author: HADLOCK, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Darron Duane DODGE, Defendant-Appellant.
    A160194
    Court of Appeals of Oregon.
    Argued and submitted July 27, 2017. April 10, 2019
    Meredith Allen, 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.
    Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Hadlock, Judge, and Schuman, Senior Judge.
   HADLOCK, J.

After defendant's niece, D, alleged that defendant had sexually abused her when she was a child, detectives interviewed defendant at a sheriff's office. During that interview, defendant mainly described a supportive, fatherly relationship with D and denied the allegations of sexual contact. However, he also made some inculpatory statements. Defendant eventually was charged with 46 counts of sexual abuse, rape, sodomy, and unlawful sexual penetration. He unsuccessfully moved to suppress the statements he made during the interview on the ground that he had invoked his constitutional right to counsel and detectives had not honored that invocation. At trial, the statements that defendant had sought to suppress were admitted into evidence. Defendant was convicted of five of the counts charged: four counts of first-degree sexual abuse and one count of second-degree unlawful sexual penetration. On appeal, defendant assigns error to the denial of his suppression motion. As explained below, we agree that the trial court committed reversible error when it denied that motion. Accordingly, we reverse and remand.

To give context for our description of the facts, we set out foundational principles governing the right to counsel during custodial interrogation. Article I, section 12, of the Oregon Constitution states that "[n]o person shall *** be compelled in any criminal prosecution to testify against himself." The right to counsel during custodial interrogation derives from that right against self-incrimination. State v. Roberts , 291 Or. App. 124, 131, 418 P.3d 41 (2018). The right attaches only when a person is in custody or other compelling circumstances. That is, when a person is not in custody or compelling circumstances, officers may continue interrogating that person even after he or she expresses a desire to contact an attorney, so long as the officers do so in a way that does not render the person's responses involuntary. State v. Anderson , 285 Or. App. 355, 357, 396 P.3d 984, rev. den. , 362 Or. 94, 405 P.3d 154 (2017). However, when a person is in custody or compelling circumstances and unequivocally invokes the right to counsel, interrogation must cease. State v. Sanelle , 287 Or. App. 611, 623, 404 P.3d 992 (2017), rev. den. , 362 Or. 482, 412 P.3d 199 (2018). If the person invokes the right to counsel only equivocally, officers may ask clarifying questions, but those questions must be aimed at clarifying whether the person intended to invoke that specific right. Id . at 627, 404 P.3d 992.

We turn to the facts of this case. In reviewing the trial court's denial of defendant's suppression motion, we are bound by the trial court's findings of historical fact so long as evidence in the record supports them. Roberts , 291 Or. App. at 129, 418 P.3d 41. Except for reference to a few undisputed facts described at trial, which we include only to provide background, we "limit our analysis to the record developed at the motion hearing." Id . We summarize the pertinent facts in accordance with that standard.

As noted, defendant is D's uncle. When D was a young child, she moved out of her parent's home and went to live with her grandmother, with whom defendant (the grandmother's son) also lived. Defendant, D, and D's grandmother lived together for the next few years, until defendant got married and moved away.

Several years later, D disclosed to her mother that defendant had sexually abused her when they lived together, beginning when she was about eight or 10 years old. D's mother reported the abuse, and a detective was assigned to investigate. Defendant voluntarily went to a sheriff's office to speak with detectives because he had been told that he "might be a potential witness in a case they were investigating." He thought that detectives were going to question him about what he suspected was drug activity at his neighbor's house. Defendant was taken to an interview room on an upper floor at the sheriff's office via a locked elevator and through a locked door. Because of the locks, he could not have left entirely on his own; somebody from the office would have had to escort him out.

Defendant was seated at a table in the interview room, along with two detectives, one of whom-Brulew-asked most of the questions during the interview. The entire interview was video-recorded. The detectives were in plain clothes and the tone of their questions was conversational. Brulew thanked defendant for coming in, informed him that the interview was being recorded, and asked some preliminary questions. Brulew then reiterated, as he had "explained on the phone, [that defendant was] not under arrest" and that Brulew had "no intention of arresting [defendant] today at all," short of defendant admitting that he had killed somebody. Brulew told defendant that he was free to decline to answer questions and could leave at any time:

"So you saw how we came in and out. You just have to kind of go through that hallway. And we're [going to] have some questions and answers, and it's not an all or nothing thing. You can answer what you want. You can, not answer what you want. Questions get uncomfortable you say, hey, I wanna-I wanna stop talking, I'll say, great to meet you, [defendant]. I'll walk you out to the lobby and we'll be good today, okay. It's not an all or nothing thing."

Brulew then read defendant his Miranda rights, but explained that having his rights read did not mean that defendant was under arrest:

"Um, but since you're in a police station I just want to read you your rights, ok, but again you're not under arrest by any stretch of the imagination. You do have a right to remain silent. Anything you say can be used against you in the court of law. You have the right to consult a lawyer before any questioning or have a lawyer present during questioning. If you desire a lawyer and cannot afford one a lawyer will be appointed for you at public expense. And anything you say must be freely and voluntarily said."

Brulew asked defendant if he understood those rights, and defendant answered affirmatively. Defendant also responded affirmatively when Brulew asked whether defendant was still willing to talk with him. Brulew then reiterated that "it's not all or nothing, so as we go along, you holler, we'll be out of here."

Brulew then asked defendant about the time when he, his mother, and D lived together. Defendant said that D moved in with them because of "the messed up circumstance" at her parents' house, which reportedly involved D's parents treating her differently from her siblings. Defendant said that he "watched [D] a lot" while his mother went to work and that he was probably the closest thing to a father that D had ever known. Brulew told defendant that D had reported being physically abused by defendant's mother. Defendant acknowledged that he had seen his mother "just kind of like grabbing, and shaking, and maybe yelling," but he denied having seen her hit D. Discussion followed about whether D might have exaggerated any of the allegations against her grandmother.

At that point, Brulew told defendant that he had been very honest with defendant and had "no intention of lying to [defendant] or trying to fake [him] out or anything like that." Brulew also said that he hoped that defendant was honest, too, and that defendant would "tell [Brulew] the truth and everything." Brulew then told defendant that D had alleged that defendant "inappropriately touched her." Defendant denied that he had ever touched D in other than an affectionate, fatherly way. Brulew asked if D might have had a crush on defendant or might have misinterpreted an appropriate touch as inappropriate. Defendant responded that he could not think of a time when that could have happened. In response to a question about whether he had ever "been naked with" D, defendant said he had not, but acknowledged that D had seen him naked "by accident" a few times, when she walked into the bathroom or bedroom unannounced.

As the interview continued, Brulew told defendant about specific incidents that D had described, including defendant having touched her breast while they played video games. Defendant said that he did not remember that incident, but "[i]f that happened, it was purely by accident." Brulew told defendant that D was making "very specific" allegations of a type that, in Brulew's experience, are "not something that kids usually make up." Accordingly, Brulew said, he wanted to "make sure that the whole picture gets out there and so that we fully understand how it happened, um, instead of just taking one side of it." Brulew said that he was concerned that "something did occur and that, you know, the way that [defendant] saw it is different than the way that [D] saw it." Defendant said he could not recall any such incidents, but also suggested that there were times "where [D] was thinking of [defendant] as more romantically than as an uncle." Questions and answers about D's interest in sexuality and the nature of her relationship with defendant continued for the next several minutes, with defendant reiterating that he and D were close, that he "tried to always be there for her," and that he could not remember anything happening that somebody could view as inappropriate.

The questioning eventually turned to more specific allegations that D had made, with Brulew saying that he and the other detective were there "to hear [defendant's] side of events so that we can make sure that no one just reads her version and paints their own picture of you and thinks that you're some sort of evil, horrible, person." Brulew suggested that it might be painful and difficult for defendant to think about the events because, "looking back on it you think well, maybe-maybe that was a little too far. But at the time it was filling a need that [D] needed, and that you needed, and it was done in a loving way." Defendant again denied abuse but he acknowledged then, and later in the interview, that he had open discussions with D about sex; he "wanted to be the one in her life that was always honest with her and never lied to her."

Brulew then asked whether D ever requested to see defendant's penis, and defendant said that she might have. Defendant denied ever having showed D his penis, but said that he knew that D saw him naked more than once as she ran around and entered rooms with closed doors. Brulew then asked defendant about a specific event, prompting defendant to reference the need for a lawyer:

"Q: Okay. Um, there's a-an incident where, um, your mom had gone to bed, you were both in *** your bedroom and the lights were actually off and you got undressed by yourself, and you were completely naked, and you laid down on the bed, on your back, and you pulled her *** close to you so she was along your side, kind of like cuddling. And that then after that occurred for a few minutes you took her hand and you guided it to your penis where you then showed her how to rub it up and down to give yourself an erection. And then after masturbating, you ejaculated.
"A: Sounds like I need a lawyer , 'cause that never happened.
"Q: Okay.
"A: 'Cause that's - wow. Really? That's mind boggling, 'cause that never happened.
"Q: Okay, And I mean, it goes on from there?
"A: I can't imagine. No, that would be totally inappropriate. I would never do that.
"Q: Okay. Would you like to go, keep discussing this?
"A: Without a lawyer here, I don't know . So there's more?
"Q: Mm-hm.
"A: What else?"

(Emphases added.)

At that point, Brulew emphasized that he had only D's statements about what happened and that it was the detectives' job "to help bring the complete truth forward." After describing more alleged incidents of abuse, which defendant vehemently denied, the following exchange occurred:

"A: I don't know why [D] would maybe embellish situations when we were together to like, that extent, but it didn't happen...
"Q: Okay.
"A: ... you know. There may have been a time when I think I got aroused and she was curious what happened and I was like - I was like, no. But I kept my clothes on, you know.
"Q: Mm-hm.
"A: And I explained to her, well, go away. We're getting too close or something, but it never - it never - none of that ever happened."

On further questioning, defendant acknowledged that he did "think there was a time" when he became aroused when D was present and "we were maybe close and - and the - you know. But, you know, that was it, you know. I kept my pants on always." Defendant later suggested that may have happened after he had been watching a pornographic movie or when he and D had been wrestling and she rubbed up against him. After further discussion, including about whether charges would be brought against him, the interview ended and one of the detectives walked defendant out so he could leave.

As noted, defendant was later indicted on 46 counts of sexual abuse, rape, sodomy, and unlawful sexual penetration based on D's allegations. Defendant filed a pretrial motion to suppress the statements that he made during the interview after he referenced wanting an attorney. Defendant asserted that those statements "were obtained in violation of [his] invocation of his right to counsel by the detectives' blatantly ignoring his invocation and continuing to question him." Defendant also cited cases for the propositions that Miranda warnings are required under the Oregon Constitution when a person is in custody or in compelling circumstances and that police must stop interrogating a suspect when that person is "in police custody" and unequivocally invokes his right to counsel. Although, defendant did not directly assert that he was in custody or compelling circumstances when he was questioned at the sheriff's office, his suppression motion was implicitly premised on that having been true.

At a hearing on the motion, defendant acknowledged that he had been read his Miranda rights. He also acknowledged that a detective had told him that, if he was uncomfortable with any of the questions, he could "just holler, and we are out of here." Defendant testified that he had interpreted the statement to mean that the interview would be over any time that he said "I'm done" or "I would like to talk to a lawyer." Defendant testified that he "felt intimidated" during a silence that followed his statement that he did not know whether he wanted to keep talking without a lawyer present. Defendant asserted that the detectives glared at him during the pause and he "felt like at that moment, if [he] didn't continue or something, that it would just be worse, that [he] felt like [he] had to continue, because they didn't-I was waiting for them to say, 'Okay, we are done,' and they didn't do it."

In response, the state argued that defendant's request for a lawyer was equivocal and that detectives asked permissible clarifying questions before continuing the interview. The state did not argue that defendant had not been in custody or compelling circumstances while he was questioned and there was no discussion on that point at the hearing. The court ultimately denied defendant's suppression motion on the grounds that defendant had made only "an equivocal request to talk to a lawyer" and that officers had engaged in permissible "questioning [that] did intend to clarify [defendant's] intent."

On appeal, defendant first contends that he unequivocally invoked his right to counsel when he stated, "Sounds like I need a lawyer, 'cause that never happened," and interrogation therefore should have immediately ceased. In the alternative, defendant argues that he at least equivocally invoked his right to counsel and that the detectives did not ask permissible clarifying questions "but instead launched into a full discussion of the case making statements designed to induce defendant to talk." Accordingly, defendant contends, "the trial court erred in denying [his] motion to suppress."

In response, the state argues that defendant did not unequivocally invoke his right to counsel. Moreover, the state contends, defendant did not preserve an argument that he made an equivocal invocation and, therefore, we "should limit [ourselves] to addressing defendant's unequivocal-invocation claim." As explained below, we reject the state's preservation argument, and we agree with defendant that he at least equivocally invoked his right to counsel.

We start with preservation. Although defendant's written suppression motion was not premised on an assertion that he had equivocally invoked his right to counsel, the trial court raised that issue at the hearing. A colloquy ensued, mainly between the court and the prosecutor, that focused on whether defendant had equivocally invoked and, if so, whether the detectives had asked permissible clarifying questions. The prosecutor argued expressly that "the invocation, if that's what you want to call it, was equivocal" and that, after the detectives had "asked further questions to see if he wanted a lawyer, [defendant] said he just wanted to talk to them," meaning that no constitutional violation occurred. Those circumstances are much like those that we addressed in Roberts , in which the trial court also "raised the equivocal invocation issue sua sponte " and the defendant "never took an explicit position on that issue below." 291 Or. App. at 129, 418 P.3d 41. There, we held that the equivocal-invocation issue was adequately preserved for appeal because, despite the defendant's failure to raise that issue, it "was clearly raised and ruled upon, * * * the [prosecutor] had an opportunity to be heard on the issue, and * * * there is no reason to believe that the record before the trial court would have developed materially differently if the [defendant] had been more vocal." Id . at 131, 418 P.3d 41. The same is true here.

We turn to the merits. A suspect equivocally invokes the Article I, section 12, right to counsel "when the suspect's statement or request is subject to more than one reasonable interpretation, one of which is that he or she is invoking the right to counsel." Id . at 132, 418 P.3d 41. "A statement that appears tenuous or equivocal in isolation may be a sufficient request for counsel when evaluated in the context of all of the circumstances." Sanelle , 287 Or. App. at 624, 404 P.3d 992 (internal quotation marks omitted). The question is whether a reasonable officer would have understood "at least one plausible meaning" of the suspect's statement or question "to be that defendant was invoking the right to counsel." Roberts , 291 Or. App. at 133, 418 P.3d 41 (emphases in original).

Here, we readily conclude that defendant at least equivocally invoked his right to counsel. A reasonable officer would have understood that the statement "Sounds like I need a lawyer" could indicate defendant's present assertion of the desire for an attorney. See id . at 133-34, 418 P.3d 41 (citing cases that focus on an expression of a present desire for counsel). If considered alone, the words "I need a lawyer" could not be more clear. Cf. State v. Acremant , 338 Or. 302, 322, 108 P.3d 1139, cert. den. , 546 U.S. 864, 126 S.Ct. 150, 163 L.Ed.2d 148 (2005) (the defendant's statement, "I think that I do need a lawyer. I do," unequivocally expressed his desire for counsel). And even assuming that the prefatory words "[s]ounds like" made defendant's request equivocal, a reasonable officer still would have understood that defendant might be invoking his right to counsel. The context in which defendant made that statement would have reinforced that understanding, as the statement immediately followed Brulew's graphic description of D's allegations of abuse, indicating defendant's desire not to discuss serious criminal accusations against him without a lawyer's assistance. Cf. State v. Nichols , 361 Or. 101, 111, 390 P.3d 1001 (2017) (timing of the defendant's statement, "It's not something I want to talk about," indicated an invocation of the right against compelled self-incrimination because it followed a question that "went to the core of the entire investigation"). Thus, defendant at least equivocally invoked his right to counsel.

Following an equivocal invocation, the detectives had two choices. They could either stop their interrogation of defendant or ask him "neutral follow-up questions intended to clarify the equivocal nature of defendant's statement."

State v. Hickman , 289 Or. App. 602, 606-07, 410 P.3d 1102 (2017). "Any questioning not reasonably designed to clarify the equivocal nature of the statement is impermissible." State v. Schrepfer , 288 Or. App. 429, 436, 406 P.3d 1098 (2017). Here, detectives did neither. Rather, Brulew said only, "Okay" and then, after defendant asserted "that never happened," Brulew suggested "it goes on from there?" before asking whether defendant would like to "keep discussing this?"

The state argues that Brulew's latter question was a permissible response "to defendant's ambiguous reference to counsel" because it sought to clarify that ambiguity. We have rejected similar arguments in recent cases, emphasizing that "[t]he clarification that officers must obtain is whether a suspect intended to invoke the right to counsel derived from the right against self-incrimination under Article I, section 12." Sanelle , 287 Or. App. at 627, 404 P.3d 992 ; see also Roberts , 291 Or. App. at 133, 418 P.3d 41 ("Any question not reasonably designed to clarify the equivocal nature of the statement is impermissible."). In other words, any questioning that follows an equivocal invocation of the Article I, section 12, right to counsel must clarify whether the suspect is invoking that right to counsel .

Clarification of any other right-such as the right against compelled self-incrimination or the right to court-appointed counsel under Article I, section 10-is insufficient. Sanelle , 287 Or. App. at 627, 404 P.3d 992. Thus, when a suspect invokes the right to have an attorney present during custodial interrogation, an officer may not simply ask whether the suspect wishes to keep talking, without also clarifying that the suspect has "a right to have a lawyer assist him during the interview." Id . at 628, 404 P.3d 992. To the contrary, by asking a suspect whether he wishes to keep talking after he has invoked the right to counsel, officers at least deflect that invocation and risk suggesting to the suspect either that he does not have such a right or that the right will not be honored. Here, the detectives did not ask permissible clarifying questions after defendant equivocally invoked his right to counsel, but instead continued the interview.

The state also argues that we can nonetheless affirm the trial court's denial of defendant's suppression motion because, even if he had invoked his right to counsel, he subsequently waived that right. Such a waiver occurs when a suspect "initiate[s] conversation with the officers by making unprompted statements that indicate[ ] a willingness to have a generalized discussion regarding the substance of the charges or investigation." Hickman , 289 Or. App. at 607, 410 P.3d 1102 (emphasis added). The state bears the burden of showing that the suspect's waiver was knowing, intelligent, and voluntary. Id . In determining whether a suspect's initiation of conversation indicates a valid waiver under such circumstances, we consider factors like "the nature of the initial [invocation and] violation, the amount of time between the violation and the [suspect's] later statements, whether the [suspect] remained in custody between the violation and the later statements, and whether there was a change in time and circumstances." State v. McAnulty , 356 Or. 432, 457-58, 338 P.3d 653 (2014), cert. den. , --- U.S. ----, 136 S. Ct. 34, 193 L.Ed.2d 48 (2015). Here, the state argues that defendant validly waived his right to counsel when he continued conversing with detectives after they asked whether he wanted to "keep discussing this," even though he responded, "Without a lawyer here, I don't know." That is because, according to the state, defendant clearly understood that he had a right to counsel and yet he immediately asked "So there's more?" after indicating that he was uncertain about continuing the interview without a lawyer.

We disagree that the circumstances demonstrate a valid waiver. Defendant's continuation of the interview immediately followed the detectives having failed to honor his invocation of the right to counsel and, instead, having asked whether he wanted to keep talking. Thus, defendant's continued interaction with the detectives cannot be considered "unprompted." Moreover, there was neither a break in time following the detectives' disregard of defendant's invocation, nor did the circumstances change in any way that demonstrates a general willingness by defendant to discuss the accusations against him. See Hickman , 289 Or. App. at 608, 410 P.3d 1102 (no waiver when there "was neither a break in time nor a change in circumstance, and defendant's incriminating statements were prompted by [an officer's] continued impermissible interrogation"). We therefore reject the state's assertion that defendant waived his previously invoked right to counsel.

The state's final argument is that we should affirm denial of the suppression motion on a "right for the wrong reason" basis because defendant was not in custody or compelling circumstances during the interview and, therefore, his Article I, section 12, right to counsel had not attached. The state contends that defendant was not in compelling circumstances because it was undisputed that he voluntarily went to the sheriff's office and was clearly told that he could terminate the interview and leave at any time. The state asserts that we can properly affirm the trial court's ruling on that alternative basis under Outdoor Media Dimensions Inc. v. State of Oregon , 331 Or. 634, 659-60, 20 P.3d 180 (2001), because the record would not have developed differently had the "compelling circumstances" question been raised below, given that a recording of the entire interview with defendant was admitted at the suppression hearing.

Defendant disagrees, asserting in a reply brief that the record might have developed differently had the state "wanted to seriously contest defendant's custody status." In a memorandum of additional authorities, defendant also argues that-if we do reach the "compelling circumstances" argument-we should conclude that the circumstances during defendant's interview "were at least as compelling" as those we addressed in State v. Grimm , 290 Or. App. 173, 184, 414 P.3d 435, rev. den. , 363 Or. 283, 432 P.3d 1076 (2018) (holding that an interview at a police station became compelling, despite the defendant having gone there voluntarily, when officers went beyond simply confronting the defendant with incriminating evidence and instead asked coercive questions "calculated to contradict defendant's repeated assertions of innocence and pressure him to continue talking"). The state has not filed a response to that memorandum.

We decline to consider the state's belated argument that defendant was not in compelling circumstances during his interview at the sheriff's office, (even assuming that the record would not have developed differently had the state made that argument below). As presented in this case, the "compelling circumstances" issue has nuances that the parties' appellate filings do not address. For example, although the circumstances during defendant's interview can be analogized to those that we held were "compelling" in Grimm , a distinction is that the Grimm defendant was not given Miranda warnings, 290 Or. App. at 174, 290 Or.App. 173, and the defendant in this case was. In this context, did the initial giving of Miranda warnings make the circumstances less compelling because defendant was informed of his right to counsel? Cf. State v. Turnidge , 359 Or. 364, 404 n. 24, 374 P.3d 853 (2016), cert. den. , --- U.S. ----, 137 S. Ct. 665, 196 L.Ed.2d 554 (2017). ("The reading of Miranda rights is a factor that weighs in favor of concluding that a defendant subject to police interrogation understands his or her ability to terminate questioning and to otherwise seek counsel rather than cooperate with law enforcement."). Or. did the circumstances become more compelling because, even though defendant was informed of his right to counsel, his later attempt to invoke that right was not honored? Cf. State v. Sparklin , 296 Or. 85, 89, 672 P.2d 1182 (1983) ("[w]hen the police honor" a defendant's invocation of the right to counsel during interrogation, "the coercive atmosphere of police interrogation is to some degree dispelled"); State v. Koch , 267 Or. App. 322, 332, 341 P.3d 112 (2014) (when officers continued questioning the defendant following an unequivocal invocation of the right to counsel, they likely created the impression that assertion of the right was meaningless). On a related note, did the detectives' specific questions to defendant create escalating pressure over time so that the circumstances became compelling by the time defendant made incriminating statements?

The parties' discussions of the "compelling circumstances" issue are brief and do not meaningfully address the kinds of questions we have posed above. Indeed, the state's argument focuses entirely on the circumstances that existed at the beginning of the interview, when defendant was read his Miranda rights and informed that he could end the interview at any time, and does not grapple with the question whether the circumstances became compelling at a later point. Any appellate resolution of that question could have significant implications for future cases as well as for law-enforcement practices. Furthermore, although the "compelling circumstances" question is a legal one, litigation of the issue in the trial court would have given us additional information to consider on appeal, possibly including a developed explanation of the parties' positions and the trial court's reasoning, all of which would be helpful to an analysis on appeal, even if the evidentiary record itself would not have changed. For all of those reasons, we decline to exercise our discretion to address the question in this case. See State v. Friddle , 281 Or. App. 130, 142 & n. 9, 381 P.3d 979 (2016) (declining to address alternative basis for affirmance, raised for the first time on appeal, for similar reasons; citing additional cases taking that approach).

Finally, we briefly address the state's contention that any error in denying defendant's suppression motion was harmless. We disagree. After the court denied defendant's suppression motion, the case went to trial before a jury. D testified about her close relationship with defendant and several times when he sexually abused her. Defendant did not testify, but the recording of his interview at the sheriff's office was played for the jury, which included defendant's repeated post-invocation acknowledgements that he had become aroused around D when they were together. Much of the other evidence at trial focused on D's credibility generally, the credibility of her accusations against defendant (both as made in out-of-court statements and as delivered during her trial testimony), and reasons she may have had for being upset with defendant. A description of that evidence would not benefit the bench or bar. However, having reviewed that evidence, we conclude that defendant's own video-recorded description of his close relationship with D could have influenced the jury's deliberations, and we cannot say that there is only "little likelihood" that defendant's post-invocation statements affected the verdict. State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003) (stating that standard for harmless error).

Reversed and remanded.

      Our resolution of defendant's challenge to denial of the suppression motion obviates the need for us to address the other two assignments of error that he raises on appeal, which address issues that may not arise on remand.

      Because we can resolve this appeal on the ground that defendant at least equivocally invoked his Article I, section 12, right to counsel, we need not address whether his invocation could properly be understood as having been unequivocal. This opinion expresses no view on that question. For the same reason, we need not-and do not-address defendant's contention that suppression was required because the detectives violated his rights under the Fifth Amendment to the United States Constitution.


source: Caselaw Access Project

author: ORTEGA, J.

license: Public Domain

text:
    Carvel Gordon DILLARD, Petitioner-Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
    A156063
    Court of Appeals of Oregon.
    Submitted on remand December 11, 2017. April 3, 2019
    Jed Peterson and O'Connor Weber LLP filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Kathleen Cegla, Assistant Attorney General, filed the brief for respondent.
    Before Tookey, Presiding Judge, and Egan, Chief Judge, and Ortega, Judge.
   ORTEGA, J.

The Supreme Court reversed our prior decision in this case, Dillard v. Premo , 276 Or. App. 65, 366 P.3d 797 (2016) ( Dillard I ), and remanded to us for further proceedings. Dillard v. Premo , 362 Or. 41, 403 P.3d 746 (2017) ( Dillard II ). In Dillard I , we dismissed petitioner's appeal, in which he argued that the post-conviction court erred in dismissing his petition for failure to state a claim and in dismissing his petition with prejudice without first holding a hearing. Dillard I , 276 Or. App. at 66-67, 366 P.3d 797. We concluded that we lacked jurisdiction to review those claims of error because ORS 138.525(3) prohibits appeals of post-conviction petitions that are dismissed as meritless. Id. Dillard II reversed our decision, holding that " ORS 138.525 does not bar appeal of a judgment entered without the benefit of counsel or a hearing, unless the judgment is entered in accordance with * * * [ ORS 138.525(4) ] as a judgment 'without prejudice.' " Dillard II , 362 Or. at 48, 403 P.3d 746. On remand following that decision, we now reach the merits of petitioner's second assignment of error, which obviates our need to address the first assignment of error. We hold that the post-conviction court erred when it dismissed petitioner's petition with prejudice without first holding a hearing, and we remand to the post-conviction court for further proceedings.

The pertinent facts are procedural and are summarized in Dillard II :

"Petitioner was charged with four counts of sexual abuse in the second degree and four counts of prostitution. The indictment alleged crimes against two victims. Petitioner was not represented by counsel at trial. A jury found petitioner not guilty of the counts involving one of the victims, but found petitioner guilty of two counts involving the other victim. Petitioner unsuccessfully pursued a direct appeal. State v. Dillard , 233 Or. App. 510, 226 P.3d 130, rev. den. , 348 Or. 461, 234 P.3d 983 (2010).
"Petitioner then filed a timely pro se petition for post-conviction relief. He alleged (1) prosecutorial misconduct that, he claimed, violated his federal rights to a fair trial and due process under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that could not reasonably have been raised and preserved before or during his trial proceedings; (2) trial court errors, including denial of appointed counsel, that, he alleged, could not effectively have been raised and preserved during the trial proceedings; (3) ineffective assistance of appellate counsel; and (4) actual innocence. Defendant filed a motion pursuant to ORCP 21 A(8) to dismiss the petition for failure to state ultimate facts sufficient to constitute post-conviction claims. Defendant contended that petitioner's 36-page handwritten petition identified the 'facts of the case' but made no cognizable legal claims; that petitioner 'was aware' of the facts that he alleged and reasonably could have litigated them at the time of trial; that his claims of inadequate assistance of appellate counsel stated only what counsel had failed to do and not 'ultimate facts,' and did not articulate how the failures prejudiced petitioner; and that actual innocence is not a claim for relief under Oregon law.
"Petitioner was represented by counsel at that time, and, although the pro se petition at issue requested a hearing, counsel did not request a hearing on defendant's motion, and, as defendant recognizes, the post-conviction court did not grant a hearing. Instead, the court found defendant's arguments persuasive, adopted them, and granted defendant's motion. Subsequently, the court entered a general judgment dismissing the action 'with prejudice.' As defendant concedes, dismissal of the action 'with prejudice' was error. ORS 138.525(4)."

Dillard II , 362 Or. at 43-44, 403 P.3d 746.

In defendant's motion to dismiss, defendant requested that the court enter the dismissal "with prejudice." Counsel for petitioner filed a response to defendant's motion to dismiss in which petitioner contested defendant's substantive challenges, but petitioner did not object to, or otherwise address, defendant's request to enter a dismissal with prejudice.

In December 2013, the post-conviction court sent a letter opinion to counsel for petitioner and defendant. The letter opinion informed the parties that it was granting defendant's motion to dismiss and adopting defendant's arguments made in its motion as the basis for its ruling. The letter opinion did not indicate whether the dismissal would be with or without prejudice. The court entered a general judgment of dismissal on January 6, 2014, dismissing the petition with prejudice.

On appeal, in his second assignment of error, petitioner argues that the court erred in dismissing his petition with prejudice without first holding a hearing. Petitioner acknowledges that he did not preserve that claim of error below, but he argues that preservation is not required because "the error itself occurred through petitioner's absence."

Alternatively, petitioner argues that the error is plain and that we should exercise our discretion to correct it.

Defendant does not present an argument that dismissal with prejudice without first holding a hearing as required by ORS 138.525(4) was correct on the merits. Indeed, defendant conceded before the Supreme Court, and the court concluded, that the post-conviction court erred in dismissing petitioner's case "with prejudice." Dillard II , 362 Or. at 44, 403 P.3d 746. Defendant nevertheless argues that petitioner was obligated to preserve the claim of error and failed to do so. According to defendant, petitioner was on notice that defendant was seeking a dismissal with prejudice but did not request a hearing or otherwise alert the court that he was objecting. Finally, defendant argues that, should we determine that the post-conviction court erred in entering a judgment of dismissal "with prejudice" without first holding a hearing, the proper remedy is to remand for entry of a judgment dismissing without prejudice.

Appellate review of post-conviction proceedings is limited to questions of law appearing on the record. ORS 138.650(1) ; former ORS 138.220 (2013), repealed by Or. Laws 2017, ch. 529, § 26; Yeager v. Maass , 93 Or. App. 561, 564, 763 P.2d 184 (1988), rev. den. , 307 Or. 340, 768 P.2d 400 (1989). Whether ORS 138.525 allows a meritless petition to be dismissed "with prejudice" without first holding a hearing is a question of law. See State v. Thompson , 328 Or. 248, 257, 971 P.2d 879, cert. den. , 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999) (reviewing a trial court's interpretation of the joinder statute for legal errors).

Beginning with preservation, we agree with petitioner that this is the type of error for which preservation is not required. See Peeples v. Lampert , 345 Or. 209, 220, 191 P.3d 637 (2008) ("In some circumstances, the preservation requirement gives way entirely, as when a party has no practical ability to raise an issue."). Although defendant may have put petitioner on notice that he was asking the post-conviction court to dismiss petitioner's claims "with prejudice," petitioner was not put on notice of the error at issue-namely, that the post-conviction court intended to dismiss his action without a hearing and with prejudice -until the judgment was actually entered. The court's letter opinion indicated that it was dismissing petitioner's claims, and petitioner could reasonably have inferred that dismissal would be entered "without prejudice" because the court indicated in the letter that it was not holding a hearing. Because the error appeared for the first time in the judgment, the error qualifies as a circumstance in which preservation is not required. See State v. Selmer , 231 Or. App. 31, 33-35, 217 P.3d 1092 (2009), rev. den. , 347 Or. 608, 226 P.3d 43 (2010) (concluding that ordinary preservation principles do not apply where the error appeared for the first time in the judgment).

We now turn to the merits, as the Supreme Court concluded, the post-conviction court erred when it dismissed petitioner's action "with prejudice" without holding a hearing. See ORS 138.525(4) ("A dismissal is without prejudice if a meritless petition is dismissed without a hearing and the petitioner was not represented by counsel."); Ware v. Hall , 342 Or. 444, 453, 154 P.3d 118 (2007) ("[N]othing suggests that a court may dismiss a meritless post-conviction petition with prejudice if the petitioner has counsel but not some kind of a hearing." (Emphasis in original.)).

The final issue is the proper remedy. In Ware , without holding a hearing, the post-conviction court dismissed the petition under ORS 138.550(3), which bars successive petitions. Id . at 447, 154 P.3d 118. The effect of entering the general judgment was to dismiss the petitioner's claims "with prejudice." Id . (explaining that under ORS 18.082(3), "entering a general judgment dismisses claims for relief with prejudice unless the court notes that it is dismissing those claims without prejudice"). The Supreme Court looked to the legislative intent of ORS 138.550(3) and ORS 138.525 and concluded that the post-conviction court erred when it dismissed the petition with prejudice without first holding a hearing. Id. at 448-53, 154 P.3d 118. The court declined the defendant's request to affirm on other grounds, and remanded for the post-conviction court to either hold a hearing on defendant's motion to dismiss or enter a judgment dismissing "without prejudice." Id. at 453-54, 154 P.3d 118.

Defendant asks that we depart from that approach and instead remand for entry of a judgment dismissing without prejudice, but we see no reason to do so. This case comes to us in the same procedural posture as Ware , in which the post-conviction court failed to follow the required statutory procedures in dismissing the petition, and the court here should have the option to hold a hearing on defendant's motion; indeed, in this case, the court may elect for prudential reasons to hold a hearing on the merits if it intends to dismiss the action with prejudice.

Reversed and remanded.

      ORS 138.525 provides:
      "(1) The court may, on its own motion or on the motion of the defendant, enter a judgment denying a meritless petition brought under ORS 138.510 to 138.680.
      "(2) As used in this section, 'meritless petition' means one that, when liberally construed, fails to state a claim upon which post-conviction relief may be granted.
      "(3) Notwithstanding ORS 138.650, a judgment dismissing a meritless petition is not appealable.
      "(4) A dismissal is without prejudice if a meritless petition is dismissed without a hearing and the petitioner was not represented by counsel."

      Because the statute is dispositive, we do not address petitioner's additional argument that his due process rights under the United States Constitution were violated when the PCR court dismissed his action without holding a hearing. See State v. Kennedy , 295 Or. 260, 262, 666 P.2d 1316 (1983) ("[A]ll questions of state law [should] be considered and disposed of before reading a claim that this state's law falls short of a standard imposed by the federal constitution on all states.").

      Defendant also advances an argument that any error is harmless. However, we do not agree that a judgment dismissing an action "with prejudice" could be harmless when the legal effect of such a dismissal is to preclude petitioner from filing an amended petition. We reject that argument without further discussion.

      Former ORS 138.220 (2013) was repealed in 2017 by Senate Bill (SB) 896. Or. Laws 2017, ch. 529, § 26. Because the judgment in this case was entered before the January 1, 2018, effective date of SB 896, its provisions do not apply. Or. Laws 2017, ch. 529, § 28 (providing that SB 896 applies "on appeal from a judgment or order entered by the trial court on or after the effective date of this 2017 Act").


author: HADLOCK, P. J.

text:
    LARISA'S HOME CARE, LLC, an Oregon limited liability company, Plaintiff-Respondent, v. Karen NICHOLS-SHIELDS, the duly appointed Personal Representative of the Estate of Isabell Prichard, Deceased, Defendant-Appellant.
    A154950
    Court of Appeals of Oregon.
    Submitted on remand December 11, 2017. April 24, 2019
    Hafez Daraee filed the briefs for appellant.
    Ross A. Day, Matthew Swihart, and Day Law Group, PC, filed the briefs for respondent.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, filed the brief amicus curiae for Oregon Department of Justice.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

This case comes to us on remand from the Supreme Court. Larisa's Home Care, LLC v. Nichols-Shields , 362 Or. 115, 404 P.3d 912 (2017) ( Larisa's II ). Plaintiff is a residential adult foster care provider that brought an unjust enrichment claim to recover the reasonable value of its services from defendant, the personal representative of the estate of a former resident, Prichard, who fraudulently obtained services from plaintiff at a lower Medicaid-based rate. In response, defendant contended, among other things, that Prichard's estate had not been unjustly enriched; she moved to dismiss on that basis. The trial court implicitly denied that motion and, following a bench trial, "ruled in favor of plaintiff, concluding that there was unjust enrichment." Id . at 120, 404 P.3d 912. Defendant appealed. In our initial decision, we held that the trial court had erred by concluding that defendant had been unjustly enriched. We therefore reversed without reaching additional arguments that defendant had made on appeal. Larisa's Home Care, LLC v. Nichols-Shields , 277 Or. App. 811, 812, 820, 372 P.3d 595 (2016) ( Larisa's I ). On review, the Supreme Court concluded that plaintiff had established that the estate had been unjustly enriched. Larisa's II , 362 Or. at 123, 404 P.3d 912. It reversed our decision on that basis and remanded the case to us to consider an additional defense argument that we had not reached-whether certain provisions of Medicaid law nevertheless prohibit plaintiff's recovery. Id . at 123, 142, 404 P.3d 912. For the reasons set out below, we affirm.

We provide background facts as articulated in Larisa's II . Plaintiff contracted with the Department of Human Services (DHS) to provide adult foster home services to patients who qualified for Medicaid. Larisa's II , 362 Or. at 118, 404 P.3d 912. For Medicaid-qualified patients, the rates charged by plaintiff were set by DHS. Id . The Medicaid rates were substantially lower than the rates that plaintiff charged to non-Medicaid patients-the "private pay" patients. Id . at 119, 404 P.3d 912. Prichard, who had been approved to receive Medicaid benefits, resided and received care in one of plaintiff's facilities and was charged the Medicaid rate for services, rather than the higher, private-pay rate. Id . at 118-19, 404 P.3d 912.

After Prichard's death, her family (and others) learned that Prichard's son, Gardner, who had had power of attorney for Prichard, had made a false representation on Prichard's Medicaid application. Id . at 119, 404 P.3d 912. Another of Prichard's children-defendant, who was appointed as the personal representative for the estate-discovered that for years, Gardner had been transferring Prichard's assets to himself or using her funds for his own benefit. Id . at 119-20, 404 P.3d 912. Gardner had represented on his mother's Medicaid application, however, that Prichard had not transferred or given away any cash or other property to anyone in the preceding 60 months. Id . at 119, 404 P.3d 912. "As a result, [DHS] approved Prichard for Medicaid benefits." Id .

Plaintiff made a claim against Prichard's estate, which defendant denied. Id . at 120, 404 P.3d 912. Plaintiff then filed this lawsuit for equitable relief in which it sought payment from the estate of the difference between a higher private-pay rate and the lower Medicaid rate that it had charged Prichard. Id . at 120, 404 P.3d 912. The trial court ruled in plaintiff's favor after concluding that defendant was unjustly enriched and that Medicaid law did not prevent plaintiff's recovery. Id . at 120-21, 404 P.3d 912. It entered a judgment in plaintiff's favor in the amount of $ 48,477. Id . at 121, 404 P.3d 912.

Defendant appealed and presented two arguments, which the Supreme Court characterized broadly as follows: "(1) there was no unjust enrichment; and (2) regardless, Medicaid-related law (statutes, rules, and the terms of plaintiff's contract with the department) prohibited plaintiff from recovering from defendant." Id . at 121, 404 P.3d 912. We held that the record did not support the unjust enrichment claim and that the trial court erred in denying defendant's motion to dismiss. Larisa's I , 277 Or. App. at 820, 372 P.3d 595. As stated above, the Supreme Court reversed our decision regarding the unjust enrichment claim and remanded this case to us for consideration of the Medicaid-related argument that we had not addressed. Larisa's II , 362 Or. at 141-42, 404 P.3d 912.

After the case returned to us, we requested and received an amicus curiae brief from the Oregon Department of Justice, discussing the Medicaid-related issue that the Supreme Court had identified. We gave the parties leave to file supplemental briefs responding to that amicus brief. Plaintiff filed a supplemental brief adopting the amicus brief in its entirety. Defendant did not file a supplemental brief. Accordingly, we describe defendant's Medicaid-related arguments in the terms that she presented them in her opening and reply briefs, filed before we issued our original decision.

In her opening brief, defendant's arguments focus on former OAR 411-050-0435(1)(d) (Jan. 1, 2007), which provided:

"The rate of compensation established by [DHS] is considered payment in full and licensees must not accept additional funds or in-kind payment."

Defendant asserts that the trial court erred when it concluded that that rule did not bar plaintiff's unjust enrichment action. Defendant also points to plaintiff's contract with DHS, which includes provisions that reflect the administrative rule's requirements. Defendant asserts that "the evidence and authority provided to the trial court clearly established that [the rule] was applicable to this case and should have been enforced" and concludes that the court "erred when it concluded that [the] rule did not apply to this case."

In support of her general assertion that the trial court erred, defendant makes three specific arguments that we set out below. At the outset, we emphasize that this opinion addresses-and rejects-only those arguments. Moreover, it is important to recognize that we address the parties' arguments in the particular context in which they are presented in this case-the context of an unjust enrichment action brought against the estate of a decedent who is proved to have fraudulently received services at a Medicaid rate when she was alive, and whose actual ineligibility for Medicaid was determined in the course of that post-death action. We express no opinion regarding how OAR 411-050-0435(1)(d) (Jan. 1, 2007), the current version of that rule, or any other law might apply in a different context.

On appeal, the parties seemingly agree that OAR 411-050-0435(1)(d) (Jan. 1, 2007) barred plaintiff from charging more than the rate established by DHS for Medicaid-eligible residents at its facility. Defendant's arguments that the rule precluded this lawsuit all are premised on a contention that Prichard was eligible for Medicaid while she lived at plaintiff's facility. First, defendant points to the lack of "evidence that DHS had determined that the Medicaid benefits provided to Ms. Prichard were fraudulently obtained." Accordingly, she argues, the trial court could not collaterally attack DHS's original eligibility determination, which plaintiff's claim would require it to do. Second, defendant argues that Gardner is the person who committed the fraud and that his fraud is not attributable to Prichard or her estate; in that regard, we understand defendant to argue that Prichard's Medicaid eligibility should not be invalidated because she did not herself fraudulently obtain Medicaid benefits. And third, defendant argues that, even if Gardner's asset transfers had been disclosed on Prichard's Medicaid application, they would not have been disqualifying transfers, and Prichard would have been deemed to be eligible for Medicaid benefits.

All of defendant's arguments are foreclosed by the Supreme Court's decision in Larisa's II . First, the court expressly rejected defendant's argument that "plaintiff's action is an improper collateral attack on [DHS's] exclusive right under ORS 410.070(1) to make Medicaid eligibility decisions." Larisa's II , 362 Or. at 140, 404 P.3d 912. Defendant relied on ORS 410.070 to support her contention that DHS's original determination that Prichard was Medicaid-eligible was legally binding on plaintiff unless and until DHS itself overturned that decision or plaintiff successfully challenged it in an administrative proceeding brought against DHS. Id . The court stated that

" ORS 410.070 does not contain a provision barring equitable actions by Medicaid service providers. Furthermore, given ORS 411.630, which establishes that it is unlawful for recipients of public assistance to use fraud to obtain benefits, there is no reason to infer from ORS 410.070 that, when a recipient commits fraud against a Medicaid service provider, the provider is barred from recovering from the fraud feasor in equity."

Id . at 140-41, 404 P.3d 912 (footnote omitted). To the extent that defendant's argument under OAR 411-050-0435(1)(d) (Jan. 1, 2007) is premised on a notion that only DHS may determine whether, as a factual matter, a person is Medicaid-eligible-and a court may never do so-that argument fails under Larisa's II .

Second, the Supreme Court held that Gardner's fraud on the Medicaid application was attributable to Prichard: "Because Gardner made a false representation while acting as Prichard's agent and on her behalf, Prichard is liable for the fraud." Id . at 137-38, 404 P.3d 912. That holding defeats defendant's argument that Prichard should still be deemed Medicaid-eligible for purposes of OAR 411-050-0435(1)(d) (Jan. 1, 2007) because Gardner, not Prichard herself, committed the fraud.

And third, the Supreme Court concluded that the undisclosed transfers of assets that had been made by Gardner were the kind of transfers that were disqualifying; they did not fall into an exception to the general rule that applies to victims of fraud. Id. at 136, 404 P.3d 912 ; see OAR 461-140-0220(7) (Jan. 1, 2007) (a transfer is not disqualifying if the "client was a victim of fraud * * * and legal steps have been taken to recover the asset"). Thus, if Gardner's transfers of Prichard's assets had been disclosed on her Medicaid application form, "then Prichard would have been disqualified from receiving Medicaid benefits while she stayed at plaintiff's facility. The false representations on the Medicaid form thus enabled Prichard to pay the discounted Medicaid rates, when she otherwise would have had to pay the higher private-pay rates." Larisa's II , 362 Or. at 136-37, 404 P.3d 912. Defendant's argument that the "transfer of assets is not disqualifying" cannot survive that holding.

In sum, the Supreme Court concluded that Prichard was ineligible for Medicaid benefits at the time she applied due to the disqualifying transfers made prior to the application, Prichard qualified for Medicaid only because of Gardner's fraud that was attributable to her, and plaintiff, as a third party seeking an equitable recovery, is not bound by the Medicaid eligibility determination that was obtained due to fraud. For the reasons set out above, those holdings defeat each of the arguments about OAR 411-050-0435(1)(d) (Jan. 1, 2007) that defendant made in her original briefing to this court.

When the Supreme Court remanded the case to us, it observed that defendant's arguments to that court had "not flesh[ed] out why her reading of the * * * rule is correct in the context of a recipient's fraudulent receipt of the Medicaid rate." Larisa's II , 362 Or. at 142, 404 P.3d 912 (emphasis added). That is, the court suggested that defendant needed to explain why the rule would bar an action in equity even when it was proved that the lower Medicaid rate was obtained fraudulently. Defendant has not done so; indeed, she did not file a brief on remand. Moreover, as explained above, the arguments in her initial briefing all are premised on a contention that Prichard must be deemed not to have obtained the lower rate fraudulently. Consequently, defendant has given us no reason to conclude that OAR 411-050-0435(1)(d) (Jan. 1, 2007) or any other law precluded plaintiff from pursuing or prevailing in this unjust enrichment action.

Affirmed.

      Gardner ultimately pleaded guilty to three counts of first-degree criminal mistreatment. Larisa's II , 362 Or. at 120, 404 P.3d 912. His sentence included a requirement to repay Prichard's estate $ 195,710.11, which he did. Id .

      The Supreme Court declined to address that argument in the first instance because, among other things, defendant had not "flesh[ed] out" that argument and plaintiff had not addressed it in its briefing in that court. Larisa's II, 362 Or. at 142, 404 P.3d 912.

      The Department of Justice (DOJ) noted in its amicus brief that it had determined that neither it nor its client agencies had any direct interest in the issue involved in this case and that it was submitting its brief "solely to assist the court in determining the correct rule of law." DOJ concluded that "no pertinent aspect of federal or state law appears to bar plaintiff's otherwise viable unjust enrichment claim."

      The 2007 version of the rule was effective during the time of Prichard's residency in plaintiff's facility. In 2013, the rule was renumbered to OAR 411-050-0615(1)(d) and reworded to state that "[t]he rate of compensation established by the Department is considered payment in full. The licensee may not request or accept additional funds or in-kind payment from any source." In her reply brief, defendant refers to the renumbered rule; however, she does not assert that the reworded text affects the arguments on appeal. Because it does not affect our analysis, and for convenience, we refer to the rule in effect on January 1, 2007, throughout.

      In particular, defendant emphasizes the "CONSIDERATION and PAYMENT PROCEDURE" section of the contract, which states that the provider "agrees to accept the rate authorized by [DHS] plus the established room and board payment as payment in full, and will not charge the client any additional amounts for these services." Defendant observes that the contract provision is, itself, based on OAR 411-050-0435(1)(d) (Jan. 1, 2007); she does not argue that the contract provisions have significance beyond what is stated in that rule.

      Although defendant includes in her brief a citation to ORS 443.739(16), which is part of the Residents' Bill of Rights and states that each resident in an adult foster home has the right to "[b]e free from financial exploitation" and that the provider "may not solicit, accept or receive money or property from a resident other than the amount agreed to for services," she does not develop any separate argument about the application of that statute or its effect on this lawsuit and we do not do so for her. See Beall Transport Equipment Co. v. Southern Pacific , 186 Or. App. 696, 700 n. 2, 64 P.3d 1193, adh'd to on recons. , 187 Or. App. 472, 68 P.3d 259 (2003) (it is not our "function to make or develop a party's argument when that party has not endeavored to do so itself").

      ORS 410.070(1) specifies duties of DHS, including that it shall "[s]erve as the central state agency with primary responsibility for the planning, coordination, development and evaluation of policy, programs and services for elderly persons and persons with disabilities in Oregon," "[f]unction as the designated state unit on aging," and "[r]eceive and disburse all federal and state funds allocated to the department." ORS 410.070(1)(a), (b), (e).