined that factors other than petitioner's thefts led to the closure of IP Koke.

The post-conviction court entered a judgment denying relief on all grounds, even though defendant, the superintendent of the Coffee Creek Correctional Facility, conceded that the imposition of restitution on the dismissed counts was in error. Regarding petitioner's claim that trial counsel was inadequate and ineffective for not moving to dismiss Counts 5 through 40 as time barred, the court concluded:

"Petitioner argues that claims 5-40 were outside the statute of limitations and that the trial attorney was inadequate for allowing her to plead to those counts. The original information was amended on Feb. 12, 2010 (Exhibit 6) to charge Theft by Deception which allows the 3 year limitation to be increased to 6 years if the charges have a material element of fraud or breach of fiduciary duty. The charges were therefore within the 6 year limitation and there was no inadequacy in petitioner pleading to those counts."

As to petitioner's claim regarding trial counsel's failure to investigate the role that petitioner's conduct may have played in the closure of IP Koke, the post-conviction court determined:

"Petitioner's claims concerning sentencing revolve largely around not challenging the statement by IP [Koke] management that petitioner caused the company to fail and cost 85 people their jobs.
"Petitioner's family wanted the trial attorney to hire a forensic accountant to prove that the company's failure was not because of petitioner's thefts. Based on the evidence presented here (newspaper articles, report of a forensic accountant), there would certainly have been evidence to support that argument. Trial attorney did not investigate those issues at all. He instead decided that casting blame on the victim company was not in keeping with petitioner throwing herself on the mercy of the court-the strategy he felt was more likely to be successful. He decided that he was simply unwilling to consider the financial analysis issue and made that clear to the petitioner, her family and the court. The court did express its concern that in several ways, the petitioner was not fully accepting responsibility and was blaming others. The attorney's strategy was not successful. Other attorneys may well have chosen to use the accounting information, but this court finds the trial attorney's decision reasonable."

The court concluded further that there was no "prejudice in any aspect of the representation."

On appeal, petitioner assigns error to the post-conviction court's rejection of each of those three claims of trial counsel inadequacy. Consistent with his position below, the superintendent concedes that petitioner is entitled to relief on her claim that trial counsel was inadequate for not objecting to the imposition of restitution with respect to Counts 1 through 4, but contends that the post-conviction court was correct to reject petitioner's other two claims.

II. STANDARD OF REVIEW AND GENERAL LEGAL STANDARDS

We review a post-conviction court's grant or denial of relief for legal error, accepting the court's implicit and explicit factual findings if there is evidence to support them. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015). At issue in this matter are parallel claims of inadequate assistance of trial counsel under Article I, section 11, and ineffective assistance of trial counsel under the Sixth Amendment. To establish that her trial counsel rendered inadequate assistance for purposes of Article I, section 11, petitioner was required to prove two elements: (1) a performance element-that trial counsel "failed to exercise reasonable professional skill and judgment"; and (2) a prejudice element-that "petitioner suffered prejudice as a result of counsel's inadequacy." Johnson v. Premo , 361 Or. 688, 699, 399 P.3d 431 (2017). A functionally equivalent two-element standard governs petitioner's claim of ineffective assistance of counsel under the Sixth Amendment. Id . To prevail on that claim, petitioner was required to demonstrate that "trial counsel's performance 'fell below an objective standard of reasonableness,' " and also that "there was a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Id . at 700, 399 P.3d 431 (quoting Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). We examine the challenged rulings of the post-conviction court in light of those standards.

III. ANALYSIS

A. Failure to Challenge Counts 5 through 40 as Time Barred

We start with petitioner's contention that she is entitled to relief on her claim that trial counsel was inadequate and ineffective for not moving to dismiss, or otherwise challenging, Counts 5 through 40 as time barred by the then-applicable three-year statute of limitations. Petitioner acknowledges that ORS 131.125(9)(a), the so-called "fraud extender" statute, extends the applicable limitations period by three years, for offenses involving a "material element of fraud," but contends that, under State v. Ricker , 107 Or. App. 245, 246, 810 P.2d 1356 (1991), the fraud extender statute does not apply to the theft charges. Petitioner asserts that, in view of Ricker , reasonable counsel would have recognized that the fraud extender statute did not apply to the charges against petitioner and, thus, moved to dismiss them as untimely. In Ricker , we concluded that the theft charges at issue in that case did not involve "a material element [of] either fraud or the breach of a fiduciary obligation," as required by the plain terms of ORS 131.125(9)(a), because the state was not required to prove an element of fraud or breach of fiduciary obligation under the statutes that the defendant was charged with violating in order to obtain a conviction. Id .

Here, in contrast to Ricker , Counts 5 through 40 charged petitioner with committing theft by deception , in violation of ORS 164.085. To convict petitioner on those counts as charged, the state was required to prove that petitioner (1) with "intent to defraud," (2) obtained the property of another, by (3) "[c]reat[ing] or confirm[ing] another's false impression of law, value, intention or other state of mind that the actor does not believe to be true." ORS 164.085(1). In other words, the state, in essence, had to prove that petitioner, with the intent to defraud, obtained property through some sort of false pretenses. That is fraud, under any ordinary understanding of the concept. See Webster's Third New Int'l Dictionary 904 (unabridged ed. 2002) (defining fraud, relevantly, as "an intentional misrepresentation, concealment or nondisclosure for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right"); Black's Law Dictionary 775 (10th ed. 2014) (defining fraud, relevantly, as "[a] knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment"); Murphy v. Allstate Ins. Co. , 251 Or. App. 316, 324, 284 P.3d 524 (2012) (explaining that the elements of common-law fraud are (1) false material misrepresentation by the defendant; (2) the defendant's knowledge that the representation was false; (3) the defendant's intention that the plaintiff rely on the false representation; (4) the plaintiff's justifiable reliance on the false representation; and (5) damage to the plaintiff). Ricker , thus, does not assist petitioner.

The question still remains as to whether theft by deception has a "material element of fraud," for purposes of ORS 131.125(9)(a). The legislature has not defined the phrase. Neither has it cataloged explicitly the offenses that qualify. Under those circumstances, we assume that the legislature intended to use the term "fraud" in its ordinary sense. See State v. Clemente-Perez , 357 Or. 745, 756, 359 P.3d 232 (2015). So understood, theft by deception, as defined by ORS 164.085(1) easily fits into the class of offenses that have a "material element of fraud" for purposes of ORS 131.125 (9)(a). As noted, the elements of the offense track both the dictionary definition of fraud and the elements of common-law fraud.

Consequently, regardless of whether trial counsel reasonably should have moved to dismiss Counts 5 through 40 as untimely, petitioner was not prejudiced by any dereliction in counsel's performance. In view of ORS 131.125(9)(a), any such motion necessarily would have failed and, thus, there is no likelihood that counsel's failure to pursue such a motion tended to affect the outcome of petitioner's criminal case. The post-conviction court correctly rejected petitioner's claim to the contrary.

B. Failure to Investigate the Extent that Petitioner's Conduct Caused IP Koke to Fail

The next question is whether trial counsel was inadequate and ineffective for electing not to investigate the state's contention that petitioner's conduct caused IP Koke to close, thus causing all of its employees to lose their jobs. Under Richardson , we conclude that the answer to that question is yes.

Richardson supplies the framework for analyzing a "failure to investigate" claim like the one asserted by petitioner here. There, as here, the issue was the constitutional adequacy of the petitioner's trial counsel's investigation to support his strategy choice at the petitioner's sentencing. 362 Or. at 258, 406 P.3d 1074. Trial counsel in that case decided not to obtain a psychological evaluation of the petitioner to rebut testimony from the state's expert about the petitioner's personality disorder, and the petitioner alleged that that choice was not grounded in adequate investigation. Id. After canvassing its own case law on "failure to investigate" claims, as well as that of the United States Supreme Court, our Supreme Court agreed with the petitioner. It explained that, under that case law, a competent criminal defense lawyer's decisions regarding what defense theory to pursue must be grounded on a reasonable investigation into the pertinent facts. Id . at 255-57, 262, 406 P.3d 1074. Whether an investigation supporting a particular strategic choice is reasonable turns on "the nature and complexity" of the proceeding at issue in the particular case. Id. at 257, 406 P.3d 1074. And, in that case, "the nature and complexity" of the sentencing proceeding at issue demonstrated that the petitioner's lawyer did not conduct a reasonable investigation before making the call not to obtain a defense expert. Id . at 258, 406 P.3d 1074. That was for several reasons. For one, the stakes of the proceeding were high: The petitioner "was exposed to a markedly enhanced sentence as a dangerous offender." Id. In addition, the petitioner's lawyer was aware that the state intended to rely on its expert at sentencing to testify to the central issue at the sentencing hearing: that the petitioner had "a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of others." Id. at 259, 406 P.3d 1074. Beyond that, trial counsel was aware that the state's expert would rely on the petitioner's juvenile background to diagnose him with that personality disorder. Id . at 258, 406 P.3d 1074. Under those circumstances, the court concluded, a lawyer exercising reasonable professional skill and judgment would have investigated the petitioner's juvenile background himself, and consulted with a defense expert in order to assess how, strategically, to address the testimony of the state's expert. Id . at 262, 406 P.3d 1074.

Turning to the issue of prejudice, the court elaborated on how to assess prejudice in the context of alleging that trial counsel was inadequate for failing to conduct an adequate investigation. Id. at 262-67, 406 P.3d 1074. The court explained that the assessment involves a sequential inquiry into whether "there was 'more than a mere possibility' " that an adequate investigation would have yielded information that could have been used at the sentencing hearing in a way that gave rise to "more than a mere possibility" that the outcome of the proceeding could have been different as a result. Id . at 266-68, 406 P.3d 1074 (quoting Green , 357 Or. at 322-23, 350 P.3d 188 ); see Stephens v. Persson , 291 Or. App. 278, 287-88, 420 P.3d 663 (2018) (acknowledging the sequential prejudice inquiry set forth in Richardson ). Applying that analysis, the court concluded that the petitioner's lawyer's failure to conduct an adequate investigation prejudiced the petitioner because there was more than a mere possibility that the information yielded by that investigation could have been used by trial counsel at sentencing in a way that gave rise to more than a mere possibility that the outcome of that proceeding could have been different. Richardson , 362 Or. at 267-68, 406 P.3d 1074.

Applying that analysis to the facts of this case, we conclude that counsel's failure to investigate the state's claim that petitioner's conduct caused IP Koke to fail was not the product of reasonable professional skill and judgment. The sole issue at sentencing was what sentence was appropriate for petitioner's crimes. The magnitude of the harm caused by petitioner's conduct was, predictably, going to be a significant factor in the court's decision. The success of counsel's own strategic choices about how to approach sentencing-seeking mercy from the court and urging the court to look to sentences in other business embezzlement cases-foreseeably depended on the sentencing court's perception of the magnitude of the harm caused by petitioner's theft of $ 1.5 million. Counsel was aware that the state would claim that that harm was great because petitioner's conduct allegedly resulted in the failure of a business. Counsel also was aware from petitioner and her family that there were reasons to be skeptical of the state's claim about the extent of the harm associated with petitioner's conduct. Yet, counsel failed to look into the issue at all because that is not what he "signed up for" and because of his belief that calling into question the state's assertions regarding the magnitude of harm would conflict with petitioner's plea for mercy. That decision not to conduct even a rudimentary investigation into what counsel knew or reasonably should have known would be a central issue at sentencing does not reflect the exercise of reasonable professional skill and judgment. Without such an investigation, counsel did not have the facts necessary to meaningfully and reasonably evaluate whether questioning the state's assertion about the extent of the harm would, in fact, conflict with petitioner's plea for mercy. In that regard, we observe that the degree of harm caused by the theft of $ 1.5 million is not something that would necessarily be obvious to a trial court, the way that the harm resulting from, for example, a homicide, would be. Under such circumstances, reasonably competent counsel would take steps to investigate and develop an understanding of the extent of harm in order to evaluate how to approach sentencing.

We also conclude that petitioner was prejudiced by counsel's failure to conduct an investigation into whether petitioner's theft caused IP Koke to close. If counsel had conducted even the simplest of investigations by reviewing local newspapers, he would have obtained quite a bit of information tending to attribute IP Koke's closure to other causes, including the fact that its namesake owner had left for a competing company, that the printing industry had undergone substantial changes, that the economy was in decline, and that IP Koke's customer orders had dried up. Had counsel uncovered that information, there is "more than a mere possibility" that counsel could have used that information at sentencing to counter the state's claim that petitioner's conduct alone caused the company's closure by presenting a more complete view of the reasons for the company's closure. There is also "more than a mere possibility" that, presented with that information, the trial court could have taken a different view of the magnitude of the harm caused by petitioner's conduct, perceiving it as but one of several causal factors in the company's closure. Such a view could have persuaded the court to see petitioner's conduct as comparable to the other examples of embezzlement cases that counsel presented to the court, resulting in a shorter sentence for petitioner. At least, there is "more than a mere possibility" that that could have happened.

In sum, under Richardson , trial counsel was inadequate for not investigating the state's claim that petitioner's conduct caused IP Koke to fail, and petitioner was prejudiced as a result. Petitioner is entitled to relief on that claim, and to a new sentencing hearing as a remedy.

C. Failure to Object to Restitution on Counts 1 through 4

Finally, petitioner contends that the post-conviction court erred when it did not grant relief on her claim that trial counsel was inadequate and ineffective for not objecting to the imposition of restitution on Counts 1 through 4, given that those counts had been dismissed. As he did below, the superintendent concedes the point, acknowledging that the post-conviction court appears to have intended to grant relief on that claim. We agree and therefore reverse and remand the judgment insofar as it denied relief on that ground.

IV. CONCLUSION

For the foregoing reasons, petitioner is entitled to relief on her claims that trial counsel was inadequate and ineffective for failing to conduct an investigation into the state's claim that petitioner's conduct caused IP Koke to close, and also on her claim that trial counsel was inadequate and ineffective for not objecting to the imposition of restitution in connection with dismissed Counts 1 through 4. We reverse and remand with directions to the trial court to grant relief as to those claims, and we order a new sentencing hearing.

Reversed and remanded as to denial of relief on (1) claim that trial counsel was inadequate for not investigating whether petitioner's conduct caused IP Koke to close (First Amended Petition, Paragraphs 9(D)(7)(b) and 9(D)(8)(d)) and (2) claim that trial counsel was inadequate for not objecting to imposition of restitution with respect to Counts 1 through 4 (First Amended Petition, Paragraph 9(D)(13)); otherwise affirmed.

      The post-conviction court's failure to grant relief on the restitution claim in the judgment it entered appears to have been an oversight. In its written findings and conclusions, the court expressly noted that "[t]he State concedes that the judgment entered mistakenly included restitution for counts 1-4 that were dismissed."

      At the time of the underlying criminal proceedings, the fraud extender provisions of ORS 131.125 were contained in ORS 131.125(7)(a) (2009), amended by Or. Laws 2012, ch. 70, § 2. As a result of amendments to the statute in 2012, they are now contained in ORS 131.125(9)(a). Because the amendments did not change the operative wording of the fraud extender provisions, we cite the current statute for ease of reference.

      ORS 131.125(9)(a) provides:
      "If the offense has as a material element either fraud or the breach of a fiduciary obligation, prosecution may be commenced within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is not a party to the offense, but in no case shall the period of limitation otherwise applicable be extended by more than three years."

      As the newspaper articles suggest, some of the causes of a business closure-such as industry changes or market forces-would not necessarily require "blaming" the company or claims of mismanagement.


text:
    Julian MARTINEZ, Plaintiff-Respondent, v. Jeng-Li Roy DELGADO-GALBAN, Defendant-Appellant.
    A163733
    Court of Appeals of Oregon.
    Argued and submitted March 8, 2018. March 20, 2019
    Jack Oswald argued the cause for appellant. Also on the briefs was Oswald & Mitchell.
    Collin C. McKean, Portland, argued the cause for respondent. Also on the brief was McKean Smith LLC.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Plaintiff sustained injuries during an altercation with defendant. In this personal injury action, he seeks recovery from defendant for, among other harm, his medical expenses. After the close of plaintiff's case, defendant moved to strike plaintiff's claim for damages for medical expenses, contending that those expenses could not be recovered because plaintiff had failed to produce any evidence that the amount that plaintiff was charged for the medical treatment that plaintiff had received was reasonable. The trial court denied defendant's motion to strike. The jury found in favor of plaintiff, awarding plaintiff economic and noneconomic damages. Defendant appeals from a general judgment, assigning error to, among other rulings, the trial court's denial of his motion to strike.

For the reasons that follow, we reverse and remand.

The material facts are not in dispute. Plaintiff and defendant were in an altercation during which plaintiff was cut by a knife wielded by defendant. Plaintiff sought and received medical treatment for his injuries. The medical treatment included three separate visits to the Tuality Community Hospital emergency room.

Plaintiff sued defendant for battery and assault, seeking, among other types of damages, economic damages for his medical expenses. During the resulting trial, plaintiff presented evidence of the amount that he was charged by Tuality Community Hospital for the medical treatment that he had received, submitting into evidence copies of the bills that he had received from Tuality Community Hospital. Additionally, plaintiff presented testimony from an expert witness, Dr. Paul Puziss, who testified that the treatment plaintiff received was reasonable:

"Q: And the treatment that you understand he had received at that point, do you believe that that was reasonable, under the circumstances?
"A: Yes. He went to the emergency room, they sutured [his wound ] properly. They didn't see a nerve injury, but clearly he had one. He returned there a couple more times, in part complaining of pain, in part for wound check. There never was, fortunately, a post-injury infection. But he had appropriate treatment.
"* * * * *
"Q: So you already testified that his-you understood his-his medical treatment to be reasonable?
"A: It was."

After the close of plaintiff's case, defendant moved to strike plaintiff's claim for damages for medical expenses because, according to defendant, plaintiff had failed to produce any evidence that the medical expenses incurred by plaintiff were reasonable. The trial court initially granted the motion. Subsequently, however, the trial court reversed its ruling, concluding that the evidence was sufficient for the jury to determine whether plaintiff's medical expenses were reasonable because "there [was] reasonable treatment that was rendered" and there were "not complex medical expenses" at issue in this case.

After the parties' closing arguments, the jury was instructed per UCJI 70.04 that, "[i]f you find that the plaintiff is entitled to recover economic damages, you must award some noneconomic damages." The jury ultimately returned a verdict for plaintiff, awarding both economic damages and noneconomic damages.

On appeal, defendant argues, among other points, that the trial court erred when it denied his motion to strike, because a party seeking to recover damages for medical expenses must present some evidence, beyond medical bills themselves, that such expenses are reasonable. Defendant contends that plaintiff failed to produce such evidence. Plaintiff does not disagree that to recover the amount that he was charged for medical care he was required to offer evidence that the charges were reasonable, and acknowledges that the submission of a medical bill, without more, is insufficient proof that the amount that he was charged was reasonable. Plaintiff contends, however, that the trial court did not err in denying defendant's motion to strike plaintiff's claim for damages for medical expenses because Puziss's testimony constituted "additional evidence" that the medical expenses plaintiff sought to recover were reasonable. Plaintiff also contends that certain statements made by defendant during defendant's closing argument constitute "judicial admissions" by defendant that the medical expenses incurred by plaintiff were reasonable.

Given the parties' arguments on appeal in this case, in reviewing the trial court's denial of defendant's motion to strike, we "view the evidence and reasonable inferences from it in the light most favorable to plaintiff, the nonmoving party, and affirm the denial if there is any evidence to support it." Lea v. Farmers Ins. Co. , 194 Or. App. 557, 559, 96 P.3d 359 (2004).

In Tuohy v. Columbia Steel Co. , 61 Or. 527, 532, 122 P. 36 (1912), the Supreme Court stated that "[t]he rule is that plaintiff in a case involving personal injuries can recover, as a part of his damages, his reasonable expenses for medicines and medical treatment, but there must be some evidence that the charges are reasonable." Since Tuohy , Oregon courts have consistently required plaintiffs seeking damages for medical expenses to establish the reasonableness of those expenses to recover them. See, e.g. , White v. Jubitz Corp. , 219 Or. App. 62, 68, 182 P.3d 215 (2008), aff'd , 347 Or. 212, 219 P.3d 566 (2009) (noting that "Oregon courts have long held that a plaintiff seeking damages for medical expenses must establish the reasonableness of those expenses and cannot simply rely on a medical bill for that purpose"); Ellington v. Garrow , 213 Or. App. 490, 496, 162 P.3d 328 (2007) (noting the "the longstanding rule that a plaintiff seeking damages for personal injuries must establish the reasonableness of any medical expenses claimed as damages and that the existence of a medical bill is insufficient, of itself, to present the question to the jury").

In resolving the parties' arguments in this case, our decision in State v. McClelland , 278 Or. App. 138, 372 P.3d 614, rev. den. , 360 Or. 423, 383 P.3d 862 (2016), is particularly instructive. In McClelland , we concluded that a trial court erred in imposing restitution against a defendant for the victim's medical expenses where the only evidence that the state presented regarding whether the expenses were reasonable was a medical bill. Id. at 140-41, 146-47, 372 P.3d 614. We reasoned that "the trial court could not simply rely on a review of the bill and 'common sense' to conclude that such charges were reasonable" because "[t]he finder of fact cannot be presumed to know what is a 'reasonable' charge for medical services based on their own experience and without further evidence, particularly given that many medical services are paid by third parties and insurance companies." Id. at 146-47, 372 P.3d 614. Importantly, in McClelland , it did not make a difference to our analysis that it was "undisputed" that the victim's knee surgery was "necessary." Id. at 146 n. 4, 372 P.3d 614. The state was still required to provide proof that the charges for the hospital services at issue were "reasonable" to obtain an order requiring the defendant to pay restitution. Id.

As noted above, on appeal, plaintiff contends that trial court did not err in denying defendant's motion to strike because plaintiff relied not only on his medical bills, but also on Puziss's testimony to establish that plaintiff's medical expenses were reasonable. The difficulty with plaintiff's argument is that Puziss's testimony, as quoted above, establishes that the provision of the medical treatment rendered to plaintiff was itself reasonable. However, that the medical treatment rendered to plaintiff was reasonable, or even necessary, does not, without more, allow for an inference that the charges billed for that medical treatment were reasonable. State v. Campbell , 296 Or. App. 22, 35, 372 P.3d 614 (2019) (noting that "whether the charges are reasonable and whether the treatment is necessary are two distinct questions").

Without evidence that the charges billed were reasonable, it was error for the trial court to deny defendant's motion to strike because the factfinder cannot be presumed to know what a reasonable charge for medical services is based on the factfinder's own experience, and without further evidence. See McClelland , 278 Or. App. at 146-47, 372 P.3d 614 ; see also Valdin v. Holteen and Nordstrom , 199 Or. 134, 147-48, 260 P.2d 504 (1953) (holding the plaintiff "had the right to testify concerning" the amount he was billed for medical services, "but before such evidence could be the basis of a claim for special damages, it would be necessary to connect it by offering evidence that the charges * * * were reasonable for the services rendered").

Plaintiff argues that this case is similar to Ellington , a personal injury action in which we concluded that the trial court did not err in denying the defendant's motion for a directed verdict with respect to physical therapy expenses. 213 Or. App. at 496-97, 162 P.3d 328. We disagree. The plaintiff in Ellington -unlike plaintiff in this case-adduced evidence concerning the reasonableness of the medical expenses at issue. Id. at 496, 162 P.3d 328. Specifically, in Ellington , "[w]hen asked if he had an opinion concerning whether plaintiff's medical expenses were reasonable, [plaintiff's witness] testified that '[t]he [physical therapy] seems a bit high. Beyond that the others appear appropriate.' " Id. (third and fourth brackets in original). Consequently, the defendant in Ellington conceded on appeal that there was "evidence on the reasonableness of the physical therapy bills," but argued that, in the context of the testimony given, "the only possible inference from that testimony is that the physical therapy bills were not reasonable." Id. We did not agree and ultimately concluded that there was "some evidence that the physical therapy bills were reasonable." Id. at 496-97, 162 P.3d 328. In contrast, in this case, plaintiff never asked Puziss whether plaintiff's expenses or medical charges were reasonable; he only asked about the reasonableness of the treatment plaintiff received.

We next turn to plaintiff's argument that defendant's statements during closing argument constitute "judicial admissions" that the medical expenses plaintiff incurred were reasonable. Plaintiff relies on two statements made during closing argument to support his contention, both of which are provided below with appropriate context:

In the first statement, defendant argued,

"[s]o, now, * * * [plaintiff is] asking for impaired earning capacity of $ 30,000, and medical expenses, which [plaintiff] didn't bring, by the way, anybody in here to say that those were reasonable prices.
"Now, obviously, it's Tuality Hospital. They have the regular billing thing. But take a good look at those bills. And take a look at which columns each of them go-and you'll see something there that's pretty interesting."

In the second statement, defendant argued,

"[s]o, you have to consider how much is a cut-with the pain that he suffered at the time, and the inconvenience of going to the doctors and-and all of that, how much is that worth? And I submit to you that I don't think it's worth more than $ 10,000. Plaintif thinks it's worth $ 280,000. But in the grand scheme of things for a cut that, after three years, doesn't have anything objectively wrong with it, is-has some monetary value on that, but certainly not $ 280,000."

"A judicial admission is a statement 'made by a party or his attorney for the purpose of dispensing with proof of a fact in issue.' " Lea , 194 Or. App. at 562, 96 P.3d 359 (quoting Foxton v. Woodmansee , 236 Or. 271, 278, 386 P.2d 659 (1963), reh'g den. , 236 Or. 271, 283, 388 P.2d 275 (1964) ). "It is of the nature of an admission, plainly, that it be by intention an act of waiver, relating to the opponent's proof of the fact, and not merely a statement of assertion or concession, made for some independent purpose." Id. (internal quotation marks omitted).

In support of his argument, plaintiff relies on Lea . In Lea , we determined that the plaintiff had failed to establish that his medical expenses were reasonable and that the trial court erred in denying the defendant's motion "to strike the claim for damages for medical expenses." Id. at 561, 96 P.3d 359. We further determined, however, that the trial court's error was "cured" with respect to medical charges resulting from an emergency room visit, an x-ray, and a CT scan, because during closing argument the defendant stated (1) "we do not begrudge [the plaintiff] the right to go to the emergency room * * * [a]nd if you get to that question you ought to award that emergency room visit to him," and (2) "there was a * * * bill for the CT scan and the x-ray. We don't begrudge [the plaintiff] those things." Id. at 561-62, 96 P.3d 359. We reasoned that the "purpose of th[ose] statements * * * was to tell the jury that it need not consider the reasonableness of the emergency room, CT scan, or x-ray charges" and that they were, therefore, "an admission that, when viewed most favorably to plaintiff, would allow the jury to conclude that the specified medical expenses were reasonable." Id. at 562, 96 P.3d 359 (emphasis in original).

Unlike in Lea , in this case, we do not view defendant's statements during closing argument as judicial admissions that plaintiff's medical expenses were reasonable. It appears to us that the first statement that plaintiff relies on was not made for the purpose of telling the jury that it need not consider the reasonableness of plaintiff's medical bills. That is, defendant asked the jury to "take a good look at those [medical] bills" because the jury would "see something there that's pretty interesting," and specifically noted that plaintiff had not presented testimony indicating that the charges reflected in the medical bills were reasonable. The second statement plaintiff relies on concerns plaintiff's request for noneconomic damages, as evidenced by defendant's reference to "the pain that [plaintiff] suffered" and "$ 280,000," which is the amount that plaintiff requested the jury award for noneconomic damages. Thus, we do not view either statement as a judicial admission that plaintiff's medical expenses were reasonable.

In sum, we conclude that the trial court erred in denying defendant's motion to strike plaintiff's claim for economic damages related to plaintiff's medical expenses.

We also conclude that the trial court's error was not cured by judicial admissions made by defendant during closing argument. Accordingly, we reverse and remand.

Reversed and remanded.

      In light of our conclusions below, we need not address defendant's second assignment of error.

      Defendant also contends, more generally, that plaintiff failed to "present any evidence as to any other claimed economic damages." Plaintiff conceded at oral argument that there was no evidence regarding the potential cost of any future medical expenses and, in his briefing, points to no evidence supporting any other economic damages in this case.

      As noted, McClelland concerned the propriety of an order requiring the defendant to pay restitution. Consequently, our analysis in McClelland construed the phrase "economic damages" in ORS 137.106, which, with one exception, has the meaning given to that phrase in ORS 31.710. 278 Or. App. at 141, 372 P.3d 614 ; see also ORS 137.103(2) (defining "economic damages" for purposes of ORS 137.106 with reference to ORS 31.710 ).
      Our analysis in McClelland is instructive in this case because, in discussing the phrase "economic damages" as defined in ORS 31.710(2)(a), we recognized that when the legislature "enacted ORS 31.710(2)(a) and its definition of economic damages it did so in light of the underlying law" and that, consistent with that law, "a plaintiff seeking damages for medical expenses must establish the reasonableness of medical costs, through testimony or other evidence, beyond the existence of a medical bill ." Id. at 145, 372 P.3d 614 (emphasis in original; internal quotation marks omitted). See also White , 219 Or. App. at 68, 182 P.3d 215 ("Our subsequent interpretation and application of [ORS 31.710 ] have been consistent with our preexisting treatment of economic damages for medical costs under the common law, to wit, recoverable damages are based, not on what a plaintiff personally paid, but on the value of necessary services.").