author: SHORR, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Antoinette Sulueti-Ester MORAVEK, Defendant-Appellant.
    A165088 (Control) A165089
    Court of Appeals of Oregon.
    Argued and submitted December 19, 2018. May 30, 2019
    Erica Herb, 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.
    Colm Moore, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

Defendant appeals a judgment of conviction for aggravated harassment (Count 1), ORS 166.070 ; resisting arrest (Count 2), ORS 162.315 ; and interfering with a peace officer (Count 3), ORS 162.247, and another judgment of conviction revoking her probation. Defendant assigns error to the trial court's failure to sua sponte issue a judgment of acquittal on Count 3. Defendant alternatively assigns error to the court's failure to sua sponte instruct the jury on "passive resistance," as that term has been construed in State v. McNally , 361 Or. 314, 392 P.3d 721 (2017). Defendant acknowledges that both assignments of error were unpreserved and requests that we exercise our discretion to review for plain error. For the reasons that follow, we affirm the judgments of the trial court.

Defendant was riding a TriMet MAX train when Officer Berry, a Beaverton officer assigned to the Transit Division, asked for

proof of defendant's fare. Defendant did not have valid fare, and Berry asked defendant to get off at the next stop. Defendant became "kind of irate" and "pretty rude." When the train reached the next transit stop, defendant, Berry, and other officers got off the train, and Berry issued a 30-day TriMet exclusion to defendant. After Berry handed defendant the related paperwork, Berry noticed that defendant was still standing close to her on the platform. Berry told defendant that she needed to either purchase a valid ticket or leave the platform. Defendant turned to walk away, but then defendant stopped, turned back toward Berry, and spat on Berry's shoe. Berry then told defendant that she was under arrest. Berry attempted to put defendant in handcuffs, but defendant "whipped" her arm away. Two of the other officers came to Berry's assistance. Defendant continued to struggle and "scream" at the officers, who eventually got defendant on the ground and in handcuffs.

Once defendant was in handcuffs, two officers walked her off the MAX platform, toward a parking area. With an officer on each side of her, defendant dropped her weight so that she "threw herself" or "fell" to the ground. The officers ordered defendant to stand up, but defendant refused, saying in effect that "it was now [the officers'] job and that [they] were strong enough and [they] should be capable of carrying her into a police car." Two officers physically lifted defendant from underneath her armpits and another officer carried defendant's legs. The officers carried defendant to the patrol car and "somewhat" put her inside. One of the officers went to the other side of the car and pulled on defendant's arms while another officer pushed on her thighs, and together they were able to "shove" defendant mostly into the back of the car, with only her legs sticking out one of the open doors. The officers ordered defendant to bend her knees and put her feet inside the car, but defendant refused and instead "stiffened her legs out" so that the door would not shut. Berry forced defendant's knees to bend by pushing underneath her kneecaps. One officer testified that the encounter with defendant "was just a continual fight since-since we were on the platform with her."

Among other charges stemming from the incident, defendant was charged with interfering with a peace officer (IPO), ORS 162.247, for "unlawfully and knowingly refus[ing] to obey a lawful order of [Officer] Berry, a person known by the defendant to be a peace officer." ORS 162.247 provides, in pertinent part, that a person commits the crime of IPO if the person,

"knowing that another person is a peace officer or a parole and probation officer as defined in ORS 181A.355 :
"* * * * *
"(b) Refuses to obey a lawful order by the peace officer or parole and probation officer.
"* * * * *
"(3) This section does not apply in situations in which the person is engaging in:
"* * * * *
"(b) Passive resistance. "

(Emphasis added.) At the time of defendant's trial, the controlling definition of "passive resistance" limited it to "specific acts or techniques that are commonly associated with governmental protest or civil disobedience." State v. Patnesky , 265 Or. App. 356, 366, 335 P.3d 331 (2014), abrogated by McNally , 361 Or. 314, 392 P.3d 721.

Defendant's case proceeded to a jury trial. At trial, the state's theory in regard to IPO was that, after defendant was handcuffed and off the platform, she refused to obey Berry's orders to stand up, get into the patrol car, and bend her knees. Defendant

did not move for a judgment of acquittal on the basis that her conduct amounted to passive resistance, nor did defendant request a jury instruction on passive resistance, although she raises those unpreserved errors on appeal. The jury found defendant guilty on all counts, and the trial court entered a judgment of conviction. Defendant was also found to be in violation of her probation on another, unrelated case because of the above-mentioned convictions.

Approximately one month after defendant was convicted, the Supreme Court decided McNally , which abrogated Patnesky and held that passive resistance is not limited to acts of governmental protest or civil disobedience. Rather, the court held that passive resistance

"refers to noncooperation with a peace officer's lawful order that does not involve violence or active measures, whatever the motivation for the noncooperation and regardless of whether the noncooperation takes the form of acts, techniques, or methods commonly associated with civil rights or other organized protest."

361 Or. at 334, 392 P.3d 721 (emphasis added). Passive resistance "does not involve active conduct." Id. at 339, 392 P.3d 721. At the outset, we accept-and the state does not dispute-defendant's assertion that, because "[e]rror, in general, must be determined by the law existing at the time the appeal is decided, and not as of the time of trial,"

State v. Jury , 185 Or. App. 132, 136, 57 P.3d 970 (2002), rev. den. , 335 Or. 504, 72 P.3d 636 (2003), on appeal we must apply the definition of passive resistance that was articulated in McNally .

Based on McNally , defendant first assigns error on appeal to the trial court's failure to sua sponte issue a judgment of acquittal on the IPO charge, arguing that, because her actions did not rise above the level of passive resistance, she was entitled to a judgment of acquittal. In the alternative, defendant assigns error to the trial court's failure to sua sponte instruct the jury on passive resistance. Defendant concedes that her arguments are unpreserved but requests that we exercise our discretion under ORAP 5.45(1) to review the matter for plain error.

We may consider an unpreserved error under the plain-error doctrine. ORAP 5.45(1). Our plain-error analysis is conducted in two steps: First, we determine whether the error is "apparent on the face of the record," which means that the error is (1) one of law, (2) obvious and not reasonably in dispute, and (3) does not require us to choose between competing inferences or go outside the record to correct it. Ailes v. Portland Meadows, Inc. , 312 Or. 376, 381-82, 823 P.2d 956 (1991). Second, if we determine that the trial court committed plain error, we must decide whether to exercise our discretion to correct it. See id. at 382 n. 6, 823 P.2d 956 (identifying several factors we are to consider when deciding whether to correct plain error); see also State v. Reynolds , 250 Or. App. 516, 521, 280 P.3d 1046, rev. den. , 352 Or. 666, 293 P.3d 1045 (2012) (identifying additional factors).

In her first assignment of error, defendant argues that, after McNally , the trial court erred in failing to sua sponte acquit her of the IPO charge because the state failed to present sufficient evidence to show that defendant's conduct "constituted anything other than 'passive resistance' for the purposes of ORS 162.247." State v. Washington , 286 Or. App. 650, 658, 401 P.3d 297 (2017). Defendant asserts that the evidence presented at trial was insufficient to support her conviction because the officers "uniformly" testified that, once defendant dropped to the ground, she did not fight or resist when she refused their orders to get up and get into the patrol car. Defendant argues that the evidence shows that defendant had simply refused to get up by her own power, a characterization of the evidence that defendant argues can be understood only to be passive resistance. Thus, defendant argues that the trial court was required to acquit her of IPO.

The state disputes defendant's characterization of the testimony, arguing that evidence in the record shows that defendant engaged in "active measures." The state points out that one of the officers testified that, while the officers were shoving defendant into the patrol car, defendant "continued to fight this whole time," that she "stiffened

her legs out-out the door, so we wouldn't be able to close the door," and that the encounter with defendant was "just a continual fight since-since we were on the platform with her."

We have regularly declined, for "sound prudential and institutional reasons," to exercise our discretion to review for plain error in cases involving a purported insufficiency of the evidence when the defendant failed to move for a judgment of acquittal. State v. Inloes , 239 Or. App. 49, 54, 243 P.3d 862 (2010). We have applied an exception to that general approach when an intervening change in the law makes it plain that the "defendant's convictions were predicated on legally insufficient evidence." Id. Here, however, we are not faced with such a circumstance because the parties' arguments regarding the nature of the evidence illustrate why plain-error review is not appropriate in this case.

This case is not a suitable case for plain-error review because the legal point at issue is not "obvious." State v. Brown , 310 Or. 347, 355, 800 P.2d 259 (1990). We review "questions of the sufficiency of the evidence in a criminal case following a conviction by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element[s] of the crime beyond a reasonable doubt." State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). In that light, defendant's conduct is sufficiently distinguishable from our previous cases applying the passive resistance standard from McNally . Here, it is not "obvious" that the evidence was legally insufficient to convict defendant of IPO because her conduct was passive resistance.

We have previously held that, under McNally , a defendant's refusal to obey an order to leave the airport was passive resistance. State v. Estabrook , 295 Or. App. 268, 269, 433 P.3d 500 (2018), rev. den. , 364 Or. 723, 440 P.3d 671 (2019). Similarly, we have held that a defendant's refusal to provide identification to a police officer during a traffic stop amounted to passive resistance. Washington , 286 Or. App. at 658, 401 P.3d 297. In Patnesky , we noted that the legislative history of ORS 162.247 indicates that the legislature intended acts of passive resistance to include a refusal to stand or move after being given an order to do so. 265 Or. App. at 364, 335 P.3d 331. Defendant's conduct here, however, rises above a mere refusal to stand or move. We have not considered the extent to which a defendant who stiffens her body to prevent being put into a police car engages in passive resistance based on our understanding of passive resistance after McNally , and in the context of IPO. But see State v. Remsh , 221 Or. App. 471, 190 P.3d 476 (2008) (holding that, in the context of resisting arrest, the defendant did not engage in passive resistance when he jerked away from the arresting officer). We do not foreclose that possibility in future cases, however, plain-error review is inappropriate here because it is not obvious that defendant was entitled to a judgment of acquittal. At a minimum, there is at least a reasonable dispute in this case whether, by stiffening her legs out the door of the police car after a

process described as a "continual fight," defendant was engaged in conduct that could be understood to be only passive resistance or whether her conduct involved active measures.

Turning to defendant's second assignment of error, defendant argues, in the alternative, that the trial court erred when it failed to sua sponte instruct the jury on passive resistance. Defendant again concedes that the error is unpreserved and requests that we exercise our discretion to review the matter for plain error. Defendant argues that, because evidence exists that she engaged in "inactive, non-violent noncooperation," she was entitled to a jury instruction on passive resistance, notwithstanding her failure to request such an instruction. For the following reasons, defendant is incorrect.

Review of an unpreserved instructional error, "like any other purported plain error, is determined by reference to the construct prescribed in State v. Brown , 310 Or. 347, 800 P.2d 259 (1990), and Ailes ." State v. Gray , 261 Or. App. 121, 129, 322 P.3d 1094 (2014). The first and third elements from Brown and Ailes , which are described above, are not at issue because the question of what must be included in jury instructions is a question of law, and what was included in the jury instructions here can readily be determined by the record. Therefore, the only issue is whether the error was "obvious." Brown , 310 Or. at 355, 800 P.2d 259.

A trial court is required to "state to the jury all matters of law necessary for its information in giving its verdict." ORCP 59 B; ORS 136.330(1) (applying ORCP 59 B to criminal cases). "Instructional error exists where the instructions give the jury an incomplete and thus inaccurate legal rule to apply to the facts[.]" State v. Abram , 273 Or. App. 449, 452, 359 P.3d 431 (2015). Accordingly, a trial court must instruct the jury on all material elements of the charged crime, and failure to do so is plain error. Gray , 261 Or. App. at 130, 322 P.3d 1094 (citing State v. Lotches , 331 Or. 455, 472, 17 P.3d 1045 (2000), cert. den. , 534 U.S. 833, 122 S.Ct. 82, 151 L.Ed.2d 45 (2001) ). Additionally, when a defense other than an affirmative defense is "raised," a trial court errs in failing to instruct the jury that the state bears the burden to disprove the defense where defendant's evidence puts it at issue. Abram , 273 Or. App. at 456, 359 P.3d 431 ; ORS 161.055(1) ("When a 'defense,' other than an 'affirmative defense' as defined in subsection (2) of this section, is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt."). Thus, at most the trial court here had an obligation to instruct the jury on passive resistance only if it is either an element of IPO or a defense other than an affirmative defense that defendant "raised" at trial. See ORS 161.055(3) (" 'Raised by the defendant' means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant's case in chief."). It is neither.

After applying the interpretive methodology set out in State v. Gaines , 346 Or. 160, 206 P.3d 1042 (2009), we conclude that passive resistance is not an element of IPO. State v. Boly , 210 Or. App. 132, 135, 149 P.3d 1237 (2006) ("whether a statutory provision describes an element of the state's case or an affirmative defense is a matter of legislative intent," ascertained by application of our ordinary statutory interpretation methodology). Under Gaines , we first examine the text of the statute in context, including the relevant rules of textual analysis, and any helpful legislative history. One such rule of textual analysis is the "negative exceptions" rule, which provides that, "when a statutory provision is plainly set out as an exception that stands apart from the description of the elements of an offense, the state is not required to negate the exception; rather, the exception constitutes an affirmative defense, which the defendant must establish to prevail." Boly , 210 Or. App. at 135, 149 P.3d 1237 ; see also State v. Vasquez-Rubio , 323 Or. 275, 278-79, 917 P.2d 494 (1996) (explaining the rule). Words of limitation, "such as 'except that,' 'however,' or 'provided that,' " typically signify that a statutory provision is plainly set out as an exception. Boly , 210 Or. App. at 135-36, 149 P.3d 1237.

Applying the negative exception rule to the text of ORS 162.247, we conclude that passive resistance is not an element of the offense.

Passive resistance is not included in subsection (1) of ORS 162.247, which identifies the elements of IPO. Instead, it is included in subsection (3) and is preceded by words of limitation, namely that interfering with a police officer "does not apply" in situations involving passive resistance. That text and context indicate that passive resistance is not an element of IPO and may be an affirmative defense. See Boly , 210 Or. App. at 135, 149 P.3d 1237 (holding that, where "a statutory provision is plainly set out as an exception that stands apart from the description of the elements of an offense, the state is not required to negate the exception; rather, the exception constitutes an affirmative defense, which the defendant must establish to prevail").

Even assuming that passive resistance is not an affirmative defense but rather a defense that the state had the burden to disprove, defendant never "raised" that defense at trial. ORS 161.055(3) provides that

" '[r]aised by the defendant' means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant's case in chief."

Here, defendant did not give notice to the state of her intention to raise a passive resistance defense before the commencement of the trial. Moreover, defendant did not call any witnesses at trial, and therefore did not present affirmative evidence of passive resistance. Accordingly, ORS 161.055(1) does not require the state to have disproven passive resistance beyond a reasonable doubt.

Because passive resistance is neither an element of IPO nor a defense other than an affirmative defense that defendant raised, the trial court did not plainly err in failing to instruct the jury on passive resistance. We are aware of no cases, and the parties have presented none, in which a trial court erred for failing to sua sponte instruct a jury on either an affirmative defense or a defense that had not been raised by defendant. Therefore, notwithstanding the change in the law after McNally , on which we agree defendant is entitled to rely, it is not obvious for purposes of plain-error review that the trial court here had a burden to sua sponte instruct the jury on passive resistance. For that reason, the trial court's failure to instruct the jury on passive resistance was not plain error.

Affirmed.

      During closing argument, the prosecutor explained as follows:
      "Once they finally get [defendant] handcuffed and they walk over to the roundabout to have the Beaverton patrol car go pick them up is where we get to Count No. 3, the interfering with a peace officer. * * * Element number 3, that [defendant] knowingly refused to obey a lawful order by the peace officer. In this (inaudible) be given multiple orders, lawful orders. 'You need to get up. Please get up. Stand up.'
      "* * * * *
      "Not only was she refusing to get up, but also (inaudible) trying to get her into the patrol car. She again refused to comply with all the orders of getting into the patrol car. 'Bend your knees.' For her own safety. Still refusing to comply with those orders."

      The state also raises the possibility that defendant's verbal act in "screaming," at the officers could also constitute "active measures." The state distinguishes defendant's conduct here from that of the defendant in Washington , who we noted was "calm and polite." 286 Or. App. at 653, 401 P.3d 297. Because we determine that defendant's assignment of error is not plain based on the evidence in the record of defendant's active physical conduct, we do not address that argument.

      In Patnesky , we quoted at length from legislators' statements that revealed their intention regarding conduct that qualified as passive resistance. For instance, Representative Prozanski stated that
      "[i]n my community there are a lot of people that want to have passive resistance under the MLK approach or the Gandhi approach of just basically being there as a presence but not doing anything physically to the way of waving arms or swinging stuff. * * * That's the other reason that I wanted to make certain that the crime of interfering would not include a passive civil disobedience protestor. So if an order comes in to move, they're not going to be cited for this particular crime."
      265 Or. App. at 364, 335 P.3d 331.

      The parties have not briefed the issue whether passive resistance is an affirmative defense or a defense that the state bears the burden of disproving. Because here we conclude that the trial court was not required to instruct the jury on passive resistance because it was neither an element of the offense nor a defense other than an affirmative defense that defendant raised at trial, we expressly do not decide whether passive resistance is an affirmative defense or a defense under ORS 161.055(1).


source: Caselaw Access Project

author: DeVORE, J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Troy George NEWSTED, Defendant-Appellant.
    A166369
    Court of Appeals of Oregon.
    Argued and submitted March 26, 2019. June 5, 2019
    Mark D. Brown, Deputy Public Defender, argued the cause for appellant.On the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services.
    Robert M. Wilsey, 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.
   DeVORE, J.

Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine, ORS 475.890. He assigns error to the trial court's denial of his motion for a judgment of acquittal, arguing that the evidence of the quantity and packaging of the drug was insufficient to support a delivery conviction. We affirm.

We state the facts in the light most favorable to the state when reviewing a denial of a motion for a judgment of acquittal. State v. Kaylor , 252 Or. App. 688, 690, 289 P.3d 290 (2012), rev. den. , 353 Or. 428, 299 P.3d 889 (2013). We determine whether "a rational trier of fact could have found that the state proved all the essential elements of the offense beyond a reasonable doubt." Id . at 691, 289 P.3d 290.

Police suspected that defendant was driving with a suspended license. When he failed to signal as required for a turn, officers initiated a traffic stop. Before police made contact, a witness saw defendant throw a sunglasses case from his car into a parking lot. Sometime after the traffic stop, a witness gave police the sunglasses case. It contained two syringes, cotton swabs, and 9.84 grams of methamphetamine separated into seven baggies. Defendant was charged with possession of methamphetamine, ORS 475.894, and unlawful delivery of methamphetamine, ORS 475.890.

Three police officers involved in defendant's arrest testified at trial, providing context for the amount and packaging of the methamphetamine found. They testified that the methamphetamine was "prepackaged" into seven baggies or "bindles." Five of the seven bindles contained a similar quantity, each within 0.2 grams of another: 1.83 grams, 1.76 grams, 1.87 grams, 1.80 grams, and 1.78 grams. Each was described as a "teener," generally understood as one-sixteenth of an ounce or 1.75 grams. Two bindles contained methamphetamine consistent with a "50-sack" quantity, generally understood as 0.5 grams: One contained 0.44 grams, and the other contained 0.36 grams. In addition, one empty or unused baggie was found without evidence of any drug.

Captain Mitts, the Director of the South Coast Interagency Narcotics Team (SCINT), testified that he trained in drug enforcement with the Drug Enforcement Administration (DEA) and the Oregon Narcotics Enforcement Association. He had handled 200 individual drug cases himself and participated in over 1,000 drug investigations during his 22-year career. He said that the quantity of an "individual use" of methamphetamine can range from 0.10 to 0.5 grams, but 0.25 to 0.5 grams is the most common individual use.

Speaking generally, Mitts testified that "[u]sers do not have ten grams on their person." He said that it is not typical for drug users to buy in bulk. That requires more cash, and users often lack gainful employment. He said that the nearly 10 grams that defendant possessed would "absolutely" be a "large number of individual uses." He said that "nine times out of ten," individual users, who are buying for themselves, are going to get one bag, such as a "teener or below." Based on his training and experience, Mitts concluded that the "overall quantity" of 9.84 grams of methamphetamine and "the way that it was individually packaged in particular" was consistent with delivery, not personal use.

Deputy Clayburn had been with SCINT at the time of defendant's arrest. He had trained with the DEA and investigated dozens of drug cases. He testified that a drug user who "used a lot" could go through a "teener" (1.75 grams) in a day. In his experience, Clayburn said that typical users "might have like, one little baggie" with "a couple granules of methamphetamine in it." Because defendant had seven prepackaged baggies-five of which contained "teener" amounts and two of which contained "50-sack" amounts-Clayburn believed they were for sale.

Sergeant Moore had served with SCINT 10 years and investigated hundreds of drug cases in his 22 years in law enforcement. He had classes and field experience in identifying whether a quantity of drugs is a "user quantity" or a "delivery quantity." He testified that, as indications of delivery, he looks for scales, packaging material, tally sheets, or "drugs that are already prepackaged into smaller quantities." Sometimes the packaging process takes place at the scene where drugs are sold. Other times, the drugs will be preweighed at home, where the process is secure, rather than in a vehicle, which is usually too public.

Moore testified that the prepackaged bindles contained specific quantities that are commonly sold to buyers. In the case of methamphetamine, a "typical user" generally purchases a "teener" or a "50-sack." Based on his training and experience, Moore concluded that the 9.84 grams of methamphetamine, which was packaged into seven smaller commonly sold quantities, was consistent with delivery, not personal use.

At the close of the state's case, defendant moved for a judgment of acquittal on the delivery count, arguing that the quantity of drugs found in his possession and the way the drugs were packaged was not sufficient to infer an intent to deliver under the prevailing case law. The state countered that the evidence was sufficient to permit a reasonable jury to find an intent to deliver beyond a reasonable doubt and that the prevailing case law supported its position. The trial court denied defendant's motion, concluding that the evidence was sufficient such that a reasonable jury could infer an intent to deliver. The jury found defendant guilty as charged.

On appeal, the parties renew their arguments. Defendant argues that the quantity and the packaging of the methamphetamine do not support an inference of an intent to deliver in this case. Defendant contends that "because the state ha[s] no other evidence that defendant intended to deliver the drugs"-such as cell phone messages, any drug records, scales, packaging materials, or cash-"the evidence was insufficient to support a conviction for delivery." At oral argument, defendant characterized the evidence as merely seven "user amounts," akin to a beer drinker's six-pack.

The state disputes defendant's minimalization of the number of uses as the equivalent of a six-pack. The state argues that evidence of nearly 10 grams of methamphetamine and the manner in which the drug was divided and packaged-seven packages with two commonly sold amounts-sufficed to permit a reasonable trier of fact to find that defendant intended to deliver.

Thus framed, the issue on appeal is whether 9.84 grams of methamphetamine, distributed into seven separate packages, with commonly sold amounts and at least five containing multiple uses, is sufficient to permit a reasonable factfinder to find that defendant possessed the methamphetamine with the intent to deliver. For the reasons that follow, we conclude that it is.

Oregon statute prohibits the delivery of methamphetamine. ORS 475.890. ORS 475.005(8) defines "delivery" to mean "the actual, constructive or attempted transfer * * * of a controlled substance[.]" A defendant attempts to transfer a controlled substance if a defendant intentionally engages in conduct that constitutes a substantial step toward transferring such a substance. See ORS 161.405(1). "Possessing a controlled substance with the intent to transfer it may constitute a substantial step toward actually transferring it." State v. Alvarez-Garcia , 212 Or. App. 663, 666-67, 159 P.3d 357 (2007) (citing State v. Boyd , 92 Or. App. 51, 53-54, 756 P.2d 1276, rev. den. , 307 Or. 77, 763 P.2d 731 (1988) (holding that evidence was sufficient for conviction of delivery where the defendant possessed controlled substance and admitted having acquired the drugs to sell)).

In this case, there is no dispute that defendant possessed methamphetamine; the only dispute is whether there is sufficient evidence that he intended to transfer it. We have held that evidence is sufficient to support a conviction for delivery where it shows that the defendant possessed a controlled substance in an amount inconsistent with personal use and possessed items associated with the delivery of a controlled substance, such as razor blades, scales, cash, or drug records. See, e.g., State v. Fulmer , 105 Or. App. 334, 336-37, 804 P.2d 515 (1991) (concluding that evidence of six bindles of cocaine in individual packages, a razor blade, and cash was sufficient); State v. Aguilar , 96 Or. App. 506, 508-10, 773 P.2d 17, rev. den. , 308 Or. 315, 779 P.2d 618 (1989) (concluding that evidence of 12 bags of methamphetamine, seven balloons of heroin, scales, a police scanner, razor blades, cash, and drug records was sufficient); cf. , State v. Miller , 196 Or. App. 354, 361-63, 103 P.3d 112 (2004), rev. den. , 338 Or. 488, 113 P.3d 434 (2005) (possession of an undisclosed quantity of drugs without evidence of materials commonly associated with delivery was insufficient to infer delivery).

Possession of materials commonly associated with delivery of controlled substances may support an inference that the person possessing them intends to deliver those substances, but such materials are not always necessary to support an inference of intent to deliver. In Alvarez-Garcia , 212 Or. App. at 666-67, 159 P.3d 357, we rejected the defendant's argument that "paraphernalia of distribution" was necessary to establish intent to deliver. We determined that the absence of such paraphernalia was not dispositive and considered other circumstantial evidence of intent to deliver. Id. at 667, 159 P.3d 357.

In Alvarez-Garcia , as in this case, an Oregon State Trooper, who was a drug recognition expert, testified on common usage and possession amounts. He said that methamphetamine users generally do not carry enough for multiple uses with them and that carrying enough for 52 uses was very unusual. Id . at 665, 159 P.3d 357. We observed that "the methamphetamine was separated into two packages, one of which contained a typical user amount," and determined that separation or prepackaging was sufficient to support an inference that the defendant intended to transfer that package. Id . at 667, 159 P.3d 357. We concluded that a "factfinder could reasonably infer that defendant had put that amount into a separate package because he intended to transfer the other package. Although that inference is not required by the evidence, it is supported by the evidence." Id. (citation omitted).

Defendant distinguishes Alvarez-Garcia from the present case by arguing that the defendant in that case had 13.2 grams in total, whereas, in this case, defendant possessed a smaller amount, 9.84 grams in total. Defendant argues that Alvarez-Garcia involved a quantity allowing 52 "uses," whereas defendant possessed only seven "user amounts," like a user who would keep a small supply, like a six-pack of beer. Defendant's argument is unpersuasive for two reasons.

First, on this evidence, the analogy to beer is inapt, and the comparison to a six-pack is misleading. Mitts testified that an individual use ranges from 0.10 grams to 0.5 grams. Given that evidence, defendant possessed enough methamphetamine for no fewer than 20 uses and as many 98 uses. That controlled substance, that total weight, and that number of uses is significantly more than a six-pack of beer.

Second, in our case law, the total weight of methamphetamine is not the sole determinant. In Alvarez-Garcia, we observed that "[t]he evidence of delivery here is not only that defendant possessed 13.2 grams of methamphetamine, but also that the drug was divided into separate packages . Thus, defendant's conviction was not based on possession alone." 212 Or. App. at 668 n 2, 159 P.3d 357 (emphasis added). To be sure, weight was an important factor to consider; total weight indicated an amount that was inconsistent with personal use. But, in addition, the division of methamphetamine into separate packages, so as to facilitate distribution, was also significant. In Alvarez-Garcia , one of the two packages contained a typical user amount. Taken together, we concluded that the weight and packaging supported an inference that defendant intended to deliver.

In this case, defendant possessed a total of 9.84 grams of methamphetamine, separated into seven smaller packages containing two commonly sold quantities. As in Alvarez-Garcia , the absence of additional evidence commonly associated with the transfer of drugs is not dispositive. Sergeant Moore explained that tools for weighing and packaging the drug are commonly kept in a secure place rather than in a vehicle that is more public. As in Alvarez-Garcia , evidence indicated that the quantity was inconsistent with mere personal use. Deputy Clayburn testified that, in his experience, users are generally found with "like, one little baggie" with "a couple granules of methamphetamine in it." Captain Mitts said that "users do not have ten grams on their person." Defendant possessed enough methamphetamine for 20 to 98 uses. As in Alvarez-Garcia , the drug was divided into common distribution amounts: five "teeners" and two "50-sack" bindles.

We are compelled to reach the same conclusion as in Alvarez-Garcia . Defendant's possession of 9.84 grams of methamphetamine, distributed into seven packages containing commonly sold quantities, is sufficient evidence to permit a factfinder to reasonably infer that defendant had intended to transfer one or more of those packages. "Although that inference is not required by the evidence, it is supported by the evidence." Id. at 667, 159 P.3d 357 (citing Miller , 196 Or. App. at 358, 103 P.3d 112 ("The inference need not inevitably follow from the established facts; rather, if the established facts support multiple reasonable inferences, the jury may decide which inference to draw.")). The trial court did not err in denying defendant's motion for judgment of acquittal.

Affirmed.

      Moore concurred that dealers often do not carry "scales and packaging" materials in their vehicles during transportation, because it is safer for dealers to prepackage their product for sale before transporting it in a vehicle.

      In State v. Alvarez-Garcia , 212 Or. App. 663, 666 n 1, 159 P.3d 357 (2007), we observed:
      "ORS 161.405(1) provides that a 'person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.' Although that statute is not directly applicable here, because an attempt to transfer a controlled substance constitutes delivery, rather than attempted delivery, it nevertheless provides the appropriate definition of 'attempt' for purposes of ORS 475.005(8). See State v. Boyd , 92 Or. App. 51, 53, 53 n. 1, 756 P.2d 1276, rev. den. , 307 Or. 77, 763 P.2d 731 (1988) (explaining that, because the statutes governing delivery of controlled substances do not define 'attempt' or 'attempted transfer,' the definition of 'attempt' in ORS 161.405(1) applies)."

      Defendant relies on the statement by Clayburn who said, "Even a person that used a lot-I mean a lot-they'd maybe go through a teener a day. Maybe." Clayburn's reference to a common amount that a user might possess or buy at a time was not evidence that a "teener," 1.75 grams, is the amount of methamphetamine that an individual would consume or use at a time.

      We calculated this as follows: 9.84/0.5=19.68. 9.84/0.1=98.4

      The legislature has determined, for example, that when a person has been convicted of delivery and possessed 10 or more grams of a substance containing methamphetamine, that constitutes a "substantial quantity" that increases the seriousness of the crime. ORS 475.900(1)(a)(C).


author: PER CURIAM

text:
    Jerome Darrell AKLES, Plaintiff-Appellant, v. STATE of Oregon, Defendant-Respondent.
    A167611
    Court of Appeals of Oregon.
    Submitted April 5, 2019. June 19, 2019
    Jerome D. Akles filed the brief pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Plaintiff appeals a judgment of dismissal of his declaratory relief action that he brought against the state. Plaintiff sought a declaration that, when the Board of Parole and Post-Prison Supervision "unsummed" the matrix ranges on his consecutive terms of imprisonment to establish plaintiff's prison term, it had the effect of changing his sentences from consecutive sentences to concurrent sentences. See ORS 144.783(2) (1987)

("The duration of imprisonment pursuant to consecutive sentences may be less than the sum of the terms under subsection (1) of this section if the board finds, by affirmative vote of at least four of its members that consecutive sentences are not appropriate penalties for the criminal offenses involved and that the combined terms of imprisonment are not necessary to protect community security.").

On the state's motion for summary judgment, the trial court concluded that, although ORS 144.783 (1987) allows the board to treat consecutive sentences concurrently for purposes of establishing a parole release date, the statute "does not allow the Board to convert the circuit court's original consecutive sentences to concurrent sentences." The trial court then granted summary judgment to the state and entered a judgment of dismissal with prejudice. We reject without further discussion plaintiff's assignments of error on appeal addressing the merits of his case. We write only to correct the disposition of the trial court in entering a judgment of dismissal.

Dismissal is not the appropriate disposition when a trial court rules on the merits of a declaratory judgment action. Rather, the trial court should enter a judgment that declares the parties' respective rights. See, e.g. , Chernaik v. Brown , 295 Or. App. 584, 601, 436 P.3d 26 (2019), rev. allowed , 364 Or. 849, 442 P.3d 1119 (2019) ; Doe v. Medford School Dist. 549C , 232 Or. App. 38, 46, 221 P.3d 787 (2009) ("When the dismissal of a declaratory judgment action was clearly based on a determination of the merits of the claim, however, our practice has been to review that determination as a matter of law and then remand for the issuance of a judgment that declares the rights of the parties in accordance with our review of the merits."). Accordingly, we vacate and remand for entry of a judgment that includes a declaration of the parties' rights.

Vacated and remanded.


author: JAMES, J.

text:
    In the MATTER OF the COMPENSATION OF Dana CARTER, Claimant.
    Dana Carter, Petitioner, v. Waste Management Disposal Services of Oregon, Respondent.
    A166470
    Court of Appeals of Oregon.
    Argued and submitted May 30, 2019. July 3, 2019
    Julene M. Quinn, Albany, argued the cause and filed the briefs for petitioner.
    Vera Langer argued the cause for respondent. Also on the brief was Lyons Lederer, LLP.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   JAMES, J.

Claimant seeks judicial review after the Workers' Compensation Board upheld employer's denial of his aggravation claim. On review, claimant argues that the board applied the wrong legal standard to determine compensability: Rather than assessing the persuasiveness of the competing medical opinions, the board applied a per se rule that the opinion of a claimant's treating physician is insufficient to establish compensability unless that opinion specifically responds to or rebuts the opinion of the physician who conducted an independent medical examination (IME). In claimant's view, the board's use of that per se rule effectively raised the standard of proof beyond the statutorily imposed preponderance-of-the-evidence standard. Although we agree with claimant that such a per se rule is inconsistent with the statutory scheme, we are not persuaded that the board applied such a rule in this case. Accordingly, we affirm.

Claimant was injured at work in June 2013 while moving a pipe, and employer's claims administrator accepted his claim for a lumbosacral sprain /strain. Thereafter, Dr. Armerding became claimant's treating physician, and Armerding declared claimant medically stationary in January 2014. Claimant returned to Armerding in September 2015, reporting recurrences of pain that had severely limited his ability to function at home or at work. Armerding assessed a lumbosacral strain and indicated that the pattern suggested facet joint dysfunction with secondary pain and spasm, and could represent intermittent spinal root irritation or impingement from disc pathology or other source.

Claimant and Armerding completed a form for reporting "aggravation of original injury," and claimant was released for light-duty work and referred for an MRI scan. The MRI revealed moderate disc protrusions at L2-3 and L3-4, and claimant returned to Armerding on September 23, reporting that September had been his worst month ever in terms of back pain. Armerding continued to assess a lumbosacral strain and opined that claimant's work activities over the preceding eight years, including the "acute sprain/

strain injury of 2013," were a material cause of the facet joint arthrosis and degenerative changes seen on the MRI.

Employer requested an IME, which was performed by Dr. Laycoe, an orthopedic surgeon. Laycoe diagnosed a lumbosacral sprain /strain related to the June 2013 incident and degenerative disc disease at L1-2, L2-3, and L3-4, with mild facet joint arthritis at L3-4 and L4-5, and secondary disc protrusions at L2-3 and L3-4. Laycoe opined that claimant had a combined condition of the lumbar strain from June 2013 and a preexisting arthritic condition of degenerative disc disease with facet arthritis. He further opined that claimant's symptoms in 2014 and 2015 were due to the degenerative disc disease and facet arthritis, not the low lumbar strain.

Claimant returned to Armerding on October 21, 2015, again reporting that his back pain over the preceding two to three months had been the worst and most prolonged since his workplace injury. Armerding assessed a lumbosacral ligament strain and continued claimant's light duty work restrictions.

On October 27, 2015, employer's claims processor issued a denial of aggravation of claimant's accepted sprain/ strain condition, asserting that claimant had not sustained a worsening of his injury from June 2013. Claimant requested a hearing on the denial before an administrative law judge (ALJ).

In advance of the scheduled hearing, Laycoe provided an addendum to his IME report. In that addendum, Laycoe opined that soft tissue injuries like claimant's heal in the course of two months, and that sprains or strains usually do not "worsen"; that "there is no clinical objective evidence of worsening"; that he disagreed with Armerding's opinion that a pathological worsening can only be confirmed by tissue specimen; that claimant has degenerative disc disease, and that there was "absolute correlation" with subjective symptoms and objective findings that "are beyond question as to diagnosis"; and that the cause of claimant's present condition and symptoms is degenerative disc disease rather than a recurrent lumbosacral sprain.

In a conference call with the ALJ on the day before the hearing, the parties agreed to cancel the hearing because neither party needed to present witness testimony. However, the evidentiary record was left open for, among other things, a possible rebuttal report from Armerding in response to Laycoe's addendum. For whatever reason, claimant never submitted a rebuttal report, and the evidentiary record was closed.

The ALJ subsequently issued an order upholding the denial of claimant's aggravation claim. The ALJ understood Armerding to have opined that, based on objective findings, claimant had sustained an actual worsening of the accepted lumbosacral strain condition. See ORS 656.273(1) ("A worsened condition resulting from the original injury is established by medical evidence of an actual worsening of the compensable condition supported by objective findings."). But the ALJ ultimately concluded that Armerding's opinion was insufficient, because he had not addressed Laycoe's addendum:

"[W]hile Dr. Armerding did opine that claimant suffered an actual worsening of his accepted low back condition, he did not address the opinion of Dr. Laycoe. Dr. Laycoe attributed claimant's symptoms solely to degenerative disc disease, and opined that claimant's symptoms were consistent with that condition, also noting that a soft tissue sprain or strain would have resolved within two months from the injury. He pointed to specific findings on examination, as well as the MRI scan, in support of his opinion. While Dr. Armerding acknowledged the MRI findings, and had previously attributed claimant's symptoms to facet joint pain, he did not explain why he believed claimant's symptoms were representative of a worsening of the accepted strain condition, nor did he address Dr. Laycoe's opinion regarding claimant's degenerative condition . For these reasons, I find Dr. Armerding's opinion insufficient to establish that claimant sustained a compensable aggravation claim for an actual worsening of the accepted lumbosacral strain / sprain condition. See Mark S. Parrott , 58 Van Natta 729, 733 (2006) (absence of analysis of opposing causation argument rendered physician's opinion insufficient to carry burden ); Carmen E. Russell , 56 Van Natta 399, 403 (2004). Accordingly, the October 27, 2015 denial is approved."

(Emphasis added; exhibit citations omitted.)

Claimant requested review by the board, arguing that, contrary to the ALJ's reasoning, Armerding's opinion had addressed and rebutted all of the arguments raised by Laycoe and that the board decisions cited by the ALJ, Mark S. Parrott and Carmen E. Russell , were "not applicable to this case." Claimant asserted that the injured worker "does not need to obtain medical evidence in the form of an additional medical report with all the expense involved in that process to specifically rebut points raised by defense witnesses when the points raised by the defense witness were addressed as part of the injured worker's case in chief." He further asserted that such a requirement-to provide a medical report that analyzes and rebuts the causation opinions of opposing medical experts-is "in direct conflict with prior case law. To require this level of proof impermissibly raises claimant's burden of proof to something above a preponderance of the evidence."

The board ultimately adopted and affirmed the ALJ's order, but with supplementation that explicitly responded to claimant's contention about the requirement of a rebuttal report. The board explained:

"Considering the disagreement between the medical experts regarding whether claimant's accepted condition had actually worsened, the claim presents a complex medical question that must be resolved by expert medical opinion. See Johnson v. SAIF , [194 Or. App. 689, 695, 96 P.3d 830 (2004) ], citing Uris v. Compensation Department , [247 Or. 420, 424, 430 P.2d 861] (1967) ('where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science and must necessarily be determined by testimony of skilled, professional persons' (internal citation omitted)), and Kassahn v. Publishers Paper Co. , [76 Or. App. 105, 109, 708 P.2d 626] (1985), rev. den. , 300 Or. 546, 715 P.2d 93 (1986) (Board correctly concluded that complex medical questions must be answered through expert medical opinion in the context of an aggravation claim.); Randy S. Gehrs , 64 Van Natta 2094 (2012).
"Here, Dr. Laycoe opined that there was no clinical objective evidence of a worsening 'actually, pathologically,' and that claimant's symptoms were solely due to degenerative disc disease. Because Dr. Armerding did not sufficiently respond to or rebut Dr. Laycoe's opinion, we do not consider his opinion sufficiently persuasive to establish the compensability of claimant's aggravation claim. See Michael D. Fuller , 64 Van Natta 627, 632 (2012) (physicians opinion was found less persuasive when it did not address contrary evidence in the context of an aggravation claim). Consequently, we affirm the ALJ's order that upheld the employer's denial."

Claimant now seeks judicial review of that order. In his first assignment of error, he argues that the board, like the ALJ, "increased claimant's burden of proof to require a response to or rebuttal of Dr. Laycoe's later opinion" and "created a rebuttable presumption that Dr. Laycoe's opinion is correct, and unless responded to or rebutted, carries the day." In his second assignment, he argues that the board's finding that Armerding failed to respond to or rebut Laycoe's opinion lacks substantial evidence.

Claimant's first assignment of error turns on a reading of the board's order-and whether it actually interpreted the law in the way that claimant contends. See ORS 656.298(7) (providing that we review board orders as provided in ORS 183.482(7) and (8) ; ORS 183.482(8)(a) (the court shall remand where an agency has erroneously interpreted a provision of law). That is because we agree with claimant, as an initial matter, that a per se rule requiring a rebuttal report is inconsistent with the statutory standard for compensability.

Nothing in ORS 656.273 (concerning aggravation claims) requires that a claimant produce a rebuttal report in order to establish a compensable worsening. Rather, as we held in SAIF v. January , 166 Or. App. 620, 624, 998 P.2d 1286 (2000), "if medical evidence-i.e. , a physician's expert opinion-establishes that the symptomatic worsening represents an actual worsening of the underlying condition, such evidence may carry the worker's burden." (Emphasis omitted.) Whether a medical expert's "opinion is persuasive [is] for the Board to determine," but "in all events, a medical expert's opinion that an increase of symptoms signifies an actual worsening of a particular compensable condition satisfies the actual worsening standard" in ORS 656.273. 166 Or. App. at 624, 998 P.2d 1286.

Previous board decisions, such as those cited by the ALJ and the board, involved factual determinations about the persuasiveness of competing medical opinions in those particular cases; they do not, and cannot, create an additional legal hurdle-a requirement to produce a rebuttal or responsive report-beyond the requirements specified in the statutory scheme. In other words, those decisions provide examples of situations in which the board has found a particular medical opinion unpersuasive, but they are not precedent that creates a legal rule that a claimant must rebut or respond to the opinion of an opposing medical expert in order to prove compensability.

The ALJ's order is ambiguous as to whether she correctly understood the law in that regard. Although the ALJ discussed the persuasiveness of the competing medical opinions, she also cited Mark S. Parrott , 58 Van Natta at 733, for what sounds like a legal proposition rather than an illustration: "absence of analysis of opposing causation argument rendered physician's opinion insufficient to carry burden ." (Emphasis added.)

In direct response to claimant's criticism of the ALJ's reasoning, the board explained that rebuttal was necessary as a matter of factual persuasiveness , not legal sufficiency. The board explained that Laycoe had presented contrary evidence-that "there was no clinical objective evidence of a worsening 'actually, pathologically,' and that claimant's symptoms were solely due to degenerative disc disease," and that, because "Armerding did not sufficiently respond to or rebut Dr. Laycoe's opinion, we do not consider his opinion sufficiently persuasive to establish the compensability of claimant's aggravation claim." (Emphasis added.) The board, like the ALJ, cited one of its own decisions, Michael D. Fuller , 64 Van Natta at 632. The board's citation to precedent, on an issue of the persuasiveness of evidence, is somewhat confusing. The persuasive power of individual evidence is a case-by-case determination. Axiomatically, that other evidence in another case was, or was not, persuasive has no precedential effect on the potential persuasiveness of evidence in a different case. Nevertheless, we do not read the board's order as stating a per se rule of persuasiveness. Rather, we conclude that the more plausible reading of the board's citation was that it was merely illustrative of the board's reasoning as to why this evidence, in this case, was found unpersuasive. Accordingly, we reject claimant's first assignment of error.

Claimant's second assignment of error, in which he challenges the evidence to support the board's finding that Armerding failed to respond to or rebut Laycoe's opinion, does not require extended discussion. Suffice it to say that the competing medical opinions, viewed in light of the record as a whole, would permit a reasonable person to make that finding. ORS 183.482(8)(c).

Affirmed.


text:
    In the MATTER OF A. H.-J., a Person Alleged to have Mental Illness.
    State v. A. H.-J.
    A168463
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    PNC BANK, NATIONAL ASSOCIATION, its Successors and/or Assigns v. LASH and Warbington et al.
    A166933
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    HAYNES, Michael v. CAIN
    A165190
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    HIBDON, Nicholas v. KELLY
    A166127
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    STATE v. JONES, Mark Edward
    A165986
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    STATE v. NEWELL, Myron Lee
    A165492
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    WILLIAMS v. PORTLAND GENERAL ELECTRIC COMPANY, dba PGE
    A168207
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    In the MATTER OF S. W., a Child.
    Department of Human Services v. J. K. et al.
    In the Matter of C. W., a Child.
    Department of Human Services v. J. K. et al.
    A169824 A169825
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the MARRIAGE OF OGLE and Ogle
    A166692
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    STATE v. CLYDE, Nicholas Ryan
    A164910 A164918
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


text:
    WIMMERSHOFF v. SPAHMER, aka Stieber
    A169254
    Court of Appeals of Oregon.
    June 12, 2019
    Affirmed without opinion.


author: MORTENSEN, Judge:

text:
    Kirsteen Didi BLOCKER, Appellee, v. Michael Phillip BLOCKER, Appellant.
    No. 20170167-CA
    Court of Appeals of Utah.
    Filed May 16, 2019
    Michael Phillip Blocker, Appellant Pro Se
    Grant W. P. Morrison, Salt Lake City, Matthew G. Morrison, and Justin T. Morrison, Taylorsville, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.
    Opinion
   MORTENSEN, Judge:

¶1 We previously considered this case in Blocker v. Blocker (Blocker I ), 2017 UT App 10, 391 P.3d 1051, and remanded it to the district court to enter findings of fact to support its ruling granting Kirsteen Didi Blocker (Mother) unsupervised parent-time with her now sixteen-and-a-half year old son (Child). Michael Phillip Blocker (Father) appeals the district court's post-remand judgment. We affirm.

BACKGROUND

¶2 Mother and Father were married in 1997, separated just weeks after Child's birth in 2002, and divorced in 2004. Mother and Father were awarded joint custody, with Child's primary physical care and residence being with Mother. In response to Father's petition to modify custody and concerned about the detrimental impact of Mother's behavior on Child, the district court granted sole legal and physical custody to Father in 2010 (2010 Order). The district court ordered that Mother's parent-time be supervised until she "changed her mind set with regard to her own parenting abilities and Father's relationship with the child." Blocker I , 2017 UT App 10, ¶ 4, 391 P.3d 1051 (cleaned up). But concerned that supervised parent-time would be impractical for financial reasons, the court permitted Mother to have unsupervised parent-time provided that she retain a special master and participate in individual therapy by herself and joint therapy with Child. Id. Until she verified compliance with these conditions, Mother's parent-time remained supervised. Id.

¶3 In 2014, in response to Mother's motion to modify the 2010 Order and based on a home study report, the district court temporarily granted Mother unsupervised parent-time. Id. ¶¶ 5-6. Nearly one year later, having received no other evidence or testimony, the court decided to make Mother's unsupervised parent-time permanent without entering any findings of fact. Id. ¶ 7.

¶4 Father appealed, and we determined that the court had made its order granting unsupervised parent-time to Mother "permanent without explaining the basis for its decision." Id. ¶ 16. Because the court modified the parent-time requirements without providing any findings, we concluded that we were unable to review its decision and remanded for more detailed findings. Id. ¶ 21.

¶5 Regarding the changed circumstances, on remand the district court made the following findings of fact: (1) Mother had continued professional therapy; (2) Mother and Mother's father were maintaining a relationship with Child by going to Father's house and being allowed to spend time with Child in their car, at the curbside, for about one hour, two to three times a week; (3) Father's brother (Uncle) supervised visits between Mother and Child during the Thanksgiving and Christmas holidays without problems being noted; (4) Child was allowed to sit and visit with Mother and her family during a church Christmas program without incident; (5) Mother was allowed to speak by phone with Child two to three times per week; (6) Child was older when the district court modified parent-time; and (7) Child had received substantial therapy at the time the district court modified parent-time. The court also identified three circumstances that rendered the 2010 Order unenforceable: (1) the parties were unable to afford the cost of supervised exchanges, supervised visitation, or the services of a special master; (2) the therapist identified in the 2010 Order to oversee therapy of Mother and Child was no longer available; and (3) the agency assigned to supervise Mother's parent-time in the 2010 Order was no longer in business in Mother's geographical area.

¶6 Regarding Child's best interest, the district court on remand noted that both parties "wished to reasonably accommodate a relationship between [Child] and [Mother]." The court explained that "curbside parent time ... was not in the best interest of [Child]. He needed a more reasonable and less artificial opportunity to know his [Mother] and her family."

¶7 The district court further described the process by which it granted Mother unsupervised parent-time. Because parent-time supervised by Uncle had been "successful and without incident," the court concluded that Mother should be allowed to exercise unsupervised parent-time on a temporary basis. At the time the district court modified parent-time, Mother had been exercising unsupervised parent-time for nearly one year without any reported incidents. Although Father speculated that Mother was engaging in "parental alienation" during her parent-time, the court noted that Father offered no evidence to support this contention. The court concluded by pointing out, "[Child] was 6 years older and in spite of the curbside restrictions and other difficulties over the years, he and [Mother] had developed and continued to maintain a positive parent/child relationship." And with regard to Mother, the court noted that she had "demonstrated an ability through the evaluation and her practice over several months to maintain a reasonable relationship with [Child]." Thus, the court concluded that it was appropriate to "reconcile the now unenforceable 2010 Order and the current state of affairs" by allowing unsupervised parent-time as the means to "most effectively foster a continuing relationship" between Child and Mother. Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 The first issue on appeal is whether the district court erred when it determined that the unenforceability of the conditions for Mother to have unsupervised parent-time with Child constituted a material change in circumstances to support a modification of the parent-time arrangements in the 2010 Order. The second issue is whether the district court erred by not conducting a best interest analysis when it modified the parent-time conditions of the 2010 Order. Both issues share the same standard of review. "We review a district court's decisions regarding parent-time for an abuse of discretion." Jones v. Jones , 2016 UT App 94, ¶ 8, 374 P.3d 45. "The district court's proximity to the evidence places it in a better position than an appellate court to choose the best custody arrangement. Thus, we generally will not disturb the district court's parent-time determination absent a showing that the district court has abused its discretion." Stephens v. Stephens , 2018 UT App 196, ¶ 34, 437 P.3d 445 (cleaned up).

ANALYSIS

I. The Preclusion of Previously Disposed Arguments

¶9 With regard to the first issue, we note that the scope of our review of the district court's post-remand ruling is limited by the mandate rule. "The mandate rule, a subset of the law of the case doctrine, binds both the district court and the parties to honor the mandate of the appellate court. Under this rule, the decisions of an appellate court become the law of the case and cannot be reconsidered on remand." State v. Oliver , 2018 UT App 101, ¶ 29 n.8, 427 P.3d 495 (cleaned up); see also Thurston v. Box Elder County , 892 P.2d 1034, 1037 (Utah 1995) ("[T]he mandate rule[ ] dictates that pronouncements of an appellate court on legal issues in a case become the law of the case and must be followed in subsequent proceedings of that case."). Furthermore, when this court disposes of an argument as inadequately briefed, "the law of the case doctrine precludes us from addressing this argument anew." See NPEC LLC v. Miller , 2018 UT App 85, ¶ 9, 427 P.3d 357 (per curiam) (cleaned up).

¶10 Under the mandate rule, Father cannot re-litigate on remand issues we previously determined were inadequately briefed. But this is exactly what he does now. In this post-remand appeal, Father reintroduces a previously disposed issue by presenting two arguments in support of it.

¶11 First, he argues, "The district court abused its discretion when it used Mother's inability to comply with the conditions [for unsupervised parent-time] in the initial Parent Time Order as a change in circumstances to justify modification of [Mother's] parent time because those circumstances were not those upon which the earlier decision was based." Next, Father argues, "[T]he district court abused its discretion in finding that [Mother's] unwillingness to comply with a standing court order provided the basis for a change in circumstances sufficient to modify parent time as such rewards a noncompliant parent and incentivizes her to continue her noncompliant behavior."

¶12 Similarly, in his previous appeal, Father argued, "The [district] court erred when it decided that [Mother's] inability to comply with conditions for her unsupervised parent time constituted a material change in circumstances upon which to base a modification of a custody award." A panel of this court declined to address this issue because it was inadequately briefed. Blocker I , 2017 UT App 10, ¶ 18, 391 P.3d 1051.

¶13 Thus, in this post-remand appeal, Father raises essentially the same issue-namely, that the district court erred in concluding the unenforceability of the original parent-time conditions constituted a material change in circumstances-that he raised in his original appeal. But we have already declined to address this very issue in Father's original appeal due to inadequate briefing. "In effect, [Father] now attempts to supplement the briefing submitted in his earlier appeal. The mandate rule bars such attempts." See State v. MacNeill , 2016 UT App 177, ¶ 39, 380 P.3d 60. Therefore, we decline to reconsider this issue in Father's post-remand appeal.

II. The Post-remand Judgment

¶14 The scope of the remand directed the district court to enter findings of fact showing that there had been a material change in circumstances necessary to support a change in the parent-time provisions. See Blocker I , 2017 UT App 10, ¶ 21, 391 P.3d 1051.

¶15 Modification of parent-time involves two separate steps. "First, the court must find that the petitioner has made some showing of change in circumstances that would support a modification of parent-time." Stephens v. Stephens , 2018 UT App 196, ¶ 33, 437 P.3d 445 (cleaned up). "Second, the court must consider the changes in circumstance along with all other evidence relevant to the welfare or best interests of the child to determine de novo which custody arrangement will serve the welfare or best interest of the child, and modify, or refuse to modify, the decree accordingly." Id. (cleaned up); see also Becker v. Becker , 694 P.2d 608, 611 (Utah 1984) ("[A] modification of visitation rights also requires a bifurcated procedure."); Hogge v. Hogge , 649 P.2d 51, 54 (Utah 1982) ("A ... two-step procedure should be followed where the petition to modify a custody decree requests a material change in visitation rights.").

¶16 In the context of modifying parent-time, a material change of circumstances is a "different inquiry" from a material change regarding custody. Erickson v. Erickson , 2018 UT App 184, ¶ 16, 437 P.3d 370 (cleaned up). "When modifying parent-time, the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody." Id . (cleaned up). Furthermore, in determining parent-time, "the [district] court gives highest priority to the welfare of the children over the desires of either parent. Such determinations are within the [district] court's sound discretion." Childs v. Childs , 967 P.2d 942, 946 n.2 (Utah Ct. App. 1998) (cleaned up).

¶17 Finally, "[t]he [district] court's findings on remand must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on [each] factual issue was reached." Jensen v. Jensen , 2000 UT App 213-U, para. 8 (cleaned up); accord Lay v. Lay , 2018 UT App 137, ¶ 19, 427 P.3d 1221 ; Shuman v. Shuman , 2017 UT App 192, ¶ 5, 406 P.3d 258. "Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the district court's discretionary determination was rationally based." Lay , 2018 UT App 137, ¶ 19, 427 P.3d 1221 (cleaned up). "This obligation facilitates meaningful appellate review and ensures the parties are informed of the [district] court's reasoning." Shuman , 2017 UT App 192, ¶ 5, 406 P.3d 258. Furthermore, the Utah Code requires the court to "enter the reasons underlying its order for parent-time." Utah Code Ann. § 30-3-34(3) (LexisNexis Supp. 2018).

¶18 Thus, on remand, the district court in this case had two tasks. First, it was to enter findings of fact to support its ruling modifying parent-time. Second, based on those findings, the district court needed to explain the process by which it concluded that eliminating supervised parent-time was in the best interest of Child. The district court completed both tasks in its post-remand decision.

¶19 First, the district court identified changed circumstances that supported its decision to modify parent-time. See supra ¶ 5. Most notable among these is that Mother and Child had received substantial therapy at the time of the modification, there had been no problems reported during Mother's supervised parent-time, and Child was older and had grown in maturity. The 2010 Order stated that supervised parent-time was to continue "until such time that [Mother] demonstrates that she has changed her mind set with regard to her own parenting abilities and [Father's] relationship with [Child]." Mother's reception of therapy and the absence of reported problems are changed circumstances relative to the condition (that is, Mother's uncooperative mind-set) that originally gave rise to the imposition of supervised parent-time. The court also noted that modification was necessary because the conditions (namely, the prohibitive costs associated with supervised parent-time, the unavailability of a joint therapist, and the demise of the original supervising agency) originally imposed for Mother's unsupervised exercise of parent-time had so substantially changed as to make the 2010 Order unenforceable. By highlighting these changed circumstances, the district court made "some showing of a change in circumstances" necessary to modify parent-time. See Erickson , 2018 UT App 184, ¶ 16, 437 P.3d 370 (cleaned up).

¶20 Second, the district court explained the process by which it concluded a modification in parent-time was needed to serve Child's best interest. Given the unenforceability of the 2010 Order, the court noted that Uncle had been supervising Mother's parent-time for a few months as of April 2014. Mother had exercised this parent-time without incident. The court also noted that, given the parties' desire "to reasonably accommodate a relationship" between Child and Mother, "curbside parent time ... was not in the best interest of [Child]" because "[Child] needed a more reasonable and less artificial opportunity to know his [Mother] and her family." Thus, the court allowed Uncle to continue to supervise Mother's parent-time on a temporary basis. And at the same time, the court ordered a home study. The case was set for further review after completion of the home study and continuation of parent-time supervised by Uncle. Four months later, after receiving the home study and hearing that supervised parent-time had been "successful and without incident," the district court granted Mother unsupervised parent-time on a temporary basis. About a year later, the court determined that Mother had exercised unsupervised, statutory parent-time without incident, and it permanently granted her unsupervised parent-time. The court explained that granting Mother unsupervised parent-time was in Child's best interest because "it would most effectively foster a continuing relationship" between Child and Mother.

¶21 "[District] courts have particularly broad discretion in ordering parent-time, and we will only intervene when the [district] court's action is so flagrantly unjust as to constitute an abuse of discretion." Jones v. Jones , 2016 UT App 94, ¶ 13, 374 P.3d 45 (cleaned up). "The best interests of a minor child are promoted by having the child respect and love both parents, which includes fostering a child's relationship with the noncustodial parent." Hanson v. Hanson , 2009 UT App 365, ¶ 3, 223 P.3d 456 (cleaned up); see also Jones , 2016 UT App 94, ¶ 14, 374 P.3d 45 ("The paramount concern in [parent-time] matters is the child's welfare or best interest. Fostering a child's relationship with the noncustodial parent has an important bearing on the child's best interest." (cleaned up)). Thus, the district court acted well within its broad discretion when it found that modifying Mother's parent-time from supervised to unsupervised status was in Child's best interest as the most effective means to "foster a continuing relationship" between Mother and Child.

CONCLUSION

¶22 We conclude that, upon remand, the district court properly entered findings of fact that were sufficiently detailed to identify the steps it took to modify Mother's parent-time. We further conclude that the district court did not abuse its discretion in reaching the conclusion that unsupervised parent-time was in Child's best interest.

¶23 Affirmed.

      The facts of this case are set out in further detail in the original appeal. See Blocker I , 2017 UT App 10, ¶¶ 2-7, 391 P.3d 1051.

      The district court had ordered and received a home study to determine if Mother was competent to have unsupervised parent-time with Child.

      The order of the district court giving rise to the original appeal was entitled "Order Modifying Custody." In fact, that order modified only parent-time and did not disturb the underlying custody arrangement. Father repeated this error when, in the original appeal, he imprecisely referred to a "modification of custody" when he was actually arguing that the court erred in modifying parent-time.

      Because the statutory provision in effect at the relevant time does not differ in any material way from that now in effect, we cite the current version of the Utah Code.


text:
    A-FAB ENGINEERING, Appellant, v. PROPERTY TAX DIVISION OF the UTAH STATE TAX COMMISSION, Appellee.
    No. 20180014-CA
    Court of Appeals of Utah.
    Filed May 23, 2019
    Lynn Kingston, Attorney for Appellant
    Sean D. Reyes, Salt Lake City, Erin T. Middleton, and Chauntel M. Lopez, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.
    Opinion
   MORTENSEN, Judge:

¶1 "[I]n this world nothing can be said to be certain, except death and taxes." Nearly as certain is the procedural bar attendant to court challenges when a party has failed to exhaust administrative remedies, resulting in an absence of jurisdiction. A-Fab Engineering (A-Fab) challenges two property tax assessments levied in 2012 and 2013 by the Utah State Tax Commission (Commission). The Commission dismissed A-Fab's administrative appeal as untimely. A-Fab then petitioned the district court for review of the Commission's decision. The district court summarily dismissed the petition because (1) A-Fab did not timely exhaust its administrative remedies; and therefore, the court lacked subject matter jurisdiction; and (2) A-Fab was not entitled to equitable tolling of the deadline to file an administrative appeal. We affirm.

BACKGROUND

The Property

¶2 A-Fab is a Utah corporation that fabricates, refurbishes, and sells equipment. In or before 2007, A-Fab acquired and rebuilt a "long-wall mining system" (Property). In September 2007, A-Fab sold the Property to C.W. Mining (CW). The sale was financed through a capital lease. In January 2008, however, CW involuntarily entered into bankruptcy, and the bankruptcy court asserted jurisdiction over the Property.

¶3 In December 2008, A-Fab filed a proof of claim in the bankruptcy proceeding, asserting that it owned the Property, and sought "substantial amounts for lease rejection damages." The trustee of the bankruptcy estate responded by filing a complaint against A-Fab that included, among eleven claims for relief, a claim of ownership over the Property. In 2010, while the Property dispute was still pending, the bankruptcy court ordered that A-Fab could take possession of the Property, but that the Property would still be subject to the bankruptcy trustee's authority before it could be sold or transferred in any way. A-Fab took possession of the Property shortly thereafter.

¶4 A-Fab regained full ownership rights to the Property in 2014 when it entered into a settlement agreement with the bankruptcy estate. Under the terms of the settlement, the bankruptcy estate relinquished any and all claims to the Property in return for a $ 225,000 payment from A-Fab. The bankruptcy court approved the settlement agreement in November 2014. In the motion to approve the settlement agreement, the bankruptcy trustee noted that "A-Fab asserted that it owned the [Property] and was leasing it to [CW] under a purported September 1, 2007 lease" and "A-Fab has asserted that it incurred substantial removal, storage and preservation costs, including the payment of personal property taxes , in connection with ... the [Property]." (Emphasis added.)

The Property Tax Assessments

¶5 As required by Utah Code sections 59-2-201 and 59-2-202(1), A-Fab completed and filed its 2012 annual return for assessment of personal property (Return) with the Commission on March 1, 2012. A-Fab's 2012 Return listed the Property as being "subject to assessment by the State Tax Commission." Based on the 2012 Return, the Commission prepared a notice of assessment and mailed it-to the address provided by A-Fab on its 2012 Return-on May 1, 2012.

¶6 On February 27, 2013, A-Fab filed its 2013 Return and again listed the Property as being "subject to Assessment by the State Tax Commission." A-Fab attached to the 2013 Return a letter requesting that the Commission reconsider the value of the Property. In this letter, A-Fab included an independent appraisal of the Property and "urge[d] the Tax Commission to reconsider its 2013 assessment of the value of [the Property]." The Commission prepared a notice of assessment and mailed it on May 1, 2013, to the address provided by A-Fab on the 2013 Return. A-Fab did not appeal or pay the 2012 and 2013 assessments (Assessments) within the prescribed tax years.

¶7 A-Fab appealed the Assessments in December 2016. Earlier that year, A-Fab had "inquired of Carbon County whether there were any taxes owed [on the Property] before 2014"-when A-Fab's ownership rights to the Property were restored-and Carbon County responded that there were not. On June 15, 2016, however, Carbon County mailed a delinquent tax notice, based on the Assessments, to the address provided by A-Fab on its Returns. A-Fab initially raised a challenge to the delinquent tax notice with Carbon County, but the county instructed A-Fab that a formal appeal would need to be taken up with the Commission.

The Proceedings

¶8 On December 6, 2016, A-Fab filed an administrative appeal with the Commission challenging the Assessments. The Commission issued an order to show cause directing A-Fab to explain why its appeal should not be dismissed for failure to timely file. In its answer, A-Fab argued that equitable tolling should extend the deadline to appeal because the Property was subject to CW's bankruptcy proceedings until October 2014. The Commission rejected A-Fab's argument concluding that A-Fab failed to timely appeal the Assessments and further failed to "demonstrate extraordinary circumstances or due diligence sufficient" to toll the deadline to appeal. Specifically, the Commission concluded that A-Fab knew that it included the Property on its 2012 Return and 2013 Return and therefore knew the Property would be assessed for those years. The Commission also decided that A-Fab was not excused from missing the deadline to appeal because it had regained full ownership rights to the Property in October 2014 and "yet it still did not file this appeal until December 6, 2016." A-Fab then petitioned the district court for review of the Commission's decision.

¶9 The parties filed cross-motions for summary judgment in the district court. The Commission argued that "A-Fab's petition should be dismissed because it did not exhaust its administrative remedies by filing a timely appeal to the Commission" and that "equitable tolling would be inappropriate because A-Fab waited until December 2016-more than two years after it settled with the bankruptcy trustee-to appeal the [Assessments]." A-Fab argued that the Commission lacked the authority to assess the Property and that the untimely administrative appeal was therefore inconsequential. In the alternative, A-Fab argued that equitable tolling should apply and extend the deadline to appeal because: although the Commission had mailed the Assessments, A-Fab never actually received the Assessments because they were mailed to A-Fab's old address.

¶10 The district court granted the Commission's motion. In the court's ruling and order, it found that "A-Fab did not file its appeals for the 2012 and 2013 tax years until December 6, 2016, well after the deadlines of June 1, 2012, and June 1, 2013, respectively," and thus concluded that "A-Fab did not exhaust its administrative remedies and therefore the Court does not have subject matter jurisdiction." The district court also concluded that equitable tolling did not extend the deadline to file an appeal because A-Fab "was given clear ownership of the Property in 2014"-and therefore, "[e]ven if equitable tolling were applicable, ... A-Fab's appeal would still be untimely." The court reasoned that even if "A-Fab was uncertain regarding its obligations to pay taxes on the Property, A-Fab clearly knew that the Tax Commission believed the tax payments on the Property were A-Fab's responsibility" because "an attorney for A-Fab sent a letter to the [Commission] disputing the valuation of the Property." Finally, "A-Fab asserted that it owned the property and was leasing it to [CW]," and therefore, "because A-Fab was asserting an ownership interest in the Property and had been provided [the Assessments], equitable tolling is inapplicable."

¶11 A-Fab appeals.

ISSUES AND STANDARDS OF REVIEW

¶12 The first issue raised is whether the district court erred by dismissing A-Fab's petition for judicial review and finding that it lacked subject matter jurisdiction due to A-Fab's failure to exhaust administrative remedies. A district court's order dismissing a claim for lack of subject matter jurisdiction due to the failure to exhaust administrative remedies is reviewed for correctness. Nebeker v. Utah State Tax Comm'n , 2001 UT 74, ¶¶ 11-12, 34 P.3d 180.

¶13 The second issue is whether the district court erred in concluding that no genuine issue of material fact existed when it granted summary judgment in favor of the Commission on the issue of equitable tolling. "We affirm summary judgment only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Arnold Indus., Inc. v. Love , 2002 UT 133, ¶ 11, 63 P.3d 721 (cleaned up). "We grant the [district] court's legal conclusions no deference, reviewing them for correctness." Id. And "in reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Id. (cleaned up).

ANALYSIS

I. Administrative Remedies

¶14 "As a general rule, parties must exhaust applicable administrative remedies as a prerequisite to seeking judicial review." Nebeker v. Utah State Tax Comm'n , 2001 UT 74, ¶ 14, 34 P.3d 180 (cleaned up). This court has held that an untimely appeal to an administrative agency is the equivalent of failing to exhaust administrative remedies-which deprives a district court of subject matter jurisdiction. Republic Outdoor Advert., LC v. Utah Dep't of Transp. , 2011 UT App 198, ¶ 30, 258 P.3d 619.

¶15 Here, it is undisputed that A-Fab failed to timely appeal the Assessments. See Utah Code Ann. § 59-2-1007(1)(a) (LexisNexis 2008) (providing that to appeal an assessment, a party must request a hearing "on or before the later of June 1 or within 30 days of the date of the notice of assessment is mailed by the commission"). A-Fab contends, however, that the district court erred by concluding that it lacked subject matter jurisdiction despite A-Fab's failure to exhaust its administrative remedies. Specifically, A-Fab argues that the Assessments are void because the Commission "did not have jurisdiction to assess a tax on the Property." In other words, A-Fab asserts that the Assessments suffer from "jurisdictional" defects and that its appeal to the district court can therefore "be raised at any time" and without exhausting administrative remedies. We disagree.

¶16 Utah's well-established body of relevant case law demonstrates that parties contesting whether they are subject to a tax or assessment must exhaust administrative remedies before seeking judicial review. Nebeker , 2001 UT 74, ¶ 14, 34 P.3d 180 ; State Tax Comm'n v. Iverson , 782 P.2d 519, 524 (Utah 1989) ; Pacific Intermountain Express Co. v. State Tax Comm'n , 7 Utah 2d 15, 316 P.2d 549, 551-52 (1957) ; State Tax Comm'n v. Spanish Fork , 99 Utah 177, 100 P.2d 575, 577 (1940) ; State Tax Comm'n v. J. & W. Auto Service , 92 Utah 123, 66 P.2d 141, 143 (1937) ; see also Amax Magnesium Corp. v. Utah State Tax Comm'n , 796 P.2d 1256, 1257-58 (Utah 1990) (reviewing a decision of the Commission); Action TV v. County Board of Equalization of Salt Lake County , 1999 UT App 231, ¶ 1, 986 P.2d 108 (same). As noted, A-Fab does not dispute that it failed to exhaust in this case-rather, it contends that it fits into an exception to the general rule.

¶17 This court has recognized an exception to the rule that a party must exhaust when "it appears that exhaustion would serve no useful purpose." TDM, Inc. v. Tax Comm'n , 2004 UT App 433, ¶ 4, 103 P.3d 190 (per curiam) (cleaned up). Exhaustion would serve no useful purpose when the issue being reviewed presents a "threshold legal issue that cannot be impacted or avoided by any turn the case may take before the Commission." Id. ¶ 6. For example, a controversy raising a purely constitutional question "with no alternative administrative basis that could resolve the issue" and no "administrative determination that could obviate the need to reach the constitutional issue" is not required to first be presented to the administrative body. Id.

¶18 However, "[e]xhaustion of administrative remedies is still required when the administrative proceeding may obviate the need to reach the constitutional [or other legal threshold] question." Id. ¶ 5. Because "[e]ven if the constitutional [or threshold legal] issue is not avoided entirely, an administrative proceeding may be useful to better frame the issues before the court." Id. "In contrast, where purely legal questions are raised that cannot be finally determined in an administrative proceeding, the pursuit of the administrative proceeding may serve no purpose." Id.

¶19 A-Fab has not raised a constitutional issue, nor has it articulated a "threshold legal issue" that would render administrative review a waste. The crux of A-Fab's challenge is that the Commission lacked authority to assess and tax the Property. A-Fab argues that the Assessments are "illegal and void" because A-Fab is not a mining company, (citing Utah Code Ann. § 59-2-201(1)(vi) (LexisNexis 2018) (authorizing the Commission to assess and tax "all machinery used in mining ... that [is] primarily used by the owner of a mine ... regardless of actual location")); and that in 2012 and 2013 the Property was "inventory held for sale in the ordinary course of business and thus was exempt from taxation," (citing id. § 59-2-1114(1) (providing an exemption for property "held for sale in the ordinary course of business")). These arguments fall short of demonstrating that exhaustion would serve no useful purpose.

¶20 As the Commission points out, A-Fab could have timely appealed the Assessments and argued that it was not a mine owner and that the Property was merely inventory. And if it had, the Commission might have agreed and there would be no need for judicial review.

¶21 Further, the record does not indicate that the Commission lacked authority "on its face" to assess the property. See State Tax Comm'n v. J. & W. Auto Service , 92 Utah 123, 66 P.2d 141, 143 (1937). Whether the Commission lacked authority "on its face" was visited in J. & W. Auto Service when a taxpayer argued that a sales tax assessment was void because the Commission "had no authority to tax interstate sales"-and, therefore, exhausting its claim with the Commission was not necessary. Id. at 142. Our supreme court disagreed, id. at 144, stating that even if the Commission "made an error as to certain [jurisdictional] facts and upon such error assumed to tax some sales it had no authority to tax," the Commission nonetheless has "jurisdiction over the general subject-matter of taxing sales." Id. at 143. Therefore, even if the Commission lacked authority to assess "some sales which it should really not have taxed," it does not follow that such a lack of authority was apparent on its face. See id.

¶22 Conversely, our supreme court has held that the Commission lacked jurisdiction on its face when a "constitutional challenge was the sole claim" at issue. Nebeker v. Utah State Tax Comm'n , 2001 UT 74, ¶ 24, 34 P.3d 180. The court in Nebeker elaborated that deciding constitutional issues is "not within the [Commission's] jurisdiction." Id.

¶23 Here, like in J. & W. Auto Service , the Commission did not lack authority on its face to tax the Property. First, the Commission reasonably believed it had the authority to assess the Property because A-Fab identified the Property as "subject to assessment by the State Tax Commission" on its 2012 and 2013 Returns. Second, but for the allegation that the Property was being held as inventory, the Property would have been subject to assessment by the Commission because it is mining equipment. See Utah Code Ann. § 59-2-201(1) (authorizing the Commission to assess and tax "all machinery used in mining ... that [is] primarily used by the owner of a mine ... regardless of actual location").

¶24 Whether the Commission should have taxed the Property is precisely the type of issue that could have, and should have, been brought before the Commission. Thus, A-Fab has failed to demonstrate that it was justified in bypassing the administrative appeal process-and therefore, the district court properly dismissed A-Fab's petition on the grounds that the court lacked subject matter jurisdiction.

II. Equitable Tolling

¶25 Alternatively, A-Fab contends that the district court erred in concluding that equitable tolling did not apply as a matter of law. A-Fab raises a single argument in support of its contention: whether it received the Assessments is disputed, and therefore summary judgment should not have been granted. A-Fab argues that the Commission mailed the Assessments to its old address; and consequently A-Fab did not learn about the Assessments until 2016, when Carbon County mailed the delinquent tax notice. We find this argument unpersuasive for three reasons.

¶26 First, as the Commission points out, this disputed fact is immaterial because the time to appeal is triggered by the mailing of the assessment, not whether the assessment is received. See Utah Code Ann. § 59-2-1007(1)(a) (LexisNexis 2008). And even if this fact was material, A-Fab did not create a genuine dispute of this fact. The record indicates that A-Fab presented an affidavit claiming "it did not have any record of receiving" the Assessments. This affidavit only avers that A-Fab did not have a record of receipt, not that A-Fab did not indeed receive the Assessments. A-Fab has declined to address these points anywhere in the record or on appeal, and therefore, A-Fab's notice argument fails.

¶27 Second, it is undisputed that the Assessments were mailed to the address provided by A-Fab itself. The Returns filed in 2012 and 2013-which were prepared, signed, and dated by A-Fab-both list A-Fab's old address. The certified mail receipts for those Returns also list A-Fab's old address. In other words, any mistake in the mailing address to which the Assessments were sent was invited by A-Fab. Accordingly, A-Fab is not excused from its alleged ignorance.

¶28 Finally, the record indicates that A-Fab was on notice of the Assessments. Attached to A-Fab's 2013 Return is a letter requesting that the Commission reconsider the value of the Property. This letter included an independent appraisal of the Property and urged the Tax Commission to reconsider its 2013 assessment of the value of the Property. Simply put, A-Fab could not ask for reconsideration of something it was not aware of. Thus, A-Fab has not demonstrated a dispute of material fact sufficient to preclude summary judgment, and therefore, the district court properly granted summary judgment in favor of the Commission.

CONCLUSION

¶29 A-Fab failed to timely appeal the Assessments and therefore the district court properly dismissed A-Fab's petition for review for lack of subject matter jurisdiction. A-Fab also failed to demonstrate a dispute of material fact that would preclude summary judgment on the issue of whether the deadline to appeal should have been equitably tolled. Accordingly, we affirm.

      Like many good quotations, there is some dispute as to this quotation's origin. The Yale Book of Quotations attributes the saying to Christopher Bullock. See Fred R. Shapiro ed., The Yale Book of Quotations 610 (Yale Univ. Press 2006) (discussing Christopher Bullock, The Cobler of Preston (1716) ("Tis impossible to be sure of anything but Death and Taxes.")). But since there is apparently little doubt as to the use of this phrase in a letter from Benjamin Franklin, we will lay our attribution there. See Letter from Benjamin Franklin to Jean-Baptiste Le Roy (Nov. 13, 1789), in 10 The Writings of Benjamin Franklin 68, 69 (A. Smyth ed., 1907).

      Because this is an appeal from summary judgment, "we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly." Ockey v. Club Jam , 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (cleaned up).

      A-Fab argued for the first time at oral argument that it did not regain ownership rights to the Property until early 2016. However, "[w]e do not address issues raised for the first time during oral argument," Porenta v. Porenta , 2017 UT 78, ¶ 33, 416 P.3d 487, and, in any event, this argument is unsupported by the record and at odds with the position taken by A-Fab below and in briefing before this court. First, the record demonstrates that the settlement was executed in October 2014 and the bankruptcy court approved the settlement in November 2014. Second, A-Fab stated in its petition for review to the district court, "On October 29, 2014, A-Fab entered into a settlement agreement with the Trustee of the CW estate, in which the Trustee relinquished his claim on the Property." Third, in its opposition to the Commission's motion for summary judgment, A-Fab did not dispute the terms of the settlement agreement and affirmatively alleged that upon the agreement's approval in November 2014, it "essentially purchased the [P]roperty" back from the bankruptcy estate. Finally, A-Fab concedes these points in its opening brief without arguing that it did not actually regain its rights to the Property until 2016.

      We note that A-Fab's 2012 Return includes only the statement " * NO ADDITIONS * ... * NO DELETIONS * "-however, it was undisputed below that the Property was listed on previous returns for assessment. In other words, it is an undisputed fact that the Property was included on A-Fab's 2012 Return.

      To timely challenge the Assessments, A-Fab was required to request a hearing "on or before the later of June 1 or a day within 30 days of the date the notice of assessment is mailed by the commission." Utah Code Ann. § 59-2-1007(1)(a) (LexisNexis 2008) (emphasis added).

      The district court noted that because it lacked subject matter jurisdiction it declined to address A-Fab's contention that the Commission lacked the authority to tax the Property.

      Because the statutory provision in effect at the relevant time does not differ in any material way from that now in effect, we cite the current version of the Utah Code.