author: DeVORE, J. James, J., dissenting. JAMES, J., dissenting.

text:
    STATE of Oregon, Plaintiff-Respondent, Cross-Appellant, v. Gary Lee CAMPBELL, Defendant-Appellant, Cross-Respondent.
    A162357 (Control) A163187
    Court of Appeals of Oregon.
    Argued and submitted May 8, 2018. February 6, 2019
    Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant-cross-respondent. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Michael A. Casper, Assistant Attorney General, Salem, argued the cause for respondent-cross-appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   DeVORE, J.

This decision addresses the sufficiency of evidence offered to prove that amounts sought as medical expenses were reasonable for purposes of restitution in a criminal proceeding. Defendant appeals a judgment of conviction on a variety of charges. He challenges the trial court's jury instructions and its failure to merge two of the verdicts into a single conviction. The state cross-appeals a supplemental judgment, assigning error to the trial court's denial of its request for restitution to CareOregon, a state-funded health insurance company, for the amount paid to cover the victim's medical expenses. The state argues that the record contained sufficient evidence to show that the medical expenses were "reasonable" as ORS 137.103(2) and ORS 31.710 require. As to defendant's appeal, we affirm without written discussion. As to the state's cross-appeal, we reverse and remand the supplemental judgment.

The relevant facts are not in dispute. The case arises from a series of altercations that led to defendant stabbing the victim with a knife and the victim's car crashing into a tree. At the scene, the victim was unresponsive and barely breathing. He was helicoptered to the trauma center at Oregon Health and Science University Hospital (OHSU) where he underwent emergency surgery and remained for two weeks.

Defendant was charged with several offenses: attempted murder, ORS 161.405 and ORS 163.115 ; first-degree assault, ORS 163.185 ; two counts of unlawful use of a weapon, ORS 166.220 ; menacing, ORS 163.190 ; and menacing constituting domestic violence, ORS 163.190. The jury returned guilty verdicts for all of the charged offenses except attempted murder.

At a subsequent hearing, the state requested $ 46,403.04 in restitution to recover the amount that CareOregon paid for the victim's medical bills. To substantiate its request, the state submitted in evidence copies of health insurance claim forms that had been filed with CareOregon for the victim's treatment. It also called CareOregon's subrogation coordinator as a witness. She had generated a ledger, which was admitted into evidence, detailing the amounts that various treatment providers charged and the reduced amounts that CareOregon actually paid for the victim's medical expenses arising from the incident. The subrogation coordinator testified that CareOregon pays for medical expenses at state Medicaid rates, which are "much lower rates than * * * standard commercial insurance." She testified that, although the victim's medical providers charged $ 262,006.83 for his treatment, CareOregon paid just $ 46,403.04. The subrogation coordinator also testified that no CareOregon staff specifically reviews the reasonableness of services provided, unless given cause to do so. Rather, claims typically "go through the system automatically."

At the close of the hearing, the state asked the trial court to order defendant to pay the $ 46,403.04 to CareOregon. Defendant urged the trial court to deny the request, arguing that the state failed to show that the medical expenses were reasonable as required under Oregon statute. Defendant relied on State v. McClelland , 278 Or. App. 138, 372 P.3d 614, rev. den. , 360 Or. 423, 383 P.3d 862 (2016), for the proposition that a medical bill alone cannot establish reasonableness. Defendant contended that "it's not a question of whether [the bill] was paid or not," but rather, whether "the services were reasonable and at a reasonable cost."

The trial court reluctantly agreed with defendant, observing that, although it "look[ed] at the documents and remember[ed] what the facts were and the amounts seem[ed] very reasonable," McClelland was "right on point." The court perceived itself to be "uncomfortably in the same position" as the McClelland court, noting that no one testified to having assessed reasonableness. The trial court denied restitution for the medical bills based on its legal assessment that the record was insufficient to permit a finding of reasonableness.

The state cross-appeals the supplemental judgment, assigning error to the trial court's denial of restitution to CareOregon. The state argues that a discounted medical bill paid by an insurer or "other informed market participant" is prima facie evidence of reasonableness unless otherwise rebutted. Defendant responds that our prior decision in McClelland forecloses that conclusion. He insists that a medical professional should testify to whether treatments and associated charges are reasonable and necessary.

As presented, the issue requires this court to determine whether the record contains evidence from which a factfinder could infer that the medical expenses were reasonable. We review orders of restitution for errors of law. McClelland , 278 Or. App. at 141, 372 P.3d 614 (citation omitted). It is a question of law whether a trial court must deny restitution because the state failed to provide sufficient evidence of reasonableness. See Lea v. Farmers Ins. Co. , 194 Or. App. 557, 559, 96 P.3d 359 (2004) ("To the extent that resolving this case requires us to decide whether a court has no option but to grant the motion [to strike] if plaintiff presents no evidence that his expenses were reasonable and necessary, the question is one of law.").

Oregon statute describes the process by which the state may seek to recover restitution from a criminal defendant. In relevant part, ORS 137.106(1)(a) provides:

"If the court finds from the evidence presented that a victim suffered economic damages, * * * the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's economic damages as determined by the court."

For the purpose of that provision, "economic damages" has "the meaning given that term in ORS 31.710 [.]" ORS 137.103(2). With that reference, the statute adopts the definition of economic damages employed in civil cases. That is, economic damages are the "objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services[.]" ORS 31.710(2)(a).

Accordingly, our understanding of economic damages in civil cases informs our analysis of economic damages in criminal restitution proceedings. See State v. Ramos , 358 Or. 581, 588, 368 P.3d 446 (2016) ("[T]he legislature's cross-reference to the definition * * * and [its] purpose in creating the restitution procedure as a substitute for a civil proceeding make civil law concepts relevant to our interpretation of ORS 137.106."); State v. Islam , 359 Or. 796, 800, 377 P.3d 533 (2016) ("[R]estitution under ORS 137.106 is informed by principles enunciated in civil cases concerning recoverable economic damages." (Citation omitted.)); McClelland , 278 Or. App. at 142, 372 P.3d 614 ( ORS 137.106(1)(a)"incorporates the civil statutory definition of economic damages set forth in ORS 31.710(2)(a)").

Like a plaintiff in a civil case, "the state has to prove that the cost of such services is 'reasonable' " before restitution can be awarded for hospital or medical expenses. McClelland , 278 Or. App. at 143, 372 P.3d 614. "The amount that one pays for services generally is admissible and often may be an important factor in determining the reasonable value of those services." White v. Jubitz Corp. , 347 Or. 212, 243, 219 P.3d 566 (2009) (citation omitted). Recoverable damages are based "on the value of necessary services." White v. Jubitz Corp. , 219 Or. App. 62, 68, 182 P.3d 215 (2008), aff'd , 347 Or. 212, 219 P.3d 566 (2009) (emphasis in original). For that reason, evidence merely showing the existence of treatment bills is inadequate. McClelland , 278 Or. App. at 144, 372 P.3d 614 (submission of treatment bills, "without more, is insufficient proof for recovery of 'reasonable' hospital or medical services"); Valdin v. Holteen and Nordstrom , 199 Or. 134, 147-48, 260 P.2d 504 (1953) (to claim economic damages, it would be necessary to offer evidence that the charges were reasonable); Coblentz v. Jaloff , 115 Or. 656, 665-66, 239 P. 825 (1925) (plaintiff's allegation of a certain amount for medical services, without evidence of payment or reasonableness, was insufficient to show that the charges were reasonable), overruled on other grounds by Simpson v. The Gray Line Co. , 226 Or. 71, 358 P.2d 516 (1961).

Although the amount of the expenses "may be an important factor in determining the reasonable value of those services[,]" White , 347 Or. at 243, 219 P.3d 566 (citation omitted), it is not enough, Lea , 194 Or. App. at 560, 96 P.3d 359. A trial court cannot rely on common sense to determine that the amounts are reasonable. McClelland , 278 Or. App. at 146, 372 P.3d 614. Rather, "[s]ome additional testimony or evidence is required[.]" Id. at 144, 372 P.3d 614. See also Ellington v. Garrow , 213 Or. App. 490, 496-97, 162 P.3d 328 (2007) (noting the "longstanding rule that a plaintiff seeking damages for personal injuries must establish the reasonableness of any medical expenses claimed as damages[,]" but holding that the plaintiff did so when a doctor testified to the reasonableness of physical therapy bills).

Beyond those observations, we have had relatively few opportunities to consider what sort of evidence of medical expenses may show them to be "reasonable" within the meaning of economic damages. In particular, we have yet to address whether proof of payment by a health insurer-in this case, payment by a state-funded health insurer-may be some evidence of reasonableness, and, if so, whether such payment may present sufficient evidence. In State v. Jordan , 249 Or. App. 93, 96-98, 274 P.3d 289, rev. den. , 353 Or. 103, 295 P.3d 50 (2012), we declined to consider as plain error whether a private health insurer's lien ledger showing payments to treatment providers demonstrated reasonableness. We noted that a lien ledger is more than a mere list of medical bills because it also provides the amounts a health insurer paid and concluded that, "[a]t a minimum," the issue was "reasonably in dispute," given the fact that we had never addressed it. Id. at 98, 274 P.3d 289. The current case requires us to address such a question.

Previously, we have observed that the legislature enacted ORS 31.710 in light of the common law and that "[o]ur subsequent interpretation and application of the statute have been consistent with our preexisting treatment of economic damages for medical costs under the common law[.]" White , 219 Or. App. at 68, 182 P.3d 215. We have recognized that Oregon has applied a principle from the Restatement (Second) of Torts (1979) that reasonable medical expenses include "the value of the services reasonably made necessary by the harm." White , 219 Or. App. at 67, 182 P.3d 215 (citing Restatement § 924(c) comment f (emphasis omitted)). See also White , 347 Or. at 236, 219 P.3d 566 (citing that provision of the Restatement with approval); Nelsen v. Nelsen , 174 Or. App. 252, 258, 23 P.3d 424 (2001) ("We refer to specific comments contained in [the Restatement ] sections" when "they are persuasive and relevant to resolving the case before us." (Citation omitted.)).

The Restatement explains that the "measure of recovery" for "the value of services rendered in an attempt to mitigate damages" is "the reasonable exchange value of the services at the time and place." Restatement § 911 comment h. "Exchange value," in turn, refers to "the amount of money for which the subject matter could be exchanged or procured if there is a market continually resorted to[.]" Restatement § 911. In short, the Restatement suggests that a victim seeking compensation for medical expenses is entitled to recover at the market rate for those services in that time and place.

The Restatement analysis regarding exchange value comports with other states' understanding of the common law at the time when the Oregon legislature enacted the original statute defining economic damages. See former ORS 18.560 (1987), renumbered as ORS 37.710 (2003) (providing present definitions of economic and noneconomic damages). Courts in other jurisdictions determined that reasonableness can be shown through proof that the charged or paid amount was the usual and customary rate for the medical services rendered. See, e.g. , Myers v. Karchmer , 313 S.W.2d 697, 707 (Mo. 1958), reh'g den. (despite a lack of direct testimony regarding the charges' reasonableness, evidence of the medical bills and their payments, along with testimony that they were paid at "the regular going rate," was sufficient for the jury to consider reasonableness); Sam v. Sullivan , 189 S.W.2d 69, 75 (Tex. Civ. App. 1945), writ den. (evidence that the amount was the usual and customary charge and that a physician approved the bill was sufficient to sustain a finding of reasonableness, even though no expert testified that such bills were reasonable). Given the prevalent understanding, it is likely that the legislature intended "reasonable charges" to include those charges incurred at or below the usual and customary rate.

We concur that the market rate is a reasonable amount for a victim to recover for medical expenses. That concept is consistent with common law and the statute that is read to provide that "recoverable damages are based * * * on the value of necessary services." White , 219 Or. App. at 68, 182 P.3d 215 (emphasis in original). By definition, the market rate is the value ascribed to the services in a given market, and the market rate is the burden a victim bears to receive care in that time and place. Consequently, the state can demonstrate the reasonable value of medical expenses by offering evidence that the medical expenses reflect the usual and customary rate for those services in the market wherein they occur. It follows that evidence that payments have been made and that those payments were at or below market value is one way to show the reasonableness of those expenses.

Health insurers, although not hands-on providers of medical care, may be well situated to assess what sums are usual and customary and, therefore, reasonable, given their central role in negotiating group contracts for employees and employers, establishing payment rates with medical provider groups, and processing masses of individual claims in the modern market. See Lea , 194 Or. App. at 561, 96 P.3d 359 (noting that "a significant number of medical expenses today are paid by insurance companies and not individuals" in concluding that "a contemporary juror may be less capable of knowing what charges are reasonable than was a juror in 1912"); McClelland , 278 Or. App. at 146-47, 372 P.3d 614 (noting that the "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"); Jordan , 249 Or. App. at 98 n. 3, 274 P.3d 289 (noting an insurer's lien ledger was evidence of reasonableness above and beyond a mere medical bill, in part, because it was "at least possible to infer" that the insurer "was satisfied that the medical bills it paid were reasonable"); see also ORS 743B.001(10) (defining insurer); ORS 743B.001(14) (defining, as among health benefit plans, preferred provider organizations (PPO)); ORS 743B.001(8) (defining health benefit plan); ORS 743B.005(16) (defining health benefit plan); Cascade Physical Therapy v. Hartford Casualty Ins. , 258 Or. App. 612, 618, 310 P.3d 1156 (2013), rev. den. , 354 Or. 837, 325 P.3d 738 (2014) (contract between PPO health insurer limited the amount the medical provider could demand in payment). Therefore, the fact that a health insurer has paid a medical bill is something more than evidence of a medical bill standing alone; it is some indication of the charge's reasonableness.

Applying those principles to the case at hand, we conclude that the record contained sufficient evidence upon which a factfinder could conclude that the requested restitution to CareOregon was reasonable. In addition to health insurance claim forms showing the amounts charged, a ledger showed the amounts paid. CareOregon's payments were a fraction of the total bills issued, and a witness explained that they were at or below the usual and customary rate for those services in that market. Specifically, the subrogation coordinator testified that CareOregon pays for medical expenses at state Medicaid rates, which are "much lower rates than * * * standard commercial insurance." Such evidence of payments at or below market rate sufficed to permit a factfinder to find that the amounts sought as medical expenses were reasonable.

Our conclusion is required for the added reason that the payments were made by a publicly funded health insurer who, by design, can only make payments at reasonable rates. CareOregon's payments are the product of an elaborate statutory and regulatory scheme for controlling Medicaid rates under state and federal law. Chapter 414 of the Oregon Revised Statutes governs the administration of Oregon's public medical assistance program, including contracts with coordinated care organizations (CCOs) like CareOregon. In particular, ORS 414.065(1)(a) requires the Oregon Health Authority to set "[r]easonable fees, charges, daily rates and global payments for meeting the costs of providing health services to an applicant or recipient[,]" as well as "[r]easonable fees for professional medical and dental services which may be based on usual and customary fees in the locality for similar services" (emphases added). In making those determinations, the Oregon Health Authority must consult with the Medicaid Advisory Committee whose members include, in part, a licensed physician, health care providers, two members of health care consumer groups that include Medicaid recipients, and two Medicaid recipients. ORS 414.225 ; ORS 414.211. By legal mandate, the state's payment rates are intended to reflect the usual and customary fees at or below the local market rate, taking into account what doctors, consumers, and other stakeholders consider reasonable.

Federal laws and regulations subject Oregon payment rates to additional oversight. Before Oregon can receive federal funding for its medical assistance program, the Centers for Medicare and Medicaid Services (CMS) must approve its payment rates, as well as its policies and methods for setting payment rates, for each service included in its Medicaid program. 42 CFR §§ 430.10 - 430.15 (2017) ; 42 CFR § 447.201 (2017). Federal funds are not available for state expenditures that exceed the amounts CMS approves in the state's rate-setting plan; it creates an upper limit. 42 CFR § 447.304 (2017). CMS also reviews and approves all of Oregon contracts with managed care organizations and requires that capitation rates-periodic payments to the contractors on behalf of health program beneficiaries-be actuarially sound. 42 CFR §§ 438.2 - 438.5 (2017). Contracts with organizations like CareOregon must be "developed in accordance with * * * generally accepted actuarial principles and practices" and "certified by an actuary[.]" 42 CFR § 438.4 (2017). In light of that scheme of state and federal laws for establishing and regulating payment of reasonable rates, evidence of payments from CareOregon, a Medicaid-funded healthcare provider, is sufficient evidence that the amounts sought are reasonable.

Defendant resists our conclusion with several arguments. First, he likens this case to two cases in which the courts determined that the evidence was insufficient to present the question of reasonableness to the jury. Those cases, however, are distinguishable from the one before us. In Lea , the plaintiff introduced only evidence of charges.

194 Or. App. at 559, 96 P.3d 359. In Coblentz , the plaintiff merely alleged $ 321 in medical services, medicine, and bandages, but he offered no evidence that he paid it. 115 Or. at 665-66, 239 P. 825. In neither case did the plaintiff provide any evidence that the amounts charged were reasonable, such as proof regarding the going rate for such services. Here, the state provided more than an amount billed or even an amount that an individual had paid. In addition to claim forms showing the charges and a ledger showing the payments, the state provided testimony that CareOregon paid at government-regulated rates which were below that which was the standard.

Next, defendant argues that a medical professional must testify that the charges are reasonable in order to establish their reasonableness. Although we have acknowledged that "a plaintiff generally present[s] evidence of the reasonableness and necessity of medical expenses through testimony of physicians and other medical professionals familiar with the injury, treatment, and costs involved[,]" White , 219 Or. App. at 68, 182 P.3d 215 (emphasis added), we have not held that to be the only permissible method. As noted above, the fact that a health insurer has paid a medical bill is some indication of the charge's reasonableness in the market. In addition, here, there is evidence that the payments were made by a health insurer at or below market rates. In such circumstances, that evidence makes unnecessary a physician's testimony as to the reasonableness of the amount sought to be recovered. Finally, defendant asserts that, to establish reasonableness, the state must provide evidence during the restitution proceedings connecting each expense to a necessary treatment. Defendant argues that the state did not address whether there could have been alternatives providing "fewer, more conservative, or less costly treatments." Defendant's argument is unavailing for a pair of reasons. First, whether the charges are reasonable and whether the treatment is necessary are two distinct questions. See McClelland , 278 Or. App. at 146 n. 4, 372 P.3d 614 (even when the trial court correctly finds the medical services necessary, the statute "still requires proof that the charges for the hospital services were 'reasonable' "); White , 219 Or. App. at 67, 182 P.3d 215 (" 'Necessarily,' an adverb, modifies 'incurred' and reflects on the necessity of the treatment[.]"). Defendant's objection at the restitution hearing and during the trial court's ruling focused almost entirely on the reasonableness of the medical expenses, with no real challenge to their necessity. Second, the record contained evidence of the treatment's necessity-evidence that the trial court was free to consider-although some of it was admitted at trial and not the subsequent restitution hearing. McClelland , 278 Or. App. at 146, 372 P.3d 614 ("[E]vidence in support of a restitution award may be the evidence presented at trial, and does not have to be additional evidence presented following a post-trial investigation separate from the investigation of the crime itself." (Citing State v. Noble , 231 Or. App. 185, 189, 217 P.3d 1130 (2009) )). The dissenting opinion in this case resists our conclusion for reasons that are different than those defendant presents. The dissent supposes that witnesses who are treating physicians have "little knowledge of their own billing" and decries "overly formalistic, needlessly time-consuming" trial practice involving "billing experts" who "make the rounds of Oregon courts in personal injury cases." 296 Or. App. at 40, 42, 438 P.3d at 460, 461 (James, J., dissenting). That practice, however, was not involved in this case, and this decision does not compel that practice.

The dissent further contends that the evidence at issue in this case should be deemed insufficient to support a finding of reasonableness because, otherwise, insurers will be in "a superior position from which to dictate reasonableness," thereby "creat[ing] two different classes of litigants in Oregon courts." Id. at 44, 438 P.3d at 462. The dissent asserts that this is unfair because an uninsured victim would still need to call a billing expert to trial, whereas an insured victim or the victim's insurer could call someone like the subrogation coordinator here. In both situations, however, a witness testifies to show that the amounts were "reasonable" or, as shown here, were paid at or below market rates, which is the same thing. There is no inequality in that.

The dissent also objects that a hypothetical uninsured victim would not have an equal convenience because there would be no witness from an insurance company to say that the bills were paid or were paid at or below market rates. For reasons that are analytical and practical, that objection provides no basis to reach a different legal conclusion in this case.

The dissent's objection fails to differentiate between two distinct issues: access to evidence and the legal sufficiency of the evidence. This case examines whether the evidence presented below was sufficient to permit a reasonable factfinder to infer that the claimed medical expenses were reasonable. For the reasons stated, it is. However difficult it may be for an uninsured victim to access evidence of the reasonableness of medical expenses, the solution to that problem is not to deem legally sufficient evidence insufficient to prove a point. Rather, the solution is to address the access-to-evidence problem directly, perhaps by doing what other states have done through their evidence codes. See, e.g. , Ind. Evid. R. 413 ("Statements of charges for medical, hospital or other health care expenses for diagnosis or treatment occasioned by an injury are admissible into evidence. Such statements are prima facie evidence that the charges are reasonable.")

As a practical matter, the inequality perceived by the dissent is largely illusory, in view of two principles of law at play in civil cases. First, as mentioned above, the collateral source rule makes evidence of a victim's insurance benefits inadmissible at trial in a typical tort case. ORS 31.580(2). One good reason is the risk that admission of evidence of payments by insurers in a civil case might tempt jurors mistakenly to lower their award of the victim's damages, thus shortchanging the victim. Secondly, the victim-insured or uninsured -may well want to recover the full measure of medical bills-not just the lesser, insured portion. That is because the victim-insured or uninsured-is entitled to recover more damages (i.e. , including the medical providers' "write-offs"). See White , 347 Or. at 218, 219 P.3d 566 (allowing injured party to recover "write-offs"). Getting more does require the added effort to ask a treating physician, who may already be a witness on medical treatment, or a billing expert to testify that the bills themselves are reasonable. Although the process is not the same, the point is that, by asking a witness about reasonableness, the victim recovers more . There is no real inequality in that. In this case, the Oregon Health Plan, through CareOregon, provided payment of $ 46,403.04 at the Medicaid rate for the $ 262,006.83 billed. That payment freed the victim from further obligation to medical providers from the unpaid balance of the debt. See ORS 414.065(3) (OHP payments shall constitute payment in full for medical services). As noted, CareOregon is a nonprofit coordinated care organization. When and if it recoups any of its payments from an offender, it supports its ability to pay for medical services for the victim and others.

Ultimately, the dissent does address the issue presented by this case, disagreeing that the evidence presented is legally sufficient because the dissent reads the testimony of the subrogation coordinator to suggest that she "declined * * * to offer any opinion as to reasonableness." 296 Or. App. at 45, 438 P.3d at 462-63 (James, J., dissenting). When asked about "rates," which is to say the amounts charged, she said that the she did not evaluate the reasonableness of a particular charge. Instead, she explained that all charges were paid at the Medicaid rates that are "much lower rates" than standard insurance payments. When asked about "reasonableness of the services," which is to say the necessity of treatment, she replied that she did not generally evaluate that sort of reasonableness "unless there's some sort of question that would come up."

Contrary to the dissenting opinion, those answers do not mean "[w]e are left only with the fact that the medical bills were paid by an institutional insurer at a contracted rate." Id. at 47, 438 P.3d at 463. As we have explained, the testimony that the amounts sought-payments that were at or below market rates-is the definition of medical expenses that are reasonable in amount. Moreover, Medicaid payments can only be made at reasonable rates. The witness need not have used magic words when the substance of her testimony said the same thing. And, as we have explained, this record contained other evidence of the necessity of the medical bills. The victim's medical records from OHSU were received in evidence, and the trauma surgeon testified about the victim's injuries and medical treatment. Contrary to the dissenting opinion, the evidence in this record is legally sufficient under "our lenient standard of review." See Ellington , 213 Or. App. at 496, 162 P.3d 328 (testimony allowed inference of reasonableness satisfying "our lenient standard of review").

Ellington provides a helpful comparison in that regard. There, the issue was whether the evidence was legally sufficient to support a finding that certain charges for physical therapy were reasonable. Id . at 492, 162 P.3d 328. The only evidence on the point was that a doctor had testified, in response to a question about the reasonableness of all the medical expenses that the plaintiff was seeking to recover, that "The PT seems a bit high. Beyond that the others appear reasonable." Id . at 493, 162 P.3d 328. Noting our deferential standard of review, we held that the testimony was sufficient to support a finding that the physical therapy charges were reasonable because a reasonable factfinder could construe that testimony to mean that the charges were "on the high end of reasonable, but still reasonable." Id. at 496-97, 162 P.3d 328. For that reason, the testimony provided the necessary "some evidence" that the amounts were reasonable beyond the bills themselves. The same is true in this case; the testimony provided permits the reasonable inference that the charges were paid below market rates such that the amounts sought to be recovered were reasonable or, perhaps, a bargain.

In conclusion, when proving economic damages for restitution, the state can establish that charges for medical services are reasonable by providing evidence that the charges reflect the usual and customary rates for those services in the market. Here, the state provided sufficient evidence of reasonableness when it showed that CareOregon, a publicly funded health insurer, made payments for medical expenses at state Medicaid rates that were "much lower" than "standard" rates, amounting to a fraction of the original charges. Therefore, the trial court was free to require restitution for the payments for medical expenses as a part of its sentence upon a judgment of conviction for defendant's offenses.

Affirmed on appeal; reversed and remanded on cross-appeal.

James, J., dissenting.

JAMES, J., dissenting.

Although this case comes to us in the context of criminal restitution, the issue this case presents is really one of civil damages, in particular, what is the minimum sufficient evidence of the "reasonableness" of medical expenses necessary to overcome a defense motion for directed verdict as to economic damages. The answer to that seemingly simple question, as developed through the decisions of this court and the Oregon Supreme Court, has been less than logically consistent. As a result, routine Oregon practice has developed in a manner that is arguably overly formalistic, needlessly time consuming at trial, and ultimately unhelpful to the jury. The majority opinion perceives these same problems and, in its own way, offers a new path forward. For that, I commend it. But as I will discuss, the majority's path leads to results and implications that I cannot accept, and therefore I regrettably cannot join in that opinion.

"Economic damages" is a term defined by statute. ORS 31.710(2)(a) provides, in part: "(a) 'Economic damages' means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services." (Emphases added.) The definition encompasses two distinct concepts that are sometimes subtly blurred in litigation. Reasonableness is the assessment of economic value. Necessity is the causal link between the medical bill incurred and the injury alleged. We have held that ORS 31.710(2)(a) incorporated the common law understanding of economic damages into the statute when it was enacted. White v. Jubitz Corp ., 219 Or. App. 62, 68, 182 P.3d 215 (2008), aff'd , 347 Or. 212, 219 P.3d 566 (2009) ; State v. McClelland , 278 Or. App. 138, 145, 372 P.3d 614, rev. den. , 360 Or. 423, 383 P.3d 862 (2016).

Drawing from a series of cases beginning in 1912, the law of economic damages, as applied to the reasonableness of medical bills, appears to be as follows: First, the Oregon Supreme Court has said that a medical bill is admissible and relevant as to reasonableness. See, e.g. , Mathews v. City of La Grande , 136 Or. 426, 430, 299 P. 999 (1931) (juries may consider charges incurred, evidence of amount paid, and what "would be a reasonable charge * * * in connection with the plaintiff's injury" as evidence of the reasonable value of medical services provided). But, the court has also held that, while being admissible and relevant as to reasonableness, a bill alone is insufficient evidence of reasonableness so as to survive directed verdict. See, e.g. , Tuohy v. Columbia Steel Co. , 61 Or. 527, 532, 122 P. 36 (1912).

Second, the court has held that evidence of payment of a medical bill is also admissible and relevant as to reasonableness. Mathews , 136 Or. at 430, 299 P. 999. But, the court has strongly implied, and arguably explicitly stated, that evidence of payment of a medical bill alone is insufficient evidence of reasonableness so as to survive directed verdict. In Valdin v. Holteen and Nordstrom , the court held:

"Plaintiff had the right to testify concerning the several charges made for the services performed in his care and treatment, or if he had paid for such services, as to the several amounts paid, but before such evidence could be the basis of a claim for special [economic] damages, it would be necessary to connect it by offering evidence that the charges or amounts paid, as the case might be, were reasonable for the services rendered, and, of course, that the services were performed."

199 Or. 134, 147-48, 260 P.2d 504 (1953).

Finally, we have found that the testimony of a witness is sufficient to establish reasonableness so as to survive directed verdict-even when the testifying witness is a physician who created one of the medical bills at issue. See, e.g. , Ellington v. Garrow , 213 Or. App. 490, 496, 162 P.3d 328 (2007) ; Valdin , 199 Or. at 147-48, 260 P.2d 504. That testimony is sufficient even when it supports multiple competing inferences, so long as it can be construed as responsive to the question of reasonableness.

"When asked if he had an opinion concerning whether plaintiff's medical expenses were reasonable, Stewart testified that '[t]he [physical therapy] seems a bit high. Beyond that the others appear appropriate.' As defendant concedes in her brief, '[t]here is no question that Dr. Stewart's testimony is evidence on the reasonableness of the physical therapy bills.' Defendant would have us conclude, however, that the only possible inference from that testimony is that the physical therapy bills were not reasonable. Stewart's observation that the charges other than for physical therapy were appropriate might permit an inference that the charges for physical therapy were not, but it does not establish it."

Ellington , 213 Or. App. at 496, 162 P.3d 328 (brackets and emphasis in original).

Oregon trial practice has developed in response to this case law. Parties may stipulate to the reasonableness of the medical bills and focus their arguments instead on the necessity of treatment. But when the parties do not stipulate, even when the bill is from an accredited and regulated healthcare provider and there is no actual dispute as to reasonableness, the plaintiff is compelled to bring an expert to testify at trial in the plaintiff's case-in-chief as to the reasonableness of the medical bills. Such testimony may be provided by the treating physician, but given how medical billing has evolved in the modern delivery of healthcare services, treating physicians sometimes have little knowledge of their own billing. Consequently, medical billing experts may testify in the physicians' stead; these billing experts comprise a group of professional witnesses who make the rounds of Oregon courts in personal injury cases.

These professional witnesses may be called to testify late in the plaintiff's case at trial to summarize the bills and declare them "reasonable," while potentially drawing objections from opposing counsel to their rendering of an opinion as to the reasonableness of the bills in their entirety. This may result in the witness offering testimony as to each bill individually-sometimes a multi-hour affair. Anyone who has watched a jury's collective body language during this process would hesitate to call such testimony compelling.

The end result is that our court-created common law-inherited from cases decided largely in the early half of the last century-has created a modern system where litigation necessitates frontloaded professional witnesses, even when the reasonableness of medical bills is functionally undisputed. Perhaps when this common law interpretation was originated, a medical bill alone could not meet the incredibly low bar of sufficiency to survive directed verdict, but we no longer live in that world. We live in a modern healthcare economy-an economy where billing is created by highly regulated institutional players for consumption by other highly regulated institutional players. And some of the very regulations under which healthcare providers operate include regulations on billing practices.

The notion that a medical bill from an accredited and regulated healthcare provider is somehow admissible and relevant as to reasonableness-but so meagerly probative that it cannot surmount the incredibly low bar of directed verdict as to reasonableness-is an unsupportable fiction. And while the tapestry of jurisprudence is woven with many imaginary threads, we should hesitate when our fictions impose real world consequences. Every increase in cost to the plaintiff, such as retaining a de facto required professional witness, jeopardizes access to justice for Oregon's injured. And the rote inclusion of these witnesses in every case-in-chief, even when reasonableness is not in serious dispute, renders trials longer and more time consuming for jurors and for our increasingly busy circuit courts.

Despite all those concerns, however, we are bound by precedent. The majority acknowledges that "we and the [Oregon] Supreme Court have suggested that even payment of a bill may be insufficient to create an inference of reasonableness." 296 Or. App. at 28 n. 7, 438 P.3d at 453-54 n. 7. The majority attempts to create a distinction to evade the implications of those past suggestions-from such cases as Valdin -by holding that evidence of payment of a medical bill is sufficient if there is the presence of an additional fact: that the payment comes from an insurer .

The majority asserts that "because there is evidence of reasonableness beyond payment, we need not address whether proof of payment alone can give rise to an inference of reasonableness." 296 Or. App. at 28 n. 7, 438 P.3d at 454 n. 7. While that statement is technically accurate, I do not read it to imply that testimony will be required going forward in all cases. As the majority reasons, reasonableness is the equivalent of "market rate." 296 Or. App. at 30-31, 438 P.3d at 454-55. Further, the majority holds that evidence of payment at market rate can, in and of itself, establish reasonableness. Id . Finally, the majority concludes that insurance companies are "well situated to assess what sums are usual and customary and, therefore, reasonable." Id . at 31, 438 P.3d at 455. As I read the majority opinion, its core holding is that payment by an institutional player in the market, like an insurance company, is evidence of the market rate and, therefore, payment by an insurance company alone is sufficient to establish reasonableness. Thus, the majority opinion does not announce that "payment alone" is sufficient, but it does announce that payment alone by an insurer is sufficient. Id. at 28, 438 P.3d at 453. And, while I commend the majority for pushing back against the status quo in this area, I must reject an attempt to carve out a distinction in precedent that both results in insurance carriers being afforded a superior position from which to dictate reasonableness and creates two different classes of litigants in Oregon courts.

Under the majority's rule, if an uninsured injured Oregonian received, then paid, a medical bill, her lack of privileged status as an institutional player in the market-a status the majority affords to insurance companies-would prevent her own payment from establishing the market rate and, therefore, her payment alone would be insufficient to establish reasonableness. That uninsured plaintiff would likely be forced to go through the expense of hiring a medical billing expert at trial if her treating physician was unable or unwilling to testify on billing matters. Conversely, under the majority's rule, if an insured Oregonian is injured, and his insurance company pays the bill, payment by that corporation alone would be evidence of reasonableness and he would be alieved of the expense of retaining a medical billing expert, should he seek recovery of the amount paid. Thus, I do not agree with the majority when it claims that "[i]n both situations, however, a witness testifies to show that the amounts were 'reasonable.' " 296 Or. App. at 36, 438 P.3d at 458 (emphasis in original). As I read the majority's rule, only the uninsured will need to bring in a medical billing expert witness if they seek to recover the amount paid. For the insured, the mere act of payment by an institutional player is evidence of market rate and, thus, sufficient evidence of reasonableness, obviating the need for an expert witness.

This disparity in treatment is exacerbated by the relationship between civil recovery and criminal restitution. ORS 137.103 provides that a "victim" entitled to criminal restitution includes not only "[t]he person or decedent against whom the defendant committed the criminal offense," but also "[a]n insurance carrier, if it has expended moneys on behalf of a victim described in paragraph (a) of this subsection." ORS 137.103(4)(a), (d). Further, Article I, section 42(d), of the Oregon Constitution guarantees crime victims "[t]he right to receive prompt restitution from the convicted criminal who caused the victim's loss or injury." In many criminal restitution hearings, the money sought by the state is payable to an insurance carrier. This is a regular and routine occurrence throughout trial courts in Oregon and is not "illusory" as the majority claims. 296 Or. App. at 37, 438 P.3d at 458. The simple fact is that, under the majority's rule, the state will have a significantly easier time obtaining restitution payable to an insurer than obtaining restitution payable to the actual victim of the crime. I cannot join in an opinion that privileges the corporate insurers of crime victims over the human victims themselves.

Nevertheless, I might have concurred in the result in this case based on the presence of evidence beyond mere bills or payments in the record. Here, there was testimony by the CareOregon subrogation coordinator, Biglin, that the bills were paid at Medicaid rates that were lower than commercial rates. That testimony could, in theory, serve the same function as testimony by a doctor, or a medical billing professional, as to reasonableness. However, a review of Biglin's testimony evidences that she expressly declined to equate Medicaid rates to reasonableness or to offer any opinion generally as to reasonableness:

"[BIGLIN]: So the 262,000 number, that is the total of the charges. The next column, the $ 47,293.48, that is what CareOregon paid.
"[PROSECUTOR]: And how did CareOregon go from-just for ease-the 262,000 to the 47,293?
"[BIGLIN]: Okay. That is the State Medicaid rates is what we pay, and that's why there's a big difference. Medicaid pays much lower rates than say your standard commercial insurance.
"[PROSECUTOR]: So the rates that you paid were based on the contract?
"[BIGLIN]: It's based on contract and the Medicaid rates, yes.
"[PROSECUTOR]: Okay. Medicaid rates. And you had mentioned that that's much lower than, did you say commercial rates?
"[BIGLIN]: Yes.
"[PROSECUTOR]: Why is that?
"[BIGLIN]: State funding.
"[PROSECUTOR]: Okay. So the total that CareOregon paid out was the $ 40,293.48 (sic )?
"[BIGLIN]: Yes, for the medical, that's correct.
"[PROSECUTOR]: Okay. Do you have-is it solely just based on the medical rates? Do you look at something and say, that's not reasonable or that is reasonable?
"[BIGLIN]: No, we do not. "

(Emphases added.)

Following this question, Biglin was again given the opportunity to equate CareOregon's payment rates to "reasonableness" but again declined:

"[DEFENSE COUNSEL]: But just to clarify, you indicated that your job is not to review the reasonableness of the services, you just get the claims and you're just processing?
"[BIGLIN]: Yes. Usually-a lot of times they go through the system automatically, and then we just, you know, pull all the related claims.
"[DEFENSE COUNSEL]: Okay. And does anyone in your organization review reasonableness of the services provided?
"[BIGLIN]: As a general rule, no , unless there's some sort of question that would come up."

(Emphases added.)

Biglin's testimony offers no opinion on reasonableness. We are left only with the fact that the medical bills were paid by an institutional insurer at a contracted rate. In the majority's view, that fact suffices so as to meet the directed verdict standard for reasonableness of medical expenses. In light of Valdin , and for the reasons previously stated, I cannot join in the majority's opinion and so I respectfully dissent.

      The state also requested $ 695 for towing expenses, to which defendant raised no objection.

      We do not understand defendant to dispute that these expenses resulted from the victim's injuries and treatment related to the crime. CareOregon's subrogation coordinator identified $ 568.22 in expenses arising from unrelated care, and the state accordingly subtracted that amount from the total restitution requested. During cross-examination, defendant suggested that the correct deduction was $ 967 but pursued the issue no further at the restitution hearing or on appeal.

      Since the date of defendant's offense, the legislature amended ORS 137.103 and ORS 137.106. See Or. Laws 2015, ch. 9, §§ 1-2. Because these changes have no bearing on the current analysis, we cite the current versions of those statutes.

      The only exception to economic damages applicable to restitution is future impairment of earning capacity. ORS 137.103(2)(a) ; State v. Jordan , 249 Or. App. 93, 96, 274 P.3d 289, rev. den. , 353 Or. 103, 295 P.3d 50 (2012).

      However, as the Supreme Court noted, "recovery of economic damages" does not make "a restitution proceeding into a civil proceeding." Ramos , 358 Or. at 599 n. 11, 368 P.3d 446 (internal quotation marks omitted). Rather, "[r]estitution is a penalty that serves a penal purpose. * * * It is intended to serve a rehabilitative and deterrent purpose by causing a defendant to appreciate the relationship between his criminal activity and the damage suffered by the victim." Id. (citations and internal quotation marks omitted).

      White v. Jubitz Corp. presented a related but separate issue. It involved restitution for medical expenses covered by Medicare. 347 Or. at 215, 219 P.3d 566. However, in that case, the Supreme Court addressed whether a plaintiff's "recovery must be limited to the amount that Medicare paid to [medical] providers." Id . The defendant had already stipulated to the expenses' reasonableness, and the Supreme Court had no reason to address the issue. Id. at 218, 219 P.3d 566.

      The dissenting opinion criticizes the majority opinion for "evad[ing] the implications" of Valdin that evidence of payment alone is insufficient proof of reasonableness. 296 Or. App. at 43, 438 P.3d at 462 (James, J., dissenting). Whatever its "implications," Valdin makes no such holding.
      In Valdin , the trial court had ruled inadmissible certain medical bills when they were not "the best evidence" nor within the "shop book" rule, but the trial court permitted, over objection, the plaintiff to testify to amounts of medical charges and further permitted one of his doctors to testify that the bills were reasonable. 199 Or. at 147, 260 P.2d 504. Although the defendant had stipulated to the reasonableness of the sums, the defendant assigned error to admission of the testimony about those sums. On appeal, the court held that the testimony was admissible, without admission of the bills themselves, given the stipulation. Id . at 149, 260 P.2d 504. The court explained that the plaintiff had a right to testify to his bills or to his payment of bills and that it would be necessary to show the amounts and services were reasonable. Id.
      Although we and the Supreme Court have suggested that even payment of a bill may be insufficient to create an inference of reasonableness, we are not aware of any Oregon appellate cases squarely holding that. In this case, because there is evidence of reasonableness beyond payment, we need not address whether proof of payment alone can give rise to an inference of reasonableness.

      Of course, a defendant is free to dispute that evidence, and, if disputed, the factfinder will ultimately decide whether the amount is reasonable.

      CCOs are corporate structures or networks of providers organized through contractual relationships that provide Oregon's system of managed care. ORS 414.025 ; ORS 414.625 ; 42 CFR § 438.2 (2017).

      Although the subrogation coordinator testified that individual services were not reviewed for reasonableness, that presents no issue because the expenses are all set to be paid at Medicaid rates.

      As previously noted, a defendant is free to offer contrary evidence to create a dispute of fact for the factfinder to resolve.

      We found, nonetheless, that the defendant's statements in closing arguments were admissions as to several charges and that those admissions cured or waived any failure to have stricken the plaintiff's claim for medical expenses. Id. at 561-63, 96 P.3d 359.

      Although the current case does not warrant a close examination of them, we recognize that there are extensive laws and regulations governing the private health insurance market. See ORS chapter 731; OAR chapter 836; Division of Financial Regulation, Oregon Department of Consumer and Business Services, Annual Health Insurance Report (2018), https://dfr.oregon.gov/business/reg/reports-data/annual-health-insurance-report/Pages/index.aspx (accessed Nov. 12, 2018).

      In the typical tort case, in which a plaintiff has sued a defendant seeking recovery of damages for physical injuries, the reasonable value of medical charges ordinarily is proved through the testimony of a physician or some sort of medical billing expert, and not through evidence of the rates at which insurance paid those charges. This stems from two legal principles. First, under Oregon law, a plaintiff is permitted "to claim and recover from [a] defendant the reasonable value of the medical expenses for which he was billed and which were necessary to treat [the plaintiff's] injuries" notwithstanding the fact that some of the expenses may have been paid by insurance or another third party. White , 347 Or. at 243, 219 P.3d 566. Second, Oregon's collateral source statute, ORS 31.580, makes evidence of the plaintiff's insurance benefits inadmissible at trial in such a tort case. Id . (discussing ORS 31.580(2) and rejecting the defendant's argument that it should be permitted to rely on evidence of Medicare payments for purpose of demonstrating reasonable value of medical services provided to the plaintiff). However, as observed, where evidence of payments for medical services is admissible, that evidence "often may be an important factor in determining the reasonable value of those services. See Oliver v. N. P. T. Co. , 3 Or. 84, 87 (1869) ('In estimating damages, it is proper to consider loss of time, money necessarily paid, or debts necessarily incurred in curing the bodily injury * * *.')." Id .

      For instance, an OHSU trauma surgeon-who was responsible for the victim's emergency, operative, and immediate post-operative care-and two first responders testified to the victim's critical condition, the medical interventions, and the life-saving nature of his care. The state also proffered medical records, as well as health insurance claim forms and ledgers connecting expenses to particular services.

      In that vein, we observe that, as best as we can tell, no appellate court has considered whether OEC 311(1)(L) gives rise to a similar presumption. It provides that there is an evidentiary presumption that "[p]rivate transactions have been fair and regular."

      By its terms, ORS 31.580 bars the introduction of otherwise relevant evidence of collateral benefits only in civil actions. As a result, the legislature has not made its evidentiary restrictions applicable in the context of a restitution hearing.

      The jury should not make such subtractions because, as the tort claims work out, providers' statutory medical liens and insurers' reimbursement claims may make such subtractions from a damages award eventually. See ORS 87.555 (liens for medical services); Sereboff v. Mid Atlantic Medical , 547 U.S. 356, 358-59, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006) (recognizing insurer's equitable reimbursement claim under federal law).

      The majority opinion appears to take issue with my discussion of the realities of practice, stating that such practice "was not involved in this case, and this decision does not compel that practice." 296 Or. App. at 36, 438 P.3d at 458. Respectfully, Oregon appellate decisions do not exist in technocratic ether. Our decisions live on the muddied fields of trial where they have real effects and impose real costs on real people into the future. It is an essential obligation of this court when we engage in our interpretive process-particularly in the area of common law-to keep a dual focus. With one eye, we look to the limits of the case before us, mindful of what it does, and does not, present. Yet with the other, we gaze upon the wider body of law we have created; asking whether that jurisprudence continues to promote fairness, equality, and access to justice for all Oregonians.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    In the MATTER OF A. J. M.-R., a Child.
    Department of Human Services, Petitioner-Respondent, v. J. L. R., Appellant.
    A167423
    Court of Appeals of Oregon.
    Submitted October 5, 2018. February 27, 2019
    Adrian T. Smith 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 Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

In this Indian Child Welfare Act (ICWA) and dependency case, father appeals the judgment establishing the juvenile court's jurisdiction over his daughter, A. Father raises three assignments of error, arguing that the court erred because it failed to meet ICWA's procedural requirements, including a notice requirement, and that the evidence was insufficient to assume jurisdiction over A under ICWA and Oregon jurisdictional standards. In response, the Department of Human Services (DHS) acknowledges that it failed to provide the notice required by ICWA and concedes that the juvenile court therefore erred in assuming jurisdiction over A. We agree with DHS, accept its concession on that basis, and, accordingly, reverse the jurisdictional judgment.

Reversed.

      Mother is not a party to this appeal.

      Under ICWA, 25 USC §§ 1901 -1963, involuntary child custody proceedings involving native children must comply with certain requirements. Among those is a notice requirement set out in 25 USC § 1912(a), which provides, in part, that in
      "any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention."

      Consistent with ORAP 8.45 (providing that, "when a party becomes aware of facts that probably render an appeal moot, that party shall provide notice of the facts to the court and to the other party or parties to the appeal"), DHS filed a notice of probable mootness as to father's appeal, pointing to the fact that, after the jurisdictional judgment, wardship of A was terminated, ending the juvenile court's jurisdiction. In the notice, DHS also asserted that, "because wardship was terminated, a decision by this court will not have a practical effect on father's rights." See Brumnett v. PSRB , 315 Or. 402, 406, 848 P.2d 1194 (1993) (holding that a case is moot when the court's decision will not have a "practical effect" on a party's rights). Father responded, citing Dept. of Human Services v. A. B. , 362 Or. 412, 412 P.3d 1169 (2018), and State v. K. J. B. , 362 Or. 777, 785, 416 P.3d 291 (2018), by identifying facts (a description of which would not benefit the bar, bench, or the parties) that he asserts constitute a practical effect or collateral consequence rendering the appeal justiciable. Given those facts, we are not persuaded that father's appeal is moot. However, we reach that conclusion without the benefit of a reply from DHS asserting that those facts are legally insufficient or factually incorrect or, alternatively, conceding that the appeal is justiciable. Cf. A. B. , 362 Or. at 426-27, 412 P.3d 1169 (explaining that the party moving to dismiss an appeal as moot has the burden to establish that a case is moot and that, because DHS "need not imagine all potential collateral consequences that could result and prove their nonexistence," DHS must meet that burden of persuasion once parents have identified practical effects or collateral consequences that render a controversy justiciable).

      We need not resolve father's remaining arguments and assignments of error.


author: HADLOCK, P. J.

text:
    M. A. B., Petitioner-Respondent, v. Anthony Nicholis BUELL, Respondent-Appellant.
    A166273
    Court of Appeals of Oregon.
    Argued and submitted December 20, 2018. March 6, 2019
    George W. Kelly, Eugene, argued the cause and filed the brief for appellant.
    No appearance for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Petitioner and respondent were married in 2014 and they have one young child, J. Petitioner separated from respondent in July 2017, and she and J moved in with petitioner's parents. In October of that year, petitioner sought and obtained a restraining order against respondent under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735. On respondent's appeal, we conclude that petitioner did not meet her burden of proving that she was in imminent danger of further abuse from respondent at the time of the FAPA hearing. Accordingly, we reverse.

We review the trial court's legal conclusions for legal error. Kargol v. Kargol , 295 Or. App. 529, 530, 435 P.3d 814 (2019). We are bound by the trial court's factual findings-both those that are explicit and those that are necessarily implied by its rulings-if any evidence in the record supports them. Hannemann v. Anderson , 251 Or. App. 207, 208, 283 P.3d 386 (2012). We therefore describe the facts in a manner that reflects the court's findings and its ultimate decision to grant the FAPA order.

Petitioner and respondent were married in 2014. During his marriage to petitioner, respondent took medications for depression; he sometimes also drank alcohol to excess, despite warnings to the contrary associated with his medications. J was just under two years old at the time of the FAPA hearing. Petitioner worked part time and was J's primary caregiver; respondent was employed full time.

The physical incidents of abuse described by petitioner relate to involuntary sex. See ORS 107.700(1)(c) (defining "abuse" to include "[c]ausing another to engage in involuntary sexual relations by force or threat of force"). Sometime before March 2017, respondent joined petitioner while she was taking a shower. She told him that she did not want to have sex, but he pushed her against the shower wall and had intercourse with her, despite her telling him to stop. In May 2017, respondent subjected petitioner to involuntary sex again while forcibly holding her down on a bed, after having dragged her away from J, who was breast feeding. Petitioner suffered bruising on her arms as a result.

Petitioner testified at the FAPA hearing that it had taken her a while to realize that respondent's actions toward her were wrong because respondent "was often sexually aggressive even if it was consensual and so the lines were very blurred for [her]."

In June 2017, petitioner told respondent that she was very unhappy in their marriage. Respondent told petitioner that he would kill her and take J if she ever left or divorced him. Respondent seemed "very relaxed" and, had petitioner not looked at his face, she "would have thought maybe he was joking." However, after looking at respondent, petitioner "felt like he was completely serious."

The following month, petitioner and respondent were showering together with J, and respondent urinated on petitioner and laughed about it. After those events, petitioner and J began spending more nights at the home of petitioner's parents, which was located near her workplace. Petitioner and respondent went to a marriage counseling session, but respondent said that, if petitioner was unhappy, it was her problem and that she needed to work on it.

On July 23, 2017, petitioner took J and went to live with her parents. Soon thereafter, she filed for divorce. Except during a subsequent mediation session and meetings associated with transitioning J to respondent for his parenting time, petitioner and respondent have not come face-to-face since petitioner moved to her parents' home. Respondent did not seek out petitioner at her place of employment or her school. He did once knock on the door and window of petitioner's parent's home and he left a note when nobody answered. At the FAPA hearing, petitioner's father did not recall what the note had said, although he agreed it could have referenced diapers or other supplies. Respondent testified that the note he left asked petitioner's family members to contact him if they needed "any money or anything" for support.

In August, petitioner told J's pediatrician about what had happened between her and respondent. Respondent subsequently went to the pediatrician's office several times without an appointment, seeking to discuss J's well-being.

The pediatrician was concerned that respondent had gone to the office "several times in-person with demands," and she directed respondent by letter to reach the office by telephone in the future unless he came in with J because of an emergency. The pediatrician found respondent's behavior, which she described as "repeatedly asking for information from my staff and sitting in the waiting room" very unusual; she had not seen that in her practice. Twice when father visited, it was to obtain medical records to which he was entitled, although the office would have preferred that he request the records in advance, instead of coming in and asking for them to be gathered while he waited. Father also requested that a chart note mentioning allegations of marital rape be amended to say that the allegations "are no more than allegations," and the pediatrician informed father that she would append that statement to the chart note that he was concerned about.

In late August, petitioner and respondent reached a temporary agreement about parenting time. Under that agreement, respondent saw J twice weekly and there was no requirement that visits be supervised. At meetings when J was transitioned from one parent to the other, respondent "made it a habit to drive around the block" and find petitioner's car, driving slowly by with an "angry, rage-filled stare" at petitioner and whoever was with her. Respondent frequently called, emailed, and sent text messages to petitioner, some of which were admitted as exhibits at the FAPA hearing. Petitioner described respondent's messages as sometimes being "loving and asking [petitioner] to come home"; sometimes, however, "they were angry, demanding that [she] return home right away with [J]." Respondent also said untrue things about petitioner and her family, claiming that they were crazy. Those communications made petitioner feel "threatened, upset, scared, [and] frustrated" because she felt that the messages "exhibited some sort of instability in [respondent's] thought process."

Petitioner and respondent participated in a mediation session on October 5, 2017, about custody and parenting-time issues. Toward the beginning of the mediation, respondent glared intensely at petitioner for a long period, which led petitioner to feel that respondent was very angry at her. The mediator, Carr, also felt that respondent's stare was "meant to communicate extreme anger and rage." Carr asked respondent to quit staring, and he did, apologizing to Carr. At one point during the mediation, petitioner began to talk about the possibility of respondent's parenting time being supervised, and respondent asked that such a requirement not be imposed. Later, respondent described how "his parenting time takes place at his parents' anyway." Petitioner said something like, "thank you for admitting supervision is necessary" or that she "thought it was really wonderful that he felt like supervision was necessary as well." At that point, respondent became "very upset and angry," and he said "Fuck you" three times consecutively while again staring intensely at petitioner. Respondent did not lunge toward petitioner or "come at" her as he made those statements, but he began to lean forward in his chair.

Carr told respondent to stop and asked petitioner to leave the room; she then talked with respondent about how upset he was and whether he would be able to calm down enough to continue the mediation. He said no, and indicated that he would like to leave. Carr characterized respondent as not being out of control, but "as being very upset and unable to participate in a problem-solving process." Respondent then left the building. Petitioner stayed behind and spoke with Carr, crying and shaking as she did so. Carr suggested that petitioner speak with somebody at a domestic violence resource center. When petitioner was ready to leave, Carr provided her with an escort, which is common in that kind of situation "so that * * * the parties are not having any * * * inadvertent or other contact in the parking lot."

Petitioner filed a FAPA petition a few days after the unsuccessful mediation session. The court issued an ex parte FAPA restraining order the same day. Respondent requested a hearing to contest the restraining order, and one was held on October 20, 2017. At that hearing, petitioner described respondent's conduct toward her, as summarized above, and testified that she is afraid of him. She asked that the FAPA order stay in place for her safety and the safety of J.

Following the hearing, the trial court entered an order continuing the FAPA restraining order. The court found that petitioner was credible regarding the allegations of "involuntary sexual relations," respondent's statement in mid-June threatening to kill her and take the child, and respondent's "subsequent incidents of intimidation by text [message and] at mediation." The court found respondent's denials of that conduct not to be credible. Respondent appeals.

Under FAPA, a petitioner seeking a restraining order has the burden of proving by a preponderance of the evidence that the respondent "(1) 'abused' petitioner in the 180 days preceding the filing of the petition, (2) presents an 'imminent danger of further abuse' to petitioner, and (3) 'represents a credible threat to the physical safety of the petitioner.' " Kargol , 295 Or. App. at 532, 435 P.3d 814 (quoting ORS 107.718(1) ). Here, respondent concedes that, given the trial court's findings about him having subjected petitioner to involuntary sex in May 2017, petitioner met her burden of proving that respondent abused her during the 180-day period before she filed the FAPA petition. Respondent contends, however, that petitioner did not prove either that he presented an imminent danger of further abuse to petitioner or that he represented a credible threat to her physical safety. Petitioner has not filed a brief on appeal.

We need not determine whether the record in this case could support a finding that respondent represented a credible threat to petitioner's safety. That is because, for the reasons set out below, we conclude that the evidence is legally insufficient to establish that respondent presents an imminent danger of further abuse to petitioner.

We have recently observed that it can be "significant," in the FAPA context, if the relationship between victim and abuser has "changed once they no longer live[ ] together." Kargol , 295 Or. App. at 533, 435 P.3d 814. In those circumstances, even when the relationship was abusive and volatile when the parties lived together, that past history may-at least in some circumstances-not be sufficient to demonstrate that the petitioner remains in imminent danger of being abused. Id .

Our recent opinion in Kargol illustrates the point. In that case, the parties (a married couple with a young child) had a "volatile history" that included, two years before the FAPA petition was filed, the respondent having grabbed the petitioner aggressively during an argument. Id . at 531, 435 P.3d 814. More recently, a few months before the petitioner filed her FAPA petition, the respondent screamed at her during an argument, raised a fist at her, and pushed her with a sofa cushion. Id . at 530, 435 P.3d 814. The petitioner attempted to drive away from the house, but the respondent got into her car and took her cell phone. Id . He eventually got out of the car but, after the petitioner started driving away, he followed her in another vehicle and pulled alongside her in a way that led her to believe that he was trying to run her off the road, risking her life. Criminal charges were filed against the respondent as a result of that episode. Id . at 530-31, 435 P.3d 814.

The Kargol petitioner and respondent separated a few months later and the petitioner sought a FAPA restraining order based on her "fear of respondent's tendency to escalate arguments to 'frightening and unsafe levels.' " Id . at 531, 435 P.3d 814. She supported her petition with evidence of emails and text messages showing that the respondent "would repeatedly ignore her requests that he stop contacting her" until she was ready to talk about modifying a parenting plan that they had agreed to. The respondent also said during a phone conversation that he had not attempted to kill the petitioner during the driving incident, but "could have because [he] was out of control." The petitioner acknowledged that there had been no additional violent incidents; however, she asserted that "the 'combination of that phone call and those text messages terrified her.' " Id .

The trial court granted the FAPA order, but we reversed. We first observed that the Kargol respondent conceded that the record supported a finding that he had abused the petitioner within the pertinent 180-day period. Id . at 532, 435 P.3d 814. But we agreed with the respondent that the record did not include evidence sufficient to demonstrate that he remained a credible threat to the petitioner or that she was in imminent danger of further abuse. Id . at 532-33, 435 P.3d 814. In so holding, we emphasized that, despite "the parties' volatile history," the nature of their relationship changed "once they no longer lived together." Id . at 533, 435 P.3d 814. In particular, since the abuse that occurred within the statutory period, there had been "no physical or volatile interactions between the parties," who had very limited contact, which mainly centered around their parenting plan. We acknowledged that overt physical threats are not required to prove that a respondent poses a danger. However, given the nature of the previous abuse and the nature of the contact between the parties since they separated, we held that the record was insufficient to justify issuance of the FAPA order. Id .

Our opinion in Kargol relied on previous cases in which we similarly found significance in the parties' separation and the changed nature of their relationship since then. For example, in Valenti v. Ackley , 261 Or. App. 491, 495, 326 P.3d 604 (2014), we reversed a FAPA order despite the fact that, when the respondent and the petitioner had lived together, their relationship was volatile and sometimes involved physical violence. The petitioner and respondent worked together and had an intimate relationship for a few years. Id . at 492, 326 P.3d 604. During their cohabitation-and in the 180 days preceding the petitioner's filing of the FAPA petition-the petitioner had found it necessary to lock the respondent out of their home following an argument. Id. at 493, 326 P.3d 604. The respondent broke down the door, petrifying the petitioner, who called the police. Following another argument during that period, the petitioner armed herself with a knife because she feared the respondent would physically harm her. The petitioner later explained that she feared the respondent because they "had been 'engaged in a very vicious cycle' of her 'over dependence on him and his abusiveness on [her].' " That past behavior included an argument and physical struggle in which the petitioner sustained a bloody nose and black eye. Id .

The Valenti petitioner obtained an ex parte FAPA order the day after the respondent broke down the door to their residence. Id . at 494, 326 P.3d 604. The respondent then moved out of the home. Thereafter, the respondent informed the petitioner by email that he wished to end their relationship. Nonetheless, he once violated a safety plan that the parties'

mutual employer had established, walking in an area of the office designated for petitioner, and he announced a plan to attend an event that he knew the petitioner was planning to attend, although he ultimately did not attend, after petitioner informed the venue of the FAPA order. Id . Notwithstanding those incidents, we reversed the FAPA order, explaining that "the volatility that characterized the parties' relationship ended once the parties ceased cohabiting." Id . at 495, 326 P.3d 604. Given that the petitioner and respondent "continued to work together, and have some common social circles, without incident," we held that there was "no evidence that respondent posed an imminent danger of further abuse to petitioner and represented a credible threat to her physical safety." Id .

In Valenti , we contrasted our holdings in cases like Hubbell v. Sanders , 245 Or. App. 321, 263 P.3d 1096 (2011), in which we upheld the issuance of a FAPA order. In Hubbell , the respondent's alarming behavior included "persistent trespasses" on the petitioner's property (which likely included removing a padlock from her gate and unscrewing a light bulb above her back door), a threat made even after the ex parte FAPA order was issued, and a "dangerous obsession" with the petitioner that established that the petitioner was in imminent danger of future abuse and that the respondent represented a credible threat to her safety.

Id . at 327, 263 P.3d 1096. Hubbell differed from Valenti because, in the latter case, no evidence about the parties' post-separation interactions established that the respondent continued to pose a threat to the petitioner's safety. Valenti , 261 Or. App. at 495-96, 326 P.3d 604.

This case is more like Kargol and Valenti than it is like cases such as Hubbell . The question here is not whether respondent abused petitioner in the 180 days preceding the FAPA petition-he did. Rather, the question is whether the evidence of that abuse, considered together with the evidence of the parties' interactions leading up to and following their separation, is legally sufficient to establish that petitioner is in imminent danger of further abuse.

We conclude that the evidence in this case is not sufficient to support such a finding of imminent danger.

Respondent twice subjected petitioner to involuntary sex during the course of their marriage, once during the 180-day FAPA period and once earlier than that. However, petitioner has not suggested that respondent has sought, threatened, or attempted to engage in sexual conduct with her since they separated. Moreover, the record does not include any evidence of other incidents of abuse. That is, there is no evidence that respondent ever has abused petitioner by causing or attempting to cause her bodily injury, or by putting her in fear that such injury is imminent.

Thus, this record does not establish a repetitive pattern of conduct that qualifies as abuse under FAPA that could support an inference that the abuse will occur again in the near future. And petitioner does not contend that her fear of respondent is based on that kind of pattern of abuse. Rather, petitioner's fear is based primarily on respondent's anger as it has manifested in the mediation session and following transitions of J to respondent during his parenting time, when respondent drives past petitioner and glares at her. It is understandable that petitioner and her family are distressed by respondent's persistently angry demeanor. But-in the absence of any evidence that respondent has caused or attempted to cause petitioner bodily injury, and in the absence of any evidence that respondent has sought out or pursued petitioner in any other contexts since they separated-respondent's conduct is insufficient to demonstrate that petitioner is in imminent danger of further abuse.

Nor does the evidence of respondent's verbal communications with petitioner establish that prerequisite for issuance of a FAPA order. The text messages and emails in evidence reflect respondent's emotional reaction to petitioner having left their marriage and his anger and frustration regarding restrictions on his time with J. However, those messages cannot reasonably be construed as threats of harm against either petitioner or J. See Vanik-Burns v. Burns , 284 Or. App. 366, 372, 392 P.3d 386 (2017) (reversing FAPA order; holding that, although the petitioner perceived text messages from the respondent as threats, "she provided no evidence demonstrating that those messages could be reasonably construed as threats of harm (instead of, for example, attempts to harass or annoy)"). Much more serious than the text messages is respondent's June 2017 statement to petitioner that he would kill her if she ever left him. In other circumstances, threats like that might well help establish ongoing danger that would justify issuance of a FAPA order. Here, however, respondent made the threat only once and there is no evidence that he has repeated the threat or taken any steps to harm petitioner or compromise her safety. Given the totality of the circumstances, that single threat-considered together with all the evidence in the record viewed in the light most favoring petitioner-is insufficient to establish that "there is an imminent danger of further abuse to the petitioner." ORS 107.718(1). For that reason, the court erred in issuing the FAPA order.

Reversed.


author: JAMES, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Barry Joe STULL, aka Barry Joe Stully, Defendant-Appellant.
    A164154
    Court of Appeals of Oregon.
    Argued and submitted January 7, 2019 March 6, 2019
    Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Barry Joe Stull filed the supplemental brief pro se.
    Patrick M. Ebbett, 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 James, Judge.
   JAMES, J.

Defendant appeals a judgment of conviction for attempted assault on a public safety officer, resisting arrest, and second-degree criminal mischief, raising nine related assignments of error, all alleging that statements made by the prosecutor during closing argument that commented on defendant's courtroom behavior were improper. Defendant argues that the trial court abused its discretion by failing to strike the comments from the jury's consideration. We agree, and, concluding that the failure to strike was not harmless, accordingly reverse and remand.

Defendant's prosecution arose from an incident that occurred at Portland City Hall during a public meeting of the Portland City Council. Defendant entered the chambers and spoke to the crowd while being filmed by an associate. After about 20 minutes, one of the commissioners attempted to calm defendant and the encounter escalated into shouting, which drew the response of the police.

Portland Police Officer Engstrom arrived in the chambers, followed shortly by two other officers. Defendant approached the officers, yelling at them. The officers told defendant to back up and grabbed defendant's left hand. Soon thereafter, according to trial testimony, defendant pulled an officer's hand off his left arm and threw two right hooks at an officer, hitting his arm and shoulder area. One officer then grabbed defendant and wrestled him to the council desk. After handcuffing defendant, the officers wanted to walk him from the council chamber but defendant refused to walk, so an officer placed him on the table in front of the council desk.

Ultimately, as the officers were escorting defendant out of the building, according to officer testimony, he kicked one of the officers in the shin repeatedly. After the officers placed defendant in a patrol car, defendant kicked and tore into the seatbelt assembly, breaking it in several places. As defendant testified, he "tore the hell out of that police car" and "did as much damage * * * as [he] possibly could."

Defendant chose to testify in his own defense, as well as to represent himself throughout a nearly weeklong trial-a trial that was obviously, and understandably, made more difficult by defendant's courtroom behavior. In closing argument, the prosecutor repeatedly encouraged the jury to consider defendant's behavior in the courtroom-when defendant was not on the witness stand-in assessing whether defendant committed the alleged crimes at city hall. Among other things, the prosecutor stated:

"Now, you'll see this video, and I've moved it up to about the 21-minute mark. You've already listened to its entirety once, because the first 20 minutes of that video is just [defendant] doing, on November 25th, what he did here today, create a scene.
"* * * * *
"He stayed there and he continued to talk, to rant, to revel in that moment. And he got worked up then, just as you saw him get worked up in court a couple of times."

After that second comment defendant objected, stating, "The demeanor of the Defense counsel has nothing to do with the witness or the evidence." The trial court overruled the objection, indicating that the prosecutor's statement was permissible closing argument. The prosecutor continued, stating, among other things during closing argument:

• "You saw as [defendant] advanced at Officer Engstrom [at trial], yelling at him, pointing at him, walking towards him to the point where the Judge had to order him back. He got worked up then just as he did in that City Hall."
• "In [defendant]'s head, he's the star of the show. He wants that spotlight. He wants that attention and he wants that validation. And he worked himself up-he worked himself up on a-remember, he worked himself up this week."
• "[I]t is clear from * * * [defendant's] behavior in court, that he didn't lose control on [the charged occasion]."
• "So [defendant] reveled in that same attention, the show, the spectacle, just like he did in court over the past week."
• "You saw how aggressive he was in the video. You saw him show signs of that aggression here in the courtroom."

The jury convicted defendant, and this appeal followed. On appeal, now represented by counsel, defendant argues that the trial court abused its discretion in permitting the prosecutor to advance a closing argument that contained the statements set forth above. Specifically, defendant argues that his behavior in the courtroom, when not testifying on the witness stand, was not evidence and the prosecutor's argument was, therefore, impermissibly asking the jury to consider facts not in evidence.

In response, the state first agrees that defendant's single objection adequately preserved the issue, and in light of the trial court's ruling, any further objections to later remarks in closing would have been futile. See State v. Logston , 270 Or. App. 296, 302, 347 P.3d 352 (2015). We agree with the state's concession on that point. Although it is a close call, we interpret defendant's objection that "[t]he demeanor of the Defense counsel has nothing to do with the witness or the evidence" to adequately set up the dichotomy of what is evidence from what is not evidence and to sufficiently argue that his demeanor was separate and distinct from "evidence," so as to put the issue before the trial court. See State v. Wyatt , 331 Or. 335, 343, 15 P.3d 22 (2000) (The purposes of preservation are "to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.").

We review a trial court's decision regarding control of closing argument for an abuse of discretion. Cler v. Providence Health System-Oregon , 349 Or. 481, 487, 245 P.3d 642 (2010) (relying on R. J. Frank Realty, Inc. v. Heuvel , 284 Or. 301, 306, 586 P.2d 1123 (1978) ). "In general, in presenting closing arguments to the jury, counsel has 'a large degree of freedom' to comment on the evidence submitted and urge the jury to draw any [and] all legitimate inferences from that evidence." Cler , 349 Or. at 487-88, 245 P.3d 642 (quoting Huber v. Miller , 41 Or. 103, 115, 68 P. 400 (1902) ). However, that freedom is not without limitation-and one key limitation on closing argument is the prohibition of counsel making "statements of facts outside the range of evidence." Cler, 349 Or. at 488, 245 P.3d 642 ; see also Huber , 41 Or. at 115, 68 P. 400 ; see generally John H. Wigmore, 6 Evidence in Trials at Common Law § 1807 (Chadbourn rev. 1979) ("[C]ounsel must not make assertions as to facts of which evidence must have been introduced but has not been or will not be introduced." (Emphasis omitted.)); Trial , 88 CJS 353 § 309 (2008) ("Counsel must be confined to the issues and the evidence, and will not be allowed to comment on or state facts not in evidence or within the issues.").

Much of the parties' arguments before this court have concerned whether a defendant's courtroom behavior can properly become evidence. But we need not address in detail if such behavior can become evidence or how introduction of such evidence would occur procedurally. It suffices that, in this case, defendant's courtroom behavior-specifically his behavior when not on the witness stand-was not in evidence.

Evidence for the consideration of a factfinder at trial consists of the testimony and demeanor of witnesses while under oath and exhibits received into evidence. Statements by individuals in the courtroom, even parties, are not "evidence" when those statements are not given while a person is under oath on the witness stand. See, e.g. , State v. Guzek , 358 Or. 251, 276, 363 P.3d 480 (2015) (noting that a defendant's allocution is "not evidence"). Similarly, while a "display of direct evidence, usually [by] a person or object, in a courtroom" may potentially qualify as demonstrative, it does not become demonstrative evidence until it is offered and admitted. Christensen v. Cober , 206 Or. App. 719, 727, 138 P.3d 918 (2006) ; see also Lambert v. Palmateer , 187 Or. App. 528, 537, 69 P.3d 725, rev. den. , 336 Or. 125, 79 P.3d 882 (2003). Here, we can find no indication in the record where defendant's behavior, nor his statements in court while he was off the witness stand, were offered by a party, or accepted by the trial court, into the evidentiary record.

The state urges us to consider cases from other jurisdictions, which have held that, even though not evidence, a prosecutor can nevertheless comment on a defendant's demeanor when he is not on the witness stand. The Massachusetts Supreme Court, for example, held that a prosecutor's comments on a defendant's behavior during trial were permissible because "the prosecutor did not suggest that he had knowledge the jury did not share." Commonwealth v. Smith , 387 Mass. 900, 907, 444 N.E.2d 374, 380 (1983) ; see also Woodall v. Commonwealth , 63 S.W.3d 104, 125 (Ky. 2001) ("The prosecutor was entitled to make a comment on the demeanor of [defendant] in the courtroom."); Wherry v. State , 402 So.2d 1130, 1133 (Ala. Crim. App. 1981) ("The conduct of the accused or the accused's demeanor during the trial is a proper subject of comment.").

The state acknowledges, however, that other courts have held to the contrary. In United States v. Schuler , 813 F.2d 978, 980 (9th Cir. 1987), the Ninth Circuit held that the courtroom demeanor of the nontestifying defendant was not evidence and, thus, the prosecutor's reference to that demeanor violated the defendant's right to be convicted based only on evidence adduced at trial. Likewise, in United States v. Pearson , 746 F.2d 787, 796 (11th Cir. 1984), the prosecutor's closing argument included statements such as "Does it sound to you like he was afraid? You saw him sitting there in the trial. Did you see his leg going up and down? He is nervous." The Eleventh Circuit found such comments were reversible error, holding that:

"In overruling [the defendant's] objection and in failing to give a curative instruction, the court, in effect, gave the jury an incorrect impression that [the defendant's] behavior off the witness stand was evidence in this instance, upon which the prosecutor was free to comment."

Id . at 796.

In United States v. Wright , the DC Circuit reasoned:

"Unless and until the accused puts his character at issue by giving evidence of his good character or by taking the stand and raising an issue as to his credibility, the prosecutor is forbidden to introduce evidence of the bad character of the accused simply to prove that he is a bad man likely to engage in criminal conduct.
"This basic principle cannot be circumvented by allowing the prosecutor to comment on the character of the accused as evidenced by his courtroom behavior. That the jury witnesses the courtroom behavior in any event does not make it proper for the prosecutor to tell them, with the court's approval, that they may consider it as evidence of guilt."

489 F.2d 1181, 1186 (D.C. Cir. 1973).

We find the reasoning of the Ninth and DC Circuits to be more persuasive. By strictly differentiating what is evidence from what is not, trial courts can more meaningfully focus the jury on its role as factfinder. Further, should a party wish to move to admit courtroom behavior into the evidentiary record, the formality of an evidentiary offer, objection, and acceptance would provide the parties an opportunity to litigate the admissibility, including whether or not such behavior is improper character evidence. See State v. Cox , 272 Or. App. 390, 409-10, 359 P.3d 257 (2015) (reversing the denial of a motion for a new trial based on prosecutors closing argument that relied on facts not in evidence for character purposes).

Discretion "refers to the authority of a trial court to choose among several legally correct outcomes." State v. Rogers , 330 Or. 282, 312, 4 P.3d 1261 (2000). "If the trial court's decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, the trial court did not abuse its discretion." Id. However, where a trial court's purported exercise of discretion flows from a mistaken legal premise, its decision does not fall within the range of legally correct choices and does not produce a permissible, legally correct outcome. See State v. Mayfield , 302 Or. 631, 645, 733 P.2d 438 (1987). In this case, it was not within the trial court's permissible range of discretion to permit a closing argument that relied upon facts not in evidence. Accordingly, the trial court abused its discretion when it failed to strike the prosecutor's argument in the face of a timely objection.

We turn now to whether the error harmed defendant. Despite error, we will nevertheless affirm a judgment if there is "little likelihood that the error affected the jury's verdict." State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003). In approaching the question of harm, we are guided by the Supreme Court's treatment of this issue in Cler, 349 Or. at 490-91, 245 P.3d 642.

In Cler , the Supreme Court first noted that an attorney statement concerning facts not in evidence is particularly problematic when it comes in the context of closing argument:

"Although not evidence themselves, closing arguments are an integral part of trial that can alter the result of the trial:
"* * * * *
"It is through closing arguments that the attorneys are able to fully frame the issues and remind the jury of evidence that they may have heard days earlier. Further, arguments give the attorneys a chance to explain the evidence in narrative form. That narrative function of arguments-the opportunity to tell the story of the case-is essential to effective advocacy, and the ability to do so can alter the jury's understanding of the evidence and ultimately change the outcome of a given case."

Cler , 349 Or. at 490-91, 245 P.3d 642 (relying on Charles v. Palomo , 347 Or. 695, 705, 227 P.3d 737 (2010) (internal quotation marks omitted)).

Second, the court noted that uniform instructions informing the jury that lawyer arguments are not evidence does not cure the problem. As the court noted:

"The trial court's admonition to the jury that the lawyers' arguments 'are not evidence' does not overcome that problem, in our view. That admonition operates on the assumption, noted above, that the record evidence frames the context within which lawyer argumentation permissibly may occur. The court's admonition helps the jury understand that it must not confuse a lawyer's advocacy about the record with the actual witness testimony and other evidence that the court has admitted into the record in accordance with the rules of evidence. The comments of defense counsel to the jury here, however, did not simply convey her view of the record evidence."

Cler , 349 Or. at 492, 245 P.3d 642.

Both of those concerns are equally present in this case. Not only did the prosecutor refer to facts not in evidence, he did so repeatedly, expressly asking the jury to consider those facts as evidence in rendering its verdict. See Cox , 272 Or. App. at 410, 359 P.3d 257 (finding reversible error in closing argument that employed improper comments that were "not subtle, isolated, or fleeting"); State v. Reineke , 266 Or. App. 299, 311, 337 P.3d 941 (2014) (the court concluded that repeated improper comments by prosecutor in a closing argument made it "highly likely that the jury drew an adverse inference" of defendant's guilt). And, as in Cler , the statements in this case went beyond merely characterizing the evidentiary record. Rather, they fundamentally altered what the jury would perceive the evidentiary record to be. Given the repeated invitations for the jury to render a decision based on a record that was not, in fact, the evidentiary record before it, we cannot conclude that there was little likelihood that the error affected the verdict.

Reversed and remanded.